Case: 25-7831, 03/10/2026, DktEntry: 81.1, Page 25 of 43
broadly as to capture ordinary consumer transactions—concerning “per- sonal” activities—that did not “involve risk-shifting arrangements” and “historically have not been considered to involve swaps.” 77 Fed. Reg. at 48247–48. The CFTC also formed its present position for the purposes of litigation. See Selig, States Encroach on Prediction Markets , Wall Street Journal (indicating that the CFTC’s brief responds to “legal attacks on the CFTC’s authority”). Finally, as discussed more below (at 28–29), the CFTC has no special expertise as to sports betting. Combining all this, the conclusion is easy. The CFTC’s opinion on preemption is “inherently suspect” and should be treated with the same caution as any argument from a self-interested party. See Wyeth , 555 U.S. at 577. Perhaps recognizing as much, the CFTC does not even try to argue that its position deserves special respect. II. Under the major-questions doctrine, the Court should reject the CFTC’s new claim of expansive authority. A. Even setting aside power-to-persuade considerations, the CFTC’s position violates the major-questions doctrine. The doctrine teaches that courts—when reading statutes empowering federal agencies—should employ “common sense as to the manner in which Congress would have been likely to delegate” power. West Virginia , 597 U.S. at 722–23
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