Case: 25-7187, 03/10/2026, DktEntry: 75.1, Page 36 of 43
that the permissibility of a private delegation depends on whether the agency retains oversight and ultimate decision-making authority over the private entity’s actions. Id. at 693. There, the Court upheld the delegation to a private entity, but only because it merely played “an advisory role” and the final decision-making authority rested with the agency. Id. In contrast, under Crypto.com’s theory, the CEA’s self-certification provisions empower Crypto.com—a private, for-profit entity—to oversee its entire sports-betting enterprise, yet simultaneously fail to provide any mechanism for advance public comment, mandatory agency oversight, or standards by which the CFTC may implement its discretion. See Kristin N. Johnson, Farewell Address of Commissioner , CFTC (Sep. 3, 2025), https://www.cftc.gov/PressRoom/Speeches Testimony/opajohnson25 (warning that the CFTC has “too few guardrails and too little visibility into the prediction market landscape”). Further, according to Crypto.com, its self-certifications are not merely advisory but have the force of law. See Pl.’s Opening Br. at 63, Dkt. No. 12.1. “The result of this regulatory scheme is that [Crypto.com] can, without any [CFTC] review of its decision on the merits, effectively decide” to offer sports betting free from tribal and state regulation. See Alpine Sec. Corp. v. Fin. Indus. Regul. Auth. , 121 F.4th 1314, 1328 (D.C. Cir. 2024). Consequently, construing the CEA to attribute legal effect on state law via Crypto.com’s self-certification would
28
Made with FlippingBook - Online catalogs