Opposition Brief — Texas, et al., Petitioners v. Jerry Black, et al.

Nos. 24-465, 24-472, and 24-489

In the Supreme Court of the United States

TEXAS, ET AL., PETITIONERS

v.

JERRY BLACK, ET AL.

NATIONAL HORSEMEN’S BENEVOLENT AND PROTECTIVE

ASSOCIATION, INC., ET AL., PETITIONERS

v.

HORSERACING INTEGRITY AND SAFETY AUTHORITY,

INC., ET AL.

GULF COAST RACING, L.L.C., ET AL., PETITIONERS

v.

HORSERACING INTEGRITY AND SAFETY AUTHORITY,

INC., ET AL.

ON PETITIONS FOR WRITS OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

BRIAN M. BOYNTON

Principal Deputy Assistant

Attorney General

MARK B. STERN

COURTNEY L. DIXON

CAROLINE W. TAN

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTIONS PRESENTED

The Horseracing Integrity and Safety Act of 2020

(Act), 15 U.S.C. 3051 et seq., allows the Horseracing Integrity and Safety Authority (Authority), a private entity, to assist the Federal Trade Commission in the enforcement of the statute. The questions presented are

as follows:

1. Whether the Act’s rulemaking provisions violate

the private nondelegation doctrine.

2. Whether the Authority’s directors are officers of

the United States who must be appointed in accordance

with the Appointments Clause.

(I)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 2

Jurisdiction .................................................................................... 2

Statement ...................................................................................... 2

Argument....................................................................................... 7

Conclusion ................................................................................... 14

TABLE OF AUTHORITIES

Cases:

Association of American Railroads v. United States

Department of Transportation, 721 F.3d 666

(D.C. Cir. 2013), vacated and remanded on other

grounds, 575 U.S. 43 (2015) ............................................... 12

Carter v. Carter Coal Co., 298 U.S. 238 (1936) ............... 8, 13

Consumers’ Research v. FCC, 67 F.4th 773

(6th Cir. 2023), cert. denied, 144 S. Ct. 2628 (2024)... 11, 12

Consumers’ Research v. FCC,

88 F.4th 917 (11th Cir. 2023), cert. denied,

144 S. Ct. 2629 (2024) ................................................... 11, 12

Department of Transportation v. Association of

American Railroads, 575 U.S. 43, 46 (2015).................... 12

Financial Oversight & Management Board v.

Aurelius Investment, LLC, 590 U.S. 448, 460 (2020) ..... 13

Oklahoma v. United States:

62 F.4th 221 (6th Cir. 2023), cert. denied,

144 S. Ct. 2679 (2024) ...................................... 2, 10, 12

144 S. Ct. 2679 (2024) ...................................................... 11

Pittston Co. v. United States, 368 F.3d 385 (4th Cir.

2004), cert. denied, 544 U.S. 904 (2005) ...................... 11, 12

Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479

(9th Cir.), cert. denied, 506 U.S. 999 (1992) ............... 11, 12

(III)

IV

Cases—Continued:

Page

Sunshine Anthracite Coal Co. v. Adkins,

310 U.S. 381 (1940)............................................................ 4, 8

United States v. Frame, 885 F.2d 1119 (3d Cir. 1989),

cert. denied, 493 U.S. 1094 (1990) ............................... 11, 12

United States v. Salerno, 481 U.S. 739 (1987) .................... 10

Walmsley v. FTC, 117 F.4th 1032 (8th Cir. 2024),

petition for cert. pending, No. 24-420

(filed Oct. 10, 2024) ....................................................... 11, 14

Constitution, statutes, and regulation:

U.S. Const. Art. II, § 2, Cl. 2

(Appointments Clause)......................................... 6, 7, 12, 13

Consolidated Appropriations Act, 2023,

Pub. L. No. 117-328, Div. O. Tit. VII, § 701,

136 Stat. 5231-5232 ............................................................... 5

Horseracing Integrity and Safety Act of 2020,

Pub. L. No. 116-260, Div. FF, Tit. XII, 134 Stat.

