Petition for Writ of Certiorari — Oklahoma, et al., Petitioners v. United States, et al.

APPENDIX

i

TABLE OF CONTENTS

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

ii

U.S. Const. art. III, § 1 .................................... 122a

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

1a

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

STATE OF OKLAHOMA; OKLAHOMA

HORSE RACING COMMISSION;

TULSA COUNTY PUBLIC

FACILITIES AUTHORITY, dba Fair

Meadows Racing and Sports

Bar; STATE OF WEST VIRGINIA;

WEST VIRGINIA RACING

COMMISSION; HANOVER SHOE

FARMS, INC.; OKLAHOMA

QUARTER HORSE RACING

ASSOCIATION; GLOBAL GAMING

RP, LLC, dba Remington Park;

WILL ROGERS DOWNS, LLC;

UNITED STATES TROTTING

ASSOCIATION; STATE OF

LOUISIANA,

Plaintiffs-Appellants,

v.

UNITED STATES OF AMERICA;

HORSERACING INTEGRITY AND

SAFETY AUTHORITY, INC.;

LEONARD S. COLEMAN, JR.;

NANCY M. COX; FEDERAL TRADE

COMMISSION; ANDREW N.

FERGUSON, in his official

capacity as the Chair of the

Federal Trade Commission;

No. 22-5487

2a

MARK R. MEADOR, in his official

capacity as Commissioner of the

Federal Trade Commission;

STEVE BESHEAR; ADOLPHO

BIRCH, JR.; ELLEN MCCLAIN;

CHARLES P. SCHEELER; JOSEPH

DEFRANCIS; SUSAN STOVER; BILL

THOMASON; D. G. VAN CLIEF,

Defendants-Appellees.

On Remand from the United States Supreme Court

United States District Court for the

Eastern District of Kentucky at Lexington.

No. 5:21-cv-00104—Joseph M. Hood, District Judge.

Argued: November 12, 2025

Decided and Filed: December 17, 2025

Before: SUTTON, Chief Judge; COLE and

GRIFFIN, Circuit Judges.

3a

COUNSEL

ARGUED: Lochlan F. Shelfer, GIBSON, DUNN &

CRUTCHER LLP, Washington, D.C., for Appellants.

Courtney

L.

Dixon,

UNITED

STATES

DEPARTMENT OF JUSTICE, Washington, D.C., for

Federal Appellees. Pratik A. Shah, AKIN GUMP

STRAUSS HAUER & FELD LLP, Washington, D.C.,

for

Horseracing

Authority

Appellees.

ON

SUPPLEMENTAL BRIEF: Lochlan F. Shelfer,

GIBSON, DUNN & CRUTCHER LLP, Washington,

D.C., Zach West, OFFICE OF THE OKLAHOMA

ATTORNEY GENERAL, Oklahoma City, Oklahoma,

Michael R. Williams, OFFICE OF THE WEST

VIRGINIA ATTORNEY GENERAL, Charleston,

West Virginia, Joseph Bocock, BOCOCK LAW PLLC,

Oklahoma City, Oklahoma, Todd Hembree,

CHEROKEE NATION BUSINESSES, Catoosa,

Oklahoma, Elizabeth B. Murrill, LOUISIANA

DEPARTMENT OF JUSTICE, Baton Rouge,

Louisiana, Michael Burrage, WHITTEN BURRAGE,

Oklahoma City, Oklahoma, Jared C. Easterling,

GREEN LAW FIRM PC, Ada, Oklahoma, for

Appellants. Courtney L. Dixon, Caroline W. Tan,

UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C., for Federal Appellees. Pratik A.

Shah, Lide E. Paterno, AKIN GUMP STRAUSS

HAUER & FELD LLP, Washington, D.C., John C.

Roach, RANSDELL ROACH & ROYSE, Lexington,

Kentucky, for Horseracing Authority Appellees. ON

SUPPLEMENTAL AMICUS BRIEF: Sarah Sloan

Reeves, Adam Clay Reeves, STOLL KEENON

OGDEN PLLC, Lexington, Kentucky, Paul E.

Salamanca, Lexington, Kentucky, Aaron M. Streett,

BAKER BOTTS L.L.P., Houston, Texas, for Amici

Curiae.

4a

OPINION

SUTTON, Chief Judge. Sometimes government

works. And sometimes it works best after a dialogue

between and within the various branches.

In 2020, Congress enacted the Horseracing

Integrity and Safety Act to establish a nationwide

framework for regulating thoroughbred horseracing.

That led to several non-delegation and anticommandeering challenges to the validity of the Act

throughout the country. The lead challenge—the

facial non-delegation challenge—focused on the

reality that the Act replaced several state regulatory

authorities with a private corporation, the

Horseracing Authority, which became the Act’s

primary rulemaker and which was not subordinate to

the relevant public agency, the Federal Trade

Commission, in critical ways. The first circuit to

assess the validity of the law, the Fifth Circuit,

declared the Act facially unconstitutional because it

gave “a private entity the last word” on federal law.

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

Black (Black I), 53 F.4th 869, 872 (5th Cir. 2022); see

id. at 888–89.

In response to the Fifth Circuit’s decision and

after oral argument in a similar case in our circuit,

Congress amended the Act to give the Federal Trade

Commission discretion to “abrogate, add to, and

modify” any rules that bind the industry.

Consolidated Appropriations Act of 2023, Pub. L. No.

117-328, 136 Stat. 4459, 5231–32 (2022). While the

Constitution does not require constructive exchanges

between Congress and the federal courts, it does not

5a

discourage them either, and good government

sometimes benefits from them. Mistretta v. United

States, 488 U.S. 361, 408 (1989). A productive

dialogue occurred in this instance, and, from our

perspective, it ameliorated the concerns underlying

the non-delegation challenge. In Oklahoma v. United

States, we upheld the Act against a facial nondelegation challenge and an anti-commandeering

challenge. 62 F.4th 221, 225 (6th Cir. 2023). The

Eighth Circuit took the same view. Walmsley v. FTC,

117 F.4th 1032, 1038–40 (8th Cir. 2024). The Fifth

Circuit agreed with both courts with respect to the

rulemaking power created by the Act.

Nat’l

Horsemen’s Benevolent & Protective Ass’n v. Black

(Black II), 107 F.4th 415, 420 (5th Cir. 2024). But it

facially invalidated the law on the ground that the Act

afforded the Horseracing Authority the power to

enforce federal law “without the FTC’s say-so.” Id. at

421. The losing parties all filed petitions for writs of

certiorari in the Supreme Court.

The Supreme Court held the various petitions

while it considered a separate non-delegation

challenge to another federal law that used a private

entity in implementing the law. In FCC v. Consumers’

Research, the Court considered an as-applied

challenge

to

the

Federal

Communications

Commission’s Universal Service Fund, premised on

the reality that the FCC relied on a private

administrator’s

policy

recommendations

in

administering the program. 606 U.S. 656 (2025). The

Court ruled that the program did not impermissibly

delegate government authority to a private entity

because the FCC retained final “decision-making

authority.” Id. at 693. After its decision, the Court

“GVR’d” the three certiorari petitions raising nondelegation challenges to the Horseracing Integrity

6a

and Safety Act. That is to say, the Court granted each

petition, vacated the lower court judgments, and

remanded the cases for reconsideration in light of

Consumers’ Research.

That brings us to our second look at the Act. In

view of the guidance provided by the Supreme Court

in Consumers’ Research and other recent decisions, we

reject this facial challenge because the Act, as

amended, gives the FTC, not the Horseracing

Authority, the final say over the Act’s key rulemaking

and enforcement provisions.

I.

Most Americans know horseracing through

occasional high-visibility races, say the Kentucky

Derby on the first Saturday of May, or high-visibility

books, say Seabiscuit. But as the partly initiated and

the fully initiated alike can appreciate, the sport

comes with risk. Racing a dozen or more jockeys atop

sizeable horses around a mile or more track, all with

prize money and gambling positions at stake, creates

plenty of danger. Over the last seventy years or so,

fatal accidents of jockeys in horseraces exceeded those

of drivers in NASCAR races. Peta L. Hitchens, Ashley

E. Hill, & Susan M. Stover, Jockey Falls, Injuries, and

Fatalities Associated with Thoroughbred and Quarter

Horse Racing in California 2007–2011, at 3,

Orthopedic J. of Sports Med. (2013) (129 jockeys killed

between 1940 and 2012); NASCAR Deaths, Ciancio

Ciancio & Brown (Aug. 19. 2024), https://tinyurl.com/

3s73htny (92 NASCAR drivers killed in accidents

between 1948 and 2024). Faring worse, at least 850

racehorses died in 2024 alone due to racing injuries.

Michael A. Fletcher, How One Organization Plans to

7a

Improve Horse Racing Safety, ESPN (May 2, 2025),

https://tinyurl.com/yzbha26u.

Whether it’s the risk of pushing horses past their

limits or the risks associated with unsafe tracks and

doping, or other health and safety issues facing horses

and jockeys, no one doubts the imperative for

oversight. The initial question, as is so often the case,

is whether the regulation should come from local

governments or the national government.

The answer for a long time was local. Before 2020,

thirty-eight state regulatory regimes supplied an

array of horseracing protocols and safety

requirements. Kjirsten Lee, Transgressing Trainers

and Enhanced Equines, 11 J. Animal & Nat. Res. L.

23, 26 (2015).

In 2020, Congress tried a national answer. It did

so in conventional and unconventional ways.

Conventionally, it enacted a national law, the

Horseracing Integrity and Safety Act, to centralize the

regulation of thoroughbred racing. 15 U.S.C. §§ 3051–

60. Less conventionally, it chose to use a private

nonprofit corporation—the Horseracing Integrity and

Safety Authority—to help with regulating and

enforcing the Act under the supervision of the Federal

Trade Commission. The decision to turn to a private

entity to regulate sporting events was not wholly

unprecedented. It echoed Congress’s earlier choice to

charter and empower the United States Olympic

Committee

to

regulate

American

Olympic

participation. See An Act to Incorporate the United

States Olympic Association, Pub. L. No. 81-805, 64

Stat. 899 (1950); Amateur Sports Act of 1978, Pub. L.

No. 95-606, 92 Stat. 3045.

8a

The Act charges the Horseracing Authority with

“developing and implementing a horseracing antidoping and medication control program and a

racetrack safety program.” 15 U.S.C. § 3052(a). The

Authority’s jurisdiction also includes the “safety,

welfare, and integrity” of covered thoroughbreds,

jockeys, and horseraces. Id. § 3054(a)(2)(A). The

Authority may expand the Act’s coverage to other

breeds upon request by a state racing commission or

a breed governing organization. Id. § 3054(l). “As a

condition of participating in covered races and in the

care, ownership, treatment, and training of covered

horses,” individuals are required to register with the

Horseracing Authority and to sign an agreement to

comply with the Authority’s rules, standards, and

procedures and to cooperate with any investigation by

the Authority. Id. § 3054(d).

The Act says that the Horseracing Authority’s

governing board of directors should have nine

members, five “selected from outside the equine

industry” and four from within the industry. Id.

§ 3052(b)(1)(A)–(B).

A separate “nominating

committee” comprised of “seven independent

members selected from business, sports, and

academia” selects the initial members of the

governing board and thereafter recommends

“individuals to fill any vacancy on the Board.” Id.

§ 3052(d)(1)(A)–(C). The FTC and the Authority may

establish bylaws governing “the procedures for filling

vacancies on the Board” and for establishing “term

limits for members” of the board. Id. § 3052(b)(3)(C)–

(D); see id. § 3053(a).

The Horseracing Authority funds its operations

through fees on the horseracing industry. Each year,

it calculates its budget and apportions amounts owed

9a

by each State. Id. § 3052(f)(1)(C). The States have

two options. They may collect the fees themselves

from covered entities and remit the fees to the

Authority. Id. § 3052(f)(2)(D). Or they may allow the

Authority to collect the fees directly from the relevant

entities. Id. § 3052(f)(3)(D).

The Act empowers the Horseracing Authority to

promulgate rules on a variety of subjects: prohibited

medications, laboratory protocols and accreditation,

racetrack standards and protocols, injury analysis,

enforcement, and fee assessments. Id. § 3053(a). The

Authority also develops procedures for its

investigatory and subpoena powers. Id. § 3054(c).

Once issued, the rules preempt state law. Id.

§ 3054(b).

The Horseracing Authority has initial authority to

implement the rules, monitor compliance, and

investigate potential rule infractions. Id. § 3054(c),

(h), (i). The Act directs “the Authority and Federal or

State law enforcement authorities” to “cooperate and

share information” whenever a covered person may

have violated federal or state law in addition to one of

the Authority’s rules.

Id. § 3060(b).

After

investigating an infraction, the Authority customarily

enforces the rules through internal adjudications

subject to “due process” and two layers of review: by

an ALJ and the FTC. Id. §§ 3057(c)(3), 3058. The

Authority also may initiate an enforcement action in

federal court, id. § 3054(j), though it has yet to

exercise this power since Congress passed the Act in

2020.

The Act also permits the Authority to enlist

private and governmental organizations to assist in

its enforcement efforts. The Act directs the Authority,

for example, to enter into an agreement with a

10a

separate private entity to serve as an “independent

anti-doping and medication control enforcement

organization” and to implement anti-doping rules “on

behalf of the Authority.” Id. § 3054(e)(1)(E)(i). The

Authority may enter into similar agreements with

state horseracing commissions for assistance in

enforcing racetrack safety rules. Id. § 3054(e)(2)(A)(i).

Under the Horseracing Act, as originally enacted,

the Federal Trade Commission had a confined

rulemaking role. When the Authority proposed rules,

the FTC published them for public comment. After

the comment period, the Act directed the FTC to

approve any proposed rules if they were “consistent”

with the Act and with other “applicable rules

approved by the Commission.” Id. § 3053(b)–(c)

(2020). The FTC also could issue an “interim” rule if

it had “good cause” to do so and if the rule was

“necessary to protect” the welfare of horses or the

integrity of the sport. Id. § 3053(e) (2020); 5 U.S.C.

§ 553(b)(B).

This version of the Act prompted several legal

challenges. In a case filed in federal court in Texas,

several claimants argued that the Act violated the

Constitution by delegating unmonitored lawmaking

power to a private entity. The Fifth Circuit agreed,

reasoning that the FTC’s confined oversight did not

suffice because the FTC could not modify the rules or

otherwise question the Horseracing Authority’s policy

choices. Black I, 53 F.4th at 872–73, 886–87.

Our court faced a similar challenge. Oklahoma,

West Virginia, Louisiana, their racing commissions,

and other entities (collectively, Oklahoma) claimed

that the Act unlawfully delegated federal power to a

private entity and unlawfully commandeered the

States to do the federal government’s bidding. The

11a

district court rejected Oklahoma’s claims as a matter

of law.

After the Fifth Circuit issued its decision and after

we heard oral argument in our case, Congress

enacted, and the President signed into law, an

amendment to the Act that expanded the FTC’s

oversight role. The amendment eliminated the FTC’s

interim-rule authority and instead empowered the

FTC to create rules that “abrogate, add to, and modify

the rules of the Authority.” 15 U.S.C. § 3053(e).

Oklahoma maintained that the Act remained

unconstitutional. We disagreed, reasoning that the

FTC’s newly expansive rulemaking power made the

Horseracing Authority subordinate to the FTC.

Oklahoma, 62 F.4th at 229–30. Neither the Act’s

rulemaking structure nor its enforcement provisions,

we held, violated the non-delegation doctrine. Id. at

231. Nor did the Act unlawfully commandeer the

States, we added. Id. at 233.

Oklahoma filed a petition for a writ of certiorari,

which the Supreme Court denied on June 24, 2024.

Oklahoma v. United States, 144 S. Ct. 2679 (2024).

On July 5, 2024, the Fifth Circuit revisited its earlier

ruling with respect to a similar challenge to the

amended Act. It held that the Authority’s new

rulemaking power “cured the nondelegation defect” in

the Act’s rulemaking structure that it identified in its

previous decision. Black II, 107 F.4th at 421, 424. At

the same time, however, it ruled that the Act’s

enforcement provisions violated the private nondelegation doctrine. Id. at 429–30. The decision

prompted Oklahoma to move for rehearing of its

denied petition for certiorari on July 18, 2024.

Petition for Rehearing, Oklahoma v. United States,

No. 23-402 (U.S. July 18, 2024).

12a

On September 20, 2024, the Eighth Circuit

entered the picture. It held that neither the Act’s

rulemaking structure nor its enforcement provisions

facially violated the non-delegation doctrine.

Walmsley, 117 F.4th at 1038–39.

On October 7, 2024, the Supreme Court requested

that the FTC and the Horseracing Authority respond

to Oklahoma’s motion for rehearing. Request for

Response, Oklahoma v. United States, No. 23-402

(U.S. Oct. 7, 2024). The responses were filed on

November 6, 2024.

Responses to Petition for

Rehearing, Oklahoma v. United States, No. 23-402

(U.S. Nov. 6, 2024). In view of the division in the

circuits, the FTC and the Horseracing Authority

agreed that the Court should grant review in one of

the three cases. FTC’s Response to Petition for

Rehearing at 4, Oklahoma v. United States, No. 23402 (U.S. Nov. 6, 2024); Horseracing Authority’s

Response to Petition for Rehearing at 11, Oklahoma

v. United States, No. 23-402 (U.S. Nov. 6, 2024). As

the Court considered these petitions for certiorari, it

stayed the mandate in the Fifth Circuit case. Stay of

Mandate, Horseracing Integrity & Safety Auth. v.

Nat’l Horsemen’s Benevolent & Protective Ass’n, No.

24A287 (U.S. Oct. 28, 2024).

Adding another layer of complication, the Court

granted certiorari in a distinct private non-delegation

challenge, Consumers’ Research, on November 22,

2024. In June 2025, the Supreme Court decided

Consumers’ Research. In the context of that asapplied challenge, it held that an agency may delegate

enforcement authority to a private entity so long as it

“function[s] subordinately to” the agency and remains

“subject to [the agency’s] ‘authority and surveillance.’”

13a

606 U.S. at 692 (quoting Sunshine Anthracite Coal Co.

v. Adkins, 310 U.S. 381, 399 (1940)).

On June 30, 2025, the Court granted Oklahoma’s

motion for rehearing, granted certiorari in all three

horseracing non-delegation cases, and vacated and

remanded all three cases for further consideration in

light of Consumers’ Research. Oklahoma v. United

States, 145 S. Ct. 2836 (2025); Nat’l Horsemen’s

Benevolent & Protective Ass’n v. Horseracing Integrity

& Safety Auth., Inc., 145 S. Ct. 2836 (2025); Walmsley

v. FTC, 145 S. Ct. 2870 (2025). That brings us to this

second assessment of the Act.

