Amicus Curiae Brief — Horseracing Integrity and Safety Authority, Incorporated, et al., Petitioners, v. National Horsemen's Benevolent and Protective Association, et al.

No. 24-433

In the

Supreme Court of the United States

HORSERACING INTEGRITY AND

SAFETY AUTHORITY, INCORPORATED, et al.,

Petitioners,

v.

NATIONAL HORSEMEN’S BENEVOLENT

AND PROTECTIVE ASSOCIATION, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of A ppeals for the Fifth Circuit

AMICI CURIAE BRIEF OF REASON

FOUNDATION AND GOLDWATER

INSTITUTE IN SUPPORT OF RESPONDENTS

A lexander Volokh

Counsel of Record

Emory University

School of Law

1301 Clifton Road NE

Atlanta, GA 30322

(404) 727-5225

avolokh@emory.edu

Counsel for Amici Curiae

334241

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . iii

INTERESTS OF AMICI CURIAE . . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

I.

This case is obviously certworthy, but the

grant of certiorari should include the

Appointments Clause question . . . . . . . . . . . . . . . 6

II. There is no “private nondelegation doctrine” . . . 8

III. The Authority’s exercise of government

power is unconstitutional because its officers

weren’t appointed consistently with the

Appointments Clause . . . . . . . . . . . . . . . . . . . . . . 11

A. Whether the Appointments Clause

applies is governed by a simple test . . . . . . 11

B. Whether the members of the Authority

are part of the structure of the federal

government is irrelevant . . . . . . . . . . . . . . . 12

IV. If “state actor” status is a relevant factor

here, it is plainly satisfied . . . . . . . . . . . . . . . . . . 15

ii

Table of Contents

Page

1.

The Lebron test isn’t the only

possible way to be a state actor . . . . . . 16

2. T h e A u t h o r i t y e x e r c i s e s

traditionally exclusive public

functions . . . . . . . . . . . . . . . . . . . . . . . . . 19

V.

The Fifth Circuit’s error on the private

nondelegation doctrine doesn’t cancel out

its error on the Appointments Clause . . . . . . . . 20

VI. This case is a good vehicle to review the

Appointments Clause issue . . . . . . . . . . . . . . . . . 23

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

iii

TABLE OF CITED AUTHORITIES

Page

Cases

Adickes v. S.H. Kress & Co.,

398 U.S. 144, 170-71 (1970) . . . . . . . . . . . . . . . . . . . . . 18

A.L.A. Schechter Poultry Corp. v. United States,

295 U.S. 495 (1935) . . . . . . . . . . . . . . . . . . . . . . . . . . 8-10

Am. Mfrs. Mut. Ins. Co. v. Sullivan,

526 U.S. 40 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20

Auffmordt v. Hedden,

137 U.S. 310 (1890) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Blum v. Yaretsky,

457 U.S. 991 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Bowsher v. Synar,

478 U.S. 714 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Brentwood Acad. v.

Tenn. Secondary Sch. Athletic Ass’n,

531 U.S. 288 (2001) . . . . . . . . . . . . . . . . . . . . . . . . 16, 18

Buckley v. Valeo,

424 U.S. 1 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 14

Burton v. Wilmington Parking Auth.,

365 U.S. 715, 725 (1961) . . . . . . . . . . . . . . . . . . . . . . . 19

iv

Cited Authorities

Page

Butte City Water Co. v. Baker,

196 U.S. 119 (1905) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Buttfield v. Stranahan,

192 U.S. 470 (1904) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Carter v. Carter Coal Co.,

298 U.S. 238 (1936) . . . . . . . . . . . . . . . . . . . . . . 8, 10, 11

Collins v. Yellen,

594 U.S. 220 (2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Currin v. Wallace,

306 U.S. 1 (1939) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Eubank v. City of Richmond,

226 U.S. 137 (1912) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Flagg Bros., Inc. v. Brooks,

436 U.S. 149 (1978) . . . . . . . . . . . . . . . . . . . . . . . . 16, 20

J.W. Hampton, Jr., & Co. v. United States,

276 U.S. 394 (1928) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Jackson v. Metro. Edison Co.,

419 U.S. 345 (1974) . . . . . . . . . . . . . . . . . . . . . . . . 19, 20

Lebron v. Nat’l R.R. Passenger Corp.,

513 U.S. 374 (1995) . . . . . . . . . . . . . . . . . . . . . . 15-18, 21

v

Cited Authorities

Page

Lugar v. Edmonson Oil Co., Inc.,

457 U.S. 922 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Marsh v. Alabama,

326 U.S. 501 (1946) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Mistretta v. United States,

488 U.S. 361 (1989) . . . . . . . . . . . . . . . . . . . . . . . . 10, 11

Nat’l Horsemen’s Benevolent & Protective Ass’n v.

Black,

107 F.4th 415 (5th Cir. 2024) . . 8, 11, 13, 15, 17, 18, 21

Nat’l Horsemen’s Benevolent & Protective Ass’n v.

