Petition for Writ of Certiorari — Gulf Coast Racing LLC., et al., Petitioners v. Horseracing Integrity and Safety Authority, Incorporated, et al.

Supreme Court briefSep 9, 2026

Ask Donna

What actually matters in this document.

Text

No. 26-___

IN THE

Supreme Court of the United States

————

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

Cross-Petitioners,

HORSERACING INTEGRITY AND SAFETY AUTHORITY, ET AL.,

Cross-Respondents.

and

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

Cross-Petitioners,

FEDERAL TRADE COMMISSION, ET AL.,

Cross-Respondents.

————

On Petitions for Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

————

CROSS-PETITION FOR

A WRIT OF CERTIORARI

————

ILAN WURMAN

UNIV. OF MINNESOTA

LAW SCHOOL

229 S. 19th Ave.

Minneapolis, MN 55455

S. REEVES JORDAN

MAYNARD NEXSEN PC

1901 Sixth Ave. N.

Suite 1700

Birmingham, AL 35203

GREGORY P. SAPIRE

Counsel of Record

CARLOS R. SOLTERO

MAYNARD NEXSEN PC

2500 Bee Caves Road

Building 1, Suite 150

Austin, TX 78746

(512) 969-6540

gsapire@maynardnexsen.com

QUESTIONS PRESENTED

1. Whether Congress, when empowering the

Horseracing Integrity and Safety Authority with

exclusive nationwide rulemaking, investigative, prosecutorial, and adjudicatory authority under federal

law, had to comply with the Appointments Clause

despite the Authority having incorporated as a

“private” nonprofit corporation under Delaware law

mere weeks before the law’s enactment.

2. If the Directors of the Horseracing Integrity and

Safety Authority do not require appointments under

the Appointments Clause, whether the Horseracing

Integrity and Safety Act nevertheless violates the

private-nondelegation doctrine by vesting the

Authority with nationwide regulatory and enforcement authority.

(i)

PARTIES TO THE PROCEEDINGS

1. Cross-Petitioners (Plaintiffs-Appellants below,

referred to throughout as “Petitioners”) are Gulf Coast

Racing L.L.C.; LRP Group, Limited; Valle de Los

Tesoros, Limited; Global Gaming LSP, L.L.C.; and

Texas Horsemen’s Partnership, L.L.P.

2. The State of Texas and the Texas Racing

Commission were Intervenor-Plaintiffs in the case

consolidated with Petitioners’ case below. They are

seeking review of the court of appeals’ privatenondelegation rulings in a separate cross-petition for

writ of certiorari.

3. National Horsemen’s Benevolent and Protective Association (“NHBPA”), Arizona Horsemen’s

Benevolent and Protective Association, Arkansas

Horsemen’s Benevolent and Protective Association,

Indiana Horsemen’s Benevolent and Protective

Association, Illinois Horsemen’s Benevolent and

Protective Association, Louisiana Horsemen’s Benevolent and Protective Association, Mountaineer Park

Horsemen’s Benevolent and Protective Association,

Nebraska Horsemen’s Benevolent and Protective

Association, Oklahoma Horsemen’s Benevolent and

Protective Association, Oregon Horsemen’s Benevolent and Protective Association, Pennsylvania Horsemen’s Benevolent and Protective Association,

Washington Horsemen’s Benevolent and Protective

Association, and Tampa Bay Horsemen’s Benevolent

and Protective Association were Plaintiffs-Appellants

below in a case consolidated with the Petitioners’ case.

They have filed their own cross-petition for writ of

certiorari.

iii

4. Cross-Respondents (Defendants-Appellees below,

referred to throughout as “Respondents”) are the

Horseracing Integrity and Safety Authority, Inc.,

Charles Scheeler, Steve Beshear, Adolpho Birch,

Leonard Coleman, Joseph De Francis, Susan Stover,

Bill Thomason, D.G. Van Clief, Nancy Cox, Katrina

Adams, Jerry Black, Joseph Dunford, Frank Keating,

Kenneth Schanzer, Ellen McClain, and Lisa Lazarus.

The Authority and its officials have filed a petition for

writ of certiorari in No. 26-199.

5. Cross-Respondents (Defendants-Appellees below)

also include the Federal Trade Commission, Chair

Andrew N. Ferguson, and Commissioner Mark R.

Meador. Under Rule 35.3, those officials are automatically substituted for the former officials named in

the judgment below: Chair Lina Khan and

Commissioners Rebecca Slaughter, Alvaro Bedoya,

Noah Phillips, and Christine Wilson. The Commission

and its officials have filed a petition for writ of

certiorari in No. 26-201.

RULE 29.6 DISCLOSURE

Pursuant to Rule 29.6, Cross-Petitioners Gulf

Coast Racing L.L.C., LRP Group, Limited, Valle de

Los Tesoros, Limited, Global Gaming LSP, L.L.C., and

Texas Horsemen’s Partnership, L.L.P. (collectively,

the “Gulf Coast Racing Plaintiffs”) disclose the

following:

1. Gulf Coast Racing L.L.C. has no parent

corporation, and no publicly held company has a 10%

or greater ownership interest in it.

2. LRP Group, Limited has no parent corporation,

and no publicly held company has a 10% or greater

ownership interest in it.

3. Valle de Los Tesoros, Limited has no parent

corporation, and no publicly held company has a 10%

or greater ownership interest in it.

4. Global Gaming LSP, L.L.C. is 51% owned by

Racing Partners of Texas, L.L.C., and 49% owned by

Global Gaming Solutions, L.L.C. No publicly held

company has a 10% or greater ownership interest in

it.

5. Texas Horsemen’s Partnership, L.L.P. has no

parent corporation, and no publicly held company has

a 10% or greater ownership interest in it.

RELATED PROCEEDINGS

This cross-petition seeks review of the same June

11, 2026 judgment of the United States Court of

Appeals for the Fifth Circuit that is the subject of the

petitions in Nos. 26-199 and 26-201.

Gulf Coast Racing, LLC v. Horseracing Integrity &

Safety Authority, Inc., No. 5:23-cv-00077-H, U.S.

District Court for the Northern District of Texas. Case

transferred and consolidated April 11, 2023.

National Horsemen’s Benevolent & Protective Ass’n

v. Black, Nos. 5:21-cv-00071-H, 5:23-cv-00077-H, U.S.

District Court for the Northern District of Texas.

Judgment entered May 4, 2023.

National Horsemen’s Benevolent & Protective Ass’n

v. Black, No. 22-10387, U.S. Court of Appeals for the

Fifth Circuit. Judgment entered November 18, 2022.

National Horsemen’s Benevolent & Protective Ass’n

v. Black, No. 23-10520, U.S. Court of Appeals for the

Fifth Circuit. Judgment entered July 5, 2024; vacated

June 30, 2025.

Horseracing Integrity & Safety Authority, Inc. v.

National Horsemen’s Benevolent & Protective Ass’n,

No. 24A287, U.S. Supreme Court. Stay entered

October 28, 2024.

Federal Trade Commission v. National Horsemen’s

Benevolent & Protective Ass’n, No. 24-429, U.S.

Supreme Court. Petition granted, judgment vacated,

and case remanded June 30, 2025.

Horseracing Integrity & Safety Authority, Inc. v.

National Horsemen’s Benevolent & Protective Ass’n,

No. 24-433, U.S. Supreme Court. Petition granted,

judgment vacated, and case remanded June 30, 2025.

Texas v. Black, No. 24-465, U.S. Supreme Court.

Petition granted, judgment vacated, and case

remanded June 30, 2025.

National Horsemen’s Benevolent & Protective Ass’n

v. Horseracing Integrity & Safety Authority, Inc., No.

24-472, U.S. Supreme Court. Petition granted,

judgment vacated, and case remanded June 30, 2025.

Gulf Coast Racing, L.L.C. v. Horseracing Integrity

& Safety Authority, Inc., No. 24-489, U.S. Supreme

Court. Petition granted, judgment vacated, and case

remanded June 30, 2025. 145 S. Ct. 2837 (2025).

National Horsemen’s Benevolent & Protective Ass’n

v. Black, No. 23-10520, U.S. Court of Appeals for the

Fifth Circuit. Judgment entered June 11, 2026;

mandate stayed July 14, 2026, pending petitions for

writ of certiorari.

Horseracing Integrity & Safety Authority, Inc. v.

National Horsemen’s Benevolent & Protective Ass’n,

No. 26-199, U.S. Supreme Court. Petition filed August

10, 2026, docketed August 17, 2026, pending.

Federal Trade Commission v. National Horsemen’s

Benevolent & Protective Ass’n, No. 26-201, U.S.

Supreme Court. Petition filed August 14, 2026,

docketed August 17, 2026, pending.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ...............................

PARTIES TO THE PROCEEDINGS ..................

RULE 29.6 DISCLOSURE ..................................

RELATED PROCEEDINGS ...............................

TABLE OF AUTHORITIES ................................

INTRODUCTION ................................................

OPINIONS BELOW ............................................

JURISDICTION ..................................................

PERTINENT CONSTITUTIONAL AND

STATUTORY PROVISIONS ...........................

STATEMENT OF THE CASE ............................

REASONS FOR GRANTING THE

CROSS-PETITION ..........................................

ARGUMENT ........................................................

THE AUTHORITY’S DIRECTORS ARE

OFFICERS OF THE UNITED STATES..

A. Consumers’ Research confirms that

the Appointments Clause question

remains open. ......................................

B. HISA establishes continuing federal

offices. ..................................................

C. The Directors exercise significant

federal authority. .................................

D. The Authority is a federal instrumentality for Article II purposes. .......

(vii)

viii

TABLE OF CONTENTS—Continued

Page

II.

THE DECISION BELOW CANNOT BE

RECONCILED WITH THIS COURT’S

PRECEDENTS, WHICH BEG FOR

HARMONIZATION ..................................

A. Lebron is an anti-evasion principle,

not a safe harbor. .................................

B. Supervision distinguishes inferior

from principal officers. ........................

C. The Authority is not a self-regulatory

organization. ........................................

III. THIS CASE IS THE RIGHT VEHICLE

FOR

EXCEPTIONALLY

IMPORTANT QUESTION .......................

A. Every side seeks this Court’s review. .

B. This is the only case that preserved

the Appointments Clause issue. .........

C. The circuit split and national stakes

warrant immediate resolution ............

CONCLUSION ....................................................

APPENDIX

APPENDIX A: OPINION, U.S. Court of Appeals

for the Fifth Circuit, National Horsemen’s

Benevolent & Protective Ass’n v. Black, No. 2310520 (June 11, 2026) .........................................

