Case: 25-7831, 03/10/2026, DktEntry: 81.1, Page 9 of 43
prepare for the prospect that state law bars such conduct. Yet in recent weeks, under new leadership, the CFTC now suggests that things have been “plain” all along. See CFTC Br.15. It argues that federal law dis- places the States’ power over sports betting. See CFTC Br.15, 22–24. The CFTC’s preemption theory misreads federal statutes. The theory stems from a 2010 amendment to the Commodity Exchange Act that Con- gress made in response to the 2008 financial crisis. Congress gave the CFTC jurisdiction over “swaps,” a derivative sometimes associated with the financial crisis. See 7 U.S.C. §2(a)(1)(A). But Congress made no men- tion of sports betting (at the time, such betting was still illegal in most of the country). The CFTC nonetheless argues, echoing litigants like Crypto and Kalshi, that sports bets qualify as “swaps” within its exclu- sive authority. CFTC Br.14–20. That endorsement does not make the argument any more likely. The argument still rests on a dubious foun- dation: that Congress, in response to the financial crisis, quietly removed the States’ traditional power over sports gambling without anyone notic- ing for years—including the Supreme Court in Murphy . See State-Ami- cus Br.1–2.
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