Petition for Writ of Certiorari — Oklahoma, et al., Petitioners v. United States, et al.
Supreme Court briefMay 15, 2026
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No.
I N THE
Supreme Court of the United States
___________________
STATE OF O KLAHOMA, ET AL.,
Petitioners,
v.
UNITED STATES OF AMERICA, ET AL.,
Respondents.
___________________
On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Sixth Circuit
___________________
PETITION FOR A WRIT OF CERTIORARI
___________________
GENTNER DRUMMOND
Attorney General
ZACH WEST
OFFICE OF THE OKLAHOMA
ATTORNEY GENERAL
313 NE 21st St.
Oklahoma City, OK 73105
(405) 522-4392
Zach.West@oag.ok.gov
TRENTON VAN OSS
LOCHLAN F. SHELFER
Counsel of Record
BRIAN C. MCCARTY
GIBSON, DUNN & CRUTCHER LLP
1700 M St. N.W.
Washington, DC 20036
(202) 955-8500
LShelfer@gibsondunn.com
Counsel for Petitioners State Counsel for Petitioners Hanover
of Oklahoma, Oklahoma
Shoe Farms, Inc. and United
Horse Racing Commission,
States Trotting Association
and Fair Meadows
[additional counsel listed at end]
QUESTION PRESENTED
The Horseracing Integrity and Safety Act of 2020,
15 U.S.C. §§ 3051-3060, delegates federal law-enforcement and rulemaking power to a private corporation—the Horseracing Integrity and Safety Authority
(the “Authority”)—to govern the horseracing industry.
The Act gives the Authority the exclusive power to enforce both the Act and the rules against regulated parties in federal court, as well as the powers to issue
subpoenas, search the businesses and property of regulated persons, and impose sanctions that include
fines, penalties, disgorgement, and lifetime bans from
horseracing. The Act also requires the Federal Trade
Commission to promulgate the private Authority’s
rules as federal law, even if it disagrees with them as
a policy matter, so long as they are “consistent” with
the Act. 15 U.S.C. § 3053(c)(2).
The Sixth Circuit below previously held that the
Act does not violate the private non-delegation doctrine—the principle that Congress cannot delegate
governmental power to private entities. The Fifth
Circuit, however, declared the Act unconstitutional,
and a divided panel of the Eighth Circuit agreed with
the Sixth Circuit. This Court vacated all three decisions and remanded for reconsideration in light of
FCC v. Consumers’ Research, 606 U.S. 656 (2025). On
remand, the Sixth Circuit again upheld the Act.
The question presented is whether the Act’s delegation of law-enforcement and rulemaking power to
the private Authority violates the Constitution’s private non-delegation doctrine.
ii
PARTIES TO THE PROCEEDING AND
RULE 29.6 STATEMENT
1. Petitioners are the State of Oklahoma; the Oklahoma Horse Racing Commission; the Tulsa County
Public Facilities Authority d/b/a Fair Meadows Racing
and Sports Bar; the State of West Virginia; the West
Virginia Racing Commission; Hanover Shoe Farms,
Inc.; the Oklahoma Quarter Horse Racing Association; Global Gaming RP, LLC, d/b/a Remington Park;
Will Rogers Downs, LLC; the United States Trotting
Association; and the State of Louisiana. Each Petitioner was an appellant below.
Respondents are the United States of America;
the Horseracing Integrity and Safety Authority, Inc.;
Leonard S. Coleman, Jr.; Nancy M. Cox; the Federal
Trade Commission; Andrew N. Ferguson, in his capacity as Chairman of the Federal Trade Commission;
Mark R. Meador, in his official capacity as Commissioner of the Federal Trade Commission; Steve
Beshear; Adolpho A. Birch, Jr.; Ellen McClain;
Charles P. Scheeler; Joseph DeFrancis; Susan Stover;
Bill Thomason; and D.G. Van Clief. Each Respondent
was an appellee below.
2. No Petitioner has a parent corporation, and no
publicly held corporation owns 10% or more of any Petitioner’s stock.
iii
STATEMENT OF RELATED PROCEEDINGS
Pursuant to this Court’s Rule 14.1(b)(iii), the following proceedings are directly related to this case:
•
Oklahoma v. United States, No. 22-5487 (6th Cir.)
(judgment entered December 17, 2025);
•
Oklahoma v. United States, No. 23-402 (U.S.)
judgment entered June 30, 2025);
•
Oklahoma v. United States, No. 22-5487 (6th Cir.)
(judgment entered March 3, 2023); and
•
Oklahoma v. United States, No. 5:21-cv-00104JMH (E.D. Ky.) (judgment entered June 3, 2022).
iv
TABLE OF CONTENTS
Page
QUESTION PRESENTED ................................................i
PARTIES TO THE PROCEEDING AND RULE
29.6 STATEMENT..................................................... ii
STATEMENT OF RELATED PROCEEDINGS........ iii
TABLE OF APPENDICES...............................................v
PETITION FOR A WRIT OF CERTIORARI ...............1
OPINIONS BELOW ..........................................................1
JURISDICTION .................................................................1
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED .......................................1
INTRODUCTION...............................................................1
STATEMENT......................................................................5
REASONS FOR GRANTING THE PETITION........ 14
I. THE CIRCUITS PREVIOUSLY D IVIDED O N
THE ACT’S CONSTITUTIONALITY, AND
CONSUMERS’ RESEARCH CONFIRMS I TS
I NFIRMITY. ............................................................ 15
II. THE ACT UNCONSTITUTIONALLY
D ELEGATES G OVERNMENT POWER TO A
PRIVATE CORPORATION....................................... 19
III.THIS CASE I S AN I DEAL VEHICLE TO
RESOLVE THE Q UESTION PRESENTED............... 35
CONCLUSION................................................................. 36
v
TABLE OF APPENDICES
Page
Appendix A: Opinion of the United States
Court of Appeals for the Sixth Circuit
(Dec. 17, 2025) ............................................................ 1a
Appendix B: Order of the Supreme Court
of the United States (June 30, 2025) .................. 44a
Appendix C: Order of the Supreme Court
of the United States (June 24, 2024) .................. 45a
Appendix D: Opinion of the United States
Court of Appeals for the Sixth Circuit
(Mar. 3, 2023) ........................................................... 46a
Appendix E: Opinion of the United States
District Court for the Eastern District
of Kentucky (June 3, 2022) ................................... 92a
Appendix F: Order of the United States
Court of Appeals for the Sixth Circuit
Denying Petition for Rehearing En Banc
(May 18, 2023)........................................................ 120a
Appendix G: Constitutional and Statutory
Provisions Involved............................................... 122a
U.S. Const. art. I, § 1 ............................................ 122a
U.S. Const. art. II, § 1 .......................................... 122a
U.S. Const. art. II, § 2 .......................................... 122a
U.S. Const. art. III, § 1 ......................................... 122a
vi
15 U.S.C. § 3051 .................................................... 123a
15 U.S.C. § 3052 .................................................... 127a
15 U.S.C. § 3053 .................................................... 137a
15 U.S.C. § 3054 .................................................... 140a
15 U.S.C. § 3055 .................................................... 151a
15 U.S.C. § 3056 .................................................... 161a
15 U.S.C. § 3057 .................................................... 165a
15 U.S.C. § 3058 .................................................... 171a
15 U.S.C. § 3059 .................................................... 176a
15 U.S.C. § 3060 .................................................... 177a
vii
TABLE OF AUTHORITIES
Page(s)
Cases
A.L.A. Schechter Poultry Corp. v. United
States,
295 U.S. 495 (1935) .................................................28
In re Aiken County,
725 F.3d 255 (D.C. Cir. 2013) ...............................21
Association of American Railroads v. United
States Department of Transportation,
721 F.3d 666 (D.C. Cir. 2013) ...............................29
Buckley v. Valeo,
424 U.S. 1 (1976) .....................................................20
Carter v. Carter Coal Co.,
298 U.S. 238 (1936) .................................................28
Churchill Downs, Inc. v. Horseracing
Integrity & Safety Authority, Inc.,
2026 WL 892498 (W.D. Ky. Apr. 1, 2026) ..........17
City of Arlington v. FCC,
569 U.S. 290 (2013) .................................................30
Collins v. Yellen,
594 U.S. 220 (2021) .................................................22
Department of Transportation v. Association
of American Railroads,
575 U.S. 43 (2015) ............................................ 21, 29
viii
Epic Systems Corp. v. Lewis,
584 U.S. 497 (2018) .................................................29
FCC v. Consumers’ Research,
606 U.S. 656 (2025) ............................3, 4, 5, 13, 18,
19, 22, 26, 27,
30, 31, 32, 33
FCC v. Fox Television Stations, Inc.,
556 U.S. 502 (2009) .................................................34
Free Enterprise Fund v. Public Co.