TABLE OF CONTENTS—Continued

Page

APPENDIX B: MEMORANDUM OPINION

AND ORDER, U.S. District Court for the

Northern

District

Texas,

National

Horsemen’s Benevolent & Protective Ass’n v.

Black, No. 5:21-CV-071-H (May 4, 2023)............

51a

APPENDIX C: ORDER, U.S. Supreme Court,

Gulf Coast Racing, L.L.C. v. Horseracing

Integrity & Safety Authority, Inc., No. 24-489

(June 30, 2025) .................................................... 113a

APPENDIX D: ORDER, U.S. Court of Appeals

for the Fifth Circuit, National Horsemen’s

Benevolent & Protective Ass’n v. Black, No. 2310520 (July 14, 2026) .......................................... 115a

APPENDIX E: Horseracing Integrity and

Safety Act, 15 U.S.C. §§ 3051-3060 .................... 117a

TABLE OF AUTHORITIES

CASES

Page(s)

Alpine Sec. Corp. v. FINRA,

121 F.4th 1314 (D.C. Cir. 2024) ................. 3, 33

Buckley v. Valeo,

424 U.S. 1 (1976) .............. 4, 8, 14, 15, 20-22, 27

Carter v. Carter Coal Co.,

298 U.S. 238 (1936) ......................................... 31

Chiglades Farm, Ltd. v. Butz,

485 F.2d 1125 (5th Cir. 1973) ........................ 31

Collins v. Yellen,

594 U.S. 220 (2021) ......................................... 24

Cummings v. Missouri,

71 U.S. (4 Wall.) 277 (1867). ............................. 8

Cusack Co. v. City of Chicago,

242 U.S. 526 (1917) ........................................ 31

Department of Transportation v.

Association of American Railroads,

575 U.S. 43 (2015) ............... 4, 15, 23, 24, 26, 27

Edmond v. United States,

520 U.S. 651 (1997) ...................... 4-6, 15, 21, 29

Eubank v. City of Richmond,

226 U.S. 137 (1912) ......................................... 31

FCC v. Consumers’ Research,

606 U.S. 656

(2025) ........ 1, 2, 13, 14, 16-18, 22, 25, 32, 34, 36

Financial Oversight & Management Board

for Puerto Rico v. Aurelius Investment, LLC,

590 U.S. 448 (2020) ......................................... 28

TABLE OF AUTHORITIES—Continued

Page(s)

Free Enterprise Fund v. PCAOB,

561 U.S. 477 (2010) ... 5, 15, 20, 21, 27, 29, 30, 34

Freytag v. Comm’r,

501 U.S. 868 (1991) ............................... 7, 19, 20

Kennedy v. Braidwood Mgmt., Inc.,

606 U.S. 748 (2025) ......................... 5, 15, 21, 29

Lebron v. National Railroad Passenger Corp.,

513 U.S. 374 (1995) ........... 2, 3, 13-15, 23-26, 28

Lucia v. Sec. & Exch. Comm’n,

585 U.S. 237 (2018) ...... 2, 5, 14-16, 19-22, 27-29

National Horsemen’s Benevolent &

Protective Ass’n v. Black,

53 F.4th 869 (5th Cir. 2022) ........................... 12

National Horsemen’s Benevolent &

Protective Ass’n v. Black,

107 F.4th 415 (5th Cir. 2024) ......................... 13

Oklahoma v. United States,

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

and remanded, 145 S. Ct. 2836 (2025) ........... 13

Oklahoma v. United States,

163 F.4th 294

(6th Cir. 2025) ....................... 1, 6, 14, 18, 34, 35

PennEast Pipeline Co., LLC v. New Jersey,

594 U.S. 482 (2021) ......................................... 31

Trump v. Slaughter,

146 S. Ct. 2283 (2026) ..................... 4, 15, 20, 21

United States v. Germaine,

99 U.S. 508 (1879) ........................................... 19

xii

TABLE OF AUTHORITIES—Continued

Page(s)

Walmsley v. Fed. Trade Comm’n,

117 F.4th 1032 (8th Cir. 2024), vacated

and remanded, 145 S. Ct. 2870 (2025) ... 1, 6, 34

Washington ex rel. Seattle Title Tr. Co. v.

Roberge,

278 U.S. 116 (1928) ......................................... 31

CONSTITUTION

U.S. Const. art. I, § 1 ............................................ 9

U.S. Const. art. II ......................................... 1, 6, 8

U.S. Const. art. II, § 1, cl. 1 .................................. 9

U.S. Const. art. II, § 2,

cl. 2 ...... 1-3, 6-9, 13-18, 21, 22, 24, 25, 28, 30-36

U.S. Const. amend. I ................................ 3, 25, 26

STATUTES AND REGULATIONS

15 U.S.C. § 78o ................................................... 32

15 U.S.C. § 78s.................................................... 32

28 U.S.C. § 1254(l) ................................................ 8

Consolidated Appropriations Act, 2023,

Pub. L. No. 117-328, div. O, tit. VII,

§ 701, 136 Stat. 4459 (2022) ........................... 12

Horseracing Integrity and Safety Act, 15

U.S.C. §§ 3051-3060 .......................................... 9

§ 3051(6) .................................................... 10, 32

§ 3052(a) ...................................... 1, 4, 10, 19, 23

§ 3052(b) .................................................... 10, 18

xiii

TABLE OF AUTHORITIES—Continued

Page(s)

§ 3052(d) .................................................... 10, 18

§ 3052(f)(1)(C) ................................................. 24

§ 3053 .......................................................... 4, 24

§ 3053(c) .......................................................... 11

§ 3053(e) .................................................... 12, 14

§ 3054 ................................................................ 4

§ 3054(a) .......................................................... 23

§ 3054(a)(2) .................................................. 1, 10

§ 3054(b) .......................................... 1, 10, 23, 32

§ 3054(c) ................................................ 1, 11, 23

§ 3054(d) .............................................. 10, 23, 32

§ 3054(h) ................................................ 1, 11, 24

§ 3054(j) ................................................. 1, 11, 24

§ 3055 ................................................................ 4

§ 3055(a) .......................................................... 10

§ 3055(c) ...................................................... 1, 11

§ 3056 ................................................................ 4

§ 3056(a) .......................................................... 10

§ 3056(b) ...................................................... 1, 11

§ 3057 .......................................... 1, 4, 11, 23, 32

§ 3057(a) .......................................................... 11

§ 3057(c) .......................................................... 11

§ 3057(d) .......................................................... 11

xiv

TABLE OF AUTHORITIES—Continued

Page(s)

§ 3058 .................................................... 4, 20, 24

§ 3058(b) .......................................................... 11

§ 3058(c) .......................................................... 11

COURT FILINGS

Pet. for writ of cert., Gulf Coast Racing,

L.L.C. v. Horseracing Integrity & Safety

Authority, Inc., No. 24-489 (U.S. Oct. 28,

2024) ............................................................ 1, 13

OTHER AUTHORITIES

87 Fed. Reg. 435 (Jan. 5, 2022) .......................... 11

87 Fed. Reg. 4023 (Jan. 26, 2022) ...................... 11

87 Fed. Reg. 29,862 (May 17, 2022) ................... 11

88 Fed. Reg. 5070 (Jan. 26, 2023) ................ 11, 20

Alexander Volokh, The Myth of the Federal

Private Nondelegation Doctrine, 99

Notre Dame L. Rev. 203 (2023) ...................... 17

Dina Mishra, An Executive-Power NonDelegation Doctrine for the Private

Administration of Federal Law, 68

Vand. L. Rev. 1509 (2015) ......................... 17-18

FTC, Order Approving the Anti-Doping

and Medication Control Rule

Modification Proposed by the

Horseracing Integrity and Safety

Authority (Nov. 22, 2023) ............................... 12

TABLE OF AUTHORITIES—Continued

Page(s)

FTC, Order Approving the Enforcement

Rule Modification Proposed by the

Horseracing Integrity and Safety

Authority (Dec. 19, 2025) ....................... 5, 11-12

FTC, Order Approving the Racetrack

Safety Rule Modification Proposed by

the Horseracing Integrity and Safety

Authority (June 7, 2024) ................................. 12

Giles Jacob, A New Law-Dictionary (10th

ed., London: W. Strahan & W. Woodfall

1782) ................................................................ 19

Loryn McFall, Comment, Executive

Roundup: Saddling Private Article II

Enforcement Under the Horseracing

Integrity and Safety Act of 2020, 57 Tex.

Tech L. Rev. 591 (2025) .................................. 17

Noah Webster, An American Dictionary of

the English Language (New York, S.

Converse 1828) ................................................ 19

Office of Legal Counsel, Officers of the

United States Within the Meaning of the

Appointments Clause, 31 Op. O.L.C. 73

(2007) ............................................................... 22

Office of Legal Counsel, The Test for

Determining “Officer” Status Under the

Appointments Clause (Jan. 16, 2025) ........ 21-22

INTRODUCTION

Congress assigned nationwide federal regulatory

power to a nine-member Board at the head of a new

regulatory agency, even though no constitutional actor

appoints its Directors and no federal official can

remove them. The Horseracing Integrity and Safety

Act (“HISA”) calls the resulting regulator, the Horseracing

Integrity and Safety Authority (the “Authority”), a

“private” corporation. 15 U.S.C. § 3052(a). But HISA

gives that corporation “independent and exclusive

national authority” over covered horseracing, id.

§ 3054(a)(2); preempts state law with its legislative

rules, id. § 3054(b); and empowers it to investigate,

prosecute, adjudicate, and sanction violations of

federal law, id. §§ 3054(c), (h), (j), 3055(c), 3056(b),

3057. This case asks whether Congress may place

federal officers beyond Article II simply by using a

Delaware corporate shell.1

That question is now squarely presented. In FCC v.

Consumers’ Research, 606 U.S. 656 (2025), the Court

upheld the Universal Service Fund against public- and

private-nondelegation challenges. But Justice Gorsuch,

joined by Justices Thomas and Alito, identified the

question the parties there had not presented: whether

the private administrator’s leaders “qualify as officers

of the United States and, if so, whether their role

complies with the Appointments Clause.” Id. at 720 n.6

(Gorsuch, J., dissenting). This Court then vacated the

Petitioners’ prior petition for writ of certiorari was No. 24-489

(U.S. Oct. 28, 2024). The separate Sixth Circuit litigation did not

present an Appointments Clause claim on appeal, and the

vacated Eighth Circuit opinion in a preliminary posture no longer

supplies a decision on that question. See Oklahoma v. United

States, 163 F.4th 294 (6th Cir. 2025); Walmsley v. FTC, 117 F.4th

1032 (8th Cir. 2024), vacated and remanded, 145 S. Ct. 2870

(2025).

judgment in this very case and directed reconsideration in light of Consumers’ Research. Petitioners are

the only parties who preserved the Appointments

Clause issue that Consumers’ Research left open. This

Court should grant certiorari so that it can, finally,

resolve that question.

