alterations in original), cert. granted, Schs., Health & Librs. Broadband Coal. v. Consumers’ Rsch. , 145 S. Ct. 587 (2024). Here, the self-certification provisions in the CEA and CFTC regulations empower private entities (like Kalshi) to define, structure, and launch contracts, which affects the national economy and infringes upon tribal sovereignty. Moreover, the provisions provide no mechanism for advance public comment, no requirement of CFTC findings or review, no mandatory agency oversight, and no standards by which the CFTC may implement its discretion whether to stay a self- certification. These provisions therefore violate the three-part test noted above because: (1) the CFTC abdicates its final decision-making authority given self- certified contracts may be listed for trading with virtually no review period under 7 C.F.R. § 40.2(a); (2) the CFTC has continuously chosen not to scrutinize the legality of Kalshi’s unlawful sports event contracts; and (3) Kalshi and other private entities are not subject to any meaningful government supervision where their contracts have been allowed due to inaction by the CFTC. Therefore, because the self-certification provisions improperly delegate Kalshi the authority to perform a core governmental function—determining which contracts may be traded on regulated derivatives markets—without any clear guiding principles, standards, or limitations, Kalshi’s sports event contracts listed pursuant to these provisions are invalid
18
Made with FlippingBook - Online catalogs