Accounting Oversight Board,
561 U.S. 477 (2010) .......................................... 22, 27
Freytag v. Commissioner,
501 U.S. 868 (1991) .................................................30
Friends of the Earth, Inc. v. Laidlaw
Environmental Services (TOC), Inc.,
528 U.S. 167 (2000) .................................................21
Heckler v. Chaney,
470 U.S. 821 (1985) .................................................26
Loper Bright Enterprises v. Raimondo,
603 U.S. 369 (2024) .................................................29
Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992) .................................................20
Metropolitan Washington Airports Authority
v. Citizens for Abatement of Aircraft
Noise, Inc.,
501 U.S. 252 (1991) .................................................28
ix
National Horsemen’s Benevolent &
Protective Association v. Black,
107 F.4th 415 (5th Cir. 2024) ..........11, 16, 18, 20,
22, 23, 25, 26
National Horsemen’s Benevolent &
Protective Association v. Black,
53 F.4th 869 (5th Cir. 2022)................ 9, 16, 17, 19
Printz v. United States,
521 U.S. 898 (1997) .................................................20
Seila Law LLC v. Consumer Financial
Protection Bureau,
591 U.S. 197 (2020) .......................................... 20, 22
State National Bank of Big Spring v. Lew,
795 F.3d 48 (D.C. Cir. 2015) .................................27
Sunshine Anthracite Coal Co. v. Adkins,
310 U.S. 381 (1940) .......................................... 29, 32
Texas v. Commissioner,
142 S. Ct. 1308 (2022) ............................................15
Texas v. Rettig,
993 F.3d 408 (5th Cir. 2021) .................................35
United States v. Arthrex, Inc.,
594 U.S. 1 (2021) .....................................................25
United States v. Grimaud,
220 U.S. 506 (1911) .................................................29
Walmsley v. FTC,
117 F.4th 1032 (8th Cir. 2024) ............... 12, 16, 25
x
Wayman v. Southard,
23 U.S. (10 Wheat.) 1 (1825) .................................29
Whitman v. American Trucking
Associations,
531 U.S. 457 (2001) .......................................... 25, 34
Constitutional Provisions
U.S. Const. art. I, § 1 ....................................................19
U.S. Const. art. II, § 1, cl. 1.........................................19
U.S. Const. art. II, § 2, cl. 2.........................................20
U.S. Const. art. III, § 1 .................................................19
Statutes
5 U.S.C. § 553 ................................................................... 9
15 U.S.C. § 3052(a)..................................................... 5, 6
15 U.S.C. § 3052(b)(1)..................................................... 5
15 U.S.C. § 3052(d) ......................................................... 5
15 U.S.C. § 3053(a)............................................ 7, 24, 31
15 U.S.C. § 3053(b)(1).............................................. 7, 24
15 U.S.C. § 3053(c) ........................................................34
15 U.S.C. § 3053(c)(2) .............................................. 7, 32
15 U.S.C. § 3053(d) ......................................................... 7
15 U.S.C. § 3053(e) ............................... 9, 11, 24, 33, 34
xi
15 U.S.C. § 3054(a)................................................. 25, 34
15 U.S.C. § 3054(b).......................................................... 7
15 U.S.C. § 3054(c) .......................................................... 7
15 U.S.C. § 3054(c)(1)(A)..............................................21
15 U.S.C. § 3054(h) ........................................... 6, 21, 25
15 U.S.C. § 3054(j)............................................. 6, 14, 25
15 U.S.C. § 3054(j)(1)....................................................20
15 U.S.C. § 3057 ............................................................20
15 U.S.C. § 3057(d) .................................................. 6, 22
15 U.S.C. § 3058(b).......................................................... 6
15 U.S.C. § 3058(c) .......................................................... 6
15 U.S.C. § 3058(d) .................................................. 6, 27
28 U.S.C. § 1254(1).......................................................... 1
Pub. L. No. 75-48, 50 Stat. 72 (1937) ........................29
Other Authorities
90 Fed. Reg. 43,431 (Sept. 9, 2025) ............... 6, 24, 27
FTC, Order Approving the Anti-Doping and
Medication Control Rule Proposed by the
Horseracing Integrity and Safety
Authority (Mar. 27, 2023) ............................... 10, 32
xii
FTC, Order Approving the Assessment
Methodology Rule Proposed by the
Horseracing Integrity and Safety
Authority (Apr. 1, 2022) ........................................... 8
FTC, Order Approving the Enforcement
Rule Modification Proposed by the
Horseracing Integrity and Safety
Authority (Dec. 19, 2025) .......................................10
FTC, Order Approving the Enforcement
Rule Proposed by the Horseracing
Integrity and Safety Authority (Mar. 25,
2022) ............................................................................. 8
FTC, Order Approving the Racetrack Safety
Rule Proposed by the Horseracing
Integrity and Safety Authority (Mar. 3,
2022) ............................................................................. 8
U.S. Courts, About the Rulemaking Process ...........33
PETITION FOR A WRIT OF CERTIORARI
Petitioners respectfully petition for a writ of certiorari to review the judgment of the United States
Court of Appeals for the Sixth Circuit.
OPINIONS BELOW
The opinion of the court of appeals is reported at
163 F.4th 294. Pet. App. 1a-43a. The opinion of the
district court is unreported but is available at 2022
WL 1913419. Pet. App. 92a-119a.
JURISDICTION
The court of appeals entered judgment on December 17, 2025. Pet. App. 2a. On February 27, 2026,
Justice Kavanaugh granted an extension of time to
file the petition for a writ of certiorari until May 16,
2026. See No. 25A958. This Court’s jurisdiction is invoked under 28 U.S.C. § 1254(1).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The relevant constitutional and statutory provisions are reproduced in the appendix at Pet. App.
122a-178a.
INTRODUCTION
When the People of the United States delegated
sovereign powers to the federal government, they
vested those powers in the legislative, executive, and
judicial branches. The Vesting Clauses’ limits on who
may wield federal governmental power are crucial to
the Constitution’s structure, which ensures that the
powers the people delegated to the federal government can be exercised only by those who are accountable to the will of the people.
2
The Horseracing Integrity and Safety Act of 2020
(the “Act”) turns this bedrock constitutional principle
on its head, delegating unprecedented federal power
to a private corporation, the Horseracing Integrity
and Safety Authority (the “Authority”). The Act bestows on the private Authority an array of executive
governmental powers, including the exclusive power
to enforce the Act and rules in federal court. The Act
also gives the Authority the power to launch investigations, issue subpoenas, and conduct searches; and
to charge regulated persons with rule violations, adjudicate those charges, and impose civil sanctions.
These are all quintessentially federal law-enforcement powers that the Act allows the private Authority
to exercise without involvement by the federal government.
The Act also empowers the Authority to draft federal regulations governing, among other things, permitted medications for horses, racetrack-safety standards, and a description of rule violations and civil
sanctions for those violations. The Federal Trade
Commission (“FTC”) then must promulgate the private Authority’s regulations as federal law so long as
they are “consistent” with the Act and other rules—
even if the FTC disagrees with them as a policy matter. If the FTC has a policy objection to an Authority
rule, the Act requires the FTC to undertake a separate
notice-and-comment rulemaking to rescind the rule
after it has already gone into effect.
This unprecedented transfer of federal power to a
private corporation previously split the Courts of Appeals: the Fifth Circuit held the Act facially unconstitutional, while the Sixth Circuit and the Eighth Circuit (over a dissent by Judge Gruender) upheld it.
3
After this Court applied the private non-delegation
doctrine in FCC v. Consumers’ Research, 606 U.S. 656
(2025), the Court granted certiorari in all three cases,
vacated the judgments, and remanded for further consideration in light of Consumers’ Research.
Consistent with this Court’s prior private non-delegation doctrine cases, Consumers’ Research made
clear that a private entity may “pla[y] an advisory
role” and make “recommendations” to a federal
agency, but the agency must have the power to “decid[e] whether or how to use” those recommendations.
606 U.S. at 693-94. A private entity “may not make
policy” and its recommendations “cannot go into effect
without an agency’s say-so” because the government
“alone” must retain “decision-making authority.” Id.
at 693, 695.