3252 (15 U.S.C. 3051 et seq.) ................................................ 2

15 U.S.C. 3051(6) ............................................................... 3

15 U.S.C. 3052(a) ............................................................... 3

15 U.S.C. 3052(b)(1) .......................................................... 3

15 U.S.C. 3053 (Supp. IV 2022) .................................... 3, 9

15 U.S.C. 3053(a) ............................................................... 3

15 U.S.C. 3053(b)(2) ...................................................... 3, 9

15 U.S.C. 3053(c)(2) ....................................................... 3, 9

15 U.S.C. 3053(e) (Supp. IV 2022) ............................... 5, 9

15 U.S.C. 3054(d)(1) .......................................................... 3

15 U.S.C. 3054(d)(2) .......................................................... 3

15 U.S.C. 3054(g)(2) ........................................................ 11

15 U.S.C. 3054(h) ............................................................... 3

15 U.S.C. 3055-3057........................................................... 3

15 U.S.C. 3057(c) ............................................................... 3

V

Statutes and regulation—Continued:

Page

15 U.S.C. 3057(d) ............................................................... 3

15 U.S.C. 3058(b) ............................................................... 3

15 U.S.C. 3058(b)(2)(B) ..................................................... 4

15 U.S.C. 3058(c) ............................................................... 4

15 U.S.C. 78s(c) ........................................................................ 5

16 C.F.R. 1.151 ....................................................................... 10

Miscellaneous:

86 Fed. Reg. 54,819 (Oct. 5, 2021) ........................................ 11

In the Supreme Court of the United States

No. 24-465

TEXAS, ET AL., PETITIONERS

v.

JERRY BLACK, ET AL.

No. 24-472

NATIONAL HORSEMEN’S BENEVOLENT AND PROTECTIVE

ASSOCIATION, INC., ET AL., PETITIONERS

v.

HORSERACING INTEGRITY AND SAFETY AUTHORITY,

INC., ET AL.

No. 24-489

GULF COAST RACING, L.L.C., ET AL., PETITIONERS

v.

HORSERACING INTEGRITY AND SAFETY AUTHORITY,

INC., ET AL.

ON PETITIONS FOR WRITS OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

(1)

2

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a44a*) is reported at 107 F.4th 415. A previous opinion

of the court of appeals (Pet. App. 107a-146a) is reported

at 53 F.4th 869. The memorandum opinion and order of

the district court (Pet. App. 45a-104a) is reported at 672

F. Supp. 3d 220.

JURISDICTION

The judgment of the court of appeals was entered on

July 5, 2024. Petitions for rehearing were denied on

September 9, 2024 (Pet. App. 104a-106a). The petitions

for writs of certiorari were filed on October 22, 2024

(Nos. 24-465 and 24-472) and October 28, 2024 (No. 24489). The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

STATEMENT

1. Congress enacted the Horseracing Integrity and

Safety Act of 2020 (Horseracing Act or Act), Pub. L. No.

116-260, Div. FF, Tit. XII, 134 Stat. 3252 (15 U.S.C.

3051 et seq.), in order to prevent doping and improve

safety in the horseracing industry. Congress modeled

the Act’s framework on the longstanding regulatory

scheme used in the securities industry, in which industry participants are subject to rules proposed by selfregulatory private entities, which are in turn overseen

by the Securities and Exchange Commission (SEC).

See Oklahoma v. United States, 62 F.4th 221, 229 (6th

Cir. 2023), cert. denied, 144 S. Ct. 2679 (2024).

* This brief uses “Texas Pet.” and “Pet. App.” to refer to the petition for a writ of certiorari and appendix in No. 24-465; “National

Horsemen Pet.” to refer to the petition in No. 24-472; and “Gulf

Coast Racing Pet.” to refer to the petition in No. 24-489.