II.

Mootness. First things first: Does the 2022

amendment to the Act transform this live controversy

into a moot one? When Congress amends a statute,

pending claims challenging the law sometimes

become moot. See City of Pontiac Retired Emps. Ass’n

v. Schimmel, 751 F.3d 427, 430 (6th Cir. 2014) (en

banc). Not invariably, however. If the revised statute

continues to place a material burden on the plaintiff

that

arises

from

the

same

theory

of

unconstitutionality set forth in the complaint, the

case remains live.

Kenjoh Outdoor, LLC v.

Marchbanks, 23 F.4th 686, 692–93 (6th Cir. 2022). A

similar conclusion applies if the amendment does not

affect other features of the challenge. Id. Both

exceptions apply here.

The amendment to § 3053(e) of the Horseracing

Act, clarifying that any rulemaking authority of the

Horseracing Authority remains subordinate to the

FTC, does not moot Oklahoma’s non-delegation claim.

While significant to the outcome of today’s case, the

amendment changes little else about the Act’s basic

14a

structure. The revised Act “operates in the same

fundamental ways,” with the Authority proposing and

enforcing rules under the FTC’s oversight, the key

difference being that the FTC has more oversight than

it did before. Id. at 693. The revised Act likewise

presents fundamentally the “same controversy,” with

Oklahoma continuing to argue that the Act gives

unsubordinated power to a private entity. Id.; see

Cam I, Inc. v. Louisville/Jefferson Cnty. Metro Gov’t,

460 F.3d 717, 720 (6th Cir. 2006). Nor does the Act

moot Oklahoma’s anti-commandeering claim. In

reality, the amendment does not change that dispute

in any meaningful way. No party to the case disagrees

with these conclusions, and they all urge us to address

the validity of the amended Act.

Remand.

One other preliminary question

remains. If a legislature changes a law while a nonmoot challenge to it remains on appeal, appellate

courts may remand the case to the district court to

permit it to consider the challenge in the first

instance. The option is discretionary, not mandatory.

In this instance, we see little benefit from a remand

because Oklahoma brings facial challenges that raise

only legal issues and because the parties and panel

have already devoted considerable time and resources

to the dispute. Fortifying this conclusion is the reality

that the challengers have asked us to proceed to the

merits.

III.

A.

Non-delegation principles. Through the United

States Constitution, the People separated the powers

of the National Government into three branches.

They vested the legislative power in Congress, the

15a

executive power in the President, and the judicial

power in the federal courts. U.S. Const. art. I, § 1; id.

art. II, § 1; id. art. III, § 1. The People also constrained

each branch’s use of its power through counterweights

in the other branches. To preserve this balance, the

Constitution bars further delegations of power

between the branches. Whitman v. Am. Trucking

Ass’ns, 531 U.S. 457, 472 (2001). Any delegation from

Congress to an agency within the Executive Branch at

a minimum must contain “an intelligible principle” to

guide the agency’s implementation of the statute. Id.

(quotation omitted).

What about delegations to private entities?

Surely, if the Vesting Clauses bar the three branches

from exchanging powers among themselves, those

Clauses bar unchecked reassignments of power to a

non-federal entity. Just as it is a central tenet of

liberty that the government may not permit a private

person to take property from another private person,

Calder v. Bull, 3 U.S. (3 Dall.) 386, 388–89 (1798)

(opinion of Chase, J.), or allow private individuals to

regulate other private individuals, Washington ex rel.

Seattle Title Tr. Co. v. Roberge, 278 U.S. 116, 122

(1928), it follows that the government may not

empower a private entity to exercise unchecked

legislative or executive power. Those who govern the

People must be accountable to the People.

Transferring unchecked federal power to a private

entity that is not elected, nominated, removable, or

impeachable undercuts representative government at

every turn.

Precedent confirms that unchecked delegations to

private entities violate core separation-of-power

guarantees. Consider A.L.A. Schechter Poultry Corp.

v. United States, 295 U.S. 495 (1935). A federal

16a

statute gave the President discretion to create farreaching codes of fair competition based on proposals

from private entities. Id. at 538, 542. Rejecting the

government’s view that this private participation

cured any surplus delegation to the President, the

Court explained that transforming private groups into

legislatures would make things worse and was

“utterly inconsistent” with the constitutional design.

Id. at 537. The President’s complete discretion over

the proposals, at any rate, meant that he made the

law—the private entities counted only as advisors—

and accordingly the Court refused to enforce the law

on traditional non-delegation grounds. Id. at 538,

542; id. at 552–53 (Cardozo, J., concurring).

A year later, the Court applied a similar standard

to a similar arrangement under the Bituminous Coal

Act, though this one permitted private coal companies

to have the final say over regulation of the industry.

Carter v. Carter Coal Co. reasoned that, by

empowering coal producers to set wages and to control

the businesses of others, the Act amounted to a

“delegation in its most obnoxious form” because such

regulation “is necessarily a governmental function.”

298 U.S. 238, 310–11 (1936). Appreciating the

problem, Congress amended the Act the next year to

give the Coal Commission, a federal agency, power to

set prices. See Adkins, 310 U.S. at 388. After

Congress subordinated the private coal producers to a

public body (the Coal Commission) that could modify

or reject their proposals, the Court determined that

the statute did not impermissibly delegate “legislative

authority to the industry.” Id. at 399.

Nearly 90 years later, the Supreme Court applied

these non-delegation principles with respect to

private parties in Consumers’ Research. To ensure

17a

universal access to communications technologies,

Congress developed a mechanism to collect fees from

telecommunications

companies

to

subsidize

communications services in low-income and rural

areas. 606 U.S. at 662–64. Congress empowered the

Federal Communications Commission to administer

the program and instructed the Commission to rely on

a private corporation to help manage the program’s

operations. Id. Relying on Adkins, the Court held

that this arrangement did not violate the nondelegation doctrine. Id. at 695. The Court explained

that an agency may “rely on advice and assistance

from private actors” if the agency “retains decisionmaking power.” Id. at 692. Because the private

corporation must “follow[] the FCC’s rules” and can

only “make[] recommendations,” the FCC remains “in

control.” Id. at 694–95.

Taken together, these cases draw a line between

impermissible delegations of unchecked lawmaking

power to private entities and permissible

participation by private entities in developing

government standards and rules.

Adkins and

Consumers’ Research show that a private entity may

aid a public agency so long as the agency retains

ultimate authority over the implementation of the

federal law. See Adkins, 310 U.S. at 388; Consumers’

Rsch., 606 U.S. at 692. If the private entity creates

the law or retains full discretion over any regulations

promulgated under it, however, an unconstitutional

exercise of federal power emerges. See Carter Coal,

298 U.S. at 311; Schechter, 295 U.S. at 537.

Decisions from the courts of appeals hold this line.

Private entities may serve as advisors that propose

regulations. See Sierra Club v. Lynn, 502 F.2d 43, 59

(5th Cir. 1974); Cospito v. Heckler, 742 F.2d 72, 87–89

18a

(3d Cir. 1984); Todd & Co. v. SEC, 557 F.2d 1008,

1012–13 (3d Cir. 1977). And they may undertake

ministerial functions, such as fee collection. See

Pittston Co. v. United States, 368 F.3d 385, 395–97

(4th Cir. 2004); United States v. Frame, 885 F.2d

1119, 1128–29 (3d Cir. 1989). But a private entity

may not be the principal decisionmaker in the use of

federal power, Pittston Co., 368 F.3d at 395–97, may

not create federal law, Texas v. Rettig, 987 F.3d 518,

533 (5th Cir. 2021), may not wield equal power with a

federal agency, Ass’n of Am. R.R. v. Dep’t of Transp.

(Amtrak I), 721 F.3d 666, 671–73 (D.C. Cir. 2013),

vacated on other grounds, 575 U.S. 43 (2015), or

regulate unilaterally, Black I, 54 F.4th at 872. These

principles, for what it is worth, are American through

and through. The state constitutions place similar

limits on private exercises of public authority. See,

e.g., Tex. Boll Weevil Eradication Found., Inc. v.

Lewellen, 952 S.W.2d 454, 457 (Tex. 1997).

An illuminating example of how these principles

work in practice comes from federal securities law.

The Securities and Exchange Commission regulates

the securities industry with the assistance of private,

self-regulatory organizations called SROs. The SROs

propose rules for the industry and initially enforce the

rules through internal adjudication.

The SEC

oversees the rulemaking and the enforcement. As to

the rules, the SEC approves proposed rules if they are

consistent with the Maloney Act, and may “abrogate,

add to, and delete from” an SRO’s rules “as the

Commission deems necessary or appropriate.” 15

U.S.C. § 78s(b)(2)(C), (c). As to enforcement, the SEC

applies fresh review to the SRO’s decisions and

actions. Id. § 78s(e); see Sartain v. SEC, 601 F.2d

1366, 1369–71 & n.2 (9th Cir. 1979). In case after

case, the federal courts have upheld this

19a

arrangement, reasoning that the SEC’s control over

the rules and their enforcement makes the SROs

permissible aids and advisors. See R.H. Johnson &

Co. v. SEC, 198 F.2d 690, 695 (2d Cir. 1952); Todd &

Co., 557 F.2d at 1012–13; First Jersey Secs., Inc. v.

Bergen, 605 F.2d 690, 699 (3d Cir. 1979); Sorrell v.

SEC, 679 F.2d 1323, 1325–26 (9th Cir. 1982); see also

Amtrak I, 721 F.3d at 671 n.5 (describing the SROs’

role as “purely advisory or ministerial”).

These precedents all suggest that, at a minimum,

a private entity must be subordinate to a federal actor

in order to withstand a non-delegation challenge.

Whether subordination always suffices to withstand a

challenge raises complex separation-of-powers

questions. Simplifying matters for today, if not for a

future day, the parties accept this framing of the

appeal. See United States v. Sineneng-Smith, 590

U.S. 371, 375–76 (2020); Appellants’ Br. 22, 55; FTC’s

Br. 10; Horseracing Authority’s Br. 17. As the case

comes to us, then, the determinative question is

whether the Horseracing Authority remains inferior

to the FTC with respect to rulemaking and

enforcement.

B.

The Horseracing Authority is subordinate to the

agency. The Authority yields to FTC supervision and

lacks the final say over rulemaking and enforcement

of the law, all tried and true hallmarks of an inferior

body. But even if there were doubt about the

application of these points to hypothetical rulemaking

or enforcement settings, that would not help

Oklahoma. In filing this lawsuit, Oklahoma brought

a facial challenge to the law. “[T]hat decision comes

at a cost.” Moody v. NetChoice, LLC, 603 U.S. 707,

20a

723 (2024). In considering a facial challenge, we must

focus our inquiry on the circumstances in which the

Act is “most likely to be constitutional” rather than

imagining “hypothetical scenarios where [the Act]

might raise constitutional concerns.” United States v.

Rahimi, 602 U.S. 680, 701 (2024). To succeed, a facial

claimant must establish that “no set of circumstances

exists under which the Act would be valid.” United

States v. Salerno, 481 U.S. 739, 745 (1987).

That burden does not diminish when a challenge

implicates constitutional structure. The Salerno

standard applies regardless of whether a facial

challenge turns on an individual right or a structural

guarantee. See, e.g., Sabri v. United States, 541 U.S.

600, 604–05, 608 (2004) (rejecting facial challenge to

Congress’s spending authority to pass an anti-bribery

statute applicable to local officials). What matters is

whether the theory of invalidity pierces all

implementations of the challenged law. In the context

of individual rights, as an example, a law that

allocates a public benefit based solely on the race of

the beneficiary will not have any constitutional

applications, whether a potential beneficiary is denied

a benefit based on race or receives a benefit based on

race. In the context of structure, as another example,

improperly

designated

officers

under

the

Appointments Clause may never exercise power, no

matter whether they propose to act modestly or

aggressively. See United States v. Arthrex, Inc., 594

U.S. 1, 14–16, 23–26 (2021). To succeed in this case,

Oklahoma thus must demonstrate that the FTC lacks

supervisory power over all of the Authority’s

rulemaking or enforcement powers. Oklahoma does

not clear this “very high bar,” Moody, 603 U.S. at 723,

in view of numerous applications of the Act’s

rulemaking and enforcement provisions in which the

21a

Horseracing Authority remains subordinate to the

FTC.

1.

Rulemaking. The Horseracing Act gives the FTC

supervision over the rules that govern the horseracing

industry. The Act permits the Horseracing Authority

to draft proposed rules on racetrack safety and antidoping matters. But they are just that: proposals. No

such proposal becomes a binding rule until the FTC

approves it, and the Act permits the agency only to

approve proposed rules if they are “consistent” with

the Act. 15 U.S.C. § 3053(c)(2). In addition, the Act

gives the FTC authority, as it “finds necessary or

appropriate,” to “abrogate, add to, and modify the

rules.” Id. § 3053(e). The FTC’s power to review

proposed rules, to abrogate existing rules, and to add

new rules makes clear who is in charge and who has

the final say.

Other features of § 3053(e) show that Congress

gave the FTC a comprehensive oversight role. The

provision adds that the FTC may act as it “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].”

Id. The final catchall suggests that § 3053(e) spans

the Horseracing Authority’s jurisdiction. The parties

are one in agreeing that this section allows the FTC to

modify rules as it wishes. Appellants’ First Suppl. Br.

1; FTC’s Suppl. Br. 1; Horseracing Authority’s Suppl.

Br. 10.

With § 3053(e)’s broad grant of power to the FTC

to write and rewrite the rules comes policymaking

22a

discretion. See Cospito, 742 F.2d at 88–89. When the

FTC decides to act, whether by abrogating one of the

Horseracing Authority’s rules or by introducing its

own, the FTC makes a policy choice and necessarily

scrutinizes the Authority’s proposed policy choices.

That is no less true when the FTC decides not to act.

In either setting, the FTC may “unilaterally change

regulations,” Amtrak I, 721 F.3d at 671, and “is free to

prescribe” the rules, showing that it “retains ultimate

authority,” Cospito, 742 F.2d at 88. The FTC has

recognized as much, explaining that its new

“rulemaking power” allows it to “exercise its own

policy choices.” Order Ratifying Previous Commission

Orders 3, Fed. Trade Comm’n (Jan. 3, 2023),

https://tinyurl.com/dkenwspt.

In full, § 3053(e) gives the FTC ultimate discretion

over the content of the rules that govern the

horseracing industry and the Horseracing Authority’s

implementation of those rules.

It follows that

ultimate “law-making is not entrusted to the

[Authority],” Adkins, 310 U.S. at 399, as the Authority

“must carry out all its tasks consistent with the

[FTC’s] rules,” Consumers’ Rsch., 606 U.S. at 693

(quotation omitted). That makes the FTC the primary

rule-maker, and leaves the Authority as the

secondary, the inferior, the “subordinate” one. Id. at

692; see Adkins, 310 U.S. at 388.

Accountability considerations lead to the same

destination. With its authority to have “the final word

on the substance of the rules,” the FTC bears ultimate

responsibility for them. Black I, 53 F.4th at 887; see

Adkins, 310 U.S. at 399; cf. Lynn, 502 F.2d at 59. The

People may rightly blame or praise the FTC for how

adroitly (or, let’s hope not, ineptly) it “ensure[s] the

23a

fair administration of the Authority” and advances

“the purposes of [the Act].” 15 U.S.C. § 3053(e).

Oklahoma makes several contrary arguments. It

points out that the Act permits the FTC only to review

proposed rules by the Authority for “consisten[cy]”

with the Act. 15 U.S.C. § 3053(c). But that’s

searching for clouds on a cloudless day. A sure sign

that Congress has not delegated too much authority

to an agency or a private entity is a directive that all

regulations promulgated under the Act must be

consistent with it. Even so, Oklahoma adds, doesn’t

the word “consistency” at some level of generality

permit the Horseracing Authority to obtain approval

for proposed rules that contain embedded policy

choices with which the FTC might disagree? We

doubt any such risk exists. But even if it did, the

FTC’s authority to modify any rules for any

reasonable reason at all, including policy

disagreements, ensures that the FTC retains ultimate

authority over implementation of the Horseracing

Act.

The FTC’s review authority in this respect

parallels similar authority delegated to the SEC

under the Maloney Act. It provides that the SEC “may

abrogate, add to, and delete from . . . the rules of [the

private entity] as the Commission deems necessary or

appropriate.” 15 U.S.C. § 78s(b)(2)(C), (c). The same

is true under the Coal Act. It provides that the Coal

Commission may “approve, disapprove, or modify”

proposals. See Bituminous Coal Act of 1937, Pub. L.

No. 75-48, § 4, 50 Stat. 72, 78. All of this explains why

the Supreme Court upheld the Coal Act in Adkins and

why every court of appeals to address the validity of

this kind of delegation under the Maloney Act has

upheld it.

24a

Harking back to the “consistency” provision,

Oklahoma worries that a proposed rule by the

Horseracing Authority could govern a dispute until

the FTC undoes a rule it dislikes through the

sometimes slow, ever deliberate, notice-and-comment

process. We doubt, to repeat, the premise of the

argument—that the FTC’s consistency review will

permit problematic rules to get through. But let us

grant the premise for now to explain an independent

reason this argument does not carry the day.

Even though the FTC’s modification authority

under § 3053(e) customarily would run through

ordinary rulemaking, that current reality need not be

a future reality. For one, the threat of modification is

not likely to miss the attention of the Authority. For

another, the FTC has power to initiate new rules, not

just to modify rules it does not like. To the extent this

timing gap creates a problem, the FTC is free to

resolve it ahead of time. It might adopt a rule, for

example, that all newly enacted rules do not take

effect for a certain period of time, thereby giving the

FTC time to review rules and prepare preemptive

modifications. Or it might decide to hold off on

publishing a rule proposed by the Authority until the

FTC has promulgated its own modified version of the

rule. See 15 U.S.C. § 3053(c)(1) (requiring the FTC to

approve or disapprove proposed Authority rules “[n]ot

later than 60 days” after the FTC publishes the

proposal, but placing no time limit on when the FTC

publishes such proposals).

This argument overlooks another reality. When

the FTC reviews the Horseracing Authority’s

proposed rules, it asks not just whether they are

“consistent” with the Act; it also asks whether they

are “consistent” with other “applicable rules approved

25a

by the Commission.” Id. § 3053(c)(2). Any risk of a

policymaking gap between initial consistency review

and initial full review—and, to repeat, we doubt any

such risk exists—will diminish over time as the FTC

chooses to exercise (or not to exercise) its ample

authority to initiate new rules or modify old ones.

Over time, the FTC’s threshold consistency review

will account for its own full-throated rulemaking

power. None of these arguments, let us not forget,

interferes with the FTC’s power to “abrogate, add to,

and delete from” the rules whatever it wishes and

however often it wishes.