On remand, the Fifth Circuit incorrectly rejected the

Appointments Clause challenge. It treated Lebron v.

National Railroad Passenger Corp., 513 U.S. 374

(1995)—a case about Amtrak, a government-created

corporation that at the time exercised no governmental power—as an exclusive checklist for deciding

whether a corporation is governmental. Because the

Authority incorporated under state law shortly before

HISA’s enactment, pursued at the time of its creation

and as a private association what the panel called nongovernmental objectives, and has no federally appointed

Directors, the panel held that the Authority is private.

App. 41a-49a. That analysis converts an anti-evasion

decision into a roadmap for evasion—and circularly

uses the unconstitutional method of selecting the

Directors as a reason the Appointments Clause does

not apply to them.

The correct analysis has two steps. A person must

hold a continuing position established by law and

exercise significant authority pursuant to federal law.

See Lucia v. SEC, 585 U.S. 237, 245-249 (2018). The

Authority satisfies the first step because ongoing

statutory duties establish an office by law, whatever

the position’s label. The Authority’s Directors satisfy

the second because they wield powers this Court has

repeatedly described as significant authority that

must be exercised by officers. Lebron addresses a

different question: whether government-created

corporations that do not exercise significant authority

are nevertheless the government for certain purposes

such as the First Amendment. The Court should also

grant certiorari to clarify the respective domains of

these doctrines. As the Fifth Circuit stated, the Gulf

Coast Racing Plaintiffs’ suggestion to harmonize them

is one “only the Supreme Court could act upon.” App.

48a n.29.

For their part, the Authority and the FTC argue that

the Authority is no different than the Financial

Industry Regulatory Authority (FINRA), which has

been described as a private self-regulatory organization. Not so. HISA does not recognize a preexisting

member association that privately regulates willing

members. It recognizes a single corporation as the

exclusive national regulator; makes registration a

condition of participating in covered racing; authorizes

coercive searches, charges, and sanctions; preempts

state law; and provides no mechanism for industry

members to vote for the Authority’s Directors. In other

words, the Authority is not a self-regulatory organization at all, but rather acts like any other administrative

agency. Whether FINRA is constitutional need not be

decided here.2

The Court should also grant certiorari because this

cross-petition raises the question whether Congress

can create still novel mechanisms to “evade the most

solemn obligations imposed in the Constitution by

simply resorting to the corporate form.” Lebron, 513

U.S. at 397. In the Act, Congress selected and

“recognized” one corporation by name—a corporation

FINRA’s constitutionality remains the subject of ongoing

merits litigation. Alpine Securities Corp. v. FINRA, 121 F.4th 1314

(D.C. Cir. 2024), resolved only a request for preliminary relief and

did not decide the ultimate Appointments Clause question; this

Court denied certiorari at that interlocutory stage. 145 S. Ct. 2751

(2025).

that did not exist until mere weeks before the statute

was enacted—to perform a federal regulatory mission

prescribed entirely by HISA. 15 U.S.C. § 3052(a). The

Authority has no preexisting membership rules,

private business, or independent regulatory jurisdiction. Every office, committee, program, and duty

relevant here exists because federal law requires it. Its

rules displace state law and bind nonconsenting

persons nationwide. And Respondents defend HISA by

insisting that the FTC now exercises pervasive control

over the Authority’s rules, budget, subpoenas, litigation,

and adjudications. Under Department of Transportation

v. Association of American Railroads, 575 U.S. 43, 55

(2015), that “practical reality of federal control and

supervision” prevails over a statutory disclaimer of

governmental status.

The powers are equally unmistakable. The Authority

writes generally applicable rules backed by federal

law; compels registration and access to property and

records; directs investigations and testing; issues

charges and subpoenas; conducts adversarial adjudications; imposes suspensions, disqualifications, and

monetary sanctions; and may sue in federal court.

15 U.S.C. §§ 3053-3058. Buckley v. Valeo held that

rulemaking, adjudication, investigation, and civil

enforcement are “significant governmental dut[ies]”

that Congress may vest only in officers. 424 U.S. 1, 126,

137-141 (1976) (per curiam). And Trump v. Slaughter,

146 S. Ct. 2283, 2304-2305 (2026), confirms that

making binding rules, investigating violations, adjudicating charges, and pursuing civil actions are

executive functions.

FTC supervision does not make those powers

private. Supervision distinguishes principal officers

from inferior officers. Edmond v. United States, 520

U.S. 651, 662-663 (1997). SEC administrative law

judges remained officers although the Commission

reviewed their decisions. Lucia, 585 U.S. at 249. The

Preventive Services Task Force members remained

officers although the Secretary could review their

recommendations and remove them. Kennedy v.

Braidwood Mgmt., Inc., 606 U.S. 748, 759-765 (2025).

And the PCAOB members remained officers although

the SEC approved their rules and reviewed sanctions.

Free Enterprise Fund v. PCAOB, 561 U.S. 477, 485-486,

504-510 (2010).

The FTC’s December 2025 enforcement-rule modification reinforces the point. The rule now requires the

Authority to obtain Commission approval before

issuing a subpoena or commencing a civil action. FTC,

Order Approving the Enforcement Rule Modification

Proposed by the Horseracing Integrity and Safety

Authority 5-6 (Dec. 19, 2025) (effective Jan. 18, 2026).

Preapproval may bear on whether the Directors are

inferior officers. It cannot erase their continuing offices

or the significant discretion they exercise in deciding

what to investigate, whom to charge, what sanction to

seek, and how initially to adjudicate violations. Nor

can a rule cure the statutory fact that the Directors

are selected by a private nominating committee and

removable only by their fellow Directors. Nor can it

erase the tremendous discretion they exercise over the

promulgation of legislative rules, which the FTC must

rubber-stamp if those rules are merely consistent with

the Act’s broad standards.

HISA therefore presents a constitutional trilemma.

If the FTC’s control is as comprehensive as

Respondents maintain, that control confirms the

Authority’s governmental character and, at most,

makes its Directors inferior officers—who still must be

appointed by the President, a court of law, or a

department head. If the FTC’s control is insufficient,

the private-nondelegation challenge succeeds. And if

the Directors are principal officers because no federal

official directs and removes them, presidential

nomination and Senate confirmation are required.

Under every path, the self-perpetuating Board is

constitutionally defective.

The court of appeals’ answer is no answer: it held

that the private-nondelegation doctrine “corrals” any

evasion of Article II. App. 48a. But a doctrine

governing how a private adviser may assist an agency

cannot authorize unappointed persons to exercise

powers the Constitution reserves to officers. Nor does

after-the-fact judicial review supply the political

accountability Article II requires. The Appointments

Clause “is more than a matter of ‘etiquette or

protocol’”; it is “among the significant structural

safeguards of the constitutional scheme.” Edmond, 520

U.S. at 659 (citation omitted). The Court should thus

also grant certiorari because this is the only petition

that will allow it to consider the relationship between

the Appointments Clause and private nondelegation.

Review is imperative now. After this Court’s GVR,

the Fifth Circuit reissued its holding and said, as

noted above, that Petitioners’ Appointments Clause

argument is one “only the Supreme Court could act

upon.” App. 48a n.29. The Fifth and Sixth Circuits

remain divided over the constitutionality of HISA’s

enforcement scheme. Compare App. 15a-40a, with

Oklahoma, 163 F.4th 294. The Eighth Circuit’s earlier

opinion in a preliminary posture was vacated and

supplies no current holding. 145 S. Ct. 2870 (2025). The

conflict leaves a nationwide regulator and every

covered participant in uncertainty.

All parties seek this Court’s review, but they propose

different questions and remedies. The Authority and

the FTC seek review of the Fifth Circuit’s enforcement

holding; the NHBPA parties and Texas seek broader

relief on private-nondelegation grounds; and Petitioners

seek review of the antecedent Appointments Clause

question that determines whether the Authority may

exercise its sweeping powers through the present

Board. Granting the related petitions together would

allow the Court to resolve the controversy in full.

This case is also an excellent vehicle. Petitioners

pleaded and preserved the Appointments Clause

challenge, tried it to judgment, presented it to the Fifth

Circuit twice, and obtained an express ruling. Both

lower courts reached the merits. The district court also

recognized that “covered persons like the Gulf Coast

plaintiffs will be regulated and subject to assessments”

under HISA. App. 107a. Respondents never sought

dismissal of the Appointments Clause claim for lack of

standing, and no factual development is needed to

decide the structural question.

And, critically, an Appointments Clause challenge

necessarily is a facial challenge. The Court need not

identify an instance in which HISA might be

constitutional in its operation; if the Authority’s

Directors are officers, they cannot exercise any of the

coercive powers or statutory duties given to them. See

Freytag v. Commissioner, 501 U.S. 868, 882 (1991)

(holding that “[s]pecial trial judges are not inferior

officers for purposes of some of their duties . . . but

mere employees with respect to other responsibilities.

The fact that an inferior officer on occasion performs

duties that may be performed by an employee not

subject to the Appointments Clause does not

transform his status under the Constitution. If a

special trial judge is an inferior officer for purposes of

[certain] subsections . . . , he is an inferior officer

within the meaning of the Appointments Clause and

he must be properly appointed.”); accord Buckley, 424

U.S. at 137 (holding that improperly appointed FEC

could only exercise its nongovernmental “investigative

and informative” function).

The stakes extend beyond horseracing. The decision

below tells Congress that it may avoid Article II by

having a favored corporation file state papers before a

federal statute takes effect, omitting presidential

appointment, and calling the corporation private.

Nothing would confine that maneuver to racetrack

safety. The same design could be used for securities,

health care, transportation, energy, or any other

national regulatory program.

The Constitution does not permit that result. It

“deals with substance, not shadows.” Cummings v.

Missouri, 71 U.S. (4 Wall.) 277, 325 (1867). The crosspetition should be granted.

OPINIONS BELOW

The opinion of the court of appeals is reported at 178

F.4th 224 (5th Cir. 2026) and reproduced at App. 1a50a. The opinion of the district court is reported at 672

F. Supp. 3d 220 (N.D. Tex. 2023) and reproduced at

App. 51a-112a.