3

The Horseracing Act “recognized” the Horseracing

Integrity and Safety Authority (Authority)—a “private,

independent, self-regulatory, nonprofit corporation”—

“for purposes of developing and implementing a horseracing anti-doping and medication control program and

a racetrack safety program.” 15 U.SC. 3052(a). The

Authority’s Board of Directors consists of four members from the horseracing industry and five members

from outside the industry. See 15 U.S.C. 3052(b)(1).

The Authority operates under the oversight of the Federal Trade Commission (FTC or Commission). See 15

U.S.C. 3053 (Supp. IV 2022).

The Horseracing Act directs the Authority to propose rules concerning doping, racetrack safety, and

other subjects. See 15 U.S.C. 3055-3057. The Authority

must submit its proposals to the FTC “in accordance

with such rules as the Commission may prescribe.” 15

U.S.C. 3053(a). The FTC must approve a proposed rule

if it determines that the rule “is consistent with” the Act

and the Commission’s regulations. 15 U.S.C. 3053(c)(2).

A proposal takes effect only if the Commission approves

it. See 15 U.S.C. 3053(b)(2).

The Act requires various “[c]overed persons”—i.e.,

owners, breeders, trainers, jockeys, and other persons

involved in the horseracing industry—to register with

the Authority and to comply with the rules approved by

the FTC. See 15 U.S.C. 3051(6), 3054(d)(1) and (2). The

Authority may investigate violations of the rules. See

15 U.S.C. 3054(h). The Authority also may conduct disciplinary proceedings and impose civil sanctions upon

violators. See 15 U.S.C. 3057(c) and (d). A final decision

by the Authority to impose discipline is subject to de

novo review by an FTC administrative law judge (ALJ),

see 15 U.S.C. 3058(b), who may “conduct a hearing * * *

4

in such a manner as the Commission may specify by

rule,” 15 U.S.C. 3058(b)(2)(B). The ALJ’s decision is in

turn subject to de novo review by the Commission, and

the Commission may consider additional evidence that

was not presented to the Authority or the ALJ. See 15

U.S.C. 3058(c).

2. In 2021, the National Horsemen’s Benevolent and

Protective Association and its affiliates (collectively National Horsemen) filed this suit in the United States

District Court for the Northern District of Texas, asserting various constitutional challenges to the Act. See

53 F.4th 869, 875. The National Horsemen named as

defendants the Authority and its officials (collectively

Authority), as well as the FTC and its Commissioners.

See ibid. The State of Texas and the Texas Racing

Commission (collectively Texas) intervened to support

the National Horsemen’s challenges. See ibid.

In an earlier phase of this litigation, the Fifth Circuit

held that the Act, as originally enacted, violated a constitutional principle that is sometimes known as the private nondelegation doctrine. See 53 F.4th at 880. The

court explained that, under that doctrine, a private entity may aid a governmental agency in implementing a

federal regulatory scheme, but only if the private entity

“functions subordinately” to the agency and is subject

to the agency’s “authority and surveillance.” Id. at 881;

see Sunshine Anthracite Coal Co. v. Adkins, 310 U.S.

381, 399 (1940). The court determined that, under the

Horseracing Act in its original form, the FTC lacked

constitutionally sufficient control over the Authority’s

activities. See 53 F.4th at 880-890.

In reaching that conclusion, the Fifth Circuit highlighted a “key distinction” between the Horseracing

Act and the securities-industry self-regulatory scheme

5

on which the Act was modeled. 53 F.4th at 887. The

securities-industry scheme, the court emphasized, allows the SEC to “abrogate, add to, and delete from” the

rules of self-regulatory organizations as the SEC deems

“necessary or appropriate.” Ibid. (quoting 15 U.S.C.