Oklahoma persists that the FTC’s duty under the

Administrative Procedure Act to explain any changes

to the rules limits its hand. But that means only that

it may not arbitrarily alter the rules. The APA does

not limit the FTC’s authority to disagree with the

Horseracing Authority over a policy choice delegated

to the agency by Congress. The FTC “need not

demonstrate to a court’s satisfaction that the reasons

for the new policy are better than the reasons for the

old.” FCC v. Fox Television Stations, Inc., 556 U.S.

502, 515 (2009). It is enough that “there are good

reasons” for the new policy “and that the agency

believes it to be better.” Id. (emphasis omitted).

No matter, Oklahoma adds: The Horseracing

Authority’s ability to expand its jurisdiction to breeds

other than thoroughbreds escapes the FTC’s review.

Not so. The FTC’s § 3053(e) power is sufficiently

broad to allow it to revoke any decision from the

Authority on this or any other topic, or to place

procedural and substantive conditions on such

decisions.

In the last analysis, “in the relationship between

the two”—the FTC and the Horseracing Authority—

26a

the FTC “dominates” when it comes to rulemaking.

Consumers’ Rsch., 606 U.S. at 693. The Act’s grant of

power to the FTC to set whatever rulemaking policy it

wishes will lead to plenty of constitutional exercises of

that power and perhaps only constitutional exercises

of that power. The existence of ample permissible

exercises of power by itself suffices to uphold the Act’s

rulemaking provisions against this facial challenge.

2.

Enforcement. A similar conclusion applies to

Oklahoma’s attack on the enforcement provisions of

the Act. This challenge is harder to answer in some

ways and easier in others. It is the more difficult of

the challenges to rebut because the Horseracing

Authority appears to have more authority over some

enforcement features of the Act than it does with

respect to rulemaking. But it is easier because

challenges to enforcement provisions quintessentially

lend themselves to as-applied challenges, not to

overriding facial challenges. See Sabri, 541 U.S. at

604–05.

Oklahoma’s “pre-enforcement” facial

challenge to the Act’s enforcement provisions seeks “to

leave nothing standing.” Warshak v. United States,

532 F.3d 521, 528 (6th Cir. 2008) (en banc). Oklahoma

asks us to declare the Act’s enforcement provisions

unconstitutional not only as to the parties before us,

but also “on behalf of all” who fall under the Act and

with respect to any potential enforcement of the Act.

Id. (emphasis in original).

“That is not how

constitutional litigation typically proceeds.”

Id.

Because enforcement challenges often turn on “an

understanding of complex factual issues,” id.

(quotation omitted), plaintiffs generally, and wisely,

choose to challenge enforcement provisions as applied

to them, cf. Morrison v. Olson, 487 U.S. 654, 668

27a

(1988) (as-applied challenge to independent counsel’s

power to issue subpoenas), and seek relief only as to

the parties in the case, cf. Trump v. CASA, Inc., 606

U.S. 831, 850–52 (2025).

By pursuing a facial challenge, Oklahoma took a

different path. That choice comes at a cost. If the

enforcement provisions of the Act “‘could conceivably

be’ implemented in a constitutional manner,” that will

prove “fatal” to Oklahoma’s facial challenge.

Warshak, 532 F.3d at 530 (quoting Wash. State

Grange v. Wash. State Republican Party, 552 U.S.

442, 456–57 (2008)).

Several such enforcement

actions would be permissible.

Begin with the Horseracing Authority’s main

enforcement tool and the only one used to date: an

internal enforcement action. In that setting, the

Authority may investigate a violation of the rules and

propose a sanction. But it may not impose a sanction

without oversight. Any aggrieved entity may obtain

review from an Administrative Law Judge over any

sanction proposed by the Horseracing Authority. 15

U.S.C. § 3058(b). After that, the FTC has full

authority to review the Authority’s enforcement

actions with fresh eyes. Id. § 3058(c)(1)–(2). Through

this independent review, the FTC may reverse any

sanction by the Authority. Id. § 3058(c)(3)(A)(1).

As with rulemaking, so with adjudication when it

comes to finality.

The Authority’s adjudication

decisions do not become final until the FTC has the

opportunity to review them. See Consumers’ Rsch.,

606 U.S. at 693 (private entity subordinate to FCC

because “anyone aggrieved by an action of the [private

entity] may seek de novo review by the Commission”);

Cospito, 742 F.2d at 88; Todd & Co., 557 F.2d at 1012–

14. No sanction thus goes into final effect without the

28a

FTC’s “say-so.” Consumers’ Rsch., 606 U.S. at 695. In

this way, the Horseracing Authority is “subject to [the

FTC’s] pervasive surveillance and authority,” making

the Authority “an aid” to the FTC, not its

choreographer. Adkins, 310 U.S. at 388. If the

Authority tries to implement a sanction before the

FTC finally reviews it, the FTC or the ALJ may stay

the sanction. 15 U.S.C. § 3058(d).

These two layers of review, and the existence of

this stay authority, by themselves insulate the Act

from a successful facial challenge.

In-house

adjudications serve as the Horseracing Authority’s

primary tool, and the sole tool during the first several

years of enforcing the Act, for sanctioning

rulebreakers. Surely there will be plenty of sanctions

that do not involve any meaningful investigation or

any use of subpoenas—say, an instance of excessive

horse cropping by a jockey fully captured on film. In

that setting, all that will matter is the extent and

amount of the sanction. Full review of such a

proposed sanction by the FTC before it goes into effect

does not violate public or private non-delegation

principles.

Keep in mind, too, that the FTC’s § 3053(e)

rulemaking power provides it with an additional

means to supervise the Authority’s enforcement

practices. Take an example to illustrate the point.

Imagine the FTC initially adopted a laissez-faire

mindset toward thoroughbred horseracing, and the

Horseracing Authority ran heedlessly with that

authority. Section 3053(e) gives the FTC tools to bring

an overzealous Horseracing Authority to heel. The

FTC could begin with rules constraining the

Authority’s investigations and increasing the

procedural rights of suspected rulebreakers. The FTC

29a

could abrogate rules that lead to petty violations. The

FTC could promulgate rules that change the elements

of a rule violation by, say, increasing the burden of

proof, imposing a state-of-mind requirement, or

shortening any limitations periods. The FTC could

require that the Authority seek its authority before

investigating an incident. The FTC could require that

the Authority provide a suspect with a full adversary

proceeding and with free counsel. The FTC could

modify rules to decrease the penalties for rule

violations. And the FTC could require that the

Authority meet a burden of production before bringing

a lawsuit.

The FTC need not stop at procedural rules

governing “how the Authority enforces [the Act].”

Black II, 107 F.4th at 433 (emphasis in original).

Section 3053(e) also empowers the FTC to determine

who the Authority investigates in the first place. The

FTC could promulgate rules requiring, for instance,

that the Authority drop a misguided investigation into

a particular jockey or, conversely, that the Authority

pursue an enforcement action against a recalcitrant

rule breaker.

Still further, the FTC could require the

Horseracing Authority to seek its permission before

pursuing any enforcement action.

Recent

developments offer a proof of concept. The Authority

itself recently proposed a rule that would require the

FTC’s approval before the Authority may issue a

subpoena or bring a civil enforcement action. 90 Fed.

Reg. 43,431, 43,443–45 (Sep. 9, 2025). That is hardly

evidence of a private entity “running riot.” Schechter,

295 U.S. at 553 (Cardozo, J., concurring). The FTC is

free to beef up that rule and micromanage every

particularized decision the Authority makes in an

30a

investigation. Or the FTC could decide to take a more

hands-off approach. No matter which way it goes, the

FTC’s capacity to control the Authority’s enforcement

activities ensures that the FTC, not the Horseracing

Authority, is the agency of ultimate resort that

decides how the federal government enforces the Act.

Serial layers of review of any proposed sanctions,

together with the FTC’s rulemaking powers over

enforcement actions, give it “pervasive” oversight and

control of the Authority’s enforcement activities, just

as in the rulemaking context. Adkins, 310 U.S. at 388.

This conclusion by the way does not depend on

how the FTC employs its power—by action or

inaction. Whether the FTC becomes a demanding

taskmaster or a lenient one, 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].” 15 U.S.C. § 3053(e) (as

amended). That potential suffices to defeat a facial

challenge, where Oklahoma must show that no

feature of the enforcement provisions of the Act

should be left standing.

Oklahoma persists that this interpretation of

§ 3053(e) contradicts other provisions of the Act. It

points to the Act’s prefatory language, which says that

the FTC and the Authority shall implement the Act

“each within the scope of their powers and

responsibilities under this chapter.”

15 U.S.C.

§ 3054(a). Oklahoma maintains that our reading of

the FTC’s rulemaking powers makes a hash of this

division of labor. But this argument, too, sees

shadows instead of silver linings. Under the Act, one

of the FTC’s key responsibilities is to “abrogate, add

to, and modify the rules of the Authority . . . as the

31a

[FTC] finds necessary or appropriate” to further “the

purposes of” the Act. Id. § 3053(e). Section 3053(e)

permits the FTC to employ its sweeping rulemaking

powers to govern all aspects of the Authority’s

operations. An agency does not exceed the scope of its

power by faithfully exercising it.

Section 3059 doesn’t help Oklahoma either. That

provision targets certain “unfair or deceptive”

practices in selling horses. Id. § 3059. While the

Horseracing Authority may, subject to the FTC’s

supervision, initiate enforcement of other provisions

of the Act, it may only “recommend that the [FTC]

commence an enforcement action” to enforce § 3059.

Id. § 3054(c)(1)(B). That makes sense. Unfair trade

practices fit comfortably within the FTC’s bailiwick.

Unlike other aspects of the Act involving the minutiae

of horseracing, this is an area where Congress

determined that the FTC did not need help. Far from

suggesting that Congress intended to limit the FTC’s

supervisory power, this provision speaks to the

inherent limits of the Authority’s expertise as “an aid”

to the FTC. Adkins, 310 U.S. at 388.

These arguments suffer from another defect.

Statutes should not be read “extravagantly, the better

to create a constitutional problem.” Consumers’ Rsch.,

606 U.S. at 690. They “should be read, if possible, to

comport with the Constitution, not to contradict it.”

Id. at 691. That is particularly so where an interbranch dialogue led to amendments designed to

conform the Act to the Constitution’s requirements.

The Act never grants the Authority exclusive

enforcement power. The statute uses the word

“exclusive” only once, declaring that the FTC and the

Authority together “exercise independent and

exclusive national authority” to regulate horseracing.

32a

15 U.S.C. § 3054(a)(2). By urging us to read the Act

to vest exclusive enforcement power in the

Horseracing Authority, Oklahoma proposes an

interpretation that maximizes constitutional risks

rather than minimizing them. Where fairly possible,

however, we should harmonize statutes with the

Constitution, not create chasms between them.

Oklahoma points out that an agency may not

“cure an unlawful delegation . . . by adopting in its

discretion a limiting construction of the statute.”

Whitman, 531 U.S. at 472. That is true in a

traditional non-delegation case. An agency may not

fix a statute that lacks an “intelligible principle” by

supplying intelligible principles itself or by otherwise

denying itself the power Congress unduly gave it. But

that’s not what’s going on today. In this private nondelegation dispute, the issue is whether Congress

gave final enforcement and rulemaking authority to

the relevant agency, the FTC. If it did and if the FTC

exercises that authority to subordinate the

Horseracing Authority to its policy preferences, that

is not an end run around the non-delegation doctrine.

It is proof that no improper delegation to a private

entity occurred in the first place.

The broad

rulemaking authority that Congress delegated to the

FTC demonstrates that Congress empowered the

agency to supervise the Horseracing Authority and

act on its “advice and assistance” as it wishes.

Consumers’ Rsch., 606 U.S. at 692.

Oklahoma’s reliance on Alpine Securities Corp. v.

FINRA likewise comes up short and in the end proves

our point. 121 F.4th 1314 (D.C. Cir. 2024). In that asapplied challenge to an enforcement action, the D.C.

Circuit held that the private non-delegation doctrine

barred an SRO under the Maloney Act from

33a

summarily expelling a company from the securities

industry without prior SEC review. Id. at 1326, 1331;

see id. at 1343 (Walker, J., concurring in the judgment

in part and dissenting in part).

The decision

illustrates the difference between facial and asapplied challenges and the wisdom of using as-applied

challenges to restrict unduly zealous enforcement

actions. If the Horseracing Authority ever forces a

company to “shut down,” making “any later review” by

the agency no more than an “academic exercise,” id.

at 1326, 1331 (majority opinion), as happened in

Alpine Securities, an as-applied challenge to that

enforcement action would be waiting in the wings.

And the federal courts in this circuit will be open to

hear it. But today, the parties presented us with a

facial challenge, in which we must “consider the

circumstances in which” the Act is “most likely to be

constitutional” instead of imagining hypothetical

worst-case scenarios in which the Act might cross

constitutional lines. Rahimi, 602 U.S. at 701.

Oklahoma falls back on the proposition that, at

the very least, the Horseracing Authority’s power to

bring civil enforcement actions on its own initiative in

federal court under § 3054(j) must violate the private

non-delegation doctrine. The power to enforce the law

through civil lawsuits, Oklahoma contends, may not

reside outside the executive branch.

“Difficult and fundamental questions,” we

appreciate, arise when private entities enforce federal

law. Friends of the Earth, Inc. v. Laidlaw Env’t Servs.

(TOC), Inc., 528 U.S. 167, 197 (2000) (Kennedy, J.,

concurring). In one direction, 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

34a

broad investigations of alleged violations of the law.

In the other direction, “[p]rivate citizens [have been]

actively involved in government work,” including

investigations and prosecutions, throughout our

country’s history. Filarsky v. Delia, 566 U.S. 377, 385

(2012). “Private detectives and privately employed

patrol personnel” have served “as special policemen,”

id. at 387 (quotation omitted), and at times in our

history “private lawyers were regularly engaged to

conduct criminal prosecutions,” id. at 385.

The question, then, is not whether a private entity

performs what looks like an enforcement function. It

is whether the private entity is subject to the agency’s

supervision. See Consumers’ Rsch., 606 U.S. at 695.

An agency is free to enlist a private entity to serve “as

an aid” even in carrying out executive functions. See

Adkins, 310 U.S. at 388. The test is whether the

private entity remains “subject to [the agency’s]

pervasive surveillance and authority” when it

matters. Id.

It is premature and inappropriate to finally

resolve the validity of § 3054(j) in today’s case. In the

first place, Oklahoma chose to bring a facial challenge

to the “Act’s delegation of law-enforcement power to

the Authority” in general, not to any one enforcement

provision. Appellants’ Second Suppl. Br. 58–59; see

R.53 ¶ 11 (amended complaint). Having litigated the

case as a broad facial challenge to the enforcement

provisions, Oklahoma may not now leverage one

provision to invalidate all of them. Nor did Oklahoma,

by the way, argue below or in its written submissions

on appeal that, if this one provision is invalid and if it

is unseverable, then all of the Act’s enforcement

provisions must fall.

35a

In the second place, serious standing, ripeness,

and mootness questions would arise if Oklahoma

brought a single-shot challenge to § 3054(j). Keep in

mind that the Authority has never filed a civil

enforcement action under § 3054(j) since Congress

passed the law. See Susan B. Anthony List v.

Driehaus, 573 U.S. 149, 164 (2014). And keep in mind

that the Authority has proposed a rule for the FTC to

approve that would require the FTC, under the Act’s

delegated powers, to approve any such action before it

is filed. That rule might moot this very concern.

Oklahoma cannot smuggle a truly hypothetical, likely

unripe, perhaps soon-to-be moot, pre-enforcement

challenge to a single provision under the cover of a

broad facial challenge.

In the third place, a challenge to this enforcement

provision brings into play two salient and unbriefed

issues, one set of which overlaps with the other

enforcement provisions and the other of which does

not. As for the overlapping question, it remains

unclear whether any investigations and enforcement

actions conducted by the Authority count as

governmental action. Put another way, do the Fourth

Amendment (e.g., no unreasonable searches and

seizures) and Fifth Amendment (e.g., no compelled

testimony, no due process violations) limit the

Authority’s power to investigate alleged violations

and enforce its rules? We are not prepared to hazard

a guess and see no need to do so in the context of a

facial challenge in which no party examined the issue.

As for the non-overlapping question, the Act

appears to require regulated entities to waive

challenges to the Authority’s general enforcement

authority, 15 U.S.C. § 3054(d), though not its power to

initiate an action under § 3054(j). Here is what the

36a

Act says in relevant part: “As a condition of

participating in covered races and in the care,

ownership, treatment, and training of covered horses,

a covered person shall register with the Authority[.]

[That registration] shall include an agreement by the

covered person to be subject to and comply with the

rules, standards, and procedures developed and

approved under [§ 3054(c)].” Id. § 3054(d)(1)–(2).

SROs under the Maloney Act impose a similar

requirement. Id. § 78o(b)(8); see, e.g., FINRA Bylaws,

art. IV, § 1(a) (FINRA members must “agree[] to

comply with” FINRA’s rules and enforcement

decisions). Because the parties did not brief this

issue, it remains unclear how broadly this waiver

applies and whether, if it applies broadly, the waiver

amounts to an unconstitutional condition. See Rust v.

Sullivan, 500 U.S. 173, 197–98 (1991). Sorting out all

of these issues ought to wait until the Authority

invokes these enforcement provisions against a

regulated entity in a way that implicates these

potential concerns—still a figment in the public’s

imagination—at which time the meaning and

enforceability of the relevant provisions can be

discerned. Else, we would be forced to address the

“gritty who/what/when details of enforcement” before

they “have been worked out” in an actual or

threatened enforcement action. Saginaw County v.

STAT Emergency Med. Servs., Inc., 946 F.3d 951, 958

(6th Cir. 2020).

As this case illustrates, litigation by hypothetical

is a one-way street when it comes to facial challenges

to a statute. A reviewing court may reject a challenge

based on potential applications of the statute that

avoid constitutional shoals. But it may not invalidate

a statute based on hypothetical applications that have

yet to occur. Like the D.C. Circuit when it comes to

37a

the Maloney Act, see Alpine Sec., 121 F.4th at 1322–

24, we will wait for an as-applied challenge to the Act

before handling some of the enforcement issues raised

by Oklahoma. Having resolved this challenge in the

facial context in which it comes to us, we will save

resolution of other enforcement questions, if such

questions there be, for a day when the Authority’s

actions and the FTC’s oversight appear in concrete

detail, presumably in the context of an actual

enforcement action.

IV.

Oklahoma separately claims that two provisions

of the Horseracing Act, § 3060(b) and § 3052(f), violate

the anti-commandeering guarantee of the Tenth

Amendment. Oklahoma lacks standing to challenge

the first provision, and the second one does not count

as a cognizable form of commandeering.

