Case: 25-7831, 03/10/2026, DktEntry: 81.1, Page 32 of 43
Applying the federalism canon, the CFTC’s position should fail unless Congress made a “clear statement” signaling that it intended “a signifi- cant change in the sensitive relation between” the federal and state gov- ernments as to gambling. See Bond , 572 U.S. at 858–59 (quotation omit- ted); accord Ah Sin , 198 U.S. at 505–06. As explained above (at 14, 23), the CFTC identifies no clear statement—it offers only an attenuated the- ory, under which Congress hid broad preemptive intent in obscure sub- sections of complex statutory text. Tellingly, the CFTC’s position looks much like proposed readings that have failed in the past. For instance, in 2000, the Supreme Court rejected the FDA’s attempt to claim authority over tobacco based on the word “drug” within the Food, Drug, and Cosmetic Act. FDA v. Brown & Wil- liamson Tobacco Corp. , 529 U.S. 120, 125 (2000). This Court should sim- ilarly reject the CFTC’s invitation to read the word “swaps” in an improb- ably broad way that would usurp the States’ traditional authority. The CFTC’s position becomes even more improbable given the Su- preme Court’s decision in Murphy . The Supreme Court decided Murphy years after the CFTC had already received jurisdiction over swaps. And the Court proclaimed in Murphy that the States are “free to act” as they
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