The Act’s delegation of governmental power to the
Authority subverts this principle. It gives the private
Authority—not the FTC—the quintessential law-enforcement responsibilities of bringing a civil enforcement action, investigating a suspected rule violator,
issuing a subpoena, searching a person’s property,
charging a person with a rule violation, or issuing a
civil sanction. The Act gives the FTC no role in supervising the Authority’s decisions to investigate, charge,
or sue regulated entities and limits the agency’s role
to reviewing final civil sanctions issued by the Authority after they have already gone into effect. And it
permits the Authority to control governmental policymaking because the Authority’s rules go into legal effect even if the FTC disagrees with them: if the FTC
objects to an Authority rule on policy grounds, the Act
requires it to devote agency resources to a separate
4
notice-and-comment rulemaking to rescind the Authority’s rule after it has already gone into effect and
legally bound the horseracing industry. Because the
Act gives the private Authority the power to decide
how to enforce federal law against regulated persons,
it unconstitutionally “allows [a] non-governmental entit[y] to govern.” Consumers’ Research, 606 U.S. at
697.
Yet the Sixth Circuit on remand again upheld the
constitutionality of the Act. Even though the Act permits the private Authority to wield governmental
powers over the horseracing industry, the Sixth Circuit nevertheless held the Act constitutional based on
its conjecture that the FTC might have the power to
rescind or undo some—though not all—of the Authority’s exercises of law-enforcement or rulemaking powers sometime in the future, after they have already
taken effect on regulated persons.
This Court should grant certiorari to definitively
resolve the question of the Act’s constitutionality. The
proper application of the private non-delegation doctrine to the Act divided the circuits before, and the
Sixth Circuit misapplied the holdings of Consumers’
Research on remand. The Sixth Circuit has twice upheld the Act’s unheard-of delegation of governmental
power to the private Authority, assuming each time
that it was bound to uphold the Act’s transfer of federal power from the government to a private corporation. The Fifth Circuit, by contrast, has twice held the
Act unconstitutional. And the Eighth Circuit, when
confronted with the question, previously divided on
the Act’s constitutionality. There is nothing in Consumers’ Research that casts doubt on the Fifth Circuit’s prior decisions or suggests that it should reach
5
a different result on remand; to the contrary, Consumers’ Research affirmatively supports the Fifth Circuit’s
prior rationales for holding the Act unconstitutional.
Resolving the question presented would provide
much-needed guidance to lower courts on how to apply
the private non-delegation doctrine, and this case is
an ideal vehicle to provide that necessary clarification. The Court should grant the petition and reverse.
STATEMENT
1. For nearly a century, regulation of horseracing was a matter of state and local concern. That
changed in 2020 when Congress enacted the
Horseracing Integrity and Safety Act (the “Act”),
which regulates horseracing in an “unconventional
wa[y]”: by empowering “a private nonprofit corporation—the Horseracing Integrity and Safety Authority”—to “regulat[e] and enforc[e] the Act.” Pet. App.
7a.
The Authority is a “private, independent, self-regulatory, nonprofit corporation.” 15 U.S.C. § 3052(a).
It is governed by a nine-member board of directors:
five “independent members selected from outside the
equine industry,” and four “industry members selected from among the various equine constituencies.”
Id. § 3052(b)(1). The Authority’s Board members are
selected by a “nominating committee,” whose initial
members are listed in the Authority’s “governing corporate documents,” with vacancies to be “filled by the
Board.” Id. § 3052(d). The Act “recognize[s]” the Authority “for purposes of developing and implementing
a horseracing anti-doping and medication control program and a racetrack safety program for covered
6
horses, covered persons, and covered horseraces.” Id.
§ 3052(a).
The Act grants the Authority an array of law-enforcement powers. The Act gives the Authority the
exclusive power to enforce its rules in federal court by
“commenc[ing] a civil action against a covered person
or racetrack that has engaged, is engaged, or is about
to engage, in acts or practices constituting a violation
of this chapter or any rule established under this
chapter.” 15 U.S.C. § 3054(j).
Additionally, the private Authority can “impos[e]
civil sanctions” of its own under the rules it establishes—including “lifetime bans from horseracing,”
“disgorgement,” and other “monetary fines and penalties”—which are subject to review by an administrative law judge and the FTC. 15 U.S.C. §§ 3057(d),
3058(b), (c). The Authority’s sanctions take effect immediately and, under the Authority’s enforcement
rules, the FTC is powerless to stay a sanction until
after the sanctioned party has exhausted an intra-Authority appeal of the sanction before the Authority’s
Board of Directors. Id. § 3058(d); 90 Fed. Reg. 43,431,
43,441-44 (Sept. 9, 2025). And the private Authority
wields “subpoena and investigatory authority with respect to civil violations committed under its jurisdiction.” 15 U.S.C. § 3054(h). The Act empowers the Authority to access “offices, racetrack facilities, other
places of business, books, records, and personal property of covered persons that are used in the care, treatment, training, and racing of covered horses” and to
exercise “other investigatory powers of the nature and
scope exercised by State racing commissions before
the program effective date.” Id. § 3054(c).
7
The Act also gives the Authority the power to craft
“proposed rule[s]” governing a broad range of matters,
such as “a list of permitted and prohibited medications, substances, and methods,” “racetrack safety
standards and protocols,” “a schedule of civil sanctions
for violations,” and “a process or procedures for disciplinary hearings.” 15 U.S.C. § 3053(a); see id.
§ 3053(d).
Whenever the Authority proposes a rule to the
FTC, the Act mandates that the FTC “shall” publish
it in the Federal Register and provide an opportunity
for public comment. 15 U.S.C. § 3053(b)(1) (emphasis
added). Within sixty days of publication, the FTC
then “shall approve a proposed rule or modification if
the Commission finds that the proposed rule or modification is consistent with—(A) this chapter; and
(B) applicable rules approved by the Commission.” Id.
§ 3053(c)(2) (emphasis added). The FTC has no discretion to reject the Authority’s rules if it disagrees
with them as a policy matter. Instead, the private Authority’s policy preferences trump the FTC’s, and the
FTC must approve the Authority’s rules, which then
become binding federal law that preempts any provision of state law “with respect to matters within the
jurisdiction of the Authority.” 15 U.S.C. § 3054(b).
That is exactly how things have played out in the
real world: the FTC consistently refuses to consider
public comments addressing whether the Authority’s
rules would be sound policy and explains that it lacks
the power to question the Authority’s policy choices.
When the Authority proposed its original enforcement
rules, the FTC did not consider “most comments” because they “offered policy recommendations” and the
8
FTC “reviews the Authority’s proposals for their consistency with the Act” alone, “not for general policy.”
FTC, Order Approving the Enforcement Rule Proposed
by the Horseracing Integrity and Safety Authority at
26, (Mar. 25, 2022); 1 see also id. at 4 (FTC explaining
that its “statutory mandate to approve or disapprove
a proposed Authority rule is limited to considering
only whether the proposed rule ‘is consistent with’ the
Act and the Commission’s procedural rule,” and that
comments unrelated to consistency “have little bearing on the [FTC’s] determination”).
When commenters objected to the Authority’s proposed rules regulating traction devices, the FTC refused to engage with any comments challenging “details in the Authority’s choice of permitted
horseshoes” because “these are essentially policy disagreements.” FTC, Order Approving the Racetrack
Safety Rule Proposed by the Horseracing Integrity and
Safety Authority at 43 (Mar. 3, 2022). 2 And when commenters objected to the Authority’s proposed inclusion
of each state’s share of purses paid in its methodology
for allocating fees among states to fund its operations,
the FTC declined to engage with those comments because “there are likely multiple [policy choices] that
the Authority could have proposed that would be consistent with the Act.” FTC, Order Approving the Assessment Methodology Rule Proposed by the Horseracing Integrity and Safety Authority at 20 (Apr. 1,
2022). 3
1
https://tinyurl.com/2mbyr99r.
2
https://tinyurl.com/2c8h8ep8.
3
https://tinyurl.com/4mszfa9d.
9
In November 2022, the Fifth Circuit held that the
Act’s consistency-review requirement violated the private non-delegation doctrine. As that court explained,
“[t]he FTC’s limited review of proposed rules falls
short of the ‘pervasive surveillance and authority’ an
agency must exercise over a private entity.” National
Horsemen’s Benevolent & Protective Association v.
Black, 53 F.4th 869, 884 (5th Cir. 2022) (“NHBPA I”).
“[W]hatever ‘consistency’ review includes, we know
one thing it excludes: the Authority’s policy choices in
formulating rules.” Id. at 885. Accordingly, the Fifth
Circuit concluded, the Act “defies th[e] [Vesting
Clauses’] basic safeguard by vesting government
power in a private entity not accountable to the people.” Id. at 872-73.
Congress then amended the Act to give the FTC
the power to adopt rules in accordance with the
Administrative Procedure Act, 5 U.S.C. § 553, that
“abrogate, add to, and modify the rules of the
Authority promulgated in accordance with this
chapter 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 chapter and applicable rules
approved by the Commission, or otherwise in
furtherance of the purposes of this chapter.” 15 U.S.C.