A.

Oklahoma initially sets it sights on § 3060(b),

which requires state authorities to “cooperate and

share information” with the Horseracing Authority or

federal agencies. Right or wrong about whether this

requirement amounts to commandeering, Oklahoma

and the other State plaintiffs lack standing to

challenge it.

Standing arises from the Constitution’s mandate

that federal courts decide only “Cases” or

“Controversies.” U.S. Const. art. III, § 2, cl. 1. A

plaintiff must establish standing for each claim it

presses and each statutory provision it challenges.

TransUnion LLC v. Ramirez, 594 U.S. 413, 431

(2021). To do that, it must point to an injury that is

traceable to the defendant’s conduct and that a

38a

judicial decision can redress. Lujan v. Defs. of

Wildlife, 504 U.S. 555, 560–61 (1992). In a preenforcement challenge like this one, a plaintiff must

also allege a “credible threat” of future enforcement.

Driehaus, 573 U.S. at 167.

Oklahoma has not carried this burden. Even if

Oklahoma is correct that § 3060(b) unlawfully orders

the States to cooperate, the provision does not contain

a penalty or enforcement mechanism. And Oklahoma

does not point to any actual or threatened

enforcement actions. An unenforceable statutory

duty does not give rise to Article III standing,

California v. Texas, 593 U.S. 659, 669–70 (2021), and

“mere conjecture” about possible enforcement is not

any better, Clapper v. Amnesty Int’l USA, 568 U.S.

398, 420 (2013).

Oklahoma asserts in response that wrongdoing

will “frequently” implicate both federal and state law

and thus trigger the duty to cooperate. R.86 at 10.

But the question is not how often the opportunity for

cooperation may arise; it is whether the defendants

can or will mandate cooperation when that time

comes. Even so, Oklahoma notes, the Horseracing

Authority may penalize States that refuse to

cooperate.

But the Authority’s sanction power

extends only to covered persons, a term that does not

include States.

15 U.S.C. §§ 3051(6), 3054(d),

3057(a)(1); see Gregory v. Ashcroft, 501 U.S. 452, 464

(1991). The same is true of the Authority’s ability to

initiate civil lawsuits. 15 U.S.C. § 3054(j).

Absent a credible allegation that the Horseracing

Authority or the FTC can or will enforce § 3060(b),

Oklahoma lacks standing to challenge it. California,

593 U.S. at 671–72.

39a

B.

Oklahoma separately claims that § 3052(f) puts

the States to an unconstitutionally coercive choice.

While § 3052(f)’s threat of preemption gives

Oklahoma standing, Kentucky v. Biden, 23 F.4th 585,

598–601 (6th Cir. 2022), the provision does not

commandeer the States.

As separate sovereigns, Congress may not require

the States to implement federal programs. Printz v.

United States, 521 U.S. 898, 925 (1997). Nor may the

federal government issue “orders directly to the

States” to carry out this or that federal program.

Murphy v. NCAA, 584 U.S. 453, 470 (2018). At the

same time, Congress may “encourage a State to

regulate” or “hold out incentives” in hopes of

“influencing a State’s policy choices.” New York v.

United States, 505 U.S. 144, 166 (1992).

One option in this last respect is that Congress

may encourage the States through conditional

preemption.

Hodel v. Va. Surface Mining &

Reclamation Ass’n, Inc., 452 U.S. 264, 290 (1981).

Instead of preempting state law altogether, Congress

may offer States a regulatory role contingent on

following federal standards. New York, 505 U.S. at

167–68. The choice brings consequences. If a State

participates, it often has discretion in how it

implements the program. See Hodel, 452 U.S. at 289.

If a State decides not to participate, the State’s

activities are preempted. By offering States such a

non-coercive choice—regulate or be preempted—

Congress has not violated any constitutional

imperatives. Murphy, 584 U.S. at 476; New York, 505

U.S. at 167; Hodel, 452 U.S. at 288–91; FERC v.

Mississippi, 456 U.S. 742, 769 (1982).

40a

That’s how § 3052(f) operates. It presents States

with a choice, not a command. States may elect to

collect fees from the industry and remit the money to

the Horseracing Authority or States may refuse.

That’s their call. If a State participates, it gains

discretion over how the fees are collected. 15 U.S.C.

§ 3052(f)(2)(D). If a State refuses, the Authority

collects the fees itself, and the State “shall not impose

or collect from any person a fee or tax relating to antidoping and medication control or racetrack safety

matters.” Id. § 3052(f)(2)(D), (3)(D).

This scheme fits comfortably within the

conditional preemption framework. Section 3052(f)

“simply establish[es] requirements for continued state

activity in an otherwise pre-emptible field.” FERC,

456 U.S. at 769; see Printz, 521 U.S. at 925–26. And

because Congress may regulate horseracing under its

commerce power, there is nothing unconstitutional

about Congress “offer[ing] States the choice of

regulating that activity according to federal standards

or having state law pre-empted.” New York, 505 U.S.

at 173–74.

Section 3052(f) also lacks the hallmark of

commandeering: a “direct” order to the States.

Murphy, 584 U.S. at 471. Section 3052(f)’s statement

that a State “shall not impose or collect” certain fees

may sound like a command, true enough. 15 U.S.C.

§ 3052(f)(3)(D). But preemption often carries that

tone, as similar language in other statutes confirms.

See, e.g., 42 U.S.C. § 7543(a) (1988) (“No State . . . shall

adopt or attempt to enforce any standard relating to

the control of emissions . . . .”); 49 U.S.C. § 40116(b)

(“A State . . . may not levy or collect a tax [or] fee . . .

on an individual traveling in air commerce.”).

Because Congress often speaks in this manner, “it is

41a

a mistake to be confused” by preemption provisions

that “appear to operate directly on the States.”

Murphy, 584 U.S. at 478. Congress in this instance

offers the States a choice, as Oklahoma all but

concedes. Reply Br. 2, 25, 26, 27 (referring to § 3052(f)

as a “threat of preemption”). A choice is not a

command. See Printz, 521 U.S. at 925–26.

All of this is not to say “that the choice put to the

States—that of either abandoning regulation” or

assisting the Authority—is an easy one or a good one

as a matter of policy. FERC, 456 U.S. at 766. Fraught

though this decision may be, Congress has not

commandeered the States by putting them to the

choice.

Oklahoma’s principal counterargument is that a

choice between collecting fees and losing fee-collecting

authority is illegitimate, coercive, or punitive. We

don’t think so.

Oklahoma begins by arguing that § 3052(f)’s

choice—collect fees for the Horseracing Authority or

stop collecting entirely—commandeers the States

because Congress may not force the States to adopt

either alternative. See New York, 505 U.S. at 175–76.

Congress may not force a State to collect fees, true.

See Printz, 521 U.S. at 933. But Congress may use its

commerce power to preempt the field of horseracing,

preventing States from imposing fees. See FERC, 456

U.S. at 764; Gonzales v. Raich, 545 U.S. 1, 22 (2005).

Threatening to do so, it follows, is a “conditional

exercise of [a] congressional power.” New York, 505

U.S. at 176.

Oklahoma’s response that a “threat of

preemption,” Reply Br. 25, is coercive runs aground on

contrary precedent. The Court has rejected the

42a

argument “that the threat of federal usurpation of

their regulatory roles coerces the States.” Hodel, 452

U.S. at 289.

Even so, Oklahoma continues, threatening a

State’s taxing authority is especially coercive. We fail

to see how. The validity of conditional preemption

does not fluctuate with the power that is threatened.

See id. at 290–91. This would not be the first time a

State’s taxing power was preempted. See Aloha

Airlines, Inc. v. Dir. of Tax’n, 464 U.S. 7, 14 n.10

(1983); Exxon Corp. v. Hunt, 475 U.S. 355, 360–63

(1986).

Oklahoma presses the point that Congress’s

financial incentives may become so overwhelming

that a State effectively cannot refuse. See South

Dakota v. Dole, 483 U.S. 203, 211–12 (1987). Grafting

this principle on conditional preemption raises legal

and factual problems. Legally, it is bereft of support;

no case evaluates conditional preemption by looking

to a State’s monetary incentives.

Factually,

Oklahoma falters because it does not quantify its

expected loss. See NFIB v. Sebelius, 567 U.S. 519,

580–82 (2012) (opinion of Roberts, C.J.) (comparing an

incentive to a State’s budget). Without knowing how

much money is at stake, how are we to say the sum is

too high?

Oklahoma adds that the threat is punitive

because it serves no purpose other than to obtain

compliance.

Conditional preemption, however,

amounts to a “permissible method of encouraging a

State to conform to federal policy.” New York, 505

U.S. at 168; see FERC, 456 U.S. at 766. And a State

that sees itself as a sovereign sometimes must act like

one. Another reason is not difficult to find anyway.

The fee provisions ensure that a single entity—

43a

whether a State or the Authority—imposes fees on the

horseracing industry for all anti-doping and racetrack

safety matters. Eliminating “double taxation” and

fostering uniformity are adequate grounds to preempt

parallel collection regimes. Aloha Airlines, 464 U.S.

at 9–10; see Coventry Health Care of Mo., Inc. v.

Nevils, 581 U.S. 87, 97–99 (2017); Gade v. Nat’l Solid

Wastes Mgmt. Ass’n, 505 U.S. 88, 99 (1992) (plurality

opinion).

Oklahoma next argues that Congress failed to

“appropriate the funds needed to administer the

program” by forcing States to pay for collecting fees

even if they refuse to act as the Authority’s fee

collector. Murphy, 584 U.S. at 474. Not so. Private

parties pay for the Authority’s operations. 15 U.S.C.

§ 3052(f)(2)(D), (3)(B). And if a State does not collect

fees under the Act, the Authority incurs the cost of

doing so. Even if States suffer a pocketbook loss from

preemption, that does not force them to pay for the

program. See Hodel, 452 U.S. at 288.

Oklahoma also worries that the scheme blurs

accountability. Conditional preemption, however,

leaves a State and its citizens with “the ultimate

decision as to whether or not the State will comply.”

New York, 505 U.S. at 168. The ability to choose

ensures that state and federal entities are

accountable for their roles. See id.

We affirm.

44a

APPENDIX B

SUPREME COURT OF THE UNITED STATES

_____________________

No. 23-402

_____________________

OKLAHOMA, et al.,

Petitioners,

v.

UNITED STATES, et al.,

Respondents.

______________________

Filed: June 30, 2025

_______________________

ORDER

_______________________

The petition for rehearing is granted. The

order entered June 24, 2024, denying the petition for a

writ of certiorari is vacated. The petition for a writ of

certiorari is granted. The judgment is vacated, and

the case is remanded to the United States Court of

Appeals for the Sixth Circuit for further consideration

in light of FCC v. Consumers’ Research, 606 U.S. –––

(2025).

45a

APPENDIX C

SUPREME COURT OF THE UNITED STATES

_____________________

No. 23-402

____________________

OKLAHOMA, et al.,

Petitioners,

v.

UNITED STATES, et al.,

Respondents.

____________________

Filed: June 24, 2024

____________________

ORDER

_____________________

Petition DENIED.

46a

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

STATE OF OKLAHOMA;

OKLAHOMA HORSE RACING

COMMISSION; TULSA COUNTY

PUBLIC FACILITIES AUTHORITY,

dba Fair Meadows Racing and

Sports Bar; STATE OF WEST

VIRGINIA; WEST VIRGINIA

RACING COMMISSION; HANOVER

SHOE FARMS, INC.; OKLAHOMA

QUARTER HORSE RACING

ASSOCIATION; GLOBAL GAMING

RP, LLC, dba Remington Park;

WILL ROGERS DOWNS, LLC;

UNITED STATES TROTTING

ASSOCIATION; STATE OF

LOUISIANA,

Plaintiffs-Appellants,

v.

UNITED STATES OF AMERICA;

HORSERACING INTEGRITY AND

SAFETY AUTHORITY, INC.;

LEONARD S. COLEMAN, JR.;

NANCY M. COX; FEDERAL TRADE

COMMISSION; REBECCA KELLY

SLAUGHTER, in her official

No. 22-5487

>

47a

capacity as Acting Chair of the

Federal Trade Commission;

NOAH JOSHUA PHILLIPS, in his

official capacity as

Commissioner of the Federal

Trade Commission; ALVARO

BEDOYA, in his official capacity

as Commissioner of the Federal

Trade Commission; CHRISTINE

S. WILSON, in her 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; D.G. VAN

CLIEF; LINA KHAN,

Defendants-Appellees.

Appeal from the United States District Court for the

Eastern District of Kentucky at Lexington.

No. 5:21-cv-00104—Joseph M. Hood, District Judge.

Argued: December 7, 2022

Decided and Filed: March 3, 2023

Before: SUTTON, Chief Judge; COLE and

GRIFFIN, Circuit Judges.

48a

COUNSEL

ARGUED: Matthew D. McGill, GIBSON, DUNN &

CRUTCHER LLP, Washington, D.C., for Appellants.

Courtney

L.

Dixon,

UNITED

STATES

DEPARTMENT OF JUSTICE, Washington, D.C., for

Federal Appellees. Pratik A. Shah, AKIN GUMP

STRAUSS HAUER & FELD LLP, Washington, D.C.,

for Horseracing Authority Appellees. ON BRIEF:

Matthew D. McGill, Lochlan F. Shelfer, GIBSON,

DUNN & CRUTCHER LLP, Washington, D.C., Zach

West, Bryan Cleveland, OFFICE OF THE

OKLAHOMA ATTORNEY GENERAL, Oklahoma

City, Oklahoma, Lindsay S. See, OFFICE OF THE

WEST

VIRGINIA

ATTORNEY

GENERAL,

Charleston, West Virginia, Joseph Bocock, BOCOCK

LAW PLLC, Oklahoma City, Oklahoma, Todd

Hembree, CHEROKEE NATION BUSINESS,

Catoosa,

Oklahoma,

Elizabeth

B.

Murrill,

LOUISIANA DEPARTMENT OF JUSTICE, Baton

Rouge, Louisiana, Michael Burrage, WHITTEN

BURRAGE, Oklahoma City, Oklahoma, Jared C.

Easterling, GREEN LAW FIRM PC, Ada, Oklahoma,

for Appellants. Courtney L. Dixon, Joseph F. Busa,

UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C., for Federal Appellees. Pratik A.

Shah, Lide E. Paterno, AKIN GUMP STRAUSS

HAUER & FELD LLP, Washington, D.C., John C.

Roach, RANSDELL ROACH & ROYSE, Lexington,

Kentucky, for Horseracing Authority Appellees.

Benjamin M. Flowers, OFFICE OF THE OHIO

ATTORNEY GENERAL, Columbus, Ohio, Paul E.

Salamanca, Lexington, Kentucky, April A. Wimberg,

DENTONS BINGHAM GREENEBAUM LLP,

Louisville, Kentucky, Gregory G. Garre, Blake E.

49a

Stafford, LATHAM & WATKINS LLP, Washington,

D.C., for Amici Curiae.

SUTTON, C.J., delivered the opinion of the court

in which GRIFFIN and COLE, JJ., joined. COLE, J.

(pp. 20–31), delivered a separate concurring opinion.

OPINION

SUTTON,

Chief

Judge.

Sometimes

government works. In 2020, when Congress enacted

the Horseracing Safety and Integrity Act to create a

national framework to regulate thoroughbred

horseracing, it generated several non-delegation and

anti-commandeering challenges to the validity of the

Act.

The lead challenge—the non-delegation

challenge—turned on the reality that the Act replaced

several state regulatory authorities with a private

corporation, the Horseracing Authority, which

became the Act’s primary rule-maker and which was

not subordinate to the relevant public agency, the

Federal Trade Commission, in critical ways. The

Fifth Circuit declared the Act unconstitutional

because it gave “a private entity the last word” on

federal law. Nat’l Horsemen’s Benevolent & Protective

Ass’n v. Black, 53 F.4th 869, 872, 888–89 (5th Cir.

2022).

In response, Congress amended the Act to give the

Federal Trade Commission discretion to “abrogate,

add to, and modify” any rules that bind the industry.

Consolidated Appropriations Act of 2023, Pub. L. No.

117-328, 136 Stat. 4459 (2022). The Constitution

anticipates, though it does not require, constructive

50a

exchanges between Congress and the federal courts.

See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.

579, 635 (1952) (Jackson, J., concurring) (explaining

that “interdependence” and “reciprocity” should

characterize the relationship between the branches as

much as “separateness” and “autonomy”).

A

productive dialogue occurred in this instance, and it

ameliorated the concerns underlying the nondelegation challenge. As amended, the Horseracing

Act gives the FTC the final say over implementation

of the Act relative to the Horseracing Authority,

allowing us to uphold the Act as constitutional in the

face of this non-delegation challenge as well as the

anti-commandeering challenge.

I.

Unlike other sports, no one authority

traditionally has regulated horseracing. Instead, 38

state regulatory schemes have supplied an array of

protocols and safety requirements. Kjirsten Lee,

Transgressing Trainers and Enhanced Equines, 11 J.

Animal & Nat. Res. L. 23, 26 (2015). Most Americans

know horseracing through occasional high-visibility

races, say the Kentucky Derby on the first Saturday

of May, or high-visibility books, say Seabiscuit. But

as the partly and fully initiated alike can appreciate,

the sport comes with risk. Racing a dozen or more

jockeys atop large horses around a mile or more track,

all with prize money and gambling positions at stake,

creates plenty of danger. Over the last seventy years

or so, fatal accidents for jockeys during horseraces

have exceeded that of drivers in NASCAR races. Peta

L. Hitchens et al., Jockey Falls, Injuries, and

Fatalities Associated with Thoroughbred and Quarter

51a

Horse Racing in California 2007–2011, at 3,

Orthopedic J. Sports Med. (2013) (129 jockeys killed

between 1940 and 2012); How Many NASCAR Drivers

Have Died Racing?, Motor Racing Sports,

https://tinyurl.com/2d3xnazy (last visited Feb. 6,

2023) (82 NASCAR drivers killed between 1950 and

2021). Faring no better, almost 500 thoroughbreds

died in 2018 alone due to racing injuries. Why Horse

Racing Is So Dangerous, Nat’l Geographic (Jan. 21,

2020), https://tinyurl.com/ycyf5rhv.

Whether it’s the risk of pushing horses past their

limits or the risks associated with unsafe tracks and

doping, or other health and safety issues facing horses

and jockeys, no one doubts the imperative for

oversight. The question, as is so often the case, is

whether the regulation should be national or local.

In 2020, Congress answered national but did so in

conventional

and

unconventional

ways.

