Case 1:25-cv-08846-AT Document 60-1 Filed 12/03/25 Page 12 of 31
offer gaming, Congress enacted the “Special Rule” establishing categories of contracts contrary to the public interest, including gaming and those that contravene state and federal law. Id. Shortly after Congress enacted the Special Rule, the CFTC adopted implementing regulations, whereby it exercised its discretion to categorically declare as against the public interest and explicitly prohibit any event contract that “involves, relates to, or references … gaming, or an activity that is unlawful under any State or Federal law.” 17 C.F.R. § 40.11(a)(1); see also 76 Fed. Reg. 44,776 (July 27, 2011). Kalshi’s sports betting operation rests entirely on an assumption that Kalshi itself—by self-certifying that its own gaming activities are legitimate swaps—can preemptively decide that its gaming activities do not violate the CEA, CFTC regulations, IGRA, or other federal statutes. See Pl. Mot. for Prelim. Inj. at 7, 14–15 (ECF No. 16). But it is inconceivable that Congress would have granted a private, for-profit entity the power to authorize and conduct nationwide sports betting—including on Indian lands—without explicitly stating as much, especially in the face of comprehensive statutes and regulations governing gaming on Indian lands. It is axiomatic that “Congress … does not alter the fundamental details of a regulatory scheme in vague terms or 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 for gaming on tribal lands and similar structures set up by state legislatures and regulators within
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