Black,

53 F.4th 869 (5th Cir. 2022) . . . . . . . . . . . . . . . . . . . 4, 8

Nixon v. Condon,

286 U.S. 73 (1932) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Oklahoma v. United States,

No. 23-402 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 24

Rendell-Baker v. Kohn,

457 U.S. 830 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Rosborough v. Mgmt. & Training Corp.,

350 F.3d 459 (5th Cir. 2003) . . . . . . . . . . . . . . . . . 18, 20

Sandin v. Conner,

515 U.S. 472 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

vi

Cited Authorities

Page

St. Louis, Iron Mountain, &

Southern Railway Co. v. Taylor,

210 U.S. 281 (1908) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Synar v. United States,

626 F. Supp. 1374 (D.D.C. 1986) . . . . . . . . . . . . . . . . . 11

Terry v. Adams,

345 U.S. 461 (1953) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Turner v. Safley,

482 U.S. 78 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

United States v. Arthrex, Inc.,

141 S. Ct. 1970 (2021) . . . . . . . . . . . . . . . . . . . . . . . . . 14

United States v. Germaine,

99 U.S. 508 (1879) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

United States v. Hartwell,

73 U.S. (6 Wall.) 385 (1867) . . . . . . . . . . . . . . . . . . . . .12

United States v. Maurice,

26 F. Cas. 1211 (C.C.D. Va. 1823) (No. 15,747) . . . . . 14

United States v. Mazurie,

419 U.S. 544 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

United States v. Rock Royal Co-operative, Inc.,

307 U.S. 553 (1939) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

vii

Cited Authorities

Page

Walmsley v. FTC,

No. 24-420 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 24

Washington ex rel. Seattle Title Trust Co. v.

Roberge,

278 U.S. 116 (1928) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Whitman v. Am. Trucking Ass’ns, Inc.,

531 U.S. 457 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Constitutional Provisions

U.S. Const. amend. I . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Statutes

15 U.S.C. § 3054 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

15 U.S.C. § 3054(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

15 U.S.C. § 3057 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Other Authorities

Officers of the United States Within the Meaning

of the Appointments Clause, 31 Op. OLC 73

(2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14

Alexander Volokh, The Myth of the Federal

Private Nondelegation Doctrine, 99 Notre

Dame L. Rev. 203 (2023) . . . . . . . . . . . . . . . . . 8, 10, 15

1

INTERESTS OF AMICI CURIAE1

Reason Foundation (“Reason”) is a national,

nonpartisan, and nonprofit public policy think tank,

founded in 1978. Reason’s mission is to advance a free

society by applying and promoting libertarian principles

and policies—including free markets, individual liberty,

and the rule of law. Reason supports dynamic marketbased public policies that allow and encourage individuals

and voluntary institutions to flourish. Reason advances

its mission by publishing Reason Magazine, online

commentary, and policy research reports. To further

Reason’s commitment to “Free Minds and Free Markets,”

Reason selectively participates as amicus curiae in cases

raising significant constitutional issues.

Goldwater Institute (“GI”) is a nonpartisan public

policy and research foundation devoted to advancing the

principles of limited government, individual freedom, and

constitutional protections through litigation, research,

and advocacy. Through its Scharf-Norton Center for

Constitutional Litigation, GI litigates and files amicus

briefs when its or its clients’ objectives are implicated.

Among GI’s priorities is the protection of individual rights

against the often unaccountable regulatory agencies which

contradict the separation of powers and exercise authority

in undemocratic ways.

1. No counsel for a party authored this brief in whole or in part,

and no such counsel or party made a monetary contribution intended

to fund the preparation or submission of this brief. No person other

than the amici curiae or their counsel made a monetary contribution

to its preparation or submission. The parties were provided timely

notice of amici’s intent to file this brief.

2

SUMMARY OF ARGUMENT

1.

This case is obviously certworthy. The Horseracing

Integrity and Safety Authority is an unaccountable

agency that exercises significant federal rulemaking,

investigation, and enforcement authority, even though

its members haven’t been politically appointed and

even though it doesn’t have meaningful oversight by

any other agency. There is a circuit split on the private

nondelegation issue. A circuit court has struck down

part of a federal statute. Parties from both sides,

including the federal government, agree that a grant

of certiorari is warranted.

However, this Court shouldn’t merely grant certiorari

on the private nondelegation issue. It should also

grant certiorari on the Appointments Clause issue,

because these two issues are closely related, and the

Fifth Circuit reached the incorrect result on each of

these issues.

2.

The Fifth Circuit was wrong that the Authority’s

enforcement power violates the “private nondelegation

doctrine.” There is no such doctrine. The idea that

delegations of power to private parties are judged

by a stricter standard than delegations to public

parties has no support in any holdings of this Court.

Any decisions that seem to the contrary have either

been misinterpreted or were in fact based on other

doctrines, like the Due Process Clause. And the

lack of such a doctrine makes sense, because the

nondelegation doctrine, which is rooted in Article

I, sensibly asks whether Congress has given up too

much power, not who the recipient of such power is.

3

If the Authority is considered a private organization,

the delegation to the Authority should be judged

by the same “intelligible principle” standard as a

delegation to a public agency—and the delegation

here clearly passes that test.

3.

However, the Fifth Circuit reached the partially

right result, though for the wrong reason. Contrary

to the Fifth Circuit’s holding, exercises of power by

the Authority, whether rulemaking or enforcement

power, violate the Appointments Clause, because the

members of the Authority are Officers of the United

States but weren’t appointed as Officers should be

under Article II.