JURISDICTION

The court of appeals entered judgment on June 11,

2026. App. 1a-50a. On July 14, 2026, it stayed the

mandate pending the filing and disposition of petitions

for writ of certiorari. App. 115a-116a. This Court has

jurisdiction under 28 U.S.C. § 1254(1).

PERTINENT CONSTITUTIONAL AND

STATUTORY PROVISIONS

Article II, Section 2, Clause 2 of the U.S. Constitution

provides, in relevant part, that the President:

. . . shall nominate, and by and with the Advice

and Consent of the Senate, shall appoint

Ambassadors, other public Ministers and

Consuls, Judges of the supreme Court, and all

other Officers of the United States, whose

Appointments are not herein otherwise

provided for, and which shall be established

by Law: but the Congress may by Law vest

the Appointment of such inferior Officers, as

they think proper, in the President alone, in

the Courts of Law, or in the Heads of

Departments.

Article I, Section 1 provides:

All legislative Powers herein granted shall be

vested in a Congress of the United States,

which shall consist of a Senate and House of

Representatives.

Article II, Section 1, Clause 1 provides, in relevant

part:

The executive Power shall be vested in a

President of the United States of America.

The Horseracing Integrity and Safety Act, 15 U.S.C.

§§ 3051-3060, is reproduced at App. 117a-167a.

STATEMENT OF THE CASE

1. In September 2020, a purportedly nonprofit

corporation calling itself the Horseracing Integrity

and Safety Authority was organized under Delaware

law in anticipation of HISA’s enactment. ROA.4223.

Weeks later, Congress enacted HISA as part of a 5,600page omnibus COVID bill. In HISA, Congress

“recognized” a “private, independent, self-regulatory,

nonprofit corporation, to be known as the ‘Horseracing

Integrity and Safety Authority,’” for the exclusive

purpose of developing and implementing the federal

programs HISA specifies. 15 U.S.C. § 3052(a). The

corporation had no preexisting regulatory program or

membership jurisdiction. HISA supplied its mission,

powers, governance requirements, and regulated

population.

HISA requires a nine-member Board: five members

from outside the equine industry and four industry

members. Id. § 3052(b). A nominating committee

selected by the Authority chooses the Directors. Id.

§ 3052(d). The bylaws named that committee,

ROA.4239-4240, and provide that Directors may be

removed for cause only by the unanimous vote of the

other Directors, ROA.4236. No President, court,

department head, or FTC Commissioner appoints or

removes any Director.

2. HISA gives the Authority, the FTC, and a

contracted enforcement agency “independent and

exclusive national authority” over the safety, welfare,

and integrity of covered horses, persons, and races. 15

U.S.C. § 3054(a)(2). Authority rules preempt state law

within that jurisdiction. Id. § 3054(b). Covered persons

include trainers, owners, breeders, jockeys, racetracks,

veterinarians, and others engaged in covered racing.

Id. § 3051(6). Participation requires registration with

the Authority and agreement to abide by its rules,

standards, and procedures. Id. § 3054(d).

HISA commands the Authority to establish nationwide

racetrack-safety and anti-doping programs, id.

§§ 3055(a), 3056(a); issue substantive rules defining

violations, id. § 3057(a); create procedures for investigations and disciplinary hearings, id. §§ 3054(c),

3057(c); and prescribe sanctions, id. § 3057(d). Acting

under those provisions, the Authority has promulgated rules governing registration and access to

property, racetrack safety, anti-doping, fee assessments, investigations, adjudications, and sanctions.

See, e.g., 87 Fed. Reg. 435 (Jan. 5, 2022); 87 Fed. Reg.

4023 (Jan. 26, 2022); 87 Fed. Reg. 29,862 (May 17,

2022); 88 Fed. Reg. 5070 (Jan. 26, 2023).

The Authority also has statutory subpoena and

investigatory power. 15 U.S.C. § 3054(h). Its rules

authorize access to offices, racetracks, records, and

personal property; its agents investigate suspected

violations, collect samples, and issue charges; its

adjudicators take evidence and initially resolve

contested cases; and the Authority imposes suspensions, disqualifications, monetary sanctions, and other

penalties. Id. §§ 3054(c), 3055(c), 3056(b), 3057. HISA

separately authorizes the Authority to commence civil

actions for injunctions or to enforce sanctions. Id.

§ 3054(j).

3. Authority rules take effect only after FTC

approval. 15 U.S.C. § 3053(c). The FTC is required to

approve a proposed rule if it is consistent with HISA

and existing approved rules. Id. Under the original

statute, the FTC disclaimed authority to reconsider

the Authority’s policy judgments.

FTC review of sanctions is generally de novo before

an administrative law judge and then the Commission.

Id. § 3058(b)-(c). In December 2025, the FTC approved

an Authority enforcement-rule modification requiring

Commission approval before the Authority issues a

subpoena under § 3054(h) or commences a civil

action under § 3054(j). FTC, Order Approving the

Enforcement Rule Modification Proposed by the

Horseracing Integrity and Safety Authority (Dec. 19,

2025). The modification took effect January 18, 2026.

It does not transfer to the FTC the Authority’s

decisions to open investigations, collect evidence, file

charges, prosecute cases, or initially adjudicate

violations and impose sanctions.

4. The NHBPA parties filed suit in the Northern

District of Texas in March 2021, and Texas and its

Racing Commission intervened. ROA.66, 1479. In

November 2022, the Fifth Circuit held HISA’s original

rulemaking structure unconstitutional under the privatenondelegation doctrine because the Authority’s policy

choices were not subordinate to the FTC. National

Horsemen’s Benevolent & Protective Ass’n v. Black, 53

F.4th 869, 872 (5th Cir. 2022).

Congress responded in December 2022 by adding,

in another omnibus bill, the FTC’s power in § 3053(e)

to abrogate, add to, and modify Authority rules.

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

117-328, div. O, tit. VII, § 701, 136 Stat. 4459, 52315232 (2022). The FTC continues to maintain that,

under the statute as modified, it cannot review the

policy judgments of the Authority and must approve

its rules if consistent with the statute.3 In March 2023,

See, e.g., FTC, Order Approving the Racetrack Safety Rule

Modification Proposed by the Horseracing Integrity and Safety

Authority 3 (June 7, 2024) (“[T]he Commission finds that the

Racetrack Safety proposed rule modification is consistent with

the Act and the Commission’s procedural rule and therefore

approves the proposed rule modification.”); FTC, Order Approving

the Anti-Doping and Medication Control Rule Modification

Proposed by the Horseracing Integrity and Safety Authority 3

(Nov. 22, 2023) (“The Commission therefore finds that the

proposed modification to the ADMC Rule to include iron dextran

however, the Sixth Circuit held that the amendment

cured the rulemaking defect and rejected a separate

challenge to HISA’s enforcement structure. Oklahoma

v. United States, 62 F.4th 221 (6th Cir. 2023), vacated

and remanded, 145 S. Ct. 2836 (2025).

5. Petitioners had filed a separate action in July

2022. ROA.4846. Unlike the other plaintiffs, they

alleged that the Authority’s Directors are unconstitutionally appointed officers. ROA.4873-4881. They

also preserved a private-nondelegation challenge in

the alternative. ROA.4888-4891. The case was transferred, consolidated with the NHBPA action, and tried

to the district court in April 2023. ROA.5894-5899.

The district court entered judgment for Respondents

on May 4, 2023. App. 51a-112a. It reasoned that the

Fifth Circuit’s first decision had treated the Authority

as private, and alternatively applied Lebron because

the Authority was not created by federal law and its

Directors were not federally appointed. App. 72a-86a.

The court nevertheless described Petitioners as

covered persons who would be regulated and assessed

under HISA. App. 107a.

6. On July 5, 2024, the Fifth Circuit affirmed in part

and reversed in part. National Horsemen’s Benevolent

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

2024). All sides sought certiorari. Petitioners’ petition

presented the Appointments Clause question. No. 24489 (U.S. Oct. 28, 2024). After deciding Consumers’

Research, this Court granted the related petitions, vacated the judgment, and remanded for reconsideration.

App. 113a.

as a banned substance is consistent with the Act and with the

Commission’s procedural rules.”).

In Consumers’ Research, the Court held that the

FCC had supplied the controlling policy, required the

private administrator to submit projections for

Commission approval before they had legal effect, and

could review the administrator’s interpretations. 606

U.S. at 692-695. The Court emphasized that the

company performed accounting and advisory work

rather than exercising independent policy discretion.

Id. Justice Gorsuch’s dissent identified—but the

parties had not presented—the separate question

whether the company’s leaders were officers. Id. at 720

n.6 (Gorsuch, J., dissenting).

7. On June 11, 2026, the Fifth Circuit reissued its

judgment with a new discussion of Consumers’

Research. App. 1a-50a. It again held that § 3053(e)

makes Authority rulemaking sufficiently subordinate

to the FTC. App. 10a-15a. But it held HISA’s

enforcement provisions facially unconstitutional because

the Authority investigates, issues subpoenas, conducts

searches, levies fines, and sues without adequate FTC

control. App. 15a-40a. That holding conflicts with the

Sixth Circuit’s post-GVR decision upholding the same

enforcement scheme. Oklahoma, 163 F.4th at 310-316.

The Fifth Circuit again rejected Petitioners’

Appointments Clause claim. The panel correctly

acknowledged that HISA’s “private” label does not

settle whether the Authority is part of the federal

government. App. 43a-44a. But it treated Lebron as

the governing and exclusive test, then found the

Authority private because it incorporated under

Delaware law, was supposedly not created to further

governmental objectives, and lacks federally appointed

Directors. App. 44a-49a.

The panel declined to apply Buckley and Lucia

because those cases involved people “already part of

the government.” App. 47a-48a (emphasis omitted). It

recognized Petitioners’ argument that the nature and

duration of the statutory duties are what establish a

federal office, but concluded that only this Court could

adopt that analysis over the panel’s reading of Lebron.

App. 47a-48a & n.29. The panel did not address the

circularity of using the absence of a constitutional

appointment to establish private status.

8. On July 14, 2026, the Fifth Circuit stayed its

mandate pending the filing and disposition of petitions

for writ of certiorari. App. 115a-116a. Petitioners now

seek review of the judgment rejecting their

Appointments Clause claim.

