Case: 25-7831, 03/10/2026, DktEntry: 81.1, Page 33 of 43
wish on the “controversial subject” of “sports gambling.” 584 U.S. at 486. That would make no sense if, as the CFTC posits, sports bets have really been swaps under its exclusive authority all along. B. The CFTC cannot dodge the federalism canon by staying at a high level of abstraction. It says that its position works (and no presumption against preemption applies) because Congress gave it exclusive jurisdic- tion provision “to provide national uniformity for derivatives trading” on “derivatives markets.” CFTC Br.27. This argument “misunderstands” the specific focus of the federalism canon. See Wyeth , 555 U.S. at 565 n.3. Because courts do not expect Congress to “cavalierly” remove traditional state authority, the canon focuses on “the historic presence of state law,” not “the absence of federal regulation.” See id. (quotation omitted). That Congress granted the CFTC exclusive jurisdiction over derivatives mar- kets is nowhere close to the “clear and manifest” statement required to supersede “the historic police powers of the States” to regulate gambling , including sports gambling. See id. at 565. The Court should thus reject the CFTC’s new claim of unbridled authority.
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