That the Authority members are nominally private is

unimportant for Officer status. The statutory labeling

of the Authority as private, and the fact that the

Authority is organized as a private organization under

state law, are constitutionally irrelevant, and in any

event Appointments Clause doctrine doesn’t demand

that an Officer formally be a public employee.

4.

Even if public status were relevant to the Appointments

Clause—and even if the Fifth Circuit were correct

to assume that “state actor” status under the State

Action Doctrine is relevant here—the Fifth Circuit

still erred in holding that the Authority isn’t a state

actor. On the contrary, this is an easy case for state

action, because rulemaking, investigation, and

enforcement of federal law are traditionally exclusive

public functions. Therefore, an alternative way of

deciding the case would be to hold that the Authority

is public because it is a state actor, which would

4

uncontroversially activate both the Appointments

Clause and the traditional (public) nondelegation

doctrine.

5.

The difference between the “private nondelegation

doctrine” and the Appointments Clause isn’t just of

academic interest.

First, the doctrines are motivated by different

theories. The nondelegation doctrine is giver-focused,

asking whether Congress has given up too much

power; the public-private question fits poorly with

this concern. By contrast, the Appointments Clause

is recipient-focused, asking, from a democratic

accountability perspective, whether the recipient of

major power has been validly authorized by the proper

political process. The problem here fits more naturally

with the Appointments Clause issue.

Second, the doctrines won’t always produce the same

results. A private nondelegation doctrine requires

tough judgment calls about whether an organization

is public or private, so the results will depend on the

vagaries of public-private doctrines. And when the

doctrine finds private status, it would apparently

invalidate all delegations of “government power” that

aren’t subordinate to a public agency. Horsemen’s

I, 53 F.4th at 878. By contrast, the Appointments

Clause asks whether someone (public or private) is

“exercising significant authority pursuant to the

laws of the United States.” Thus, an Appointments

Clause approach will turn on how much power the

agent exercises, ignoring trivial cases and requiring

political accountability for significant ones. This is

a sensible approach—otherwise, countless private

5

delegations could be indiscriminately invalidated,

from qui tam suits to private prison contracting to

incorporation of private actuarial standards into

healthcare regulation. Whether these are valid should

depend on an inquiry into “significant authority.”

6.

Therefore, this Court should grant certiorari on the

Appointments Clause question.

This Court could reach the right result by only

considering the Appointments Clause issue, because

the correct resolution of that issue (that the Authority

wields power unconstitutionally) would correctly

resolve the entire case. But because parties from both

sides, including the federal government, are asking

the Court to consider the private nondelegation issue,

and because that issue is obviously certworthy, amici

ask that the private nondelegation and Appointments

Clause issues be considered as linked and decided

together.

The Sixth Circuit case (Oklahoma v. United States,

No. 23-402) didn’t consider the Appointments Clause

at all, so it would not be a good vehicle for a grant

of certiorari. By contrast, the Eighth Circuit case

(Walmsley v. FTC, No. 24-420) did consider the

Appointments Clause, essentially incorporating the

Fifth Circuit’s analysis (though the Appointments

Clause issue was not part of the Questions Presented

in the petition in that case). Therefore, this Court

should grant certiorari—making sure that the grant

includes the Appointments Clause question—in this

case or in the Eighth Circuit case (or in both cases

together).

6

ARGUMENT

I.

This case is obviously certworthy, but the grant of

certiorari should include the Appointments Clause

question.

This case is certworthy for several reasons. First,

there is a circuit split on whether the Horseracing

Integrity and Safety Authority violates the “private

nondelegation doctrine.” Second, the Fifth Circuit struck

down part of a federal statute. Third, all parties, including

the federal government, agree that this Court should

grant certiorari. And fourth, this case raises important

questions of federal law. The parties’ petitions already

adequately address this issue.

But this case actually raises two important questions

of federal law. The first question is whether any so-called

“private nondelegation doctrine” even exists. The Fifth

Circuit held that there is such a doctrine, and accordingly

partially struck down the delegation of power to the

Authority (the delegation of enforcement power, not the

delegation of rulemaking power). But, as this brief argues

in Part II infra, no such doctrine exists. This Court has

never recognized such a doctrine; on the contrary, this

Court has repeatedly upheld delegations to private parties.

The cases commonly thought to establish such a doctrine

have been misinterpreted, and arise straightforwardly

under other doctrines. Nor would it be a good idea for this

Court to now invent such a doctrine.

The second question is whether the members of the

Authority comply with the Appointments Clause. As this

brief argues in Part III infra, they don’t. The Horseracing

7

Integrity and Safety Authority is an unaccountable

agency that exercises significant federal rulemaking,

investigation, and enforcement authority, even though

its members haven’t been politically appointed and even

though it doesn’t have meaningful oversight by any other

agency. The Fifth Circuit had the right basic idea about

the unconstitutionality of the Authority, but it located

the problem in the wrong constitutional doctrine. The

true problem is that the members of the Authority are

Officers of the United States, and should have been

appointed accordingly if they are to exercise significant

federal power.