REASONS FOR GRANTING THE

CROSS-PETITION

1. The question presented is important, recurring,

and unresolved. The Authority exercises powers that

this Court classifies as executive and significant,

through continuing offices created and defined by

federal law. Yet its Directors are selected and

removable only through private mechanisms. If the

decision below stands, Congress may avoid the

Appointments Clause whenever a favored corporation

files state incorporation papers before Congress passes

a law imbuing it with federal power.

2. The decision conflicts with Lebron’s anti-evasion

principle, Association of American Railroads’ practicalcontrol analysis, Buckley and Lucia’s significantauthority test, and Edmond, Braidwood, and Free

Enterprise Fund’s treatment of supervision. It also

cannot be reconciled with Slaughter, decided after the

judgment below, which confirms that the Authority’s

core functions are exercises of executive power. The

Court should grant this cross-petition because it is the

only one that will allow it to harmonize these related

strands of doctrine that have confused the lower courts

in this and other cases: those involving the

Appointments Clause, private nondelegation, and

government-created corporations.

3. This is the only case that preserved and decided

the Appointments Clause issue. All parties seek

review of the same judgment; the Fifth and Sixth

Circuits are divided over HISA’s constitutionality; the

mandate is stayed; and the court below expressly

stated that only this Court could adopt Petitioners’

position. Review is warranted now.

ARGUMENT

I. THE AUTHORITY’S DIRECTORS ARE

OFFICERS OF THE UNITED STATES.

Officer status requires a continuing federal office

with significant authority under federal law. Lucia,

585 U.S. at 245-249. Both requirements are satisfied

here. The Court should grant certiorari to confirm that

the Appointments Clause is the appropriate frame of

analysis, and because the Appointments Clause

resolves the circuit split that has emerged regarding

the private-nondelegation doctrine.

A. Consumers’ Research confirms that the

Appointments Clause question remains

open.

This Court’s decision in Consumers’ Research upheld

a delegation to the Universal Service Administrative

Company (USAC). Congress and the FCC supplied the

controlling policy; the private administrator performed

projections and accounting; its recommendations had

no legal effect until FCC approval; and the FCC could

review its interpretations. 606 U.S. at 692-695. The

Court therefore treated the administrator as an aid to

the agency, not as the source of binding law or coercive

enforcement.

Justice Gorsuch, joined by Justices Thomas and

Alito, separately identified the question whether the

administrator’s leaders were officers and complied

with the Appointments Clause. Id. at 720 n.6

(Gorsuch, J., dissenting). The Court did not decide that

question because neither the parties nor the court of

appeals had addressed it. Id. Here the question was

pleaded, tried, preserved, twice briefed to the Fifth

Circuit, and expressly decided—and the Authority

exercises far greater powers than does USAC.

Justice Jackson’s concurrence supplies an additional

reason for review. She questioned whether private

nondelegation is a viable independent doctrine and

cited scholarship explaining that other constitutional

provisions—including the Appointments Clause—

perform much of the relevant work. Id. at 710-711

(Jackson, J., concurring) (citing Alexander Volokh, The

Myth of the Federal Private Nondelegation Doctrine, 99

Notre Dame L. Rev. 203 (2023)).

Recent scholarship addressing HISA validates the

Gulf Coast Racing Plaintiffs’ conclusion: the

Appointments Clause is the appropriate framework.

See Loryn McFall, Comment, Executive Roundup:

Saddling Private Article II Enforcement Under the

Horseracing Integrity and Safety Act of 2020, 57 Tex.

Tech L. Rev. 591, 612-618 (2025) (arguing that HISA

violates the Appointments Clause); Volokh, supra, at

203, 211, 248-251 (agreeing that the Appointments

Clause is the correct frame for analyzing HISA); see

also Dina Mishra, An Executive-Power Non-Delegation

Doctrine for the Private Administration of Federal

Law, 68 Vand. L. Rev. 1509, 1544-1546 (2015)

(suggesting the Appointments Clause is the

appropriate framework for other private delegations).

HISA and the Authority, moreover, are far removed

from the advisory arrangement upheld in Consumers’

Research. The Authority does not merely calculate a

contribution factor or offer advice before an agency

acts. It originates nationwide rules; compels regulated

persons to register and submit to its procedures;

initiates investigations and charges; prosecutes cases;

and issues initial adjudications and sanctions. The

FTC’s ability to review some outputs cannot

recharacterize the actors who exercise those powers as

private accountants.

The post-GVR conflict confirms that Consumers’

Research did not settle HISA’s constitutionality. The

Sixth Circuit found the Authority sufficiently

subordinate in enforcement; the Fifth Circuit found

the opposite. Compare Oklahoma, 163 F.4th at 310316, with App. 15a-40a. Petitioners’ preserved

Appointments Clause claim supplies a textually

grounded way to address the underlying accountability problem across the Authority’s functions.

B. HISA establishes continuing federal

offices.

HISA provides that the Authority “shall be governed

by a board of directors,” fixes the Board at nine seats,

allocates five seats to independent members and four

to industry members, prescribes representational

qualifications, creates the nominating committee, and

specifies the Board’s federal duties. 15 U.S.C.

§ 3052(b), (d). Those are not episodic assignments to

private volunteers. They are “continuing and

permanent” offices that endure through successive

occupants. Lucia, 585 U.S. at 245 (quoting United

States v. Germaine, 99 U.S. 508, 511-512 (1879)).

The Authority’s charter cannot displace those

statutory offices. An “office” is defined by the “duties,

salary, and means of appointment” attached to it, not

by the label chosen for its holder. Freytag, 501 U.S. at

881 (citation omitted). Congress’s statute itself

supplies the duties and qualifications, and it makes

the Board indispensable to the federal program. The

fact that the Authority’s own documents implement

Congress’s design no more privatizes the office than an

agency’s personnel rules would.

Nor does the Authority’s incorporation under

Delaware law weeks before the statute’s enactment

change the analysis. A government “office” is defined

by its statutory duties. See Noah Webster, An

American Dictionary of the English Language 236

(New York, S. Converse 1828) (defining “officer” as “[a]

person commissioned or authorized to perform any

public duty”); Giles Jacob, A New Law-Dictionary [653]

(10th ed., London: W. Strahan & W. Woodfall 1782)

(“[E]very man is a public officer who hath any duty

concerning the public.”). The office is therefore

established by the statute. If tomorrow Congress

passed a law transferring the EPA’s duties to the

faculty of the Yale School of the Environment, those

faculty members would now be officers requiring

proper appointments to the extent they executed those

statutory duties.

The Authority recognizes this reality. HISA provides

that the corporation “to be known as” the Authority “is

recognized” to implement the federal programs. 15

U.S.C. § 3052(a) (emphasis added). The Authority itself

has stated that HISA “created the Authority as the

independent governing structure charged with

proposing and enforcing health-and-safety standards.”

ROA.4711.

C. The Directors exercise

federal authority.

significant

The Directors exercise “significant authority

pursuant to the laws of the United States.” Buckley,

424 U.S. at 126. They formulate and approve rules

with nationwide legal consequences—rules that the

FTC must approve if “consistent with” the statute’s

broad standards. Their rules displace state laws that

have governed horseracing for over a century. And the

Directors prescribe violations and penalties—and

their final decisions go into effect before any FTC ALJ

has had a chance to review them. See 88 Fed. Reg.

5070, 5109 (Jan. 26, 2023) (Authority Rule 3264); 15

U.S.C. § 3058. Buckley held that “rulemaking and

enforcement power” may be exercised only by officers.

424 U.S. at 118, 140-141. Slaughter confirms that

making rules carrying the force of law is an executive

act even when subject to statutory standards and

judicial review. 146 S. Ct. at 2304-05.

The same is true of enforcement and adjudication.

The Authority decides whether to investigate; directs

testing and evidence collection; issues charges;

prosecutes cases; administers hearings; and imposes

civil sanctions. Those duties alone exceed the powers

that made SEC administrative law judges officers in

Lucia and special trial judges officers in Freytag. See

Lucia, 585 U.S. at 247-249; Freytag, 501 U.S. at 881882. They also parallel the PCAOB’s “significant

executive power” to inspect, investigate, and sanction

regulated firms. Free Enterprise Fund, 561 U.S. at 485,

514.

FTC oversight cannot negate officer status. In

Edmond, review and supervision made military judges

inferior officers. 520 U.S. at 662-666. In Braidwood,

review and removal made Task Force members

inferior officers. 606 U.S. at 759-765. In Free Enterprise

Fund, SEC oversight made PCAOB members inferior

officers whose appointment by the SEC was

permissible only because the Commission was a

department head and could remove them at will after

severance. 561 U.S. at 510-513. None became a private

nonofficer because a superior could review the work.

The Directors were not appointed by the President

with Senate consent or, if inferior, by the President, a

court of law, or the head of a department. U.S. Const.

art. II, § 2, cl. 2. They also are insulated from

presidential removal because only their fellow

Directors may remove them, and then only for cause

and unanimously. ROA.4236. Slaughter confirms that

officials exercising executive power must remain

accountable to the President, directly or through

removable superiors. 146 S. Ct. at 2310-2311. HISA’s

Board satisfies neither appointment nor removal

requirements.

D. The

Authority

federal

instrumentality for Article II purposes.

The Authority argues that the difference between

this case and Lucia, Free Enterprise Fund, Buckley,

and other Appointments Clause cases is that in those

cases the entity was part of the federal government,

whereas here the entity incorporated itself a few

weeks before Congress enacted HISA and so is

“private.” This is a question on which the Executive

Branch has split. Compare Office of Legal Counsel, The

Test for Determining “Officer” Status Under the

Appointments Clause 1-2 (Jan. 16, 2025) (“2025 OLC

Opinion”) (“[T]o be an officer, an individual must

occupy a continuing position that is part of the federal

government for constitutional purposes.”) (cleaned up),

with Office of Legal Counsel, Officers of the United

States Within the Meaning of the Appointments Clause,

31 Op. O.L.C. 73, 122 (2007) (“2007 OLC Opinion”)

(“[A]n individual who will occupy a position to which

has been delegated by legal authority a portion of the

sovereign powers of the federal government, and

which is ‘continuing,’ must be appointed pursuant to

the Appointments clause.”).

This Court should grant certiorari not only because

this case allows it to resolve the key question left open

by Consumers’ Research, but also because it will allow

this Court to settle a question that has divided

executive branch lawyers for decades.

The correct answer is that one need not be part of

the federal government initially in order to trigger the

Appointments Clause. After all, the Yale School of the

Environment, in the hypothetical scenario noted

above, was not created by Congress. But its federal

office was created by Congress’s statute. So too here.

