Case: 25-7516, 01/30/2026, DktEntry: 49.2, Page 34 of 41
simultaneously fail to provide any mechanism for advance public comment, mandatory agency oversight, or standards by which the CFTC may implement its discretion. See Farewell Address of Commissioner Kristin N. Johnson, CFTC (Sep. 3, 2025), https://www.cftc.gov/PressRoom/SpeechesTestimony/opajohnson25 (warning that the CFTC has “too few guardrails and too little visibility into the prediction market landscape”). Further, even according to Kalshi, its self-certification is not merely advisory. Rather, it has the force of law and CFTC inaction is sufficient to trigger preemption. See Pl.-Appellant Br. at 27–28, ECF No. 20.1. “The result of this regulatory scheme is that [Kalshi] can, without any [CFTC] review of its decision on the merits, effectively decide” to engage in sports betting free from tribal and state regulation. See Alpine Sec. Corp. v. Fin. Indus. Regul. Auth. , 121 F.4th 1314, 1328 (D.C. Cir. 2024). Consequently, construing the CEA to attribute legal effect on state law via Kalshi’s self-certification would be unconstitutional—a construction that must be avoided. See United States v. Metcalf , 156 F.4th 871, 881–82 (9th Cir. 2025) (“Constitutional avoidance applies ‘when, after the application of ordinary textual analysis, the statute is found to be susceptible of more than one construction[,]’ [and] directs that ‘where an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will
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