T he F i f t h C i r c u it w r on g ly he ld t h at on ly

instrumentalities of the federal government are subject

to the Appointments Clause, even though the true test is

whether someone (public or private) exercises significant

authority pursuant to federal law. Even then, as this brief

explains in Part IV infra, the Fifth Circuit could have

saved its analysis by concluding that the Authority is a

state actor because it exercises a traditionally exclusive

public function. But the Fifth Circuit compounded its

error by incorrectly applying the State Action Doctrine

and determining that the Authority isn’t a state actor.

It is thus clear that the private delegation doctrine and

the Appointments Clause are closely related in the context

of this case, because the Fifth Circuit reached the wrong

result on both issues. It (wrongly) struck down some of

the Authority’s power under the private nondelegation

doctrine, and then it (wrongly) rejected the challenge to

more of the Authority’s power under the Appointments

Clause. As this brief argues in Part V infra, this wasn’t

harmless; the Fifth Circuit’s errors on the two doctrines

8

don’t cancel each other out. The two doctrines serve

different purposes and will in general lead to different

results, including in this very case. If this Court’s grant

of certiorari is limited to the private nondelegation issue,

and if this Court agrees with this brief that such a doctrine

doesn’t exist, then it would reverse the Fifth Circuit and

wrongly uphold all of the Authority’s power—leaving

in place the basic constitutional problem of a politically

unaccountable agency. The only way to get the right result

and preserve constitutional accountability is to reverse

the Fifth Circuit on both issues.

II. There is no “private nondelegation doctrine.”

The Fifth Circuit held that the Constitution bars

delegations of governmental power to private bodies,

and that at least some of the Authority’s powers run

afoul of such a principle. Nat’l Horsemen’s Benevolent

& Protective Ass’n v. Black, 53 F.4th 869, 880-90 (5th

Cir. 2022) (Horsemen I); Nat’l Horsemen’s Benevolent &

Protective Ass’n v. Black, 107 F.4th 415, 423-35 (5th Cir.

2024). It purported to find such a principle in two of this

Court’s precedents: A.L.A. Schechter Poultry Corp. v.

United States, 295 U.S. 495 (1935), and Carter v. Carter

Coal Co., 298 U.S. 238 (1936).

But this Court’s precedents don’t support any private

nondelegation doctrine that is stricter than the ordinary

nondelegation doctrine that applies to federal agencies.

See Alexander Volokh, The Myth of the Federal Private

Nondelegation Doctrine, 99 Notre Dame L. Rev. 203,

229-33 (2023). The Authority’s powers are indeed

unconstitutional, but—as explained in Part III infra—

the problem lies in the Appointments Clause, not in the

nondelegation doctrine.

9

This Court has never invalidated a delegation to private

parties under the nondelegation doctrine. On the contrary,

it has upheld such delegations against nondelegation

challenges at least four times: in Butte City Water Co.

v. Baker, 196 U.S. 119 (1905), St. Louis, Iron Mountain,

& Southern Railway Co. v. Taylor, 210 U.S. 281 (1908),

Currin v. Wallace, 306 U.S. 1 (1939), and United States v.

Rock Royal Co-operative, Inc., 307 U.S. 553 (1939).

In two of those cases—Butte City Water and Rock

Royal—this Court simply upheld the delegation. Two

other times—in St. Louis Railway and Currin—this

Court went even further, and upheld the delegation

by explicitly analogizing it to a similar case where the

delegation was to the President or an executive official.

The St. Louis Railway Court upheld a delegation to the

American Railway Association simply by appealing to the

precedent of Buttfield v. Stranahan, 192 U.S. 470 (1904),

which had upheld a delegation of tea-inspecting authority

to the Secretary of the Treasury; this Court wrote that

the public-delegation Buttfield case, “in principle, is

completely in point.” St. Louis Railway, 210 U.S. at 287.

And in Currin, this Court upheld a delegation to industry

members by analogizing it to a delegation to the President

of the power to set equalizing tariffs, which had been

upheld in J.W. Hampton, Jr., & Co. v. United States, 276

U.S. 394 (1928); see Currin, 306 U.S. at 16.

No later case has taken a contrary approach. Indeed,

Butte City Water and St. Louis Railway were explicitly

cited in Schechter Poultry as examples of cases where

private delegation would be constitutional.

And this is the correct rule: because the nondelegation

doctrine is rooted in Article I (in particular, the Vesting

10

Clause), the question is whether Congress has given

away too much power. The focus is on how much power

Congress has given away (i.e., whether the delegation

is adequately constrained), not on who is the recipient

of such power. Thus, though this Court’s nondelegation

doctrine cases have usually concerned executive officials

or agencies, they have also concerned the judiciary, see

Mistretta, Indian tribes, see United States v. Mazurie,

419 U.S. 544 (1975), and (as discussed above) private

parties. Indeed, Congress’s dynamic incorporation of

state law in many areas is a sort of delegation to state

legislatures, which, by altering their tort law or definitions

of marriage, affect the scope of the federal government’s

sovereign immunity or the amount of federal taxpayers’

liability. There are indeed constitutional problems with

the Authority’s rulemaking power, but those problems

are properly located in the Appointments Clause, not in

the nondelegation doctrine.