§ 3053(e).
But the amendment did not alter the Act’s
requirement that the FTC must approve any rule
proposed by the Authority that is consistent with the
Act and other rules, so the FTC still refuses to engage
with comments that “constitute mere policy
disagreements with the Authority.” FTC, Order
Approving the Anti-Doping and Medication Control
10
Rule Proposed by the Horseracing Integrity and Safety
Authority at 31 (Mar. 27, 2023) (dismissing comments
on Authority’s proposed list of prohibited substances
for horses on that basis); 4 see also FTC, Order
Approving the Enforcement Rule Modification
Proposed by the Horseracing Integrity and Safety
Authority at 15 (Dec. 19, 2025) (dismissing comment
on proposed changes to the Authority’s enforcement
rules that “offered policy recommendations but did not
identify any inconsistency between the proposed rule
modifications and the Act”). 5
2. Petitioners are three States, state racing commissions, and other entities involved in horseracing.
They brought suit in the U.S. District Court for the
Eastern District of Kentucky against the United
States, the FTC, and the Authority to prevent enforcement of the Act’s regulatory regime on the ground that
it violates the Constitution’s private non-delegation
doctrine. Pet. App. 92a-119a. The district court dismissed for failure to state a claim, holding that the
Authority “ ‘function[ed] subordinately’ to the FTC.”
Pet. App. 112a.
Petitioners appealed, and the Sixth Circuit affirmed. The Sixth Circuit concluded that the FTC’s
ability to exercise its own rulemaking power under the
2022 amendment rendered the Act’s delegation of
rulemaking power to the Authority constitutional under the private non-delegation doctrine. Pet. App.
59a-62a. The Sixth Circuit also held that the FTC’s
separate rulemaking power made the Act’s delegation
4
https://tinyurl.com/mr4tnhmk.
5
https://tinyurl.com/ycycaktt.
11
of law-enforcement power to the Authority constitutional because “the FTC could subordinate every aspect of the Authority’s enforcement ‘to ensure the fair
administration of the Authority * * * or otherwise in
furtherance of the purposes of [the Act].” Pet. App.
63a (quoting 15 U.S.C. § 3053(e)). The Sixth Circuit
denied Petitioners’ request for rehearing en banc, and
Petitioners petitioned this Court for a writ of certiorari. Pet. App. 120-121a. This Court originally denied
the petition in June 2024. Pet. App. 45a.
But 11 days later, the Fifth Circuit held that the
Act violated the Constitution’s private non-delegation
doctrine, creating a circuit split. National Horsemen’s
Benevolent & Protective Association v. Black, 107
F.4th 415 (5th Cir. 2024) (“NHBPA II”). The Fifth Circuit held that Congress’s grant of rulemaking authority to the FTC “cured the nondelegation defect” in the
Act’s consistency-review requirement that it had identified in its prior decision. Id. at 424. But, “part[ing]
ways” with the Sixth Circuit, the Fifth Circuit held
that “HISA’s enforcement provisions are facially unconstitutional.” Id. at 421. The Fifth Circuit explained that “[t]he power to launch an investigation,
to search for evidence, to sanction, [and] to sue” “are
all quintessentially executive functions” and “have
been considered so from our Nation’s founding.” Id. at
428. Because the Act empowers the private Authority
to exercise these powers “all without the FTC’s sayso,” the Act’s delegation of law-enforcement power to
the Authority was “forbidden by the Constitution.” Id.
at 421.
In light of the Fifth Circuit’s decision and the circuit split it created, Petitioners petitioned for rehearing, asking this Court to reconsider the denial of their
12
petition for a writ of certiorari. While that petition
was pending, a divided panel of the Eighth Circuit affirmed a decision rejecting a similar challenge to the
Act. The panel majority “agree[d] with the Sixth and
Fifth Circuits that the Act’s rulemaking structure
does not violate the private nondelegation doctrine.”
Walmsley v. FTC, 117 F.4th 1032, 1038 (8th Cir.
2024). And, recognizing that its “two sister circuits
reached differing conclusions” on the constitutionality
of the Authority’s law-enforcement powers, the panel
majority “agree[d]” with the Sixth Circuit that “the
statute is not unconstitutional on its face.” Id. at
1039. Judge Gruender concurred in part and dissented in part, concluding that “the Fifth Circuit has
the better of the argument” that the Authority’s enforcement powers are unconstitutional. Id. at 1042
(Gruender, J., concurring in part and dissenting in
part).
The plaintiffs in the Fifth and Eighth Circuit
cases, as well as the federal government and the Authority in the Fifth Circuit case, all petitioned for
writs of certiorari and asked this Court to decide
whether the Act is constitutional under the private
non-delegation doctrine. See FTC v. NHBPA, No. 24429 (U.S.); Horseracing Integrity & Safety Authority,
Inc. v. NHBPA, No. 24-433 (U.S.); Texas v. Black, No.
24-465 (U.S.); NHBPA v. Horseracing Integrity &
Safety Authority, Inc., No. 24-472 (U.S.); Gulf Coast
Racing, L.L.C. v. Horseracing Integrity & Safety Authority, Inc., No. 24-489 (U.S.); Walmsley v. FTC, No.
24-420 (U.S.).
While these petitions were pending, this Court decided FCC v. Consumers’ Research, 606 U.S. 656
(2025), which addressed a private non-delegation
13
challenge to the role that the private Universal Service Administrative Company (the “Administrator”)
plays in implementing the Telecommunications Act of
1996. The Court confirmed that “a law * * * violates
the private nondelegation doctrine when it allows
non-governmental entities to govern.” Id. at 697. The
Court upheld the Administrator’s role in the regulatory regime because it did not exercise any federal
governmental power: “[t]he Administrator ‘may not
make policy,’ ” it “plays an advisory role” and “makes
recommendations,” “the Commission alone has decision-making authority,” “the Commission decides
whether or how to use” the Administrator’s recommendations, and those recommendations “can have
only the legal (or, indeed, practical) effect the Commission decides they should.” Id. at 692-95. Critically, the Court emphasized that the statute was constitutional because the private entity’s proposed
actions or recommendations “cannot go into effect
without an agency’s say-so.” Id. at 695.
On June 30, 2025, the Court granted Petitioners’
petition for rehearing, granted certiorari, vacated the
Sixth Circuit’s judgment, and remanded for further
consideration in light of Consumers’ Research. Pet.
App. 44a. The Court similarly granted the petitions
in the Fifth and Eighth Circuit cases and remanded
those cases for reconsideration as well.
3. On remand, the Sixth Circuit again held that
the Act did not violate the private non-delegation doctrine. The Sixth Circuit concluded that the FTC’s
ability to initiate its own notice-and-comment rulemaking to undo or change the Authority’s rules meant
the FTC retained “the final say.” Pet. App. 21a. As
14
for the Authority’s enforcement powers, the court below acknowledged that “ ‘[d]ifficult and fundamental
questions’ * * * arise when private entities enforce
federal law.” Pet. App. 33a. As the court noted, “it
appears to cut against the grain to permit private entities to make such discretionary decisions, whether
to bring an enforcement action or whether to engage
in narrow or broad investigations of alleged violations
of the law.” Pet. App. 33a-34a. Nevertheless, the
Sixth Circuit held that the FTC’s power to review the
Authority’s sanctions, “together with the FTC’s rulemaking powers over enforcement actions,” gave it sufficient “oversight and control” over some—if not all—
of the Authority’s enforcement activities. Pet. App.
30a. As for the Authority’s exclusive power to enforce
the statute and rules in federal court under 15 U.S.C.
§ 3054(j), the court refused to consider that provision’s
constitutionality, noting that the issue would raise
numerous difficult questions, and thus the court preferred to wait for an as-applied challenge in a future
case. Pet. App. 34a-37a. The remanded Fifth and
Eighth Circuit proceedings remain pending.
REASONS FOR GRANTING THE PETITION
The Court should grant the petition to resolve the
question whether the Act unconstitutionally vests federal governmental power in the private Authority, an
important question that previously divided the courts
of appeals. In accord with a line of prior private nondelegation doctrine cases, this Court’s decision in Consumers’ Research underscored that the Constitution
does not allow private entities to make policy or exercise governmental power over others. Yet—even
though the Act allows the Authority to wield a broad
15
assortment of law-enforcement powers against regulated persons outside the FTC’s control and to promulgate binding rules over the FTC’s policy objections—
the Sixth Circuit held that the Act is constitutional.
The Sixth Circuit should have reconsidered its view
that the Act is constitutional because it blatantly violates the principles reaffirmed in Consumers’ Research. By contrast, those principles support the Fifth
Circuit’s prior determinations that the Act is unconstitutional. This case is an ideal vehicle to definitively
resolve the unsettled question whether the Act violates the private non-delegation doctrine.
