Case: 25-7831, 03/10/2026, DktEntry: 81.1, Page 19 of 43
Supreme Court has said, to delegate broad power to a federal agency that “has no expertise” crafting “policy” on a given topic. King v. Burwell , 576 U.S. 473, 486 (2015). Here, the CFTC has no expertise in regulating sports betting. The States, on the other hand, have considerable exper- tise on the subject. Given that discrepancy, the CFTC’s reading of statu- tory text is “especially unlikely.” See id. ARGUMENT The CFTC repeats the tale that prediction markets like Crypto and Kalshi have been telling over the last year. The Commission argues that its exclusive jurisdiction over “swaps” is so broad as to preempt the States’ traditional authority over sports betting. See CFTC Br.22–24. By that account, Congress quietly removed the States’ traditional authority fifteen years ago—when it responded to the 2008 financial crisis—by add- ing the word “swaps” to a pre-existing statutory scheme aimed at finan- cial instruments and markets. That makes no sense. Fifteen years ago, sports betting was mostly illegal. See Murphy , 584 U.S. at 458. Congress had tried to keep it that way. Id. at 461. And nobody thought that sports betting caused the mortgage crisis. Thus, applying even an ounce of com- mon sense, the preemption tale is fanciful.
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