Though the Fifth Circuit purported to rely on

Schechter Poultry and Carter Coal, neither of these cases

is on point. See Volokh, supra, at 233-36.

Schechter Poultry didn’t involve any delegation to

private parties: the only power involved in the case was

the President’s power to adopt codes of fair competition

(which private industries were merely allowed to propose).

In dictum, this Court denied that Congress could give

unrestricted power to industry. 295 U.S. at 537. But then

it went on to strike down the challenged statute on the

grounds that it gave unrestricted power to the President.

Id. at 537-42. So, if anything, Schechter Poultry stands

for the rule that Congress can’t give anyone unrestricted

power; it doesn’t support any rule that would treat private

and public delegations differently.

11

As for Carter Coal, that case is most properly

characterized as a Due Process case: the problem

there was that power to regulate wages and prices was

delegated to self-interested groups of competitors. Carter

Coal thus fits naturally into a line of cases stretching back

to Eubank v. City of Richmond, 226 U.S. 137 (1912), and

Washington ex rel. Seattle Title Trust Co. v. Roberge,

278 U.S. 116 (1928), disapproving of coercive power being

wielded by financially self-interested parties. (That Due

Process concern is absent here: the Fifth Circuit correctly

rejected the Due Process challenge, Horsemen II, 107

F.4th at 435-36.) This Court has repeatedly declined to

classify Carter Coal as a nondelegation doctrine case.

See Mistretta v. United States, 488 U.S. 361, 373 (1989);

Whitman v. Am. Trucking Ass’ns, Inc., 531 U.S. 457, 474

(2001); cf. Synar v. United States, 626 F. Supp. 1374, 1383

n.8 (D.D.C. 1986) (Scalia, J.), aff’d sub nom. Bowsher v.

Synar, 478 U.S. 714 (1986). And even if Carter Coal were

considered a nondelegation doctrine case, its holding

could be explained in very conventional terms: Because

the delegation to industry was unrestricted, it would

have been unconstitutional under the ordinary rule that

delegations require an “intelligible principle,” id. at 472.

III. The Authority’s exercise of government power

is unconstitutional because its officers weren’t

appointed consistently with the Appointments

Clause.

A.

Whether the Appointments Clause applies is

governed by a simple test.

In Buckley v. Valeo, 424 U.S. 1, 126 (1976), this

Court held that Officers of the United States are those

12

who “exercis[e] significant authority pursuant to the

laws of the United States.” Other cases establish that,

to be an Officer, one must exercise such authority as a

“continuing and permanent” (rather than “occasional and

intermittent”) matter. See United States v. Hartwell, 73

U.S. (6 Wall.) 385, 393 (1867); United States v. Germaine,

99 U.S. 508, 512 (1879). Officer status is significant,

because only Officers are subject to the requirements of

the Appointments Clause.

By this standard, the members of the Authority

are plainly Officers. The Authority has rulemaking,

investigatory, and enforcement power—core governmental

powers that aren’t available to ordinary citizens. 15

U.S.C. §§ 3054, 3057. The Authority’s rules have not only

binding force but also preemptive effect over state law.

Id. § 3054(b). And the Authority is a continually existing

organization, whose members may exercise their powers

full-time.

It is simply inconceivable that a standing organization

with such substantial powers isn’t “exercising significant

authority pursuant to the laws of the United States.” If

the members of the Authority were federal employees, this

result wouldn’t be remotely controversial. Any possible

subordination of the Authority to the FTC affects, at most,

whether the Authority members are inferior officers, not

whether they are officers at all.

B. Whether the members of the Authority are part

of the structure of the federal government is

irrelevant.

The above factors—whether, as a “continuing and

permanent” matter, one “exercis[es] significant authority

13

pursuant to the laws of the United States”—don’t depend

on whether one is formally within the federal government.

The Fifth Circuit was right that “the government [cannot]

evade constitutional restrictions by mere labeling.”

Horsemen II, 107 F.4th at 437.

If actors formally outside the federal government

couldn’t count as Officers—and could thus be granted

governmental powers exempt from Appointments Clause

requirements—some classic cases could have been

radically simplified. Consider, for instance, Auffmordt v.

Hedden, 137 U.S. 310 (1890), where an importer challenged

the appointment of an expert merchant appraiser on the

grounds that the appraiser should have been appointed as

an Officer. This Court ruled that the appraiser wasn’t an

Officer and was thus exempt from Appointments Clause

constraints, but it didn’t simply rely on the fact that he

wasn’t a federal employee. Rather, the Court focused on

factors like the tenure, duration, compensation, and duties

of the office, and particularly whether the appraiser’s

duties were “occasional and temporary” or “continuing

and permanent.” None of that discussion would have been

necessary if the Appointments Clause simply didn’t apply

to parties outside the federal governmental structure.

The Office of Legal Counsel, after canvassing caselaw

and voluminous historical evidence, has also taken the

same view. “[I]t is not within Congress’s power to exempt

federal instrumentalities from . . . the Appointments

Clause; . . . Congress may not, for example, resort to

the corporate form as an artifice to evade the solemn

obligations of the doctrine of separation of powers.”