I.
T HE CIRCUITS PREVIOUSLY DIVIDED
ON THE ACT’S CONSTITUTIONALITY,
AND CONSUMERS’ RESEARCH CONFIRMS ITS
INFIRMITY.
The proper application of the private non-delegation doctrine to the Act splintered the courts of appeals. The pervasive disagreement the question has
engendered verifies the observation by three Justices
that the private non-delegation doctrine needs
“clarif[ication]” from this Court. Texas v. Commissioner, 142 S. Ct. 1308, 1308 (2022) (statement of
Alito, J., respecting the denial of certiorari).
The history of challenges to the Act underscores
the need for guidance. The Fifth Circuit first held that
the Act’s delegation of rulemaking power to the Authority violates the private non-delegation doctrine
because it gave “a private entity the last word over
what rules govern our nation’s thoroughbred
horseracing industry.” NHBPA I, 53 F.4th at 872. After Congress amended the Act to give the FTC independent rulemaking power, the Sixth Circuit upheld
16
the Act’s constitutionality in full because the amendment “ameliorated the concerns underlying the nondelegation challenge.” Pet. App. 50a.
When the Fifth Circuit considered the Act as
amended, however, the panel unanimously “part[ed]
ways” with the Sixth Circuit in holding that the Act’s
“enforcement provisions are facially unconstitutional”
because the Act “empowers the Authority to investigate, issue subpoenas, conduct searches, levy fines,
and seek injunctions—all without the FTC’s say-so.”
NHBPA II, 107 F.4th at 421. When the Eighth Circuit
considered the issue, the question of the Act’s constitutionality divided the panel. The panel majority
agreed with the Sixth Circuit that the Act does not violate the private non-delegation doctrine. Walmsley,
117 F.4th at 1037-40. But Judge Gruender dissented
in part because, like the Fifth Circuit, he believed that
the Act’s delegation of enforcement powers to the Authority was facially unconstitutional and that the majority “fail[ed] to reckon with the plain language of
HISA, which grants to the Authority a broad enforcement power that is not subordinate to the FTC.” Id.
at 1043 (Gruender, J., concurring in part and dissenting in part). So far, four courts of appeals judges have
concluded that the Act as amended is unconstitutional, whereas five have concluded that it is constitutional.
Furthermore, district courts in the circuits that
upheld the Act have noted that the FTC’s on-theground oversight of the Authority appears inconsistent with the private non-delegation doctrine. The
Southern District of Iowa held that the FTC acted arbitrarily and capriciously when it approved an Au-
17
thority rule exempting horse breeders and veterinarians from its fee assessments because the FTC found
that exemption “consistent with the discretion afforded to the Authority under the Act to determine
what is equitable.” Dkt. 57, at 14, Kelly v. Horseracing
Integrity & Safety Authority, Inc., No. 4:24-cv-00264SHL-WPK (S.D. Iowa Mar. 23, 2026). The Court explained that “the FTC believed it should perform deferential review under an abuse-of-discretion-type
standard,” but stated that it was unaware of any “APA
case where a private entity proposed a rule that the
agency then approved under an abuse-of-discretion
standard.” Ibid. (citing NHBPA I, 53 F.4th at 884).
Similarly, the Western District of Kentucky explained that the FTC, when approving the Authority’s
fee-assessment methodology, “abandoned any pretense of substantive review and instead rubberstamped the method the Authority happened to
propose.” Churchill Downs, Inc. v. Horseracing Integrity & Safety Authority, Inc., 2026 WL 892498, at *14
(W.D. Ky. Apr. 1, 2026). That Court observed that the
FTC’s “narrow approach to public oversight fits uneasily with the Sixth Circuit’s decision rejecting the
charge of excessive private delegation” and instead
“lends credence to the Fifth Circuit’s concern.” Id. at
14-15 & n.16.
The Sixth Circuit’s decision on remand exhibits
continued misunderstanding of the proper application
of the private non-delegation doctrine. The Sixth Circuit failed to fully engage with or properly apply Consumers’ Research, which held that the Constitution
does not “allo[w] non-governmental entities to govern”
or engage in “policy-making,” that the government
18
must “retai[n] decision-making power,” and that a private party’s recommendations “cannot go into effect
without an agency’s say-so.” 606 U.S. at 692-93, 695,
697. Yet the Sixth Circuit doubled down on its prior
position that the Act permissibly allows the private
Authority to exercise the core executive functions of
deciding whether a covered person should be investigated, sanctioned, or sued, and to cause sanctions to
go into effect before the FTC can review them. Pet.
App. 26a-37a. The Sixth Circuit also saw nothing constitutionally objectionable about the fact that the Act
allows the Authority to cause federal horseracing policies to go into effect over the FTC’s objection.
By contrast, Consumers’ Research supports the
Fifth Circuit’s prior decisions that the Act is unconstitutional. This Court’s holdings that the Constitution
does not “allo[w] non-governmental entities to govern”
and requires the government to “retai[n] decisionmaking power,” 606 U.S. at 692, 697, support the Fifth
Circuit’s prior conclusion that the Act unconstitutionally gives the private Authority—not the FTC—the
“quintessentially executive functions” of deciding
whether to investigate, subpoena, search, sanction, or
sue a regulated person, NHBPA II, 107 F.4th at 42829. And this Court’s holdings that the Constitution
does not allow a private entity to engage in “policymaking” or cause its proposals to “go into effect without an agency’s say-so,” 606 U.S. at 693, 695, support
the Fifth Circuit’s prior holding that “[t]he FTC’s limited review of proposed rules”—which excludes review
of “the Authority’s policy choices in formulating
rules”—“falls short of the ‘pervasive surveillance and
authority’ an agency must exercise over a private entity.” NHBPA I, 53 F.4th at 884-85.
19
The Court should grant certiorari to clarify the
proper application of the private non-delegation doctrine to the Act and correct the Sixth Circuit’s misunderstanding of Consumers’ Research.
II.
T HE ACT UNCONSTITUTIONALLY DELEGATES
GOVERNMENT POWER TO A PRIVATE
CORPORATION.
The U.S. Constitution distributes federal power
among the three branches of the federal government:
legislative power in Congress, executive power in the
President, and judicial power in the Judiciary. See
U.S. Const. art. I, § 1; id. art. II, § 1, cl. 1; id. art. III,
§ 1. The Vesting Clauses do more than merely demarcate the separation of powers among the three
branches. They make clear that all federal governmental power is vested in, and only in, the three
branches. See Consumers’ Research, 606 U.S. at 697
(“[A] law * * * violates the private nondelegation doctrine when it allows non-governmental entities to govern.”).
The Court should grant certiorari and hold that
the Act’s delegation of law-enforcement and rulemaking power to the Authority violates the Constitution’s
private non-delegation doctrine. The Act gives the
private Authority the power to exercise quintessentially executive law-enforcement functions, including
the exclusive power to sue, investigate, search, or subpoena regulated persons. Additionally, the Act hands
over to the Authority the power to create federal
horseracing law, even over the FTC’s objection.
1. The Act unconstitutionally delegates to the Authority the quintessentially executive power of enforcing federal law in multiple different ways.
20
a. The Act gives the Authority the exclusive
power to enforce its rules in federal court by “commenc[ing] a civil action against a covered person or
racetrack that has engaged, is engaged, or is about to
engage, in acts or practices constituting a violation of
this chapter or any rule established under this chapter * * * to enjoin such acts or practices, to enforce
any civil sanctions imposed under [15 U.S.C. § 3057],
and for all other relief to which the Authority may be
entitled.” 15 U.S.C. § 3054(j)(1). The Act “gives the
FTC no role in this process, either before or after the
fact,” and provides that it is the Authority—not the
FTC—that “decides whether to sue the entity for an
injunction or to enforce a sanction it has imposed.”
NHBPA II, 107 F.4th at 429, 431.
That is plainly unconstitutional. “[C]onducting
civil litigation in the courts of the United States for
vindicating public rights” is a quintessential governmental “functio[n]” that “may be discharged only by
persons who are ‘Officers of the United States.’ ”
Buckley v. Valeo, 424 U.S. 1, 140 (1976) (per curiam)
(quoting U.S. Const. art. II, § 2, cl. 2); see also Printz
v. United States, 521 U.S. 898, 922-23 (1997) (Congress may not “transfe[r]” responsibility for enforcing
federal law outside “the Federal Executive”); Seila
Law LLC v. Consumer Financial Protection Bureau,
591 U.S. 197, 219 (2020) (the “power to seek daunting
monetary penalties against private parties on behalf
of the United States in federal court” is “a quintessentially executive power”); Lujan v. Defenders of Wildlife, 504 U.S. 555, 576-77 (1992) (Congress may not
allow private enforcement of federal law absent concrete injury because that would infringe on “the Chief
Executive’s most important constitutional duty, to
21
‘take Care that the Laws be faithfully executed,’ Art.
