vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes.” Whitman v. Am. Trucking Ass’ns , 531 U.S. 457, 468 (2001). Ignoring this history and the longstanding principles of federal statutory interpretation, Kalshi now presents an alternate reality—one in which a statutory scheme whose scope is limited to addressing the risk, discovery, and dissemination of commodity pricing information, see 7 U.S.C. § 5(a)–(b), exclusively governs nationwide sports betting, including sports betting that occurs on Indian lands, thereby preempting IGRA in its entirety. Clearly, this cannot be the case. The CEA is only preemptive with respect to lawful transactions that fall under the CFTC’s exclusive jurisdiction. See 7 U.S.C. § 2(a)(1)(A). Kalshi’s sports event contracts are neither lawful transactions nor transactions that fall under the CFTC’s exclusive jurisdiction. 1. Kalshi’s sports event contracts are not lawful transactions under the CEA Kalshi’s sports event contracts fall within the class of contracts that the CFTC categorically prohibited as contrary to the public interest. 17 C.F.R. § 40.11(a)(1). Thus, Kalshi is not authorized to offer such contracts under the CEA, and such contracts fall beyond the scope of the CFTC’s jurisdiction. The CFTC may determine that event contracts are “contrary to the public interest” if they involve “activity that is unlawful under any Federal or State law” and “gaming.” 7 U.S.C. § 7a- 2(c)(5)(C)(i). Where the CFTC makes such a determination, the CEA prohibits those contracts. Id. § 7a-2(c)(5)(C)(ii). Here, the CFTC expressly made such a determination when it promulgated 17 C.F.R. § 40.11(a)(1), wherein it categorically prohibited all event contracts that “involve[], relate[] to, or reference[] . . . gaming, or an activity that is unlawful under any State or Federal law.”
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