Case: 25-7831, 03/10/2026, DktEntry: 81.1, Page 16 of 43
https://web.archive.org/web/20260218182304/https://www.cftc.gov/Press Room/SpeechesTestimony/seligstatement021726. A few days later, the CFTC filed an amicus brief here embracing this new position. The CFTC now argues that its exclusive jurisdiction over swaps is broad enough to cover contracts involving any uncertain out- come that can be loosely tied to potential economic consequences. CFTC Br.15, 19. Taking that “broad” reading, the argument goes, bets on the “final score” of games (or other comparable wagers) qualify as swaps. CFTC Br.15. In the CFTC’s view, moreover, the States have no “concur- rent jurisdiction” over this activity. See CFTC Br.13. SUMMARY OF ARGUMENT The amici States offer four points in response to the CFTC. I. The CFTC’s preemption theory deserves no special weight. Preemp- tion analysis generally turns on statutory interpretation. See Kansas v. Garcia , 589 U.S. 191, 208 (2020); Va. Uranium, Inc. v. Warren , 587 U.S. 761, 767 (2019) (Gorsuch, J., op.). This case is no exception. Here, preemption depends on whether federal statutes about derivatives con- tain a clear statement removing the States’ traditional authority over sports betting. The CFTC has “no special competence” to answer that
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