II, § 3”); In re Aiken County, 725 F.3d 255, 264 n.9
(D.C. Cir. 2013) (Kavanaugh, J.) (“civil enforcement
decisions brought by the Federal Government are presumptively an exclusive Executive power”).
As several Justices have emphasized, outsourcing
enforcement of federal law to private parties raises
“[d]ifficult and fundamental questions.” Friends of the
Earth, Inc. v. Laidlaw Environmental Services (TOC),
Inc., 528 U.S. 167, 197 (2000) (Kennedy, J., concurring); see also Department of Transportation v. Association of American Railroads, 575 U.S. 43, 62 (2015)
(Alito, J., concurring) (“Private entities are not vested
with . . . the ‘executive Power,’ Art. II, § 1, cl. 1, which
belongs to the President.”).
The Act’s delegation to the Authority of exclusive
power to decide whether to bring a civil enforcement
action to enforce the Act and its rules (and then to
carry out that prosecution) thus unconstitutionally
delegates paradigmatic executive power to a private
entity.
b. The Act also gives the Authority the power to
launch investigations and search for evidence, including “subpoena and investigatory authority”; the right
of “access to offices, racetrack facilities, other places of
business, books, records, and personal property of covered persons that are used in the care, treatment,
training, and racing of covered horses”; and “other investigatory powers of the nature and scope exercised
by State racing commissions.”
15 U.S.C.
§ 3054(c)(1)(A), (h). And it gives the Authority the
power to “impos[e] civil sanctions” for violations of its
rules, which may include “lifetime bans from
22
horseracing,” “disgorgement,” and “monetary fines
and penalties.” Id. § 3057(d).
As the Fifth Circuit previously held, “[t]he power
to launch an investigation, to search for evidence, to
sanction, [and] to sue * * * are all quintessentially
executive functions.” NHBPA II, 107 F.4th at 428; see
Free Enterprise Fund v. Public Co. Accounting Oversight Board, 561 U.S. 477, 504 (2010) (the “power to
start, stop, or alter individual Board investigations”
are “executive activities typically carried out by officials within the Executive Branch”); Collins v. Yellen,
594 U.S. 220, 254 (2021) (Federal Housing Finance
Agency “clearly exercises executive power” because
“[i]t is authorized to issue subpoenas”); Seila Law, 591
U.S. at 224-25 (Director of Consumer Financial Protection Bureau exercises “significant governmental
power” because he may “oversee adjudications, set enforcement priorities, initiate prosecutions, and determine what penalties to impose on private parties”).
Because the Act delegates to the private Authority
the quintessential executive powers of determining
federal law-enforcement priorities and whether to investigate, search, subpoena, sanction, or sue particular persons, it unconstitutionally “confer[s] governmental power on a private party.”
Consumers’
Research, 606 U.S. at 692. For nearly all the enforcement questions that matter, it is the Authority—not
the FTC—that exercises “decision-making power.”
Ibid. Under “[t]he Act’s plain terms,” “[t]he Authority
decides whether to investigate a covered entity for violating HISA’s rules”; “[t]he Authority decides
whether to subpoena the entity’s records or search its
premises”; “[t]he Authority decides whether to sanction it”; “[a]nd the Authority decides whether to sue
23
the entity for an injunction or to enforce a sanction it
has imposed.” NHBPA II, 107 F.4th at 429. The Act
“does not empower the FTC to decide whether to investigate a covered entity, whether to subpoena its
records, whether to search its premises, whether to
charge it with a violation, or whether to sanction or
sue it.” Ibid. By vesting the private Authority with
the responsibility for making the necessary judgment
calls on how to exercise federal law-enforcement powers, the Act delegates executive power in violation of
the private non-delegation doctrine.
c. The Sixth Circuit concluded that this regime
did not violate the Constitution because it perceived
ways the FTC might constrain or influence some of the
Authority’s law-enforcement decisions. The Sixth Circuit’s proposed workarounds cannot render the Act
constitutional.
First, the Sixth Circuit reasoned that the FTC
could promulgate rules governing the Authority’s enforcement activities, such as procedural regulations
“constraining the Authority’s investigations and increasing the procedural rights of suspected rulebreakers” and even regulations directing the Authority’s exercise of enforcement discretion in particular cases,
such as a regulation requiring the Authority to “drop
a misguided investigation into a particular jockey” or
to “pursue an enforcement action against a recalcitrant rule breaker.” Pet. App. 28a-29a.
But any ability of the FTC to use notice-and-comment rulemaking to direct the Authority to stop exercising its enforcement powers in particular cases is insufficient to render the delegation of law-enforcement
powers to the Authority constitutional. The FTC’s use
24
of its separate rulemaking power to stop a particular
Authority enforcement action in its tracks does not
prevent the Authority from unconstitutionally wielding law-enforcement power and determining enforcement priorities in the first place.
In any event, the text of the Act does not permit
the FTC to use its rulemaking power to micromanage
the Authority’s enforcement activities in such a manner. The Act gives the FTC the power to “abrogate,
add to, and modify the rules of the Authority promulgated in accordance with this chapter.” 15 U.S.C.
§ 3053(e) (emphasis added). Under the Act, the rules
of the Authority include such things as “racetrack
safety standards,” “a list of permitted and prohibited
medications,” and “a schedule of civil sanctions.” Id.
§ 3053(a). The Authority’s rules do not encompass decisions on how to enforce its rules in particular cases.
When the Authority decides to investigate or sanction
a jockey, for example, it does not propose a rule to the
FTC for public comment on that proposed course of action. Id. § 3053(b)(1). Instead, the Authority exercises the discretion the Act delegates to it on how to
enforce its rules in particular cases.
It does not matter that the Authority has since
proposed—and the FTC has approved—a rule requiring the Authority to obtain FTC approval before issuing a subpoena or bringing a civil enforcement action,
which are only two of the many enforcement powers
the Authority enjoys. See 90 Fed. Reg. at 43,444-45.
In the first place, the Act itself gives the Authority the
power to issue subpoenas and commence civil actions
without FTC approval, 15 U.S.C. § 3054(h), (j), and
the Authority cannot render that unlawful delegation
constitutional by adopting a rule placing self-imposed
25
limits on its statutory powers. See Whitman v. American Trucking Associations, 531 U.S. 457, 472 (2001)
(agency cannot “cure an unlawful delegation” by
“adopting in its discretion a limiting construction of
the statute”). Just like in United States v. Arthrex,
Inc., where the agency similarly conjured a “catalog of
steps” that the government “might take to affect the
decisionmaking process,” such as “jump[ing] in before”
the “final decision,” this Court rejected those “machinations,” saying they are “not the solution” but the
“problem.” 594 U.S. 1, 15-16 (2021).
Additionally, the regulatory rewrite of the statute
itself violates the Act, which already separately divides the governmental powers, giving some to the
private Authority and others to the FTC. “Congress
set out a definite enforcement scheme, dividing responsibilities among the FTC [and] the Authority.”
NHBPA II, 107 F.4th at 431; see 15 U.S.C. § 3054(a)
(directing the Authority and the FTC to enforce the
Act “each within the scope of their powers and responsibilities under this chapter”). That is why both the
Fifth Circuit and Judge Gruender previously rejected
the Sixth Circuit’s “rulemaking argument”—it “would
let the agency rewrite the statute.” NHBPA II, 107
F.4th at 431; see Walmsley, 117 F.4th at 1043
(Gruender, J., concurring in part and dissenting in
part) (“the plain text of [the Act] empowers the Authority, and not the FTC, with broad enforcement
power” and “[t]he FTC cannot rewrite the statutory
scheme that Congress enacted”).
In any event, the rule does not resolve the problem. When the government prosecutes a civil-enforcement action, there are myriad choices it must make in
its prosecutorial discretion, and those decisions are
26
uniquely governmental powers.
See Heckler v.
Chaney, 470 U.S. 821, 832 (1985). The regulation,
however, governs only one of those decisions—
whether a proposed civil-enforcement action may proceed. But the power to make all decisions about how
that enforcement proceeding should be conducted remains solely in the hands of the Authority.
Second, as for proceedings conducted in the Authority’s own in-house tribunals, the Sixth Circuit
held that the FTC’s ability to review any civil sanctions the Authority imposes, and to stay any such
sanction pending its review, “insulate[s] the Act from
a successful facial challenge.” Pet. App. 28a. But that
back-end review does not prevent the Authority from
exercising “governmental power” in the slightest.