Officers of the United States Within the Meaning of

the Appointments Clause, 31 Op. OLC 73, at *2 (2007)

14

(cleaned up). A key element in whether one is an Officer

is whether one exercises “delegated sovereign authority,”

which “one could define . . . as power lawfully conferred by

the Government to bind third parties, or the Government

itself, for the public benefit. . . . [S]uch authority primarily

involves the authority to administer, execute, or interpret

the law,” id. at *11, and generally includes “functions

in which no mere private party would be authorized to

engage,” id. at *14.

“A person’s status as an independent contractor,” the

OLC continued, “does not per se provide an exemption

from the Appointments Clause,” id. at *18, though most

contractors turn out to be exempt because they usually

merely provide goods and services rather than wielding

power, and “in most cases . . . their actions . . . have no

legal effect on third parties or the Government absent

subsequent sanction,” id. at *19. Appointments Clause

constraints, OLC stressed, do apply “in those rare cases

where a mere contractor did exercise delegated sovereign

authority (and did so on a continuing basis).” Id. at *20

(citing United States v. Maurice, 26 F. Cas. 1211, 121620 (C.C.D. Va. 1823) (No. 15,747) (Marshall, Cir. Justice)).

Likewise, whether someone is paid by the government isn’t

relevant to whether they are an Officer. Id. at *36-*38.

It is true that this Court has occasionally characterized

Officers as being “appointees,” Buckley, 424 U.S. at

126, or implied that they are “functionaries,” id. at 126

n.162; a recent opinion contrasted Officers with “‘lesser

functionaries’ such as employees or contractors,” United

States v. Arthrex, Inc., 141 S. Ct. 1970, 1980 (2021). Even

if these words clearly excluded private parties, the publicprivate question wasn’t at issue in those cases. The vast

15

majority of cases concern the Officer status of traditional

governmental employees, and so statements assuming

that Officers formally work for the government should

be interpreted with that context in mind; anything those

cases might say about private Officers is dictum. See

Volokh, supra, at 240-47.

IV. If “state actor” status is a relevant factor here, it

is plainly satisfied.

In considering whether the Authority is “part

of the federal government for Appointments Clause

purposes,” the Fifth Circuit assumed that this was the

same question as whether the Authority is “part of the

federal government for constitutional purposes” more

generally. Horsemen II, 107 F.4th at 437. By relying

on Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 374

(1995), a case about the State Action Doctrine, the Fifth

Circuit assumed that the State Action Doctrine and the

Appointments Clause incorporate the same public/private

distinction, so that an organization that isn’t a state actor

for purposes of constitutional rights also isn’t subject to

the Appointments Clause.

Even if the Appointments Clause did incorporate a

public/private distinction, it wouldn’t be obvious that this

distinction is coextensive with that in the State Action

Doctrine. But even if the Fifth Circuit was correct in

that assumption, it was mistaken in its conclusion that the

Authority isn’t a state actor.

The Fifth Circuit wrongly assumed that the Lebron

test was the only way that an entity could become a state

actor. The State Action Doctrine contains many different

16

paths by which a person or entity can be a state actor, and

the Lebron path is only one of them. Here, the relevant

test is whether the Authority performs a “traditionally

exclusive public function.” Under that test, the Authority

is the quintessential example of a state actor, because its

powers—investigation, enforcement, and regulation—are

traditionally exclusive public functions. Thus, one easy way

to resolve this case would be to rule that anyone with such

governmental powers is necessarily a state actor and is

thus subject to the Appointments Clause.

1.

The Lebron test isn’t the only possible way

to be a state actor.

The State Action Doctrine, which implements

the basic principle that “most rights secured by the

Constitution are protected only against infringement

by governments,” is fundamental in constitutional law.

Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 156 (1978). “If

[constitutional rights are] not to be displaced . . . , [the]

ambit [of the State Action Doctrine] cannot be a simple

line between [government] and people operating outside

formally governmental organizations, and the deed of

an ostensibly private organization or individual is to be

treated sometimes as if [the government] had caused it

to be performed.” Brentwood Acad. v. Tenn. Secondary

Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001).

What are these “sometimes,” when an individual’s

action counts as that of the government? The caselaw

has distinguished a variety of different contexts. For

instance, as this Court held in Lebron, 513 U.S. at 394400, corporations (like Amtrak) count as “part of the

government” if they are created by special law to further

17

governmental objectives and are mostly directed by

governmental appointees.

That test wouldn’t cover the Authority, which wasn’t

created by federal law. But the Fifth Circuit wrongly

suggested that Lebron is the only path to state action.

Horsemen II, 107 F.4th at 437-38 (“The analysis guiding

that inquiry comes from Lebron. . . . The Supreme Court

and circuit courts have since used Lebron’s analysis to

discern whether corporations are part of the government

for constitutional purposes. Applying Lebron, we conclude

that the Authority is not a federal instrumentality for

purposes of the Appointments Clause.”).

