Case: 25-7831, 03/10/2026, DktEntry: 81.1, Page 24 of 43
interested parties notice or opportunity for comment,” the agency’s opin- ion is “inherently suspect.” Wyeth , 555 U.S. at 577. B. Applying this framework, the CFTC’s new position deserves no special weight. The preemption analysis in this case turns on interpret- ing federal statutes, including the statutory provision giving the CFTC “exclusive jurisdiction” over certain listed derivatives. See 7 U.S.C. §2(a)(1)(A). The CFTC has “no special competence” to perform this stat- utory analysis about the “scope of” its “own power.” See Loper Bright , 603 U.S. at 400–01. Rather, because the CFTC reads federal statutes in a manner that aggrandizes its own power, this is an “occasion on which abdication in favor of the agency is least appropriate.” See id. at 401. Delving further, the CFTC’s opinion bears many features that cut against its power to persuade. For one, the CFTC’s thoughts on preemp- tion were formed “without offering States or other interested parties no- tice or opportunity for comment.” Wyeth , 555 U.S. at 577. For another, the CFTC’s present view of “swaps” is inconsistent with the CFTC’s ear- lier views, which the Commission offered much closer in time to the rel- evant statutory amendments. See above 6–8. Indeed, just two years after gaining jurisdiction over “swaps,” the CFTC refused to read the term so
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