Consumers’ Research, 606 U.S. at 692. By the time
the FTC has an opportunity to review an Authority
sanction, “[c]onsider everything the Authority was
permitted to do up to that point: launch an investigation into [a horse] owner, subpoena his records, search
his facilities, charge him with a violation, adjudicate
it, and fine him,” all outside the FTC’s direction and
control. NHBPA II, 107 F.4th at 430. “Each and every
one of those actions is ‘enforcement’ of HISA” that occurs “without any supervision by the FTC.” Ibid.
Moreover, the Sixth Circuit incorrectly held that
the FTC can always use its stay power to prevent the
Authority from “implement[ing] a sanction before the
FTC finally reviews it.” Pet. App. 28a. The Authority’s enforcement rules provide for initial disciplinary
hearings to be conducted by a 3-member panel of the
Authority’s Board of Directors, and a civil sanction ordered by the panel—which takes effect immediately—
is appealable to the full Board. 90 Fed. Reg. at 43,441-
27
43. The decision whether to stay a civil sanction while
it is on appeal to the Authority’s Board is committed
to the Board—not the FTC. Id. at 43,443. The decision of the Board on appeal is the “final civil sanction
subject to appeal and review” by the FTC, and it is
only that decision that the FTC has the power to stay.
Id. at 43,444; 15 U.S.C. § 3058(d). Thus, if the Authority’s Board declines to stay a civil sanction, it does
go into effect “without the FTC’s ‘say-so.’ ” Pet. App.
27a-28a (quoting Consumers’ Research, 606 U.S. at
695).
Finally, the Sixth Circuit declined to “finally resolve the validity” of the Act’s delegation to the Authority of the exclusive power to bring civil enforcement actions because it viewed that challenge as
premature in the context of a facial challenge. Pet.
App. 34a. This Court’s precedents squarely reject that
approach. When a regulated party raises a constitutional challenge to the structure of its regulator,
courts “do not require plaintiffs to ‘bet the
farm * * * by taking the violative action’ before ‘testing the validity of the law.’ ” Free Enterprise Fund,
561 U.S. at 490; see State National Bank of Big Spring
v. Lew, 795 F.3d 48, 54 (D.C. Cir. 2015) (Kavanaugh,
J.) (where a party “challeng[es] the legality of the regulating [entity] itself,” it “would make little sense to
force a regulated entity to violate a law (and thereby
trigger an enforcement action against it) simply so
that the regulated entity can challenge the constitutionality of the regulating agency”). Instead, in adjudicating structural constitutional challenges to an entity’s powers, courts “have no trouble concluding” that
a challenge to such power “is ripe even if
the * * * power has not been exercised to [plaintiffs’]
28
detriment.” Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise,
Inc., 501 U.S. 252, 265 n.13 (1991).
2. The Act’s delegation of rulemaking power to the
private Authority also violates the Constitution’s private non-delegation doctrine.
a. This Court has long forbidden the government
from delegating its power to make legislative rules to
a private entity. The Court has stated that it is “obvious” that “a delegation of legislative power” to private
groups “so as to empower them to enact the laws they
deem to be wise and beneficent” is “unknown to our
law, and * * * utterly inconsistent with the constitutional prerogatives and duties of Congress.” A.L.A.
Schechter Poultry Corp. v. United States, 295 U.S.
495, 537 (1935). Similarly, in Carter v. Carter Coal
Co., 298 U.S. 238 (1936), the Court struck down a statute granting certain coal producers and miners the
power to issue rules setting maximum labor hours and
minimum wages. The Court explained that a delegation of rulemaking authority to a private party is “delegation in its most obnoxious form.” Id. at 311. Congress responded to this Court’s instructions in Carter
Coal by enacting a revised statute, which the Court
upheld because the National Bituminous Coal Commission—a government agency—retained the power
to “approv[e], disapprov[e], or modif[y]” any proposed
rules in its sole discretion. Sunshine Anthracite Coal
Co. v. Adkins, 310 U.S. 381, 388 (1940).
Critically, the Coal Commission in Adkins could
“disapprov[e]” proposed prices before they took effect,
310 U.S. at 388, whenever it decided that they were
not “just and equitable” or did not “have due regard to
29
the interests of the consuming public.” Pub. L. No. 7548, § 4, Part II(a), 50 Stat. 72, 78 (1937); see also Adkins, 310 U.S. at 399 (the Coal Commission alone “determines the prices”); Association of American Railroads v. United States Department of Transportation,
721 F.3d 666, 671 (D.C. Cir. 2013) (“the agency in Adkins could unilaterally change regulations proposed to
it by private parties”), vacated and remanded on other
grounds, 575 U.S. 43.
These cases embody one crucial constitutional
principle: the government cannot delegate its discretionary powers to make and enforce the law to a private entity. When Congress delegates “discretionary
policymaking” in the execution of federal law, it must
be to the Executive Branch. Loper Bright Enterprises
v. Raimondo, 603 U.S. 369, 404 (2024). That is the
only manner in which Congress may delegate the
power to “fill up the details” of a federal statute, Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 43 (1825), because the “power to fill up details” of legislation is the
power to make “administrative rules and regulations,”
United States v. Grimaud, 220 U.S. 506, 517 (1911)—
a governmental power. At root, the private non-delegation doctrine vindicates the fundamental rule that
“policy choices should be left to” governmental officials because they are “directly accountable to the people.” Epic Systems Corp. v. Lewis, 584 U.S. 497, 520
(2018) (internal quotation marks omitted); see also
Freytag v. Commissioner, 501 U.S. 868, 884 (1991)
(federal power can be exercised only by those who are
“accountable to political force and the will of the people”); City of Arlington v. FCC, 569 U.S. 290, 327
30
(2013) (Roberts, C.J., dissenting) (noting that “policymaking [is] properly left, under the separation of powers, to the Executive”).
This Court reaffirmed these principles in Consumers’ Research, which distilled from the Court’s prior
decisions in Carter and Adkins the rule that the Constitution forbids the government from “conferr[ing]
governmental power on a private party,” and that, although the government “may enlist private parties to
give it recommendations,” the agency must “retai[n]
all decision-making authority.” 606 U.S. at 664, 692.
The Court held that the private Administrator’s role
in the FCC’s universal-service scheme complied with
these constitutional limits because the Administrator
did not make policy. In determining the amount each
carrier must contribute to the universal-service fund,
the Court explained that “the Administrator plays an
advisory role,” but “the Commission alone has decision-making authority.” Id. at 693. While the Administrator “makes the initial projections” of the amounts
required, which is based on “carriers’ projected revenues and the Fund’s projected expenses,” “that means
just doing arithmetic” because carriers “submit their
projections” and the Administrator simply “adds them
up.” Ibid. Determining the fund’s projected expenses
involves “greater effort—but still no policy-making”—
because “[t]he FCC’s rules implementing the Act dictate the programs’ scope” and, “[w]orking within those
rules, the Administrator estimates the programs’
cost.” Ibid. The FCC has “a chance to review—and, if
needed, to revise—the projections before approving final figures,” and, after publicly posting the contribution factor, the FCC has “14 days to make additional
31
changes before the factor is ‘deemed approved.’ ” Id.
at 693-94.
This Court concluded that “the Commission is,
throughout, the final authority” because “[t]he Administrator, following the FCC’s rules, makes recommendations,” while “the Commission decides whether
or how to use them in setting the contribution factor.”
Consumers’ Research, 606 U.S. at 694. “[C]ritica[l]” to
the Court’s holding was the Administrator’s “advisory
role” and the fact that “the Administrator’s projections can have only the legal (or, indeed, practical) effect the Commission decides they should.” Id. at 69394. As the Court emphasized, the recommendations
of private entities like the Administrator “cannot go
into effect without an agency’s say-so.” Id. at 695.
b. The Act’s delegation of rulemaking power to
the Authority is inconsistent with the principles that
a private entity may not engage in “policy-making”
and a “private party’s recommendations * * * cannot
go into effect without an agency’s say-so.” Consumers’
Research, 606 U.S. at 693, 695. When the Authority
proposes rules to the FTC, it is not “play[ing] an advisory role” or making non-binding “recommendations”
that the FTC is free to “decid[e] whether or how to
use.” Id. at 693-94. To the contrary, the Authority
exercises its own policymaking discretion when determining which horse medications are permitted or prohibited, the appropriate standards and protocols for
racetrack safety, and the appropriate civil sanctions
that apply to violations of the Authority’s rules. 15
U.S.C. § 3053(a). And when the Authority submits its
preferred policy to the FTC in the form of proposed
rules, the FTC “shall approve” those rules as binding
32
federal regulations so long as it finds them to be “consistent with” the Act and “applicable rules approved
by the Commission.” Id. § 3053(c)(2).