The Authority may have briefly preexisted Congress’s

statute by a few days, but its office—the sum of its

statutory duties—was created by Congress. That office

is therefore necessarily “part of the government.” See

2007 OLC Opinion at 121 (rejecting “the error of some

of our prior opinions in concluding that the

Appointments Clause does not apply to persons who

are not employees of the federal government, even if

they are delegated permanent federal authority to

enforce federal law”).

Assuming for sake of argument, however, that there

is a third step to the Lucia and Buckley analysis

requiring the individual to be “part of the

government,” this Court should hold that Congress’s

“private” label is not dispositive. It has held as much

before. Lebron held that Amtrak was governmental for

certain constitutional purposes despite an express

statutory disclaimer because “it is not for Congress to

make the final determination” of constitutional status.

513 U.S. at 392. Association of American Railroads

likewise held that “the practical reality of federal

control and supervision prevails over Congress’

disclaimer.” 575 U.S. at 55. Those decisions state an

anti-evasion principle, not a drafting formula that

Congress may abuse to evade the separation of powers

by changing the order of incorporation and enactment.

First, HISA functionally establishes the Authority

by special law. Congress did not authorize any

qualifying organization to apply for recognition. It

identified one “corporation, to be known as the

‘Horseracing Integrity and Safety Authority,’” and

endowed that entity alone with federal jurisdiction. 15

U.S.C. § 3052(a). The shell incorporated weeks earlier

had no members to regulate, no nationwide jurisdiction, and no relevant business apart from anticipating

HISA. The Authority itself told the district court that

HISA “created the Authority as the independent

governing structure charged with proposing and

enforcing health-and-safety standards.” ROA.4711.

Second, the Authority exists to accomplish

governmental objectives. HISA declares a national

regulatory program, makes the Authority’s jurisdiction

exclusive, preempts state law, compels registration, and

authorizes binding rules and sanctions. 15 U.S.C.

§§ 3052(a), 3054(a)-(d), 3057. Preventing doping and

regulating racetrack safety may be desirable private

goals in the abstract. But establishing compulsory

federal rules and enforcing them against

nonconsenting persons is a governmental objective

and a sovereign function. Collins v. Yellen, 594 U.S.

220, 252-253 (2021).

Third, federal control is pervasive under Respondents’

own account. Authority rules require FTC approval;

the FTC may rewrite them; the FTC reviews sanctions

de novo; the Authority’s budget is submitted to the

FTC; and current rules require FTC approval for

subpoenas and civil actions. 15 U.S.C. §§ 3052(f)(1)(C),

3053, 3054(h), (j), 3058. Respondents cannot invoke

that control to defeat a private-nondelegation

challenge while denying that the same “practical

reality” bears on federal-instrumentality status. Ass’n

of Am. R.R.s, 575 U.S. at 55.

The Fifth Circuit’s decisive contrary factor—that

“the government has no role in appointing the

Authority’s Board,” App. 46a—reasons in a circle. The

absence of a constitutional appointment is the alleged

violation. If an invalid selection method itself

establishes private status, Congress can always avoid

the Appointments Clause by specifying a private

selector. Lebron rejected precisely that kind of empty

formalism: government may not evade constitutional

obligations “by simply resorting to the corporate form.”

513 U.S. at 397.

The timing of incorporation changes nothing.

Congress may not do indirectly through recognition of

a purpose-built shell what it could not do directly by

chartering the identical regulator after enactment.

The constitutional inquiry asks what the entity is and

does under federal law now. HISA transformed the

empty corporation into the exclusive federal regulator

and established continuing Board positions to exercise

its powers.

Nor can the private-nondelegation doctrine supply a

safe harbor. That doctrine may permit private persons

to provide information, calculations, or proposals to an

agency that retains the operative decision. See

Consumers’ Research, 606 U.S. at 692-695. It does not

permit private persons to occupy continuing federal

offices, initiate coercive proceedings, or exercise

significant discretion while remaining outside Article

II. The Appointments Clause answers who may wield

those powers; supervision then answers what kind of

officer that person is.

II. THE DECISION BELOW CANNOT BE

RECONCILED WITH THIS COURT’S

PRECEDENTS,

WHICH

BEG

FOR

HARMONIZATION.

The Fifth Circuit acknowledged the force of

Petitioners’ anti-evasion concern but thought Lebron

foreclosed any other result. App. 44a-49a. That reading

conflicts with the reasoning of Lebron itself, with later

government-instrumentality cases, and with the

Court’s officer-status decisions. Although the Fifth

Circuit viewed this Court’s precedents involving

government-created corporations, private nondelegation,

and the Appointments Clause as mutually exclusive

and contradictory, these doctrines all serve different

purposes. This Court should grant this case to explain

how they work in harmony.

A. Lebron is an anti-evasion principle, not

a safe harbor.

Lebron asked whether Amtrak was governmental

for First Amendment purposes even though Congress

called it private. 513 U.S. at 383. The Court held that

when the government creates a corporation by special

law to further governmental objectives and retains

permanent authority to appoint a majority of directors,

the corporation “is part of the Government for

purposes of the First Amendment.” Id. at 399. That

conclusion stated sufficient circumstances for the

entity before the Court: Even though Amtrak

exercised no governmental power, it was nevertheless

“an agency or instrumentality of the United States for

the purpose of individual rights guaranteed against

the Government by the Constitution.” Id. at 394. The

Court did not hold that those facts exhaust every path

to governmental status for every constitutional

provision. Certainly, the Court in no way held that the

test it was articulating replaced the significantauthority test for officers of the United States.

The opinion’s broader rule points the other way:

constitutional status turns on substance, and

government cannot avoid constitutional obligations

through corporate form or statutory labels. Id. at 392,

397. The Authority fits that principle more directly

than Amtrak did in Lebron. Amtrak supplied

passenger service; at the time, it did not exercise any

governmental power. That is why a test was needed to

determine if it was nevertheless the “government” for

certain purposes. The Authority makes and enforces

federal law against nonconsenting persons.4 It is the

government for all purposes.

The Fifth Circuit nevertheless transformed Lebron’s

sufficient facts into three necessary conditions. It then

resolved each through a formalism devoid of

substance: incorporation papers defeated federal

The regulatory authority considered in Association of

American Railroads arose from the Passenger Rail Investment

and Improvement Act of 2008, enacted years after Lebron. See

575 U.S. at 45-47. Amtrak’s later regulatory power was

immaterial to Lebron’s 1995 holding.

creation; the “private” subject matter defeated

governmental objectives; and the unconstitutional

selection process defeated federal control. App. 45a46a. A legislature following that recipe may build an

agency in everything but name and avoid Article II.

This Court’s later cases reject such empty

formalism. Association of American Railroads treated

Amtrak as governmental when it jointly prescribed

binding metrics and standards, emphasizing its

federal objectives, statutory structure, presidentially

appointed directors, and practical federal control. 575

U.S. at 51-55. The analysis was substantive and

context specific. It did not announce an incorporationtiming rule.

Free Enterprise Fund is even closer. Congress

labeled the PCAOB a private nonprofit; its rules

required SEC approval; the SEC could review

sanctions; and the SEC could not direct the Board’s

choice to begin a particular investigation. 561 U.S. at

484-486, 504. Yet the Board was part of the

Government, its members were inferior officers, and

their appointment and removal were governed by

Article II. Id. at 485-486, 510, 513-514. HISA’s

comparable oversight cannot yield the opposite

classification.

No decision of this Court holds that persons

occupying continuing positions and wielding exclusive

sovereign authority under federal law remain constitutionally private merely because neither Congress

nor the President appointed them. After all, the whole

question is whether they must be constitutionally

appointed. Buckley swept broadly: “any appointee

exercising significant authority pursuant to the laws

of the United States” is an officer. 424 U.S. at 126.

Lucia applied that rule by examining office and duties.

585 U.S. at 245-249. Neither decision made a

governmental-but-non-Article-II appointment a prerequisite to officer status.

Financial Oversight & Management Board for

Puerto Rico v. Aurelius Investment, LLC, 590 U.S. 448

(2020), is consistent. There, the Court first asked

whether Board members were “Officers of the United

States,” distinguishing federal officers from territorial

officers based on the source and nature of their

authority. Id. at 456-469. The case did not hold that

Congress may assign federal executive power to

persons outside government altogether simply by

denominating them private.

The Fifth Circuit’s approach also creates an

inexplicable asymmetry. A low-level federal adjudicator

who takes testimony and issues an initial decision

must be constitutionally appointed. Lucia, 585 U.S. at

247-249. But under the decision below, Congress may

give an entire privately selected Board broader

authority to write rules, investigate, charge, adjudicate,

and punish—without any appointment at all. The

Appointments Clause cannot demand accountability

for the lesser power while ignoring the greater.

The Court should make clear that Lebron and Lucia

address complementary questions. Lebron prevents

formal labels from concealing a government instrumentality and declares that even corporations with no

government power may be governmental for certain

purposes. Lucia then identifies who is an “officer”

requiring proper appointments on the basis of the

government power that officer wields. Where, as here,

a corporation’s only relevant existence is a federal

regulatory program and its Board exercises sovereign

power, both lines point to federal officer status.

B. Supervision distinguishes inferior from

principal officers.

The decision below conflates subordination with

private status. An inferior officer is one “whose work is

directed and supervised at some level” by officers

appointed by the President with Senate consent.

Edmond, 520 U.S. at 663. The extent of supervision

therefore classifies an officer; it does not eliminate the

office. Braidwood recently applied that principle to a

body whose recommendations became binding by

federal law, relying on review and at-will removal to

find inferior-officer status. 606 U.S. at 759-765.

The distinction is dispositive here. Respondents say

the FTC is the primary regulator because it may

approve and rewrite rules, review sanctions, supervise

budgets, and preapprove subpoenas and lawsuits. If so,

the Directors resemble the inferior officers in Edmond,

Braidwood, and Free Enterprise Fund. But Congress

did not vest their appointment in the FTC or any other

constitutionally permitted actor, and the FTC cannot

remove them. Supervision cannot cure a defective

appointment.

The December 2025 rule modification does not

change the answer. Requiring approval for two

enforcement tools may increase supervision. It does

not eliminate the Board’s discretion over rules,

investigations, charges, prosecutions, initial adjudications, or sanctions. More fundamentally, an agency

rule cannot transform an officer into a private person.

If preapproval sufficed to erase officer status, the SEC

administrative law judges in Lucia and PCAOB

members in Free Enterprise Fund would not have been

officers.