Conventionally, it enacted the Horseracing Integrity

and Safety Act to nationalize regulatory authority

over thoroughbred racing. 15 U.S.C. §§ 3051–60. Less

conventionally, it chose to use a private nonprofit

corporation—the Horseracing Integrity and Safety

Authority—to do some of the regulating.

The Act charges the Horseracing Authority with

“developing and implementing a horseracing antidoping and medication control program and a

racetrack safety program.” Id. § 3052(a). The

Authority’s jurisdiction also includes the “safety,

welfare, and integrity” of covered thoroughbreds,

jockeys, and horseraces. Id. § 3054(a)(2)(A). The

Authority may expand the Act’s coverage to other

52a

breeds upon request by a state racing commission or

a breed governing organization. Id. § 3054(l).

The Horseracing Authority funds its operations

through fees on the horseracing industry. Each year,

it calculates its budget and apportions amounts owed

by each State. Id. § 3052(f)(1)(C). The States have

two options. They may collect the fees themselves

from covered entities and remit the fees to the

Authority. Id. § 3052(f)(2)(D). Or they may allow the

Authority to collect the fees directly.

Id.

§ 3052(f)(3)(A)–(C).

The Act empowers the Horseracing Authority to

promulgate rules on a variety of subjects: prohibited

medications, laboratory protocols and accreditation,

racetrack standards and protocols, injury analysis,

enforcement, and fee assessments. Id. § 3053(a). The

Authority also develops procedures for its

investigatory and subpoena powers. Id. § 3054(c).

Once issued, the rules preempt state law. Id. §

3054(b).

The Horseracing Authority implements the rules,

monitors compliance, and investigates potential rule

infractions. Id. § 3054(c), (h), (i). The Act directs “the

Authority and Federal or State law enforcement

authorities” to “cooperate and share information”

whenever a covered person may have violated federal

or state law in addition to one of the Authority’s rules.

Id. § 3060(b). After investigating, the Authority may

enforce the rules through internal adjudications or

civil lawsuits. Id. §§ 3054(j), 3057(c).

53a

Under the Horseracing Act as originally passed,

the Federal Trade Commission played a limited role.

The FTC published the Authority’s proposed rules for

public comment. Id. § 3053(b)(1). After the comment

period, the FTC had to approve the rules if they were

“consistent” with the Act and with other “applicable

rules approved by the Commission.” Id. § 3053(b)–(c).

The FTC also could issue an “interim” rule if it had

“good cause” to do so and if the rule was “necessary to

protect” the welfare of horses or the integrity of the

sport. Id. § 3053(e) (2020); see 5 U.S.C. § 553(b)(B).

This framework prompted legal challenges. In a

case filed in federal court in Texas, several claimants

argued that the Act violated the Constitution by

delegating unmonitored lawmaking power to a

private entity. The Fifth Circuit agreed, reasoning

that the FTC’s oversight was insufficient because the

FTC could not modify the rules or otherwise question

the Horseracing Authority’s policy choices. Black, 53

F.4th at 872–73, 886–87. Our court faced a similar

challenge. Oklahoma, West Virginia, Louisiana, their

racing commissions, and other entities (collectively,

Oklahoma) claimed that the Act unlawfully delegated

federal power to a private entity and unlawfully

commandeered the States.

The district court

dismissed Oklahoma’s claims.

After the Fifth Circuit issued its decision and

after we heard oral argument in our case, Congress

enacted, and the President signed into law, an

amendment to the Act that increased the FTC’s

oversight role. The amendment eliminated the FTC’s

interim-rule authority and instead gave sweeping

power to the FTC to create rules that “abrogate, add

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to, and modify the rules of the Authority.” 15 U.S.C.

§ 3503(e) (as amended). Oklahoma maintains that the

Act remains unconstitutional.

II.

Mootness. First things first: Does the amendment

to the Act transform this live controversy into a moot

one? When Congress amends a statute, it is true,

pending claims challenging the law sometimes

become moot. See City of Pontiac Retired Emps. Ass’n

v. Schimmel, 751 F.3d 427, 430 (6th Cir. 2014) (en

banc) (per curiam). Not invariably, however. If the

revised statute continues to place a non-trivial burden

on the plaintiff that arises from the same theory of

unconstitutionality set forth in the complaint, the

case remains live.

Kenjoh Outdoor, LLC v.

Marchbanks, 23 F.4th 686, 692–93 (6th Cir. 2022). A

similar conclusion applies if the amendment does not

affect other features of the challenge. Both exceptions

apply here.

The amendment to § 3053(e) of the Horseracing

Act does not moot Oklahoma’s nondelegation claim.

While significant to the outcome of the case, this

singular amendment changes little about the Act’s

basic structure. The revised Act “operates in the same

fundamental ways,” with the Authority proposing and

enforcing rules and with the FTC overseeing all of

them, the key difference being that the FTC has far

more oversight authority than it had before. Id. at

693. The revised Act likewise presents fundamentally

the “same controversy,” with Oklahoma continuing to

argue that the Act gives too much unsubordinated

power to a private entity. Id.; see Cam I, Inc. v.

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Louisville/Jefferson Cnty. Metro Gov’t, 460 F.3d 717,

720 (6th Cir. 2006).

Nor does the Act moot

Oklahoma’s anti-commandeering claim. In reality,

the amendment does not change that dispute in any

material way.

Remand. One other preliminary point remains.

If the legislature changes a law while a live challenge

to it remains on appeal, appellate courts may remand

the case for the district court to take the first look at

the revised law. Hadix v. Johnson, 144 F.3d 925, 934

(6th Cir. 1998), abrogated on other grounds, 530 U.S.

327 (2000).

The option is discretionary, not

mandatory. In this instance, we see “little to be

gained” from a remand because Oklahoma brings

facial challenges that raise only legal issues and

because the parties and panel have already devoted

considerable time and resources to the dispute. Id. at

935; see Phelps-Roper v. Troutman, 712 F.3d 412, 417

(8th Cir. 2013) (per curiam).

Fortifying this

conclusion is the reality that the challengers have

asked us to proceed to the merits.

III.

A.

Non-delegation.

Through the United States

Constitution, the People separated the powers of the

National Government into three branches. They

vested the legislative power in Congress, the

executive in the President, and the judicial in the

federal courts. U.S. Const. art. I, § 1; id. art. II, § 1;

id. art. III, § 1. The People also constrained each

branch’s use of its power through counterweights in

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the other branches. To preserve this balance, the

Constitution bars further delegations of power

between the branches. Whitman v. Am. Trucking

Ass’ns, 531 U.S. 457, 472 (2001).

What about delegations to private entities?

Surely, if the Vesting Clauses bar the three branches

from exchanging powers among themselves, those

Clauses bar unchecked reassignments of power to a

non-federal entity. Just as it is a central tenet of

liberty that the government may not permit a private

person to take property from another private person,

Calder v. Bull, 3 U.S. (Dall.) 386, 388–89 (1798)

(Chase, J.), or allow private individuals to regulate

other private individuals, Washington ex rel. Seattle

Title Tr. Co. v. Roberge, 278 U.S. 116, 122 (1928), it

follows that the government may not empower a

private entity to exercise unchecked legislative or

executive power. Those who govern the People must

be accountable to the People. Completely transferring

unchecked federal power to a private entity that is not

elected, nominated, removable, or impeachable

undercuts representative government at every turn.

Precedent confirms that unchecked delegations to

private entities at a minimum violate core separationof-power guarantees.

Consider A.L.A. Schechter

Poultry Corp. v. United States, 295 U.S. 495 (1935). A

federal statute gave the President discretion to create

codes of fair competition based on proposals from

private entities.

Id. at 542.

Rejecting the

government’s view that private participation cured

any surplus delegation to the President, the Court

explained that transforming private groups into

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legislatures was “utterly inconsistent” with the

constitutional design. Id. at 537.

The Court applied the same standard to the

Bituminous Coal Act. In Carter v. Carter Coal Co., the

Court concluded that, by empowering coal producers

to set wages and to control the businesses of others,

the Act amounted to a “delegation in its most

obnoxious form” because such regulation “is

necessarily a governmental function.” 298 U.S. 238,

310–11 (1936). Appreciating the problem, Congress

amended the Act the next year to give the Coal

Commission, a government entity, the power to set

prices. See Sunshine Anthracite Coal Co. v. Adkins,

310 U.S. 381, 388 (1940).

After Congress

subordinated the private coal producers to a public

body (the Coal Commission) that could modify or

reject their proposals, the Court determined that the

statute did not impermissibly delegate “legislative

authority to the industry.” Id. at 399.

Taken together, these cases draw a line between

impermissible delegation of unchecked lawmaking

power to private entities and permissible

participation by private entities in developing

government standards and rules. Adkins shows that

a private entity may aid a public federal entity that

retains authority over the implementation of federal

law. Id. at 388. But if a private entity creates the law

or retains full discretion over any regulations, Carter

Coal and Schechter tell us the answer: that it is an

unconstitutional exercise of federal power. See Carter

Coal, 298 U.S. at 311; Schechter, 295 U.S. at 537.

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Decisions from the courts of appeals hold this line.

Private entities may serve as advisors that propose

regulations. See Sierra Club v. Lynn, 502 F.2d 43, 59

(5th Cir. 1974); Cospito v. Heckler, 742 F.2d 72, 87–89

(3d Cir. 1984); Todd & Co. v. SEC, 557 F.2d 1008,

1012–13 (3d Cir. 1977). And they may undertake

ministerial functions, such as fee collection. See

Pittston Co. v. United States, 368 F.3d 385, 395–97

(4th Cir. 2004); United States v. Frame, 885 F.2d 1119,

1128–29 (3d Cir. 1989), abrogated on other grounds,

521 U.S. 457 (1997). But a private entity may not be

the principal decisionmaker in the use of federal

power, Pittston Co., 368 F.3d at 395–97, may not

create federal law, Texas v. Rettig, 987 F.3d 518, 533

(5th Cir. 2021), may not wield equal power with a

federal agency, Ass’n of Am. R.R. v. U.S. Dep’t of

Transp. (Amtrak I), 721 F.3d 666, 671–73 (D.C. Cir.

2013), vacated on other grounds, 575 U.S. 43 (2015),

or regulate unilaterally, Black, 54 F.4th at 872.

An illuminating example comes from securities

law. The Securities and Exchange Commission

regulates the securities industry with the assistance

of private, self-regulatory organizations called SROs.

The SROs propose rules for the industry, and they

initially enforce the rules through internal

adjudication. The SEC oversees both the rulemaking

and the enforcement. As to the rules, the SEC

approves proposed rules if they are consistent with

the Maloney Act, and may “abrogate, add to, and

delete from” an SRO’s rules “as the Commission

deems necessary or appropriate.”

15 U.S.C.

§ 78s(b)(2)(C), (c). As to enforcement, the SEC applies

fresh review to the SRO’s decisions and actions. Id.

§ 78s(e); see Sartain v. SEC, 601 F.2d 1366, 1369–71

59a

(9th Cir. 1979). In case after case, the courts have

upheld this arrangement, reasoning that the SEC’s

ultimate control over the rules and their enforcement

makes the SROs permissible aides and advisors. See

R.H. Johnson & Co. v. SEC, 198 F.2d 690, 695 (2d Cir.

1952); Todd & Co., 557 F.2d at 1012–13; First Jersey

Secs., Inc. v. Bergen, 605 F.2d 690, 697 (3d Cir. 1979);

Sorrell v. SEC, 679 F.2d 1323, 1325–26 (9th Cir.

1982); see also Amtrak I, 721 F.3d at 671 n.5

(describing the SROs’ role as “purely advisory or

ministerial”).

These sources all suggest that, at a minimum, a

private entity must be subordinate to a federal actor

in order to withstand a non-delegation challenge.

Whether subordination always suffices to withstand a

challenge raises complex separation of powers

questions. Simplifying matters for today, if not for a

future day, the parties accept this framing of the

appeal.

As the case comes to us, then, the

determinative question is whether the Horseracing

Authority is inferior to the FTC.

B.

The Horseracing Authority is subordinate to the

agency. The Authority wields materially different

power from the FTC, yields to FTC supervision, and

lacks the final say over the content and enforcement

of the law—all tried and true hallmarks of an inferior

body.

Rulemaking. As amended, the Horseracing Act

gives the FTC supervision over the rules that govern

the horseracing industry.

At the outset, the

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Horseracing Authority drafts rules on racetrack

safety and anti-doping matters, and the FTC must

approve those proposals if they are consistent with the

Act. 15 U.S.C. § 3053(c)(2). But, critically, as the FTC

“deems necessary or appropriate,” it “may abrogate,

add to, and modify the rules.” Id. § 3053(e) (as

amended). The FTC’s power to abrogate and change

the Authority’s rules creates “a clear hierarchy.”

Black, 53 F.4th at 888–89.

Section 3053(e)’s amended text grants the FTC a

comprehensive oversight role. The Act provides that

the FTC may act as it “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) (as

amended). The final catchall indicates that § 3053(e)

spans the Horseracing Authority’s jurisdiction. The

parties are one in agreeing that this section allows the

FTC to modify rules “if it wishes.” Appellants’ Suppl.

Br. 1.

A comparison with § 3053(e)’s pre-amendment

language reenforces the point.

Before the

amendment, § 3053(e) allowed the FTC to adopt

interim rules only if “necessary,” and only if good

cause existed to bypass the Administrative Procedure

Act’s notice and comment procedures. 15 U.S.C.

§ 3053(e) (2020). The Fifth Circuit concluded that the

ability to “make temporary rules on a break-glass-incase-of-an-emergency basis” did not give the FTC

sufficient control. Black, 53 F.4th at 883. The FTC

could overrule the Authority only in rare, extreme

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cases, making it the inferior, not the superior, rulemaker. The amended section, by contrast, requires no

emergency, no good cause, no necessity. The FTC now

may create new rules or modify existing rules as it

deems “appropriate to” advance “the purposes of [the]

Act.” 15 U.S.C. § 3053(e) (as amended). That

amounts to true oversight authority.

With § 3053(e)’s broad power to write and rewrite

the rules comes policymaking discretion. See Cospito,

742 F.2d at 88–89. When the FTC decides to act—

whether by abrogating one of the Horseracing

Authority’s rules or introducing its own—the FTC

makes a policy choice and necessarily scrutinizes the

Authority’s policies. That is no less true when the

FTC decides not to act. In either setting, the FTC may

“unilaterally change regulations,” Amtrak I, 721 F.3d

at 671, and “is free to prescribe” the rules, showing

that it “retains ultimate authority,” Cospito, 742 F.2d

at 88. In a recent rule, the FTC recognized as much,

explaining that its new “rulemaking power” allows it

to “exercise its own policy choices.” Order Ratifying

Previous Commission Orders 3, Fed. Trade Comm’n

(Jan. 3, 2023), https://tinyurl.com/dkenwspt.

In full, § 3053(e)’s amended text gives the FTC

ultimate discretion over the content of the rules that

govern the horseracing industry and the Horseracing

Authority’s implementation of those rules. By the

same token, ultimate “law-making is not entrusted to

the [Authority].” Adkins, 310 U.S. at 399; see Frame,

885 F.2d at 1129. That makes the FTC the primary

rule-maker, and leaves the Authority as the

secondary, the inferior, the subordinate one. See

Adkins, 310 U.S. at 388.

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Accountability considerations lead to the same

destination. Before the amendment, the Fifth Circuit

determined that the FTC could not question the

Horseracing Authority’s policy choices or modify its

rules. Black, 53 F.4th at 886–87. It followed that the

Authority, a private entity beyond public control,

alone was responsible for the exercise of government

power in this area. Not so anymore. With its new

ability to have “the final word on the substance of the

rules,” the FTC bears ultimate responsibility. Id. at

887; cf. Lynn, 502 F.2d at 59. The People may rightly

blame or praise the FTC for how adroitly (or, let’s hope

not, ineptly) it “ensure[s] the fair administration of

the Authority” and advances “the purposes of [the]

Act.” 15 U.S.C. § 3053(e) (as amended).

Enforcement. A similar conclusion applies to

enforcement of the Act. The Horseracing Authority’s

enforcement duties are extensive, granted. The

Authority implements the Act, investigates potential

rule violations, and enforces the rules through

internal adjudications and external civil lawsuits.

Even so, the FTC’s rulemaking and rule revision

power gives it “pervasive” oversight and control of the

Authority’s enforcement activities, just as it does in

the rulemaking context. Adkins, 310 U.S. at 388.

Take an example to illustrate the point. Imagine

that the Horseracing Authority began enforcing its

rule without giving thought to the procedural rights

of jockeys, trainers, and other industry participants.

Section 3053(e) gives the FTC the tools to step in. To

ensure a fair enforcement process, the FTC could

issue rules protecting covered persons from overbroad

subpoenas or onerous searches. The FTC could

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require that the Authority provide a suspect with a

full adversary proceeding and with free counsel. And

the FTC could require that the Authority meet a

burden of production before bringing a lawsuit or

preclear the decision with the FTC. In these ways as

well as others, the FTC may control the Authority’s

enforcement activities and ensure that the FTC, not

the Authority, ultimately decides how the Act is

enforced.

Topping this oversight off, the FTC has full

authority to review the Horseracing Authority’s

enforcement actions. 15 U.S.C. § 3058(c)(1)–(2). After

an independent review, the FTC may reverse the

Authority’s decision. Id. § 3058(c)(3). As with

rulemaking, so with adjudication: The Authority’s

adjudication decisions are not final until the FTC has

the opportunity to review them. See Cospito, 742 F.2d

at 88; Todd & Co., 557 F.2d at 1012–14. All told, the

Horseracing Authority is “subject to [the FTC’s]

pervasive surveillance and authority,” revealing that

the Authority “operate[s] as an aid to the [FTC],”

nothing more. Adkins, 310 U.S. at 388.

Whether the FTC becomes a demanding

taskmaster or a lenient one, 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.” 15 U.S.C. § 3053(e) (as

amended). That potential suffices to defeat a facial

challenge, where Oklahoma must show that the Act is

unconstitutional in all its applications. United States

v. Salerno, 481 U.S. 739, 745 (1987).

64a

C.

In seeking to head off this conclusion, Oklahoma

points out that the amendment does not change one

feature of the Act—that the FTC has power only to

review proposed rules by the Authority for

“consistency” with the Act, a standard of review that,

it says, does not pick up policy disagreements. 15

U.S.C. § 3053(c). Maybe so. But even if that is the

case, the FTC’s later authority to modify any rules for

any reason at all, including policy disagreements,

ensures that the FTC retains ultimately authority

over the implementation of the Horseracing Act. The

FTC’s review authority in this respect parallels

similar authority exercised by the SEC under the

Maloney Act. Compare 15 U.S.C. § 78s(c) (providing

that the SEC “may abrogate, add to, and delete from

. . . the rules of [the private entity] as the Commission

deems necessary or appropriate”), with 15 U.S.C.