78s(c)). The Act in its original form, in contrast, did not

grant the FTC comparable authority to abrogate or

modify the Authority’s rules. See ibid. Because the

FTC lacked the “final word on the substance of the

rules,” the court concluded that the FTC possessed insufficient control over the Authority. Ibid.

Congress responded by amending the Horseracing

Act to empower the FTC to “abrogate, add to, and modify” the rules promulgated under the Act “as the Commission finds necessary or appropriate to ensure the

fair administration of the Authority, to conform the

rules of the Authority to requirements of this [Act] and

applicable rules approved by the Commission, or otherwise in furtherance of the purposes of this [Act].” 15

U.S.C. 3053(e) (Supp. IV 2022); see Consolidated Appropriations Act, 2023, Pub. L. No. 117-328, Div. O. Tit.

VII, § 701, 136 Stat. 5231-5232. That language is substantially identical to the language used in the statutes

that empower the SEC to oversee self-regulatory organizations in the securities industry. See 15 U.S.C.

78s(c).

3. After Congress amended the statute, the court of

appeals remanded this case to the district court for further proceedings. See Pet. App. 7a. On remand, the

district court consolidated this case with a separate suit

filed by Gulf Coast Racing L.L.C., et al. (collectively

Gulf Coast Racing). See ibid. The court conducted a

bench trial and granted final judgment to the defendants. See id. at 45a-103a.

6

The district court first held that the Authority’s role

in the rulemaking process does not violate the private

nondelegation doctrine. See Pet. App. 80a-90a. The

court explained that, by amending the Act to give the

FTC the final word on the content of the rules, Congress had “cured the constitutional issues identified by

the Fifth Circuit.” Id. at 81a.

The district court also held that the Authority’s role

in enforcing the Act does not violate the private nondelegation doctrine. See Pet. App. 94a-96a. The court

noted that “any Authority enforcement decision will be

reviewed by an ALJ and the FTC.” Id. at 94a-95a.

Finally, the district court rejected Gulf Coast Racing’s contention that the Authority’s directors are officers of the United States who must be appointed in accordance with the Appointments Clause. See Pet. App.

65a-78a. The court explained that the Authority is a private entity and that “private entities are not subject to

the constitutional requirements governing appointment

and removal of officers.” Id. at 66a.

4. The Fifth Circuit affirmed in part and reversed in

part. See Pet. App. 1a-44a.

The court of appeals agreed with the district court

that, by amending the Act, Congress had “cured the private nondelegation flaw in the Authority’s rulemaking

power.” Pet. App. 43a-44a. “Because the FTC has ultimate say on what the rules are,” the court of appeals

stated, “the Authority’s power to propose horseracing

rules does not violate the private nondelegation doctrine.” Id. at 14a.

The court of appeals concluded, however, that “the

FTC lacks adequate oversight and control over the Authority’s enforcement power.” Pet. App. 33a. The court

determined that “the Authority,” not “the agency,” de-

7

cides “whether to investigate a covered entity,” “whether to subpoena the entity’s records or search its premises,” “whether to sanction it,” and “whether to sue the

entity for an injunction or to enforce a sanction it has

imposed.” Id. at 21a. The court accordingly declared

that the Act’s “enforcement provisions are facially unconstitutional.” Id. at 4a.

Like the district court, the court of appeals rejected

Gulf Coast Racing’s Appointments Clause challenge.

See Pet. App. 35a-42a. It explained that “the Authority

is a private entity not subject to Article II’s Appointments Clause.” Id. at 42a.

ARGUMENT

In the decision below, the Fifth Circuit held that the

Horseracing Act’s enforcement provisions violate the

private nondelegation doctrine on their face. That holding is incorrect and conflicts with decisions of the Sixth

and Eighth Circuits rejecting facial challenges to the

same statutory provisions. The government and the

Authority have filed petitions for writs of certiorari

challenging that ruling, and Texas and the National

Horsemen agree that those petitions should be granted.