The removal defect confirms the structural problem.

HISA and the bylaws leave the Directors answerable

to one another, not to the President or a removable

superior. Even accepting Respondents’ theory that the

FTC can control discrete outputs, no Commissioner

may remove a Director for disregarding federal policy,

neglecting duties, or abusing coercive powers. Article

II does not permit executive authority to be exercised

by officials accountable to no one. Free Enterprise

Fund, 561 U.S. at 496-498.

Nevertheless, there is some undeniable tension in

this Court’s Appointments Clause jurisprudence and

the private-nondelegation doctrine. Subordination in

the former context is the test for inferior officer status;

it is also the test for satisfying the privatenondelegation doctrine. This petition allows the Court

to resolve and explain this tension because the Gulf

Coast Racing Plaintiffs have consistently pleaded in

the alternative. Because the Authority exercises

significant authority, its Directors are officers requiring proper appointments. And if the Appointments

Clause, for whatever reason, does not apply, then

HISA may not vest in a private entity independent

authority to make law, investigate, prosecute,

adjudicate, and punish.

The theories are complementary because neither

permits HISA’s current structure. Adequate FTC

direction may make the Directors inferior officers, but

inferior officers still require constitutional appointments. Inadequate direction leaves an impermissible

private delegation. The Court should reject the

suggestion below that satisfying one doctrine

automatically defeats the other. It should decide the

Appointments Clause question before determining

what—if any—private assistance remains permissible.

In Petitioners’ view, the private-nondelegation

doctrine applies when individuals who do not satisfy

the test for officer status—usually because their duties

are episodic—nevertheless exercise occasional government power that must be adequately supervised. One

classic example is the delegation of eminent-domain

power to private corporations. See PennEast Pipeline

Co., LLC v. New Jersey, 594 U.S. 482, 495 (2021) (“For

as long as the eminent domain power has been

exercised by the United States, it has also been

delegated to private parties.”). Another is when

market competitors convene to fix prices or markets.

See Carter v. Carter Coal Co., 298 U.S. 238, 311 (1936)

(invalidating price-fixing delegation “to private

persons whose interests may be and often are adverse

to the interests of others in the same business”); see

also Chiglades Farm, Ltd. v. Butz, 485 F.2d 1125, 1134

(5th Cir. 1973) (addressing “a group of self-interested

producers” denying competitor allowance to grow

celery).5 But if the Appointments Clause applies,

The doctrine’s origins reinforce this distinction. The doctrine

originated in early police-power cases that involved episodic

authority granted to private neighbors. See Eubank v. City of

Richmond, 226 U.S. 137, 143-144 (1912) (holding that a municipal

government delegating to property owners the right to impose

new and additional restrictions on street, if two-thirds agree,

without any standards governing the decision, and no obvious

relation to health or welfare, was not a reasonable exercise of the

police power); Cusack Co. v. City of Chicago, 242 U.S. 526, 530

(1917) (allowing a majority of residents in neighborhood to waive

a general prohibition on billboards upheld as reasonable exercise

of the police power because the residents would be giving more

rights to the business than would otherwise exist); Washington ex

rel. Seattle Title Tr. Co. v. Roberge, 278 U.S. 116, 121 (1928) (a

general prohibition on houses for the poor and aged that could be

waived only by two-thirds of nearby residents invalidated as

satisfying the private-nondelegation doctrine is not

enough—that would merely show that the officer in

question is an inferior rather than a principal officer.

This petition is the only one involving HISA that

will allow this Court to harmonize the privatenondelegation doctrine with the Appointments Clause.

C. The Authority is not a self-regulatory

organization.

Respondents invoke the Maloney Act and FINRA,

which has been described as a private self-regulatory

organization (SRO). But tradition matters when

Congress formalizes a genuinely private association’s

regulation of its members. See Consumers’ Research,

606 U.S. at 695. HISA did not formalize a longstanding

system of private membership regulation. It installed

a newly organized corporation as the exclusive

national regulator of an industry historically governed

by States. Even today, alternative SROs are

permissible in the securities industry. 15 U.S.C. §§ 78o,

78s. Not so under HISA. The Authority has a statutory

monopoly on the coercive use of government power

within its jurisdiction. It is no different from any other

administrative agency.

The Authority’s jurisdiction also does not rest on

consensual membership. Federal law makes registration with the Authority a condition of participation in

covered racing and binds “all” covered owners,

trainers, veterinarians, racetracks, and other participants. 15 U.S.C. §§ 3051(6), 3054(d). Authority rules

preempt state law, and its sanctions carry federal legal

consequences. Id. §§ 3054(b), 3057. Unlike FINRA, the

unreasonable exercise of police power because such homes not a

threat to health or safety).

Authority has no members, and industry participants

do not elect its Board; its self-perpetuating governance

process selects the Directors and their successors.

The Court need not decide FINRA’s ultimate

constitutional status. The D.C. Circuit’s interlocutory

decision in Alpine Securities Corp. v. FINRA, 121 F.4th

1314 (D.C. Cir. 2024), did not resolve the merits of the

Appointments Clause challenge, and this Court denied

review at that preliminary stage. 145 S. Ct. 2751

(2025). Judge Walker’s separate opinion, however,

identified a similar constitutional anomaly: significant

executive authority cannot become immune from

Article II merely because Congress assigns it to a

nominally private regulator. 121 F.4th at 1338-1347

(Walker, J., concurring in the judgment in part and

dissenting in part).

Whatever questions FINRA may present, they are

no reason to deny review here. HISA’s purpose-built

regulator, exclusive jurisdiction, compulsory reach,

state-law preemption, and comprehensive coercive

powers make this the clearest possible case for

applying the Appointments Clause.

III. THIS CASE IS THE RIGHT VEHICLE

FOR AN EXCEPTIONALLY IMPORTANT

QUESTION.

Three features make review especially appropriate:

every side seeks certiorari from the same judgment;

this is the only case and petition that preserved the

Appointments Clause question; and an extant circuit

split leaves a nationwide regulatory scheme in

constitutional uncertainty.

A. Every side seeks this Court’s review.

The Authority and federal Respondents seek review

of the Fifth Circuit’s enforcement ruling. The NHBPA

parties and Texas seek review of rulings sustaining

other portions of HISA. Petitioners seek review of the

Appointments Clause ruling. Although the questions

differ, no party defends the judgment as a satisfactory

final resolution. Granting the related petitions

together would allow the Court to resolve both HISA’s

constitutional classification and the consequences for

its rulemaking and enforcement structure.

B. This is the only case that preserved the

Appointments Clause issue.

The Sixth Circuit noted that the challengers there

litigated HISA as a private delegation and did not

develop an Appointments Clause claim. Oklahoma,

163 F.4th at 314-315. The Eighth Circuit’s former

opinion in a preliminary posture was vacated after

Consumers’ Research and has not been replaced. 145

S. Ct. 2870 (2025). Only Petitioners pleaded the officerstatus theory, developed a trial record, obtained a final

judgment, preserved the issue on appeal, and secured

an appellate ruling after this Court’s GVR.

There is no vehicle defect. The Appointments Clause

question is purely legal. Both lower courts reached it.

Petitioners include covered persons whom the district

court said “will be regulated and subject to

assessments,” App. 107a, and the Fifth Circuit

resolved the merits. Because an unconstitutionally

appointed Board presently makes rules and oversees

enforcement, the structural injury is ongoing;

Petitioners need not provoke a sanction before

challenging it. See Free Enterprise Fund, 561 U.S. at

490-491. Indeed, they are presently injured because

they cannot simulcast their races without the threat of

the agency’s enforcement. ROA.4592-4595.

The posture is unusually clean. This Court has

already identified the broader private-administration

problem, vacated the prior judgment, and directed

reconsideration. The Fifth Circuit then adhered to its

Appointments Clause holding and said that only this

Court could accept Petitioners’ position. App. 48a n.29.

Further percolation cannot move an inferior court past

what it believes is an issue this Court must resolve.

C. The circuit split and national stakes

warrant immediate resolution.

The Fifth Circuit has declared HISA’s enforcement

provisions facially unconstitutional; the Sixth Circuit

has upheld them. Compare App. 15a-40a, with

Oklahoma, 163 F.4th at 310-316. The disagreement

concerns the same congressional statute and

nationwide regulator. Regulated parties face different

constitutional rules depending on forum, while the

Authority operates under a stayed mandate and

continuing uncertainty.

The Appointments Clause question is antecedent to

that split. If the Directors are officers, the present

Board cannot constitutionally exercise either the

rulemaking powers the Fifth Circuit upheld or the

enforcement powers it enjoined. Deciding only

whether the Authority is sufficiently supervised as a

private entity would leave unresolved who may wield

its admitted government power. This petition permits

a complete answer.

The issue also reaches far beyond HISA. Congress

increasingly relies on corporations and other nominally

private bodies to administer federal programs. The

decision below offers a simple route around appointment

and removal: organize first under state law, select

directors privately, and invoke agency oversight when

challenged. Review is necessary to prevent such a

novel arrangement for circumventing Article II.

CONCLUSION

Distilled to its essence, the constitutional infirmity

in Congress’s statute is evident. No one would doubt

that a statute providing that “John Doe is hereby

appointed to execute HISA” would violate the

Appointments Clause. A statute providing “John Doe

Inc. is hereby appointed to execute HISA” would be

equally impermissible. And yet that is exactly what

HISA does. If Congress cannot by statute specify

which individual is to execute a statute, it cannot by

statute specify which group of individuals is to execute

a statute. Only the President and the officers whom he

or she appoints are constitutionally permitted to

execute the laws. The Court should grant review to

resolve the circuit split and the question left open in

Consumers’ Research concerning the relationship

between private nondelegation and the Appointments

Clause.

The Court should consider this cross-petition

together with the related petitions arising from the

same judgment, and grant it.

Respectfully submitted,

ILAN WURMAN

UNIV. OF MINNESOTA

LAW SCHOOL

229 S. 19th Ave.

Minneapolis, MN 55455

S. REEVES JORDAN

MAYNARD NEXSEN PC

1901 Sixth Ave. N.

Suite 1700

Birmingham, AL 35203

September 9, 2026

GREGORY P. SAPIRE

Counsel of Record

CARLOS R. SOLTERO

MAYNARD NEXSEN PC

2500 Bee Caves Road

Building 1, Suite 150

Austin, TX 78746

(512) 969-6540

gsapire@maynardnexsen.com

APPENDIX

APPENDIX TABLE OF CONTENTS

Page

APPENDIX A: OPINION, U.S. Court of Appeals

for the Fifth Circuit, National Horsemen’s

Benevolent & Protective Ass’n v. Black, No. 2310520 (June 11, 2026) .........................................