A moment’s ref lection suggests that the Fifth

Circuit’s reasoning is implausible. If the Authority—an

organization that can make regulations with the force

of law—weren’t a state actor, it wouldn’t be bound by

the First Amendment, the Due Process Clause, or most

other constitutional rights. That would mean that the

Authority would be able to adopt an anti-doping rule that

discriminated against Democrats or racetrack safety

regulations that applied differently to Christians than

to Jews. Surely that can’t be the case for rules that have

binding force on the regulated community. If private

corporations incorporated under state law couldn’t be

state actors, then private prison firms would be free to

ignore even the limited version of constitutional rights

that apply to public-prison inmates, see Turner v. Safley,

482 U.S. 78 (1987), or impose “atypical and significant

hardship” on inmates without the sorts of protective

procedures that the Due Process Clause requires in public

prisons, see Sandin v. Conner, 515 U.S. 472, 484 (1995).

But such a suggestion is virtually self-refuting: Of course,

18

private prisons and public prisons are subject to identical

substantive constitutional standards, even though private

prison firms are private corporations. The reason, as the

Circuit Courts have rightly recognized, is that private

prison firms are state actors. See, e.g., Rosborough v. Mgmt.

& Training Corp., 350 F.3d 459, 460-61 (5th Cir. 2003).

Moreover, the Fifth Circuit’s suggestion—that the

Authority isn’t a governmental entity, and is thus exempt

from the Appointments Clause, because it wasn’t created to

further federal objectives and was incorporated under state

law prior to the federal statute investing it with power, see

Horsemen II, 107 F.4th at 438—is in substantial tension with

its own recognition that “deeming an entity ‘private’ does

not settle whether it is legally part of the federal government[;

o]therwise, the government could evade constitutional

restrictions by mere labeling.” Id. at 437. Surely the

government can’t evade constitutional restrictions by

merely transferring its powers to someone else.

And indeed, the suggestion that the Lebron path to

state action is exclusive does turn out to be doctrinally

incorrect. There are actually several ways for private

parties to become state actors.

A private party’s acts can also be state action if the

government is entwined in its management or control.

See Brentwood Acad., 531 U.S. at 296-303. Or if the

private party jointly participates with government actors

in some coercive activity. See Lugar v. Edmonson Oil

Co., Inc., 457 U.S. 922, 941-42 (1982). Or if the private

party performs an act under the coercive pressure or

significant encouragement of the government. See, e.g.,

Adickes v. S.H. Kress & Co., 398 U.S. 144, 170-71 (1970).

19

Or if the government “insinuate[s] itself into a position of

interdependence” with the private party. See Burton v.

Wilmington Parking Auth., 365 U.S. 715, 725 (1961). Or—

this one is very important—if the private party performs

a traditionally exclusive public function. See, e.g., Marsh

v. Alabama, 326 U.S. 501 (1946).

And these various tests are tests of inclusion, not of

exclusion: All it takes to be a state actor is to satisfy any

one of these tests.

2.

The Authority exercises traditionally

exclusive public functions.

And the relevant test is clear here: it’s the “traditionally

exclusive public function” test. See Am. Mfrs. Mut. Ins.

Co. v. Sullivan, 526 U.S. 40, 55 (1999). This Court has

found state action in several cases where a private party

has exercised “powers traditionally exclusively reserved

to the [government].” Jackson v. Metro. Edison Co., 419

U.S. 345, 352 (1974). For instance, formally private

associations like political parties are engaged in state

action when they determine their candidates in party

primaries—thus controlling a particular pathway to

ballot access—because, “if heed is to be given to the

realities of political life, [parties] are now agencies of the

state.” Nixon v. Condon, 286 U.S. 73, 84 (1932); see also

Terry v. Adams, 345 U.S. 461, 468-70 (1953). As another

example, a corporation engages in state action when it runs

a municipality and performs the full range of municipal

functions. See Marsh v. Alabama, 326 U.S. 501, 505-07 (1946).

This Court has been careful about expanding this

category, especially when there is a strong tradition of

20

certain services being provided by the private sector.

Thus, schooling isn’t a traditionally exclusive public

function, see Rendell-Baker v. Kohn, 457 U.S. 830, 842 (1982);

neither is nursing care, see Blum v. Yaretsky, 457 U.S.

991, 1012-13 (1982); neither is the provision of electricity,

see Metro. Edison, 419 U.S. at 352-53; neither is the

settlement of debtor-creditor disputes, see Flagg Bros.,

436 U.S. at 159-63; and neither is the provision of workers’

compensation benefits, see Sullivan, 526 U.S. at 55-57.

But clearly, certain functions do satisfy this test.

In Metro. Edison, this Court suggested that powers

“traditionally associated with sovereignty, such as eminent

domain,” would qualify, 419 U.S. at 353, which is why (as

noted above) the Circuit Courts have surely been correct

to hold that private prison firms are state actors, see, e.g.,

Rosborough, 350 F.3d at 460-61. Similarly, in Collins v.

Yellen, 594 U.S. 220 (2021), this Court rejected a claim that

the Fair Housing Finance Agency was a private party when

it acted as a conservator or receiver, stressing the range of

governmental powers that the FHFA exercised. Id. at 253-54.

Here, likewise, the powers the Authority wields—

investigation, enforcement, and rulemaking—are

quintessentially governmental. It is virtually self-evident

that this is state action. Thus, even if we assume that only

state actors are subject to the Appointments Clause, this

condition is plainly satisfied here.