See 24-429 Pet. I; 24-433 Pet. i; 24-429 Texas Mem. 1-5;

24-429 National Horsemen Mem. 1-4.

Texas, the National Horsemen, and Gulf Coast Racing have also filed their own petitions for writs of certiorari. All three groups of petitioners contend (Texas

Pet. I; National Horsemen Pet. i; Gulf Coast Racing

Pet. i) that the Act’s rulemaking provisions violate the

private nondelegation doctrine. Gulf Coast Racing further contends (Gulf Coast Racing Pet. i) that the Authority’s directors are officers of the United States who

must be appointed in accordance with the Appointments

Clause. The Fifth Circuit correctly rejected those con-

8

tentions, and its rulings on those issues do not conflict

with any decision of this Court or of any other court of

appeals. The petitions should be denied.

1. Petitioners argue that the Act’s rulemaking provisions violate the private nondelegation doctrine. That

argument lacks merit and does not warrant this Court’s

review.

a. In Carter v. Carter Coal Co., 298 U.S. 238 (1936),

this Court explained that the Constitution prohibits the

federal government from transferring unchecked governmental power to a private entity. The statute at issue in that case allowed producers of two-thirds of the

coal in a particular district to set wages and hours for

all producers in that district, without review by any federal agency. See id. at 281-283. The Court held that the

statute violated the Constitution by delegating to “private persons” the unchecked “power to regulate the affairs of an unwilling minority.” Id. at 311.

In Sunshine Anthracite Coal Co. v. Adkins, 310 U.S.

381 (1940), however, this Court clarified that Congress

may rely on private organizations to assist public agencies in the performance of their functions. The statute

at issue in that case authorized local boards consisting

of private coal producers to propose minimum prices for

coal, but empowered the National Bituminous Coal

Commission (a governmental agency) to approve, disapprove, or modify those prices. See id. at 388. The Court

held that the statute complied with the Constitution because the private boards “function[ed] subordinately”

to a federal agency. Id. at 399. The Court emphasized

that the agency, not the private boards, “determine[d]

the prices,” and that the agency had “authority and surveillance over the [private boards’] activities.” Ibid.

9

The court of appeals correctly held that the Horseracing Act’s rulemaking provisions comply with those

principles. The Authority’s only role in the rulemaking

process is to propose rules to the FTC, see 15 U.S.C.

3053 (Supp. IV 2022), and a proposed rule takes effect

only if the Commission approves it, see 15 U.S.C.

3053(b)(2). The Act directs the FTC to approve a proposed rule only if the Commission determines, in its own

judgment, that the proposed rule “is consistent with”

the Act and with other rules approved by the Commission. 15 U.S.C. 3053(c)(2). The amended Act also empowers the FTC to “abrogate, add to, and modify” rules

“as the Commission finds necessary or appropriate to

ensure the fair administration of the Authority, to conform the rules of the Authority to the requirements of

[the Act] and applicable rules approved by the Commission, or otherwise in furtherance of the purpose of [the

Act].” 15 U.S.C. 3053(e) (Supp. IV 2022). “Because the

FTC has ultimate say on what the rules are, the Authority’s power to propose horseracing rules does not violate

the private nondelegation doctrine.” Pet. App. 14a.

b. Petitioners’ contrary arguments lack merit. Petitioners contend (Texas Pet. 28) that, in deciding whether to approve the Authority’s proposed rules, the FTC

must focus on whether the proposals “are contrary to

statute—not whether they are good policy.” That is incorrect. The Act empowers the Commission to decide

not only whether a proposed rule is consistent with the

statute, but also whether it is consistent with other “applicable rules approved by the Commission,” 15 U.S.C.

3053(c)(2)—which, in turn, can reflect the Commission’s

policy views. The Act separately empowers the FTC to

“abrogate, add to, and modify” the rules as the Commission finds “necessary or appropriate.” 15 U.S.C. 3053(e)

10

(Supp. IV 2022). As a result, “if the FTC * * * disagrees with the policies reflected in the Authority’s rules,

it may change them.” Pet. App. 11a.

