Case: 2:25-cv-01165-SDM-CMV Doc #: 34-1 Filed: 11/14/25 Page: 6 of 22 PAGEID #: 524
ancillary provisions—it does not, one might say, hide elephants in mouseholes.” Whitman v. Am. Trucking Ass’ns , 531 U.S. 457, 468 (2001). Ignoring this history and longstanding principles of federal statutory interpretation, Kalshi now presents an alternate reality—one in which a statutory scheme whose scope is limited to addressing the risk, discovery, and dissemination of commodity pricing information, see 7 U.S.C. § 5(a)–(b)—exclusively governs nationwide sports betting, including that which occurs on Indian lands, thereby repealing the comprehensive regulatory scheme set forth in IGRA. This cannot be the case. Any preemptive effect that the CEA has only applies to lawful transactions that fall under the CFTC’s exclusive jurisdiction. See 7 U.S.C. § 2(a)(1)(A). Kalshi’s sports- event contracts are neither. 1. The CEA does not give CFTC exclusive jurisdiction over gaming-related sports-event contracts Kalshi rests its case on the argument that the CEA grants “exclusive jurisdiction” to the CFTC over its sports-event contracts, and therefore preempts state law and, in effect, repeals IGRA. See Pl.’s Mot. Supp. Prelim. Inj., ECF No. 11 at PageID 217. However, Kalshi’s sports- events contracts are not valid “swaps” and the CFTC therefore does not have exclusive jurisdiction over them. Moreover, this exclusive jurisdiction is not universal; 7 U.S.C. § 2(a)(1)(A) also provides a savings clause, which states, “[e]xcept as hereinabove provided, nothing contained in this section shall … supersede or limit the jurisdiction at any time conferred on the Securities and Exchange Commission or other regulatory authorities under the laws of the United States or of any State ….” Id. (emphasis added). The CEA neither supersedes IGRA nor limits the jurisdiction of tribes or the National Indian Gaming Commission (“NIGC”) on Indian lands. Rather, the CEA’s savings clause expressly reserves the authority of the NIGC and Tribal gaming authorities over gaming on
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