V. The Fifth Circuit’s error on the private nondelegation

doctrine doesn’t cancel out its error on the

Appointments Clause.

In response to the suggestion that its Appointments

Clause holding would remove all accountability from

21

the Authority, the Fifth Circuit replied that its private

nondelegation doctrine holding took care of that problem:

Gulf Coast argues that if Lebron is the test,

then the federal government can simply vest

all executive power in a private corporation and

avoid the Appointments Clause. This argument

ignores the role of the private nondelegation

doctrine. The government cannot delegate

core governmental powers to unsupervised

private parties. A private entity can only act

subordinately to an agency with authority and

surveillance over it. The private nondelegation

doctrine thus corrals any attempts to evade

Lebron by giving unaccountable governmental

power to a pre-existing private entity.

Horsemen II, 107 F.4th at 440 (cleaned up).

If the Fifth Circuit were right about this, its two

errors would cancel each other out, in a sense, and so

would be essentially harmless; perhaps, then, this brief’s

argument about the two doctrines would be of merely

academic interest. But this is incorrect. Observe what

the Fifth Circuit did here. First, it rebuffed the private

nondelegation challenge to the Authority’s rulemaking

authority on the ground that the Authority was adequately

supervised by the FTC—even though the FTC’s ability

to disapprove the Authority’s regulations is limited, and

the FTC’s ability to modify or repeal the Authority’s

regulations requires the FTC to conduct an entirely new

notice-and-comment regulation (with the Authority’s

regulation remaining on the books until that process

is done). The status quo—if the FTC does nothing,

22

perhaps because it has too much else on its agenda—is

that an Authority regulation goes into effect and stays in

effect. Possibly temporarily, possibly permanently. But,

because the Fifth Circuit relied on the FTC’s (theoretical)

oversight, it didn’t even insist on the “intelligible principle”

that it would have demanded if the Authority were public.

Next, it rebuffed the Appointments Clause challenge

on the ground that the Authority, as a private organization,

was exempt from those requirements—so we don’t even

get the basic accountability that consists of the President’s

and the Senate’s approval of the Authority’s head (or

the requirement, for inferior officers, that the Authority

members be appointed by the President, the courts, or

the head of a department).

The Fifth Circuit may well claim that its strict

private nondelegation holding is enough to maintain the

Authority’s accountability despite its loose Appointments

Clause holding, but the result in this very case shows that

this assurance is hollow.

More generally, the two doctrines should be kept

analytically distinct because they ser ve different

purposes. The purpose of the nondelegation doctrine is

to ensure that Congress doesn’t give up too much power,

and this concern is valid no matter who the delegate

is—whether Congress delegates to executive agencies,

Indian tribes, the judiciary, state governments, or private

organizations. Provided Congress adequately narrows its

delegation (to comply with the “intelligible principle” test

or whatever other test might be adopted in the future), it

should have the flexibility to select a delegate of its choice.

23

The purpose of the Appointments Clause, on the

other hand, is to ensure that nobody, whatever their

status, can exercise “significant authority under the laws

of the United States” without being personally approved

by the necessary federal officials. Provided Congress

delegates that sort of significant authority, the recipient

of that authority should be held to the requisite degree of

accountability; alternatively, Congress should be able to

dispense with that degree of accountability if it chooses

to delegate some more trivial power.

The Fifth Circuit’s private nondelegation inquiry

would apparently invalidate any exercise of power by

non-subordinate private parties; in this era of mixed

public-private associations, that would require a threshold

inquiry that depends on the vagaries of public-private

doctrines like the State Action Doctrine. But under an

Appointments Clause analysis, whether private prison

firms, qui tam relators, or actuarial standard-setting

associations are unconstitutional should (as with anyone

else, public or private) properly depend on how much

federal power they wield.

VI. This case is a good vehicle to review the Appointments

Clause issue.

Therefore, this Court should grant certiorari on the

Appointments Clause question.

This Court could reach the right result by only

considering the Appointments Clause issue, because

the correct resolution of that issue (that the Authority

wields power unconstitutionally) would correctly resolve

24

the entire case. But because parties from both sides,

including the federal government, are asking the Court

to consider the private nondelegation issue, and because

that issue is obviously certworthy, amici ask that the

private nondelegation and Appointments Clause issues

be considered as linked and decided together.

The Sixth Circuit case (Oklahoma v. United States,

No. 23-402) didn’t consider the Appointments Clause at all,

so it would not be a good vehicle for a grant of certiorari.

By contrast, the Eighth Circuit case (Walmsley v. FTC,

No. 24-420) did consider the Appointments Clause,

essentially incorporating the Fifth Circuit’s analysis

(though the Appointments Clause issue is not part of

the Questions Presented in the petition in that case).

Therefore, this Court should grant certiorari—making

sure that the grant includes the Appointments Clause

question—in this case or in the Eighth Circuit case (or in

both cases together).

25

CONCLUSION

For all these reasons, this Court should grant

certiorari, and the grant should include the Appointments

Clause question.

Respectfully submitted,

A lexander Volokh

Counsel of Record

Emory University

School of Law

1301 Clifton Road NE

Atlanta, GA 30322

(404) 727-5225

avolokh@emory.edu

Counsel for Amici Curiae