Petitioners also argue (Texas Pet. 23-24) that a rule

proposed by the Authority can remain in effect while

the Commission conducts a rulemaking process to abrogate it. But “[t]o the extent this timing gap creates a

problem, the FTC is free to resolve it ahead of time. It

might, for example, adopt a rule that all [Authority proposals] do not take effect for 180 days, thereby giving

the FTC time to review rules and prepare preemptive

modifications.” Oklahoma v. United States, 62 F.4th

221, 232 (6th Cir. 2023), cert. denied, 144 S. Ct. 2679

(2024). Petitioners, moreover, have challenged the

Horseracing Act’s rulemaking provisions on their face.

See Pet. App. 8a. Even assuming that the Act’s rulemaking provisions might raise constitutional concerns

in some situations, such as the interim period while the

Commission is seeking to abrogate a rule, a court would

have no sound basis for invalidating the provisions on

their face. See United States v. Salerno, 481 U.S. 739,

745 (1987).

Petitioners argue (National Horsemen Pet. 9) that

“the Act gives the Authority final say over the fees it

charges.” But the FTC has adopted a rule under which

the Commission “may modify the amount of any line

item” in the Authority’s budget, including the fees that

the Authority charges. 16 C.F.R. 1.151. Petitioners

contest (National Horsemen Pet. 11 n.5) the lawfulness

of that rule, but that issue should be resolved through a

statutory challenge to the rule, not a facial constitutional challenge to the Act.

Finally, petitioners argue (National Horsemen Pet.

8) that the Authority may issue “binding guidance”

11

without the FTC’s approval. That is incorrect. The Authority’s guidance “does not have the force of law.” 86

Fed. Reg. 54,819, 54,819 (Oct. 5, 2021). And the FTC

“has authority to review guidance documents * * * and

to promulgate a rule overruling guidance it disagrees

with.” Pet. App. 13a n.6 (citation omitted); see 15 U.S.C.

3054(g)(2).

c. In Oklahoma v. United States, 144 S. Ct. 2679

(2024), this Court denied certiorari after the Sixth Circuit held that the amended Act’s rulemaking provisions

comply with the private nondelegation doctrine. That

denial reflected a determination that the challenge to

the rulemaking provisions does not warrant this Court’s

review, and no intervening development casts doubt on

that determination. Since the denial of certiorari in Oklahoma, the Fifth and Eighth Circuits have both agreed

with the Sixth Circuit that the amended Act’s rulemaking provisions comply with the Constitution. See Pet.

App. 9a-14a; Walmsley v. FTC, 117 F.4th 1032, 10381039 (8th Cir. 2024), petition for cert. pending, No. 24420 (filed Oct. 10, 2024).

Petitioners contend (Texas Pet. 28-29; National

Horsemen Pet. 13-16) that the Fifth Circuit’s decision

in this case conflicts with various decisions of other

courts. See, e.g., United States v. Frame, 885 F.2d 1119

(3d Cir. 1989), cert. denied, 493 U.S. 1094 (1990); Pittston

Co. v. United States, 368 F.3d 385 (4th Cir. 2004), cert.

denied, 544 U.S. 904 (2005); Consumers’ Research v.