§ 3053(e) (as amended) (providing that the FTC “may

abrogate, add to, and modify the rules of the Authority

. . . as the Commission finds necessary or

appropriate”). The same is true in the Coal Act. See

Bituminous Coal Act of 1937, Pub. L. No. 75-48, § 4,

50 Stat. 72, 78 (providing that the Coal Commission

could “approve, disapprove, or modify” proposals).

Before the amendment, Oklahoma observed that

the SEC’s modification power gives the SEC “largely

unbounded authority to craft [the private entity’s]

regulations as it sees fit.” Reply Br. 7. The same is

now true under the Horseracing Act. The lack of a

modification power, moreover, was the “key

distinction” the Fifth Circuit identified between the

Maloney and Horseracing Acts. Black, 53 F.4th at

65a

887. The amendment to § 3053(e) eliminates that

distinction. Even if other less-material distinctions

between the two laws remain, the FTC’s new

discretion to adopt and modify rules correctly places

the private Horseracing Authority in a subordinate

position to the public FTC. All of this explains why

every court of appeals to address the validity of such

delegations under the Maloney Act and the Coal Act,

as noted, has upheld them.

Oklahoma worries that the Horseracing

Authority’s rules could govern a dispute until the FTC

undoes rules it dislikes. It’s true that the FTC’s

modification authority under § 3053(e), as it currently

exists, customarily would run through ordinary

rulemaking. But that current reality need not be a

future reality. For one, the threat of modification is

not likely to miss the attention of the Authority. For

another, the FTC has power to initiate new rules, not

just to modify rules it does not like. To 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 newly enacted rules do not take effect

for 180 days, thereby giving the FTC time to review

rules and prepare preemptive modifications.

This argument overlooks another reality. When

the FTC reviews the Horseracing Authority’s

proposed rules, it asks not just whether they are

“consistent” with the Act; it also asks whether they

are “consistent” with other “applicable rules approved

by the Commission.” Id. § 3053(c)(2). Any risk of a

policymaking gap between initial consistency review

and initial full review will diminish over time as the

FTC chooses to exercise—or not to exercise—its

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complete authority to initiate new rules or modify old

ones. Over time, the FTC’s threshold consistency

review will account for its own full-throated

rulemaking power.

Oklahoma notes that the FTC’s duty under the

Administrative Procedure Act to explain any changes

to the rules limits its hand. But that just means it

may not arbitrarily alter the rules. The APA does not

limit the FTC’s authority to disagree with the

Horseracing Authority over a policy choice delegated

to the agency by Congress. The FTC “need not

demonstrate to a court’s satisfaction that the reasons

for the new policy are better than the reasons for the

old.” FCC v. Fox Television Stations, Inc., 556 U.S.

502, 515 (2009). It is enough that “there are good

reasons” for the new policy “and that the agency

believes it to be better.” Id.

No matter, Oklahoma adds: The Horseracing

Authority’s ability to expand its jurisdiction to breeds

other than thoroughbreds escapes the FTC’s review.

Not so. The FTC’s § 3053(e) power allows it to revoke

the Authority’s decision or place procedural and

substantive conditions on any such decision.

Oklahoma points to the Horseracing Authority’s

ability to enforce the Act through civil lawsuits,

asserting that the ability cannot reside outside the

executive branch.

“Difficult and fundamental

questions,” we agree, arise when private entities

enforce federal law. Friends of the Earth, Inc. v.

Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 197

(2000) (Kennedy, J., concurring). But this is not an

as-applied challenge to an individual enforcement

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action; it is a facial challenge to the Act. The FTC’s

ultimate authority over all rules promulgated under

the Act, which would include any rules related to

enforcement, offers a potent answer to this concern in

the context of a facial challenge. The Authority’s

enforcement through internal adjudication and

external lawsuits is subordinate to the FTC. The

other reality is that the parties simply have not

engaged with this feature of the Act, including

briefing with respect to founding-era or contemporary

analogs showing the role private entities may, and

may not, play in law enforcement. That omission is

understandable. From the start, Oklahoma litigated

this claim as one turning on “governmental oversight”

of and “accountability” for the Horseracing

Authority’s activities, not as a categorical Article II

inquiry or as a question of historical meaning. R.53

150; R.98 at 23–24. We thus will decide the case as it

comes to us, and save resolution of such questions, if

such questions there be, for a day when the

Authority’s actions and the FTC’s oversight appear in

concrete detail, presumably in the context of an actual

enforcement action.

IV.

Oklahoma separately claims that two provisions

of the Horseracing Act, § 3060(b) and § 3052(f), violate

the anti-commandeering guarantee of the Tenth

Amendment. Oklahoma lacks standing to challenge

the first provision, and the second one does not count

as a cognizable form of commandeering.

68a

A.

Oklahoma initially sets its sights on § 3060(b),

which requires state authorities to “cooperate and

share information” with the Horseracing Authority or

federal agencies. Right or wrong about whether this

requirement amounts to commandeering, Oklahoma

and the other State plaintiffs lack standing to

challenge it.

Standing arises from the Constitution’s mandate

that federal courts decide only “Cases” or

“Controversies.” U.S. Const. art. III, § 2, cl. 1. A

plaintiff must establish standing for each claim he

presses and each statutory provision he challenges.

TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2207–

08 (2021). To do that, he must point to an injury that

is traceable to the defendant’s conduct and that a

judicial decision can redress. Lujan v. Defs. of

Wildlife, 504 U.S. 555, 560–61 (1992). In a preenforcement challenge like this one, a plaintiff must

also allege a “credible threat” of future enforcement.

Susan B. Anthony List v. Driehaus, 573 U.S. 149, 159

(2014).

Oklahoma has not carried this burden. Even if

Oklahoma is correct that § 3060(b) unlawfully orders

the States to cooperate, the provision does not contain

a penalty or enforcement mechanism. And Oklahoma

does not point to any actual or threatened

enforcement actions. An unenforceable statutory

duty does not give rise to Article III standing,

California v. Texas, 141 S. Ct. 2104, 2113–14 (2021),

and “mere conjecture” about possible enforcement is

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not any better, Clapper v. Amnesty Int’l USA, 568 U.S.

398, 420 (2013).

Oklahoma asserts in response that wrongdoing

will “frequently” implicate both federal and state law,

and thus trigger the duty to cooperate. R.86 at 10.

But the question is not how often the opportunity for

cooperation may arise; it is whether the defendants

can or will mandate cooperation when that time

comes. Even so, Oklahoma notes, the Horseracing

Authority may penalize States that refuse to

cooperate.

But the Authority’s sanction power

extends only to covered persons, a term that does not

include States.

15 U.S.C. §§ 3051(5), 3054(d),

3057(a)(1); see Gregory v. Ashcroft, 501 U.S. 452, 464

(1991). The same is true of the Authority’s ability to

initiate civil lawsuits. 15 U.S.C. § 3054(j).

Absent a credible allegation that the Horseracing

Authority or the FTC can or will enforce § 3060(b),

Oklahoma lacks standing to challenge it. California,

141 S. Ct. at 2115.

B.

Oklahoma separately claims that § 3052(f) puts

the States to an unconstitutionally coercive choice.

While § 3052(f)’s threat of preemption gives

Oklahoma standing, Kentucky v. Biden, 23 F.4th 585,

597–601 (6th Cir. 2022), the provision does not

commandeer the States.

Congress may not require the States, separate

sovereigns all, to implement federal programs. Printz

v. United States, 521 U.S. 898, 925 (1997). Nor may

the federal government issue “orders directly to the

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States” to carry out this or that federal program.

Murphy v. NCAA, 138 S. Ct. 1461, 1475 (2018). At the

same time, Congress may “encourage a State to

regulate” or “hold out incentives” in hopes of

“influencing a State’s policy choices.” New York v.

United States, 505 U.S. 144, 166 (1992).

One option in this last respect is that Congress

may encourage the States through conditional

preemption.

Hodel v. Va. Surface Mining &

Reclamation Ass’n, Inc., 452 U.S. 264, 290 (1981).

Instead of preempting state law altogether, Congress

may offer States a regulatory role contingent on

following federal standards. New York, 505 U.S. at

167–68. The choice brings consequences. If a State

participates, it often has discretion in how it

implements the program. See Hodel, 452 U.S. at 289.

If a State decides not to participate, the State’s

activities are preempted. By offering States such a

non-coercive choice—regulate or be preempted—

Congress has not violated any constitutional

imperatives. Murphy, 138 S. Ct. at 1479; New York,

505 U.S. at 167; Hodel, 452 U.S. at 288–91; FERC v.

Mississippi, 456 U.S. 742, 769 (1982).

That’s how § 3052(f) operates. It presents States

with a choice, not a command. States may elect to

collect fees from the industry and remit the money to

the Horseracing Authority or States may refuse.

That’s their call. If a State participates, it gains

discretion over how the fees are collected. 15 U.S.C.

§ 3052(f)(2)(D). If a State refuses, the Authority

collects the fees itself, and the State “shall not impose

or collect from any person a fee or tax relating to anti-

71a

doping and medication control or racetrack safety

matters.” Id. § 3052(f)(3)(D).

This scheme fits comfortably within the

conditional preemption framework. Section 3052(f)

“simply establish[es] requirements for continued state

activity in an otherwise pre-emptible field.” FERC,

456 U.S. at 769; see Printz, 521 U.S. at 925–26. And

because Congress may regulate horseracing under its

commerce power, there is nothing unconstitutional

about Congress “offer[ing] States the choice of

regulating that activity according to federal standards

or having state law pre-empted.” New York, 505 U.S.

at 173–74.

Section 3052(f) also lacks the hallmark of

commandeering: a “direct” order to the States.

Murphy, 138 S. Ct. at 1476.

Section 3052(f)’s

statement that a State “shall not impose or collect”

certain fees may sound like a command, true enough.

Id. § 3052(f)(3)(D). But preemption often carries that

tone, as similar language in other statutes confirms.

See, e.g., 42 U.S.C. § 7543(a) (1988) (“No State . . . shall

adopt or attempt to enforce any standard relating to

control of emissions . . . .”); 49 U.S.C. § 40116(b) (“[A]

State . . . may not levy or collect a tax [or] fee . . . on

an individual traveling in air commerce . . . .”).

Because Congress often speaks in this manner, “it is

a mistake to be confused” by preemption provisions

that “appear to operate directly on the States.”

Murphy, 138 S. Ct. at 1480. Congress in this instance

offers the States a choice, as Oklahoma all but

concedes. Reply Br. 2, 25, 26, 27 (referring to § 3052(f)

as a “threat of preemption”). A choice is not a

command. See Printz, 521 U.S. at 925–26.

72a

All of this is not to say “that the choice put to the

States—that of either abandoning regulation” or

assisting the Authority—is an easy one or a good one

as a matter of policy. FERC, 456 U.S. at 766. Fraught

though it may be, Congress has not commandeered

the States by putting them to this choice.

Oklahoma’s principal counterargument is that a

choice between collecting fees and losing fee collecting

authority is illegitimate, coercive, or punitive. We

don’t think so.

Oklahoma begins by arguing that § 3052(f)’s

choice—collect fees for the Horseracing Authority or

stop collecting entirely—commandeers the States

because Congress may not force the States to adopt

either alternative. See New York, 505 U.S. at 175–76.

Congress may not force a State to collect fees, true.

Printz, 521 U.S. at 933. But Congress may use its

commerce power to preempt the field of horseracing,

preventing States from imposing fees. See FERC, 456

U.S. at 764; Gonzales v. Raich, 545 U.S. 1, 22 (2005).

Threatening to do so, it follows, is a “conditional

exercise of [a] congressional power.” New York, 505

U.S. at 176.

Oklahoma’s response that a “threat of

preemption,” Reply Br. 25, is coercive runs aground on

contrary precedent. The Court has rejected the

argument “that the threat of federal usurpation of

their regulatory roles coerces the States.” Hodel, 452

U.S. at 289; New York, 505 U.S. at 176.

Even so, Oklahoma continues, threatening a

State’s taxing authority is especially coercive. We fail

73a

to see how. The validity of conditional preemption

does not fluctuate with the power that is threatened.

See Hodel, 452 U.S. at 290–91. This would not be the

first time a State’s taxing power was preempted. See

Aloha Airlines, Inc. v. Dir. of Tax’n, 464 U.S. 7, 14 n.10

(1983); Exxon Corp. v. Hunt, 475 U.S. 355, 360–63

(1986).

Oklahoma presses the point that Congress’s

financial incentives may become so overwhelming

that a State effectively cannot refuse. See South

Dakota v. Dole, 483 U.S. 203, 211–12 (1987). Grafting

this principle on conditional preemption raises legal

and factual problems. Legally, it is bereft of support;

no case evaluates conditional preemption by looking

to a State’s monetary incentives.

Factually,

Oklahoma falters because it does not quantify its

expected loss. See NFIB v. Sebelius, 567 U.S. 519,

580–82 (2012) (opinion of Roberts, C.J.) (comparing an

incentive to a State’s budget). Without knowing how

much money is at stake, how are we to say the sum is

too high?

Oklahoma adds that the threat is punitive

because it serves no purpose other than to obtain

compliance.

Conditional preemption, however,

amounts to a “permissible method of encouraging a

State to conform to federal policy.” New York, 505

U.S. at 168; see FERC, 456 U.S. at 766. And a State

that sees itself as a sovereign sometimes must act like

one. Another reason is not difficult to find anyway.

The fee provisions ensure that a single entity—

whether a State or the Authority—imposes fees on the

horseracing industry for all anti-doping and racetrack

safety matters. Eliminating “double taxation” and

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fostering uniformity are adequate grounds to preempt

parallel collection regimes. Aloha Airlines, 464 U.S.

at 9–10; see Coventry Health Care of Mo., Inc. v. Nevis,

581 U.S. 87, 97–99 (2017); Gade v. Nat’l Solid Waste

Mgmt. Ass’n, 505 U.S. 88, 99 (1992) (plurality).

Oklahoma next argues that Congress failed to

“appropriate the funds needed to administer the

program” by forcing States to pay for collecting fees

even if they refuse to act as the Authority’s fee

collector. Murphy, 138 S. Ct. at 1477. Not so. Private

parties pay for the Authority’s operations. 15 U.S.C.

§ 3052(f)(2)(D), (3)(B). And if a State does not collect

fees under the Act, the Authority incurs the cost of

doing so. Even if States suffer a pocket-book loss from

preemption, that does not force them to pay for the

program. See Hodel, 452 U.S. at 288.

Oklahoma also worries that the scheme blurs

accountability. Conditional preemption, however,

leaves a State and its citizens with “the ultimate

decision as to whether or not the State will comply.”

New York, 505 U.S. at 168. The ability to choose

ensures that state and federal entities are

accountable for their roles. See id.

We affirm.

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CONCURRENCE

COLE, Circuit Judge, concurring. While I agree

with the majority’s conclusions that the Act is facially

constitutional, and its analysis in full in Part IV, I

write separately because I depart slightly from its

framing of the issue and its analysis of the private

nondelegation doctrine.

I. ISSUE ON APPEAL

As a threshold matter, I note what is before us on

appeal. In 2020, with wide bipartisan support,

Congress passed, and then-President Trump signed

into law, the Horseracing Integrity and Safety Act

(“HISA” or “the Act”). Pub. L. No. 116-260, §§ 1201–

12, 134 Stat. 1182, 3252–75 (2020) (codified at 15

U.S.C. §§ 3051–60). Petitioners challenged the Act’s

constitutionality and appealed the district court’s

dismissal of the case for failure to state a claim. A few

weeks after this panel heard oral argument in the

appeal, Congress amended the Act. See Consolidated

Appropriations Act of 2023, Pub. L. No. 117-328, 126

Stat. 4459, 5231–32 (2022) (codified as amended at 15

U.S.C. § 3053(e)). Congress amended section 3053(e),

which now provides that:

The Commission, by rule, in accordance

with section 553 of title 5, United States

Code, may abrogate, add to, and modify

the rules of the Authority promulgated

in accordance with this Act as the

Commission

finds

necessary

or

appropriate

to

ensure

the

fair

administration of the Authority, to

conform the rules of the Authority to

76a

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). Under the current form of the

statute, the Federal Trade Commission (“FTC”) can,

in certain circumstances delineated in the Act, and

through proper rule-making procedures as required

by the Administrative Procedure Act, “abrogate, add

to, and modify” existing rules promulgated by the

Horseracing Integrity and Safety Authority

(“Authority”). Id.

Today, our review is cabined to the statute as

amended, withholding judgment on the previous

version or other circuits’ handling of the original

statute. To the extent that the cogent majority

opinion goes further—opining in dicta that the

original statute was unconstitutional—I note that not

only does such analysis not carry the force of law, but

also that I disagree, as I believe the original statute

was constitutional because the private Authority has

always been subordinate to the FTC.

II. PRIVATE NONDELEGATION DOCTRINE

The nondelegation doctrines broadly refer to

judicially imposed limits on Congress’s ability to

constitutionally delegate authority to others.

Specifically, Congress cannot delegate its legislative

authority to an executive agency unless the statute

contains an “intelligible principle” guiding the agency.

See Gundy v. United States, 139 S. Ct. 2116, 2123

(2019) (plurality opinion); see also Mistretta v. United

States, 488 U.S. 361, 372 (1989). This is the public

nondelegation doctrine. The private nondelegation

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doctrine refers to constitutional concerns that arise

where a private entity—rather than a government

entity—wields significant power to execute a

statutory scheme. See Carter v. Carter Coal Co., 298

U.S. 238 (1936). Only the latter of these, private

nondelegation, is at issue here.

I agree with the majority that the Act is

constitutional under the private nondelegation

doctrine, and also that the main test for this issue is

whether the private entity is subordinate to the

federal agency. But I write separately because I

diverge from the majority’s analysis in two ways: (1)

the source of the private nondelegation doctrine, and

(2) the precise framing of the private nondelegation

question.

A. Source of Private Nondelegation Doctrine

The private nondelegation doctrine is rooted in

both due process and separation of powers concerns.

Indeed, the earliest invocations of the private

nondelegation doctrine arose in the context of local

regulations. See Washington ex rel. Seattle Title Tr.

Co. v. Roberge, 278 U.S. 116, 121–22 (1928); Thomas

Cusack Co. v. City of Chicago, 242 U.S. 526, 530

(1917); Eubank v. City of Richmond, 226 U.S. 137,

143–44 (1912). In these cases, localities granted

private homeowners the power to create zoning laws

for their neighborhood, and the Supreme Court found

these ordinances violated property owners’ federal

due process rights. Eubank, 226 U.S. at 143–44. “The

Court was concerned that private property owners,

with their own interests at stake, had been given

total, standardless control over an important aspect of

their neighbors’ property.” Rice v. Vill. of Johnstown,

30 F.4th 584, 589 (6th Cir. 2022) (citing Eubank, 226

U.S. at 143).

