Case: 25-7831, 03/10/2026, DktEntry: 81.1, Page 30 of 43
topic. See CFTC Br.28–29. Even so, the CFTC suggests that any back- drop “presumption” against its position fades away because the federal provision giving it exclusive jurisdiction signals some preemptive intent. See id. at 27 (citing 7 U.S.C. §2(a)(1)(A)). That argument dodges the key question. The key question here is not whether federal statutes about derivatives sometimes have preemptive effect in some situations. The key question is instead whether those statutes clearly displace the States’ traditional authority over sports betting. And the answer to that ques- tion is a resounding “no.” To sharpen the point, return to the major-questions doctrine. The doc- trine, by its very nature, involves scenarios where Congress has chosen to give an agency some power. The doctrine, therefore, does not focus on the mere existence of agency power. The doctrine instead focuses, more specifically, on whether Congress has clearly authorized the breadth of power an agency is claiming. It follows here that the CFTC cannot simply rely on the fact that its exclusive jurisdiction results in some preemption. The CFTC must instead identify a clear statement supporting the broad “power it claims .” See West Virginia , 597 U.S. at 723 (emphasis added). On that front, the CFTC has nothing persuasive to offer.
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