FCC, 67 F.4th 773 (6th Cir. 2023), cert. denied, 144

S. Ct. 2628 (2024); Riverbend Farms, Inc. v. Madigan,

958 F.2d 1479 (9th Cir.), cert denied, 506 U.S. 999

(1992); Consumers’ Research v. FCC, 88 F.4th 917 (11th

Cir. 2023), cert. denied, 144 S. Ct. 2629 (2024). But

those decisions, most of which were issued long before

12

Congress enacted the Horseracing Act, involved other

federal statutes, and the courts in those cases upheld

the challenged statutes against private nondelegation

claims. See Frame, 885 F.2d at 1128-1129; Pittston, 368

F.3d at 393-398; Consumers’ Research, 67 F.4th at 795796; Riverbend, 958 F.2d at 1488; Consumers’ Research,

88 F.4th at 926. The courts’ decisions upholding other

statutes provide no basis for inferring that the courts

would have struck down this statute. It is especially

incongruous for petitioners to assert (National Horsemen Pet. 8) a conflict with the Sixth Circuit’s decision

in Consumers’ Research when the Sixth Circuit has

squarely rejected a private nondelegation challenge to

the amended Act’s rulemaking provisions. See Oklahoma, 62 F.4th at 229-231.

Petitioners also argue (Texas Pet. 22-23) that the decision below conflicts with the D.C. Circuit’s decision in

Association of American Railroads v. United States

Department of Transportation, 721 F.3d 666 (2013), vacated and remanded on other grounds, 575 U.S. 43

(2015). But that case, too, did not involve the Horseracing Act. And this Court vacated the D.C. Circuit’s decision after determining that the entity at issue was not

actually a private body. See Department of Transportation v. Association of American Railroads, 575 U.S.

43, 46 (2015).

2. Gulf Coast Racing’s Appointments Clause challenge likewise does not warrant further review.

The Appointments Clause requires that “Officers of

the United States” be appointed by the President with

the advice and consent of the Senate; by the President

alone; by the courts of law; or by the heads of departments. U.S. Const. Art. II, § 2, Cl. 2. The Clause governs only the selection of “federal officers,” i.e., “offic-

13

ers exercising power of the National Government.” Financial Oversight & Management Board v. Aurelius

Investment, LLC, 590 U.S. 448, 460 (2020). It does not

govern the selection of the officers of private bodies.

See Pet. App. 36a.

Gulf Coast Racing acknowledges (Gulf Coast Racing

Pet. 1) that the Authority is a “private nonprofit corporation,” not a governmental entity. Indeed, Gulf Coast

Racing’s private nondelegation claim (see id. at 3) rests

on the premise that the Authority is a private body.

Once that premise is accepted, it necessarily follows

that the Authority’s directors are not officers of the

United States and that the Appointments Clause does

not govern their selection. See Pet. App. 42a.

Gulf Coast Racing argues that the decision below allows Congress to “evade” the Appointments Clause by

vesting governmental authority in a private body rather

than in a federal agency. Gulf Coast Racing Pet. 20 (citation omitted). That is incorrect. As the Fifth Circuit

explained, the “private nondelegation doctrine * * *

corrals any attempts to evade [the Appointments

Clause] by giving unaccountable governmental power to

a * * * private entity.” Pet. App. 42a. And for nearly

a century, this Court has applied that doctrine—rather

than the Appointments Clause—to evaluate contentions

that a private person’s role in a federal regulatory

scheme exceeds constitutional limits. See, e.g., Carter,

298 U.S. at 311. Gulf Coast Racing identifies no sound

basis to adopt a different jurisprudential approach now.

The Fifth Circuit’s decision rejecting Gulf Coast

Racing’s Appointments Clause challenge does not conflict with any decision of another court of appeals. The

Eighth Circuit has “agree[d] with the Fifth Circuit that

the Act does not conflict with the Appointments

14

Clause,” Walmsley, 117 F.4th at 1041, and no Appointments Clause challenge was raised in the Sixth Circuit

case. Further review of this challenge is not warranted.

CONCLUSION

The petitions for writs of certiorari should be denied.

Respectfully submitted.

ELIZABETH B. PRELOGAR

Solicitor General

BRIAN M. BOYNTON

Principal Deputy Assistant

Attorney General

MARK B. STERN

COURTNEY L. DIXON

CAROLINE W. TAN

Attorneys

NOVEMBER 2024