78a

The separation of powers concerns, meanwhile,

stem from the Vesting Clauses, inasmuch as the

Constitution vests each of the three branches of

government with specific powers and responsibilities.

Article I of the Constitution grants Congress

legislative power, Article II grants the President

executive power, and Article III grants the federal

courts judicial power.

“Accompanying that

assignment of power to Congress is a bar on its further

delegation.” Gundy, 139 S. Ct. at 2123; see Mistretta,

488 U.S. at 371 (“The nondelegation doctrine is rooted

in the principle of separation of powers that underlies

our tripartite system of Government.”). Therefore,

when a statute confers “the power to regulate the

affairs of an unwilling minority” onto a private entity,

that “is legislative delegation in its most obnoxious

form[.]” Carter Coal, 298 U.S. at 311. But when the

private entity “operate[s] as an aid to the [agency]”

and is “subject to [the agency’s] pervasive surveillance

and authority, . . . law-making is not entrusted to the

[private entity]” and so such a “statutory scheme is

unquestionably valid.” Sunshine Anthracite Coal Co.

v. Adkins, 310 U.S. 381, 388, 399 (1940).

Notably, in its federal private nondelegation cases,

the Supreme Court has blurred the lines between the

two rationales, opting not to definitively root the

private nondelegation doctrine in one or the other,

and often referring to both. For instance, in Carter v.

Carter Coal, the first case applying the private

nondelegation doctrine to a federal statute, the Court

ruled that a portion of the Bituminous Coal

Conservation Act of 1935 was unconstitutional under

the private nondelegation doctrine. 298 U.S. at 311.

In invalidating the statute, the Court found the

delegation at issue “so clearly arbitrary, and so clearly

a denial of rights safeguarded by the due process

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clause of the Fifth Amendment, that it is unnecessary

to do more than refer to decisions of this court which

foreclose the question.” Id. at 311–12 (first citing

Schechter Poultry Corp. v. United States, 295 U.S.

495, 537 (1935); then citing Eubank, 226 U.S. at 143;

and then citing Roberge, 278 U.S. at 121–22).

In so holding, the Court cited two of the zoning

cases premised on the due process concerns of the

private nondelegation doctrine, and also Schecter

Poultry, addressing the separation of powers

argument. By doing so, the Court maintained the

public versus private division as opposed to a

rationale-based division and endorsed both of the

rationales underpinning the private nondelegation

doctrine. See Carter Coal, 298 U.S. at 311.

The Fifth Circuit, when it ruled recently on the

original version of the Act, recognized this ambiguity.

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

Black, 53 F.4th 869, 881 n.23 (5th Cir. 2022). “Courts

and commentators,” it wrote, “differ over the locus of

the constitutional violation.”

Id. (citing several

articles and cases). Compare U.S. Dep’t of Transp. v.

Ass’n of Am. R.R.s, 575 U.S. 43, 46 (2014) (“This

argument [regarding private nondelegation] rests on

the Fifth Amendment Due Process Clause and the

constitutional provisions regarding separation of

powers.”), with id. at 87–88 (“[O]ur so-called ‘private

nondelegation doctrine’ flows logically from the three

Vesting Clauses.”) (Thomas, J., concurring). But the

Fifth Circuit concluded it “need not weigh in” to

resolve the question at hand. Black, 53 F.4th at 881

n.23. “Whatever the constitutional derivation, all

parties and the district court agree that the outcome

turns on whether the private entity is subordinate to

80a

the agency.” Id.; see also Ass’n of Am. R.R.s v. U.S.

Dep’t of Transp. (Amtrak I), 721 F.3d 666, 671 n.3

(D.C. Cir. 2013), vacated on other grounds, 575 U.S.

43 (2015) (“While the distinction [between the due

process clause and Vesting Clauses] evokes scholarly

interest, . . . our own precedent describes the problem

as one of unconstitutional delegation.”).

When

presented with the same ambiguity, the D.C. Circuit

also did not decide the issue because the doctrine

turns on unconstitutional delegation, regardless of its

textual roots, and “neither court nor scholar has

suggested a change in the label would effect a change

in the inquiry.” Amtrak I, 721 F.3d at 671 n.3.

Moreover, if we root the private nondelegation

doctrine solely in separation of powers concerns, we

circumvent our own court’s private nondelegation

doctrine cases—many of which focus on local

regulations, not federal ones, and are grounded in due

process rights, as opposed to separation of powers

principles. See Rice, 30 F.4th at 589–91; Kiser v.

Kamdar, 831 F.3d 784, 791–92 (6th Cir. 2016);

Stevens v. City of Columbus, No. 21-3755, 2022 WL

2966396, at *9 (6th Cir. July 27, 2022).

Whatever the exact underpinning of the private

nondelegation doctrine, what is clear is that the

statute is constitutional if the Authority remains

subordinate to the FTC. See Adkins, 310 U.S. at 388,

399 (holding a statute constitutional where the

private entity is “an aid” to the agency and is “subject”

to the agency’s “pervasive surveillance and

authority”); Carter Coal, 298 U.S. at 310–11

(invalidating a statute where private entities were

granted the power to establish the maximum hours of

81a

labor without

approval).

any

governmental

oversight

or

That is the beginning and end of the inquiry as to

whether a statute is constitutional under the private

nondelegation doctrine. The Supreme Court has

never suggested that this is the minimum finding, or

that subordination on its own may not suffice to

withstand a challenge to a statute on private

nondelegation grounds. And so the parties could not

have framed the appeal in a different way, because the

only private nondelegation test is that of

subordination.

Now that the framing and source of the

nondelegation doctrine is clear, I apply the existing

precedent to HISA, finding that HISA as a whole is

facially constitutional because the Authority is

subordinate to the FTC in several ways.

B. HISA’s Constitutionality

1. Rulemaking Authority

Oklahoma raises several concerns with the Act

and its different components. I agree in full with the

majority’s discussion of section 3053(e)’s amended

text, and its conclusion that the amended text

indicates that the Authority remains subordinate to

the FTC. I diverge in that I find the rest of the Act to

be nearly identical to the previously upheld Maloney

Act and Coal Act. I also find that the amended text

supports the Authority’s subordination but does not

alone ensure the Act’s constitutionality.

To begin, the Authority does not have

independent rulemaking power—only the FTC can

promulgate regulations with the force of law:

82a

A proposed rule or proposed modification

to a rule cannot take effect unless

approved by the Commission.

The

Commission is authorized to grant such

approval if the proposed rule or

modification of a rule is consistent with

the requirements in this legislation and

any applicable rules approved by the

Commission.

The Commission is

granted the authority to prescribe rules

and interim final rules to carry out their

responsibilities under this section using

the rulemaking process under the

Administrative Procedure Act.

H.R. Rep. No. 116-554, at 25 (2020).

Like the private entities in the Maloney Act,

known as self-regulatory organizations (“SROs”), and

the private entity in Adkins, the Authority may only

“propose[]” rules to the Commission. 15 U.S.C.

§ 3053(a). The Authority’s rule cannot go into effect

“unless the proposed rule . . . has been approved by

the Commission.” Id. § 3053(b)(2); accord Adkins, 310

U.S. at 388 (upholding statute where boards

“propose[d]” prices that only took effect once the

agency “fix[ed]” them); 15 U.S.C. § 78s(b)(1) (writing

that private entities in the securities arena may

“propose[]” rules but, generally, “[n]o proposed rule

change shall take effect unless approved by the

[SEC]”). Here, a rule only goes into effect once the

FTC has approved it, and to approve it, the FTC must

first ensure that the rule “is consistent with” HISA

and other “applicable rules approved by the [FTC].”

15 U.S.C. § 3053(c)(2).

83a

This consistency review is no mere rubber stamp.

The FTC, under the express terms of the Act, must

review the Authority’s proposed rules to ensure they

are consistent with “the safety, welfare, and integrity

of covered horses, covered persons, and covered

horseraces[.]” Id. § 3054(a)(2)(A). There are certain

categories of rules for which Congress explicitly laid

out clear boundaries for both the Authority and the

FTC, and such rules provide “clearly defined policy”

for the Authority and FTC to effectuate. (See D. Ct.

Opinion, R. 105, PageID 1496.) But even for the ones

with fewer constraints, all promulgated rules must

abide by Congress’s explicit imperative to create rules

for “the safety, welfare, and integrity” of covered

entities. Id. § 3054(a)(2)(A). “[T]o the extent HISA

affords rulemaking discretion to advance Congress’s

broader objectives, such as the requirement that

safety standards be ‘consistent with the humane

treatment of covered horses,’ the FTC (not the

Authority) ultimately exercises that statutorily

conferred discretion—all of which is bound up with

‘the policy implications of rules proposed.’” (Authority

Br. 41 (citations omitted).)

HISA is remarkably similar to the constitutional

Maloney Act, and was so even when assessed

irrespective of the amendment. The Maloney Act

provides the following parameters regarding the

SEC’s approval of an SRO’s rules. The SEC “shall

approve”—meaning it must approve—a rule “if it finds

that such proposed rule change is consistent with the

requirements of this chapter and the rules and

regulations issued under this chapter that are

applicable to such organization.”

15 U.S.C.

§ 78s(b)(2)(C)(i) (emphasis added). Likewise, HISA

84a

provides that the FTC “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).

Both the Maloney Act and HISA therefore provide

for analogous consistency review: the reviewing

agency must approve rules that are consistent with

both the statute and previously issued rules. The

Supreme Court held that the SEC “has broad

authority to oversee and to regulate the rules adopted

by the SROs” because rules are not enacted “unless

the SEC finds that the proposed rule is consistent

with the requirements of the Exchange Act, 15 U.S.C.

§ 78s(b)[.]” Shearson/Am. Exp., Inc. v. McMahon, 482

U.S. 220, 233–34 (1987). If that is true for 15 U.S.C.

§ 78s(b), then that must also be true of 15 U.S.C.

§ 3053(c)(2).

And neither agency’s review of the respective

private entity ends there. Each act also provides

additional requirements for the consistency review of

proposed rules in specific instances. In the Maloney

Act, specifically relating to rules proposed by one

specific subset of SROs, the SEC’s consistency review

includes that the rules be “designed[,] . . . in general,

to protect investors and the public interest[,]” as well

as not be “designed to permit unfair discrimination . . .

among participants[.]” Id. § 78q-1(b)(3)(F); see also

Susquehanna Int’l Grp., LLP v. SEC, 866 F.3d 442,

446 (D.C. Cir. 2017). In the context of another subset

of SROs, the SEC must ensure that the proposed rules

meet various textual standards, including that they

“are designed to prevent fraudulent and manipulative

85a

acts and practices, to promote just and equitable

principles of trade, to foster cooperation and

coordination with persons,” and additional standards.

15 U.S.C. § 78f(b)(5).

In HISA, the Authority proposes rules or

modifications to rules “relating to” eleven buckets of

issues that it then “submits” to the FTC. Id. § 3053(a).

Some of these include “a list of permitted and

prohibited medications”; “standards for racing surface

quality maintenance”; and “a description of safety,

performance, and anti-doping and medication control

rule violations applicable to covered horses and

covered persons[.]” Id. But in addition to these

categories, the Authority may also propose “rule[s],

standard[s], or procedure[s] . . . to carry out the

horseracing anti-doping and medication control

program or the racetrack safety program.”

Id.

§ 3053(d)(1). For these programs, HISA contains

additional requirements and considerations that the

FTC includes as part of its consistency review. See,

e.g., id. § 3055(b) (listing seven categories of horsewelfare considerations); id. § 3055(g)(3)(b).

Both HISA and the Maloney Act therefore provide

for similarly broad consistency review, with

additional requirements for specific subsets of rules,

such that consistency review on its own can ensure

that a private authority remains subordinate to a

federal agency.

HISA also matches the aforementioned Coal Act’s

constitutional agency review of private entities’

proposed rules. The statute, which the Supreme

Court upheld as “unquestionably valid,” Adkins, 310

86a

U.S. at 399, granted the Coal Commission the power

to “approve, disapprove, or modify” the private coal

boards’ “proposed minimum prices to conform to the

requirements of this subsection,” Bituminous Coal Act

of 1937, § 4, pt. II(a), 50 Stat. 72, 78 (emphasis added).

Whether providing that the rule must be consistent

with a statute, which both the Maloney Act and HISA

require, or that the rule must conform to the

requirements of a statute, as the Bituminous Coal Act

requires,

all

three

statutes

properly

and

constitutionally subordinate the private entity to the

federal agency.

And all three statutes provide the agency with

independent rulemaking power. The Maloney Act

provides that the SEC “may abrogate, add to, and

delete from (hereinafter in this subsection collectively

referred to as ‘amend’) the rules of a[n SRO] . . . as the

[SEC] deems necessary or appropriate to insure the

fair administration of the [SRO], to conform its rules

to requirements of this chapter and the rules and

regulations

thereunder

applicable

to

such

organization, or otherwise in furtherance of the

purposes of this chapter[.]” 15 U.S.C. § 78s(c). Such

review is textually cabined to “Amendment by

Commission of rules of self-regulatory organizations,”

so it applies only to previously enacted rules, not the

SRO’s proposed rules or its proposed changes to

previously promulgated rules. Id.

Further still, the Maloney Act provides a separate

set of requirements for the SEC to approve an SRO’s

new rule or rule change. See id. § 78s(b). Under this

subsection, the SEC may either “approve or

disapprove the propos[al,]” or it may “institute

87a

proceedings under subparagraph (B) to determine

whether the propos[al] should be disapproved.” Id.

§ 78s(b)(2)(A)(i). Subparagraph B requires that the

SEC “shall provide” the SRO with “notice of the

grounds for disapproval under consideration” and the

chance for a hearing on the rule. Id. § 78s(b)(2)(B)(i).

The other portion of subparagraph B makes clear that

within the mandated time frame, the SEC must “issue

an order approving or disapproving the” proposed

rule. Id. § 78s(b)(2)(B)(ii)(I). Notably missing from

these procedures? The SEC’s ability to itself modify

an SRO’s proposed rule.

The Coal Act also provided the Coal Commission

limited modification power. Much like the review

described in the Maloney Act, the Coal Commission’s

power to modify rules was not all-encompassing: it

could only be done to conform the proposal to the

requirements of the statute. § 4, 50 Stat. at 78. The

importance of this power is that the Coal Commission

could ensure that proposed rules that did not align

with, or were inconsistent with, the statute’s purpose

did not become promulgated rules with the power of

law.

Both before and after the amendment, the FTC

has had, and continues to have, independent

rulemaking power. Prior to the amendment, section

3053(e) provided that the FTC could issue an interim

final rule, which carries the power of law, under the

standards articulated in the Administrative

Procedures Act, 5 U.S.C. § 553(b)(B)—if “necessary to

protect” “(1) the health and safety of covered horses;

or (2) the integrity of covered horseraces and wagering

on those horseraces.” 15 U.S.C. § 3053(e) (2020). 5

88a

U.S.C. § 553(b)(B), known as the APA’s good-cause

provision, allows agencies to issue rules where regular

notice-and-comment procedures are “impracticable,

unnecessary, or contrary to the public interest.” This

section provided the FTC with broad rulemaking

power without the need for notice-and-comment

rulemaking that could be used beyond the emergency

context, such as when notice and comment was

“unnecessary”—for example, if there had already been

sufficient notice-and-comment procedures regarding

various alternative options presented in a proposed

rule. See 16 C.F.R. § 1.142(a)(3) (requiring the

Authority to include a discussion of “any reasonable

alternatives” to the proposed rule and explain why the

specific proposal was chosen); Mobil Oil Corp. v.

United States EPA, 35 F.3d 579, 584 (D.C. Cir. 1994)

(“If the original record is still fresh, a new round of

notice and comment might be unnecessary.”); Priests

for Life v. United States Dep’t of Health & Human

Servs., 772 F.3d 229, 276 (D.C. Cir. 2014) (similar),

vacated on other grounds by Zubik v. Burwell, 578

U.S. 403 (2016).

Now, with the amendment, the FTC can utilize

proper procedures under the APA, including either

regular notice-and-comment procedures or the goodcause provision, to “abrogate, add to, and modify the

rules of the Authority” whenever the FTC “finds

necessary or appropriate to ensure the fair

administration of the Authority, to conform the rules

of the Authority to the 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(3). Just as the Maloney Act and the

Coal Act allow the agency to amend the private

89a

entity’s proposed rules in certain circumstances, so

does HISA.

Ultimately, none of Oklahoma’s

arguments regarding the unlawfulness of HISA’s

rulemaking structure carry substantial weight.

One final note about the private nondelegation

doctrine and the cases that have formulated the

subordination test. I have noted the numerous ways

in which HISA—both with and without the

amendment—is

nearly

identical

to

the

unquestionably constitutional Maloney Act. But even

if there are slight differences between the two

statutes, no case has ever said that the Maloney Act

in its current form is a floor for private nondelegation

purposes. In other words, it is not true that a statute

must be identical to the Maloney Act, or provide more

oversight than the SEC, to be a constitutional

delegation.

The private entity simply must be

subordinate to the agency.

The Authority is

subordinate to the FTC, and so HISA remains facially

constitutional.

2. Enforcement Authority

Oklahoma also challenges HISA’s enforcement

structure. The Supreme Court has not ruled on this

precise issue, but other circuit courts have relied upon

Supreme Court precedent to do so in a way that

supports

the

enforcement

structure’s

constitutionality. Courts’ review of the Maloney Act

is once again instructive. All circuits that have ruled

on the issue have held that the Maloney Act’s

enforcement scheme is constitutional where, as here,

a private entity (the National Association of Securities

Dealers (“NASD”)) brought enforcement actions

against covered entities. See, e.g., Sorrell v. SEC, 679

90a

F.2d 1323 (9th Cir. 1982); First Jersey Sec., Inc. v.

Bergen, 605 F.2d 690 (3d Cir. 1979), cert. denied, 444

U.S. 1074 (1980); R.H. Johnson & Co. v. SEC, 198

F.2d 690 (2d Cir. 1952), cert. denied, 344 U.S. 855

(1952).

The Second Circuit held that because of “the

[SEC’s] review of any disciplinary action” taken by the

NASD, there is “no merit in the contention that the

Act unconstitutionally delegates power to the

association.” R.H. Johnson & Co., 198 F.2d at 695.

The Ninth Circuit, citing to Second and Third Circuit

decisions upholding the constitutionality of NASD’s

enforcement powers, noted that “[petitioner’s] claim of

unconstitutional delegation appears to rest on his

mistaken idea that the SEC does not engage in an

independent review of NASD decisions. As we stated

in Sartain v. SEC, 601 F.2d 1366, 1371 n.2 (9th Cir.