If the FTC disagrees with an Authority rule as a
matter of policy but finds it to be consistent with the
Act and prior approved rules, the FTC does not “retai[n] decision-making power” to reject the proposal.
Consumers’ Research, 606 U.S. at 692. Instead, because the Act does not permit the FTC to disapprove
the Authority’s rules based on “policy disagreements
with the Authority,” the Act requires the FTC to yield
to the private Authority’s preferred policy and approve it as law. FTC, Order Approving the Anti-Doping and Medication Control Rule Proposed by the
Horseracing Integrity and Safety Authority at 31
(Mar. 27, 2023). 6
The government’s power to disapprove a private
entity’s proposed regulations on policy grounds is a
key feature of all regimes that courts have upheld as
constitutional. The Coal Commission in Adkins could
“disapprov[e]” proposed prices before they took effect.
310 U.S. at 388. The FCC in Consumers’ Research
similarly “retain[ed] decision-making power” and
could choose “whether or how to use” the Administrator’s “recommendations.” 606 U.S. at 692, 694.
In contrast to the regimes approved in those cases,
the FTC cannot reject the Authority’s rules on policy
grounds. Yet the Sixth Circuit saw no constitutional
problem because the FTC could use its separate rulemaking power to modify such rules after they took effect to correct any “policy disagreements,” which the
Sixth Circuit concluded “ensures that the FTC retains
6
https://tinyurl.com/mr4tnhmk.
33
ultimate authority over implementation” of the Act.
Pet. App. 23a; see 15 U.S.C. § 3053(e). But Consumers’ Research makes clear that the ability to overrule
a private entity’s choices after they have already
taken legal effect is insufficient. The Constitution
limits private entities to offering “recommendations”
that “cannot go into effect without an agency’s say-so.”
Consumers’ Research, 606 U.S. at 695. Because the
Authority’s rules can go into effect over the FTC’s policy objection, the FTC is not, “throughout, the final
authority.” Id. at 694.
Moreover, the only way the FTC can exercise its
back-end power is to choose to devote its limited time
and resources to conducting rulemakings to countermand Authority rules with which it disagrees at the
expense of its other regulatory priorities. And even if
the FTC decides to pursue notice-and-comment rulemaking to repeal an Authority rule it disagrees with,
that is a time-consuming process that typically takes
years to complete. See Admin. Off. of the U.S. Courts,
About
the
Rulemaking
Process,
https://tinyurl.com/46ndbkf4 (“The federal rulemaking process
usually takes two to three years.”). By the time the
FTC gets around to promulgating its own rule, the Authority’s rule—which will have governed in the meantime—may have “engendered serious reliance interests that must be taken into account,” such that the
FTC would be required to “provide a more detailed
justification than what would suffice for a new policy
created on a blank state.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009). The Act thus
vests the Authority with a first-mover policymaking
advantage that further constricts the FTC’s discretion
to implement its own policy choices.
34
The Sixth Circuit nevertheless held that the Authority’s ability to cause federal horseracing regulations to take legal effect over the FTC’s objection did
not violate the Constitution because it perceived certain practical ways the FTC might constrain the Authority’s exercise of its statutory power. Pet. App.
23a-26a. For example, it stated that the FTC could
adopt a rule that all newly approved Authority rules
“do not take effect for a certain period of time, thereby
giving the FTC time to review rules and prepare
preemptive modifications” or simply “decide to hold off
on publishing a rule proposed by the Authority until
the FTC has promulgated its own modified version of
the rule.” Pet. App. 24a.
The Act does not permit such end-runs: it gives
the FTC the power to “modify the rules of the Authority,” 15 U.S.C. § 3053(e), but not the power to modify
the “scope of [the Authority’s and FTC’s] powers and
responsibilities under [the Act],” id. § 3054(a), including the Act’s requirement that the FTC “shall approve” the Authority’s proposed rules if consistent
with the Act “[n]ot later than 60 days” after they are
“published in the Federal Register,” id. § 3053(c). Nor
can an agency “cure an unlawful delegation * * * by
adopting in its discretion a limiting construction of the
statute.” Whitman, 531 U.S. at 472. Indeed, under
the Sixth Circuit’s “logic, any” delegation “of rulemaking power [would be] permissible” (whether to governmental or private actors) because Congress or the
agency could always attempt to “claw back its delegated power” by passing a new law or regulation to
regain control of policy-making responsibility. Texas
v. Rettig, 993 F.3d 408, 416 (5th Cir. 2021) (Ho, J., dissenting from denial of rehearing en banc).
35
This regime turns the Constitution’s requirements upside-down: under our Constitution, it should
take federal action to make law, not to unmake law
that was imposed at the insistence of a private actor
over the government’s policy objections.
*
*
*
Because the Sixth Circuit once again upheld the
Act’s unprecedented delegation of federal law-enforcement and rulemaking power to the private Authority,
the Court should grant certiorari and reverse.
III.
THIS CASE IS AN IDEAL VEHICLE TO
RESOLVE THE QUESTION PRESENTED
This case is an ideal vehicle for the Court to resolve the question whether the Act’s delegation of
rulemaking and law-enforcement power to the Authority violates the private non-delegation doctrine.
Petitioners fully preserved and litigated their
challenge to the Act’s constitutionality under the private non-delegation doctrine in both the district court
and the Sixth Circuit. Pet. App. 14a-37a, 103a-113a.
The Sixth Circuit upheld the Act’s constitutionality in
a reasoned, precedential opinion that thoroughly (but
erroneously) analyzed the application of the private
non-delegation doctrine to the Act. There are no complicating threshold questions that would impede this
Court’s review of the question presented. And the private non-delegation doctrine issue in this case is outcome-determinative: regardless of whether this Court
holds that the Act’s delegation of law-enforcement and
rulemaking powers to the private Authority is unconstitutional or constitutional, its decision will conclusively resolve Petitioners’ challenge to the Act.
36
The decision below thus cleanly tees up the question whether the Act violates the private non-delegation doctrine. This Court should grant certiorari to
resolve that important question and reverse the Sixth
Circuit’s decision.
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted,
GENTNER DRUMMOND
Attorney General
ZACH WEST
OFFICE OF THE OKLAHOMA
ATTORNEY GENERAL
313 NE 21st St.
Oklahoma City, OK 73105
(405) 522-4392
Zach.West@oag.ok.gov
TRENTON VAN OSS
LOCHLAN F. SHELFER
Counsel of Record
BRIAN C. MCCARTY
GIBSON, DUNN & CRUTCHER LLP
1700 M St. N.W.
Washington, DC 20036
(202) 955-8500
LShelfer@gibsondunn.com
Counsel for Petitioners State Counsel for Petitioners Hanover
of Oklahoma, Oklahoma
Shoe Farms, Inc. and United
Horse Racing Commission,
States Trotting Association
and Fair Meadows
May 15, 2026
37
ADDITIONAL COUNSEL
JOHN B. MCCUSKEY
Attorney General
MICHAEL R. WILLIAMS
OFFICE OF THE WEST VIRGINIA ATTORNEY GENERAL
1900 Kanawha Blvd. East
Building 1, Room E-26
Charleston, WV 25305
(304) 558-2021
Michael.r.williams@wvago.gov
Counsel for Petitioners
State of West Virginia and
the West Virginia Racing
Commission
JOSEPH BOCOCK
BOCOCK LAW PLLC
701 N. Broadway Ave.
Suite 430
Oklahoma City, OK 73102
(405) 605-0218
Joe@bococklaw.com
Counsel for Petitioner Oklahoma Quarter Horse
Racing Association
TODD HEMBREE
CHEROKEE N ATION
BUSINESSES
777 W. Cherokee St.
Catoosa, OK 74015
(918) 384-7474
Michael.hembree@cnbus.com
Counsel for Petitioner Will
Rogers Downs LLC
ELIZABETH B. MURRILL
Attorney General
J. Benjamin Aguiñaga
LOUISIANA DEPARTMENT OF
JUSTICE
1885 N. Third Street
Baton Rouge, LA 70804
(225) 326-6766
Murrille@ag.louisiana.gov
Counsel for Petitioner State
of Louisiana
MICHAEL BURRAGE
WHITTEN BURRAGE
512 N. Broadway Ave.,
Ste. 300
Oklahoma City, OK 73102
(405) 516-7800
Mburrage@whittenburragelaw.com
JARED C. EASTERLING
GLOBAL GAMING
SOLUTIONS, LLC
1921 Cradduck Road
Ada, OK 74820
(580) 399-0268
Jared.easterling@ggsol.net
Counsel for Petitioner
Global Gaming RP, LLC,
d/b/a Remington Park
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.