Case 1:25-cv-08846-AT Document 60-1 Filed 12/03/25 Page 17 of 31
nondelegation doctrine, which guards against precisely the type of unchecked, privately exercised powers that Kalshi relies upon to list and trade its sports bets. See, e.g. , Carter v. Carter Coal Co., 298 U.S. 238, 311 (1936) (“This is legislative delegation in its most obnoxious form; for it is not even delegation to an official or an official body, presumptively disinterested, but to private persons whose interests may be and often are adverse to the interests of others in the same business.”). While the Supreme Court routinely upholds congressional delegations of power to federal agencies, it pays particular attention when those delegations are to private entities. See, e.g. , id. at 311; FCC v. Consumers’ Research , 145 S. Ct. 2482 (2025). Recently, in FCC v. Consumers’ Research , the Supreme Court reinforced its nondelegation precedent, finding that the permissibility of a private delegation depends upon whether the agency retains oversight and ultimate decision-making authority over the private entity’s actions. There, the Court upheld the delegation to a private entity, determining that it played merely “an advisory role” and the final decision-making authority rested with the agency. Consumers’ Research at 2508. Here, the self-certification provisions empower Kalshi—a private, for-profit entity—to define, structure, and launch its own 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 whether to stay a self-certification. See Farewell Address of Commissioner Kristin N. Johnson, CFTC (Sept. 3, 2025), available at https://www.cftc.gov/PressRoom/SpeechesTestimony/opajohnson25?utm_source=substack&utm _medium=email (warning that CFTC “[has] too few guardrails and too little visibility into the prediction market landscape”). Therefore, as applied to Kalshi, the self-certification provisions violate the private nondelegation doctrine.
17
Made with FlippingBook - Online catalogs