1979), SEC review is de novo.” Sorrell, 679 F.2d at

1326 n.2. The unanimous principle from the circuit

decisions—which the Supreme Court has not

disturbed despite repeated opportunities to do so—is

that so long as the agency retains de novo review of a

private entity’s enforcement proceedings, there is no

unconstitutional delegation of legislative or executive

power, even if the agency does not review the private

entity’s initial decision to bring an enforcement

action. The consistency of this principle reinforces the

constitutionality of HISA’s enforcement scheme.

In fact, the enforcement scheme in HISA is even

more constitutionally sound than that found in the

Maloney Act. The Maloney Act was amended in 1975,

and, in relation to the enforcement scheme, the

amendment may have constrained the SEC’s power to

review the disciplinary proceedings the NASD

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pursued. See Bergen, 605 F.2d at 697. Nonetheless,

this did not change the court’s analysis:

We need not now decide whether this

statutory change effects a significant

alteration in the SEC’s power to review

NASD disciplinary proceedings.

It

suffices to say that to the extent the

amendment restricts the SEC’s ability to

receive

additional

evidence

not

presented below, this does not alter our

conclusion in Todd [Todd & Co., Inc. v.

SEC, 557 F.2d 1008 (3d Cir. 1977)] that

there is no unconstitutional delegation of

legislative authority.

Bergen, 605 F.2d at 697. HISA, unlike the Maloney

Act, unambiguously empowers the FTC to obtain

additional evidence not in the record below and to

review the proceeding de novo.

See 15 U.S.C.

§ 3058(c)(3)(C). The enforcement scheme in HISA,

including two levels of de novo review and allowing

the FTC to review evidence not in the record, ensures

that HISA is soundly in the company of previously

upheld enforcement mechanisms, and is thus not an

unconstitutional delegation of power to a private

authority.

***

Although the majority and I take different

paths in our analysis, I fully agree that HISA is

constitutional under Supreme Court precedent as well

as the majority of federal court caselaw.

92a

APPENDIX E

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

CENTRAL DIVISION at LEXINGTON

STATE OF OKLAHOMA, et al.,

Plaintiffs,

Civil Case No.

5:21-cv-104-JMH

MEMORANDUM

OPINION AND

ORDER

v.

UNITED STATES OF

AMERICA, et al.,

Defendants.

June 3, 2022

*

*

*

This matter comes before the Court on Defendants

Steve Beshear, Adolpho Birch, Leonard S. Coleman,

Jr., Ellen McClain, Charles Scheeler, Joseph

DeFrancis, Susan Stover, Bill Thomason, D.G. Van

Clief, and the Horseracing Integrity and Safety

Authority, Inc.’s (collectively, the “Authority

Defendants”) Motion to Dismiss [DE 68] Plaintiffs’

First Amended Complaint [DE 53], pursuant to

Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6)

for alleged lack of subject matter jurisdiction and

failure to state a claim upon which relief can be

granted. In addition to Authority Defendants’ Motion

[DE 68], Defendants the United States of America, the

Federal Trade Commission (FTC), Lina Khan, in her

official capacity as Chair of the FTC, Rebecca Kelly

Slaughter, in her official capacity as Commissioner of

the FTC, Rohit Chopra, in his official capacity as

Commissioner of the FTC, Noah Joshua Phillips, in

his official capacity as Commissioner of the FTC, and

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Christine S. Wilson, in her official capacity as

Commissioner of the FTC (collectively, the “Federal

Defendants”) move the Court to dismiss Plaintiffs’

First Amended Complaint [DE 53], pursuant to

Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).

[DE 70].

In opposing Authority and Federal

Defendants’ Motions to Dismiss [DE 68; DE 70],

Plaintiffs State of Oklahoma, Oklahoma Horse Racing

Commission (“OHRC”), State of West Virginia, West

Virginia Racing Commission (“WVRC”), State of

Louisiana, Hanover Shoe Farms, Inc. (“Hanover”),

United States Trotting Association (“USTA”),

Oklahoma Quarter Horse Racing Association

(“OQHRA”), Tulsa County Public Facilities Authority

d/b/a Fair Meadows Racing and Sports Bar (“Fair

Meadows”), Global Gaming RP, LLC d/b/a Remington

Park (“Remington Park”), and Will Rogers Downs

LLC (collectively, “Plaintiffs”) move for summary

judgment, pursuant to Federal Rule of Civil

Procedure 56. [DE 87]. For the following reasons, the

Authority Defendants’ Motion to Dismiss [DE 68] and

the Federal Defendants’ Motion to Dismiss [DE 70]

will be denied in part, insofar as they seek dismissal

under Rule 12(b)(1) for lack of subject matter

jurisdiction, and granted in part, insofar as they seek

dismissal under Rule 12(b)(6) for failure to state a

claim upon which relief can be granted, and Plaintiffs’

Motion for Summary Judgment [DE 87] will be

denied.

I. DISCUSSION

This case arises from Congress’ passage of the

Horseracing Integrity and Safety Act (“HISA”) and

what Plaintiffs allege is an unconstitutional

delegation of legislative power to a private

organization, the Horseracing Integrity and Safety

94a

Authority, Inc. (the “Authority”). HISA grants the

Federal Trade Commission (“FTC”) authority to

promulgate rules to address concerns with

medication, alleged doping, and track safety in

horseracing to bring more consistency to horseracing

regulations than what state-based horseracing laws

provide. Plaintiffs’ primary issue with the legislation

is that the FTC’s rules will be based on proposed

standards offered by the Authority, which Plaintiffs’

claim the FTC is required to adopt, making the FTC

subordinate to the Authority.

A. JURISDICTION

Before considering the Parties’ arguments

concerning requests for dismissal for failure to state a

claim and summary judgment, the Court must first

determine whether Plaintiffs’ claims must be

dismissed under Rule 12(b)(1) for lack of subject

matter jurisdiction, as it is a threshold matter. “The

jurisdiction of federal courts is limited to ‘cases’ and

‘controversies.’”

Nat’l Horsemen’s Benevolent &

Protective Ass’n v. Black, No. 5:21-CV-071-H, 2022 WL

982464, at *4 (N.D. Tex. Mar. 31, 2022) (citing Lujan

v. Defs. of Wildlife, 504 U.S. 555, 559 (1992) (citing

U.S. Const. art. III, § 2))). “Where subject matter

jurisdiction is challenged pursuant to Rule 12(b)(1),

the plaintiff has the burden of proving jurisdiction in

order to survive the motion.”

Moir v. Greater

Cleveland Reg’l Transit Auth., 895 F.2d 266, 269 (6th

Cir. 1990). Moreover, Plaintiffs must “meet their

burden of showing their claim is ripe for review” to

overcome concerns “both from Article III limitations

on judicial power and from prudential reasons for

refusing to exercise jurisdiction.” Connection Distrib.

Co. v. Holder, 557 F.3d 321, 342 (6th Cir. 2009)

(internal quotation marks omitted). The Court must

95a

“presume that [it] lack[s] jurisdiction unless the

contrary appears affirmatively from the record.”

Renne v. Geary, 501 U.S. 312, 316 (1991) (citations

omitted).

1. STANDING

To establish standing, a plaintiff “must have (1)

suffered an injury in fact, (2) that is fairly traceable to

the challenged conduct of the defendant, and (3) that

is likely to be redressed by a favorable judicial

decision.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338

(2016). An injury in fact is “an invasion of a legally

protected interest which is (a) concrete and

particularized, and (b) actual or imminent, not

‘conjectural’ or ‘hypothetical.’” Lujan, 504 U.S. at 560

(quotations omitted). “To be ‘fairly traceable to the

challenged action of the defendant,’ the injury must

‘not [be] the result of the independent action of some

third party not before the court.’” Nat’l Horsemen’s,

2022 WL 982464, at *4 (quoting Lujan, 504 U.S. at

560). Redressability will not be shown if it is “merely

‘speculative[ ]’ that the injury will be ‘redressed by a

favorable decision.’” Lujan, 504 U.S. at 561. Since the

“determination of standing is both plaintiff- and

provision-specific,” plaintiffs must demonstrate they

have standing for each claim they seek to press.

Fednav, Ltd. v. Chester, 547 F.3d 607, 614 (6th Cir.

2008); see Town of Chester v. Laroe Estates, Inc., 137

S. Ct. 1645, 1650 (2017) (“[S]tanding is not dispensed

in gross[.]”).

“[A]n allegation of future injury may suffice if the

threatened injury is ‘certainly impending,’ or there is

a ‘substantial risk’ that the harm will occur.” Susan

B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014)

(quoting Clapper v. Amnesty Int’l USA, 568 U.S. 398,

414 n.5 (2013)). “But a plaintiff who challenges a

96a

‘statute must demonstrate a realistic danger of

sustaining a direct injury as a result of the statute’s

operation or enforcement.’” Nat’l Horsemen’s, 2022

WL 982464, at *5 (quoting Babbitt v. United Farm

Workers Nat’l Union, 442 U.S. 289, 298 (1979)).

Here, Plaintiffs challenge the rulemaking

mechanism in HISA, which they allege is an

unconstitutional delegation of power that permits the

Authority, a private entity, to regulate without

sufficient government oversight. HISA requires that

the regulations take effect on July 1, 2022, and

Plaintiffs will be objects of the regulations adopted

under HISA. Nat’l Horsemen’s, 2022 WL 982464, at

*5 (citing §§ 3051(14), 3055(a)). “HISA states that the

FTC ‘shall’ approve rules proposed by the Authority if

it finds that they are ‘consistent’ with the statute itself

and with applicable rules.”

Id. at 6 (quoting

§ 3053(c)). Moreover, “the Authority ‘shall’ propose

rules to develop the programs on the topics outlined

in the statute while taking into consideration the

guidance outlined in the statute.”

Id. (citing

§§ 3055(a)–(d), 3056(a)–(c)). “Where the inevitability

of the operation of a statute against certain

individuals is patent, it is irrelevant to the existence

of a justiciable controversy that there will be a time

delay before the disputed provisions will come into

effect.” Blanchette v. Conn. Gen. Ins. Corps., 419 U.S.

102, 143 (1974) (citing Carter v. Carter Coal Co., 298

U.S. 238, 287 (1936)). So, presuming the FTC “‘act[s]

properly and according to law,’” as the Court must,

Nat’l Horsemen’s, 2022 WL 982464, at *6 (quoting

FCC v. Schreiber, 381 U.S. 279, 296 (1965)), there is a

substantial risk that Plaintiffs will be subjected to the

regulations. Susan B. Anthony List, 573 U.S. at 158

(quoting Clapper, 568 U.S. at 414 n.5).

97a

In addition to there being a substantial risk that

Plaintiffs will be subjected to the regulations,

Plaintiffs must show that a threatened, concrete

injury is “imminent” to challenge the regulatory

scheme found in HISA. Lujan, 504 U.S. at 560. While

Plaintiffs cannot show that they have been aggrieved

by the regulatory scheme found in HISA, the Court

agrees with the finding in Nat’l Horsemen’s that

“HISA requires that certain regulations be passed,

showing that a concrete injury is ‘certainly

impending,’ which will ‘aggrieve’” Plaintiffs because

they

will

be

subjected

to

the

allegedly

unconstitutional rulemaking scheme and the

Authority’s alleged regulatory control. 2022 WL

982464, at *7 (quoting Susan B. Anthony List, 573

U.S. at 158 (quoting Clapper, 568 U.S. at 414 n.5));

Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S.

Ct. 2183, 2196 (2020)).

Plaintiffs’ alleged certainly impending regulatory

injury is also “fairly traceable” to the challenged

rulemaking scheme.

Lujan, 504 U.S. at 560.

Plaintiffs challenge HISA’s rulemaking scheme,

which

they

allege

subjects

them

to

be

unconstitutionally subjected to the Authority’s

regulatory control, “[a]nd, outside of interim final

rules, all rules flow through the Authority-proposalFTC-approval scheme.” Nat’l Horsemen’s, 2022 WL

982464, at *7 (citing § 3053). Therefore, the alleged

regulatory injury is directly traceable to the allegedly

unconstitutional regulatory scheme found in HISA.

Lastly, the Court finds that a decision in

Plaintiffs’ favor would likely redress their alleged

certainly impending injury. Specifically, were the

Court to find that HISA unconstitutionally delegates

legislative power to the Authority, a private entity,

98a

Plaintiffs would not be subjected to regulatory control

under HISA. Accordingly, the Court finds Plaintiffs

have standing to pursue their claims.

2. RIPENESS

“Ripeness requires that the ‘injury in fact be

certainly impending’” and “separates those matters

that are premature because the injury is speculative

and may never occur from those that are appropriate

for the court’s review.” Nat’l Rifle Ass’n of Am. v.

Magaw, 132 F.3d 272, 280 (6th Cir. 1997) (citations

omitted). Questions of ripeness require the Court to

consider the following factors: (1) the likelihood that

the alleged injury will come to pass; (2) the fitness of

the issues for judicial decision at the pre-enforcement

stage, meaning whether the record is adequately

developed to produce a fair adjudication of the merits

of the parties’ claims; and (3) the hardship to the

parties of withholding court consideration during the

pre-enforcement stage. Id. at 284 (citing United

Steelworkers, Local 2116 v. Cyclops Corp., 860 F.2d

189, 194-95 (6th Cir. 1988)).

In the present case, the first factor weighs in

Plaintiffs’ favor because without judicial intervention,

the alleged injury is certain to occur, as discussed

previously herein. Specifically, Plaintiffs will be

subjected to an allegedly unconstitutional rulemaking

scheme that allows a private party to oversee them

without sufficient governmental oversight.

A ripeness analysis requires the Court to analyze

whether the claims were “amenable to judicial

consideration at the time the complaint was filed,”

Kardules v. City of Columbus, 95 F.3d 1335, 1346 (6th

Cir. 1996) (emphasis added). However, Plaintiffs

argue that the “challenge to HISA’s constitutionality

99a

does not depend on the content of the regulations that

are

ultimately

promulgated,

but

on

the

constitutionality of the organic statute itself.” [DE 99,

at 4 (citing [DE 87, at 32])]. Specifically, Plaintiffs

claim, “[T]he regulatory structure established by

HISA is unconstitutional and that the Authority and

the FTC can accordingly take no action whatsoever

pursuant to it. Those arguments are suitable for

judicial resolution now.” [DE 87, at 32]. For the

following reasons, the Court agrees.

In two similar cases involving allegedly

unconstitutional delegations of power, the Supreme

Court of the United States “assessed the plaintiffs’

claims by looking to the language of the statute to see

if Congress unconstitutionally delegated power.”

Nat’l Horsemen’s, 2022 WL 982464, at *9 (citing

Carter Coal Co., 298 U.S. at 311 (finding the statute

at issue “conferred” regulatory power to “private

persons”); Sunshine Anthracite Coal Co. v. Adkins,

310 U.S. 381, 399 (1940) (“Since law-making is not

entrusted to the industry, the statutory scheme is

unquestionably valid.”)). “The inquiry is one of

structural subordination and the agency’s statutory

surveillance and authority.” Id. (citing Adkins, 310

U.S. at 399). Likewise, in Ass’n of Am. R.Rs. v. U.S.

Dep’t of Transp., the D.C. Circuit found a preenforcement challenge to a statute was ripe because

its constitutionality was a “purely legal question . . .

appropriate for immediate judicial resolution.” 721

F.3d 666, 672 n.6 (D.C. Cir. 2013), vacated on other

grounds. Moreover, due process arguments involving

allegedly self-interested actors regulating their

competitors have been found to present purely legal

questions. See Nat’l Horsemen’s, 2022 WL 982464, at

*9 (citing Ass’n of Am. Railroads v. U.S. Dep’t of

Transp., 821 F.3d 19, 32 (D.C. Cir. 2016) (finding self-

100a

interest based on the statutory language governing its

incentives); see also N. Carolina State Bd. of Dental

Examiners v. FTC, 574 U.S. 494, 510 (2015)).

Therefore, the Court need not wait until HISA is in

effect and applied to make an informed decision about

the issues present in this matter because the

constitutional challenges are to the statute itself and

present purely legal questions regarding delegation

and potential conflicts of interests concerning selfinterested

private

entities

regulating

their

competitors.

The remaining factor in the Court’s ripeness

analysis requires the Court to consider whether

withholding a decision would cause Plaintiffs undue

hardship. As discussed above, once HISA goes into

effect on July 1, 2022, Plaintiffs will be subjected to

regulations

that

stem

from

an

allegedly

unconstitutional rulemaking scheme wherein the

Authority, a private entity comprised of potentially

self-interested individuals, funnels proposed rules to

the FTC that the FTC allegedly has no choice but to

accept. The Court’s failure to address this matter

before July 1, 2022, could result in harm to Plaintiffs.

Therefore, this matter is ripe for review, and both the

Authority Defendants’ Motion to Dismiss [DE 68] and

the Federal Defendants’ Motion to Dismiss [DE 70]

will be denied in part, insofar as they seek dismissal

under Rule 12(b)(1) for lack of subject matter

jurisdiction.

B. DISMISSAL UNDER 12(b)(6) AND

SUMMARY JUDGMENT

1. STANDARDS OF REVIEW

Federal Rule of Civil Procedure 12(b)(6) provides

that a complaint may be attacked for failure “to state

101a

a claim upon which relief can be granted.” To survive

a Rule 12(b)(6) motion to dismiss, a complaint must

“contain sufficient factual matter, accepted as true, to

‘state a claim to relief that is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A

motion to dismiss is properly granted if it is beyond

doubt that no set of facts would entitle the petitioner

to relief on his claims.” Computer Leasco, Inc. v. NTP,

Inc., 194 F. App’x 328, 333 (6th Cir. 2006). When

considering a Rule 12(b)(6) motion to dismiss, the

court will presume that all the factual allegations in

the complaint are true and draw all reasonable

inferences in favor of the nonmoving party. Total

Benefits Planning Agency v. Anthem Blue Cross &

Blue Shield, 552 F.3d 430, 434 (6th Cir. 2008) (citing

Great Lakes Steel v. Deggendorf, 716 F.2d 1101, 1105

(6th Cir. 1983)). “The court need not, however, accept

unwarranted factual inferences.” Id. (citing Morgan

v. Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir.

1987)).

“The court shall grant summary judgment if the

movant shows that there is no genuine dispute as to

any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a).

“A genuine dispute exists on a material fact, and thus

summary judgment is improper, if the evidence shows

‘that a reasonable jury could return a verdict for the

nonmoving party.’” Olinger v. Corporation of the

President of the Church, 521 F. Supp. 2d 577, 582

(

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