Case: 25-7831, 03/10/2026, DktEntry: 81.1, Page 10 of 43
The CFTC’s implausible theory—which trumpets the CFTC’s own au- thority—warrants skepticism rather than deference. See Loper Bright Enters. v. Raimondo , 603 U.S. 369, 412–13 (2024). After all, courts are wary of federal agencies using established statutory law to claim new and exceptional authority over significant topics. See West Virginia v. EPA , 597 U.S. 697, 723 (2022); NFIB v. OSHA , 595 U.S. 109, 119 (2022) ( per curiam ). The CFTC’s new claim of authority is exactly that: in effect, the Commission asks to be declared this country’s sole regulator of sports betting. See CFTC Br.4, 13, 23. In our system of divided sovereignty, that type of power grab requires “clear congressional authorization.” West Virginia , 597 U.S. at 723 (quotation omitted). None exists here. BACKGROUND I. Our country’s division of power has long distinguished between gambling and financial derivatives. Through their police powers, the States have traditionally regulated gambling, including gambling on sports. See State-Amicus Br.3–7 (discussing that tradition, including the experiences of Ohio and New Jersey). For much of this country’s history, the States simply outlawed sports betting. See Murphy , 584 U.S. at 458– 62. But in Murphy , the Supreme Court made clear that the States are
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