Case: 25-7516, 01/30/2026, DktEntry: 49.2, Page 33 of 41
III. Kalshi’s Preemption Argument Would Violate the Private Nondelegation Doctrine. Kalshi’s preemption argument turns on the extraordinary claim that Congress delegated the power to preempt state law to an interested private party simply by self-certifying its own sports-betting contracts and listing them on its exchange. The private non-delegation doctrine, however, guards against precisely the type of unchecked, privately exercised powers upon which Kalshi relies. See Carter v. Carter Coal Co. , 298 U.S. 238, 311 (1936). While the Supreme Court upholds congressional delegations of power to federal agencies with an intelligible principle, it applies a different standard when those delegations are to private entities. “[A] law … violates the private nondelegation doctrine when it allows non-government entities to govern.” FCC v. Consumers’ Rsch. , 606 U.S. 656, 697 (2025). Recently the Supreme Court found that the permissibility of a private delegation depends on whether the agency retains oversight and ultimate decision-making authority over the private entity’s actions. Id. at 693. There, the Court upheld the delegation to a private entity, but only because it merely played “an advisory role” and the final decision-making authority rested with the agency. Id. In contrast, the CEA’s self-certification provisions empower Kalshi—a private, for-profit entity—to oversee its own sports-betting enterprise, yet
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