APPENDIX B: MEMORANDUM OPINION

AND ORDER, U.S. District Court for the

Northern District of Texas, National Horsemen’s

Benevolent & Protective Ass’n v. Black, No. 5:21CV-071-H (May 4, 2023) ......................................

51a

APPENDIX C: ORDER, U.S. Supreme Court,

Gulf Coast Racing, L.L.C. v. Horseracing

Integrity & Safety Authority, Inc., No. 24-489

(June 30, 2025) .................................................... 113a

APPENDIX D: ORDER, U.S. Court of Appeals

for the Fifth Circuit, National Horsemen’s

Benevolent & Protective Ass’n v. Black, No. 2310520 (July 14, 2026) .......................................... 115a

APPENDIX E: Horseracing Integrity and

Safety Act, 15 U.S.C. §§ 3051-3060 .................... 117a

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

————

No. 23-10520

————

NATIONAL HORSEMEN’S BENEVOLENT AND PROTECTIVE

ASSOCIATION; ARIZONA HORSEMEN’S BENEVOLENT AND

PROTECTIVE ASSOCIATION; ARKANSAS HORSEMEN’S

BENEVOLENT AND PROTECTIVE ASSOCIATION; INDIANA

HORSEMEN’S BENEVOLENT AND PROTECTIVE

ASSOCIATION; ILLINOIS HORSEMEN’S BENEVOLENT AND

PROTECTIVE ASSOCIATION; LOUISIANA HORSEMEN’S

BENEVOLENT AND PROTECTIVE ASSOCIATION;

MOUNTAINEER PARK HORSEMEN’S BENEVOLENT AND

PROTECTIVE ASSOCIATION; NEBRASKA HORSEMEN’S

BENEVOLENT AND PROTECTIVE ASSOCIATION;

OKLAHOMA HORSEMEN’S BENEVOLENT AND

PROTECTIVE ASSOCIATION; OREGON HORSEMEN’S

BENEVOLENT AND PROTECTIVE ASSOCIATION;

PENNSYLVANIA HORSEMEN’S BENEVOLENT AND

PROTECTIVE ASSOCIATION; WASHINGTON HORSEMEN’S

BENEVOLENT AND PROTECTIVE ASSOCIATION; TAMPA

BAY HORSEMEN’S BENEVOLENT AND PROTECTIVE

ASSOCIATION; GULF COAST RACING, L.L.C.; LRP

GROUP, LIMITED; VALLE DE LOS TESOROS, LIMITED;

GLOBAL GAMING LSP, L.L.C.; TEXAS HORSEMEN’S

PARTNERSHIP, L.L.P.,

Plaintiffs—Appellants,

STATE OF TEXAS; TEXAS RACING COMMISSION,

Intervenor Plaintiffs—Appellants,

versus

JERRY BLACK; KATRINA ADAMS; LEONARD COLEMAN;

MD NANCY COX; JOSEPH DUNFORD; FRANK KEATING;

KENNETH SCHANZER; HORSERACING INTEGRITY AND

SAFETY AUTHORITY, INCORPORATED; FEDERAL TRADE

COMMISSION; COMMISSIONER NOAH PHILLIPS;

COMMISSIONER CHRISTINE WILSON; LISA LAZARUS;

STEVE BESHEAR; ADOLPHO BIRCH; ELLEN MCCLAIN;

CHARLES SCHEELER; JOSEPH DEFRANCIS; SUSAN

STOVER; BILL THOMASON; LINA KHAN, Chair; REBECCA

SLAUGHTER, Commissioner; ALVARO BEDOYA,

Commissioner; D. G. VAN CLIEF,

Defendants—Appellees.

————

Appeal from the United States District Court

for the Northern District of Texas

USDC Nos. 5:21-CV-71, 5:23-CV-77

————

ON REMAND FROM THE

SUPREME COURT OF THE UNITED STATES

Before KING, DUNCAN, and ENGELHARDT, Circuit

Judges.

STUART KYLE DUNCAN, Circuit Judge:

Last year, the Supreme Court vacated our decision

in National Horsemen’s Benevolent & Protective

Association v. Black (Horsemen’s II), 107 F.4th 415 (5th

Cir. 2024), and remanded “for further consideration in

light of FCC v. Consumers’ Research, 606 U.S. [656]

(2025).” Horseracing Integrity & Safety Auth., Inc. v.

Nat’l Horsemen’s Benevolent & Protective Ass’n, 145 S.

Ct. 2837 (2025) (mem.). The parties have filed supplemental briefs helpfully addressing this question.

We conclude Consumers’ Research does not affect

our prior decision, which we reissue below.1 In a new

section, infra Part III(B)(6), we explain why Consumers’

Research does not change our analysis of the private

nondelegation question presented in this case.

INTRODUCTION

We again consider constitutional challenges to the

Horseracing Integrity and Safety Act of 2020

(“HISA” or the “Act”). In HISA, Congress empowered a

private corporation—the Horseracing Integrity and

Safety Authority (“Authority”)—to create and enforce

nationwide rules for thoroughbred horseracing. In our

first foray into HISA, we held the Act facially

unconstitutional under the private nondelegation

doctrine because the Authority’s rulemaking was not

subordinate to the Federal Trade Commission (“FTC”).

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

Black (Horsemen’s I), 53 F.4th 869 (5th Cir. 2022). At

the time, we did not consider a separate nondelegation

challenge to the Authority’s enforcement power.

Congress responded to our decision by amending

HISA, giving the FTC power to abrogate, add to, or

modify the Authority’s rules.

On remand, the district court held the amendment

cured HISA’s constitutional deficiencies because the

FTC now has general rulemaking power over the

Authority’s activities. It also rejected claims raised by

a new plaintiff, Gulf Coast Racing LLC (“Gulf Coast”),

that HISA violates the Constitution’s Appointments

Clause because the Authority wields significant

governmental authority. The plaintiffs all appealed,

We add a handful of footnotes to clarify a few matters and also

to discuss sister-circuit decisions issued after Horsemen’s II. See

infra nn. 7, 12, 17, 19, 22, 23.

arguing HISA is still constitutionally deficient under

the private nondelegation doctrine, the Due Process

Clause, the Appointments Clause, and the Tenth

Amendment.

Just as we concluded in our now-vacated Horsemen’s

II opinion, we agree with nearly all of the district

court’s well-crafted opinion. Specifically, we agree

that the FTC’s new rulemaking oversight means the

agency is no longer bound by the Authority’s policy

choices. In other words, the amendment solved the

nondelegation problem with the Authority’s rulemaking power. We also agree that HISA does not violate

the Due Process Clause by putting financially interested private individuals in charge of competitors.

Further, we agree that, under current Supreme Court

precedent, see Lebron v. Nat’l R.R. Passenger Corp., 513

U.S. 374 (1995), the Authority does not qualify as a

government entity subject to the Appointments Clause.

Finally, we agree that plaintiff Gulf Coast lacks

standing to bring its Tenth Amendment challenge.

After the Supreme Court’s remand, we still disagree

with the district court in one important respect,

however: HISA’s enforcement provisions violate the

private nondelegation doctrine. The statute empowers

the Authority to investigate, issue subpoenas,

conduct searches, levy fines, and seek injunctions—all

without the FTC’s say-so. That is forbidden by the

Constitution. We therefore DECLARE that HISA’s

enforcement provisions are facially unconstitutional

on that ground. In doing so, we part ways with our

esteemed colleagues on the Sixth Circuit. See

Oklahoma v. United States (Oklahoma I), 62 F.4th 221

(6th Cir. 2023); Oklahoma v. United States (Oklahoma

II), 163 F.4th 294 (6th Cir. 2025) (both rejecting

nondelegation

provisions).

challenge to

HISA’s

enforcement

Accordingly, the district court’s judgment

AFFIRMED in part and REVERSED in part.

I. BACKGROUND

A. HISA Framework

In 2020, HISA created a framework for enacting and

enforcing nationwide rules governing doping, medication

control, and racetrack safety in the thoroughbred

horseracing industry. See 15 U.S.C. § 3054(a). See

generally Horsemen’s I, 53 F.4th at 873–75. To “develop[]

and implement[]” these rules, HISA empowers a

“private, independent, self-regulatory, nonprofit corporation, to be known as the ‘Horseracing Integrity and

Safety Authority,’” subject to the “oversight” of the

FTC. §§ 3052(a), 3053.

Under HISA, the Authority writes all the rules—

that is, rules fleshing out the substantive areas

covered by HISA, as well as rules governing investigation, adjudication, and sanctions.2 The Authority

submits proposed rules to the FTC, which publishes

them for public comment. § 3053(b)(1), (c)(1). Rules

take effect only after FTC approval, which must occur

within 60 days of publication. § 3053(c)(1). The FTC

“shall approve” a proposed rule if it finds the rule

“consistent” with the Act and with “applicable rules

approved by the [FTC].” § 3053(c)(2). Originally, this

See § 3057(a)(1), (c)(1) (power to establish substantive rules

governing medication controls); § 3056(a)(1) (power to establish

racetrack safety rules); §§ 3054(c), 3057(c) (power to “develop

uniform procedures and rules” governing investigations and

adjudications that afford due process); § 3057(d) (power to

establish civil sanctions); § 3054(c), (h) (investigatory and

subpoena powers).

“consistency review” did not allow the FTC to reject a

proposed rule based on its disagreement with the

Authority’s policy choices. Horsemen’s I, 53 F.4th at

884–87. In Horsemen’s I, we held that this arrangement violated the private nondelegation doctrine by

making a private entity superior to a government

agency. Ibid. In response, Congress amended HISA to

give the FTC power to “abrogate, add to, and modify”

the Authority’s rules. § 3053(e).

The Authority also has the power to enforce HISA.

It does so by (1) exercising “subpoena and investigatory authority,” § 3054(h); (2) imposing civil sanctions,

§§ 3054(i), 3057; and (3) filing civil actions seeking

injunctions or enforcement of sanctions, § 3054(j). The

actual work of enforcing HISA involves a further

delegation to other entities, however. For instance,

HISA directs the Authority to contract enforcement of

doping and medication rules to a private non-profit,

the U.S. Anti-Doping Agency (“USADA”), or other

comparable entity. § 3054(e)(1)(A), (B). The Authority’s

proposed partnership with USADA ultimately did not

pan out. Instead, the Authority partnered with Drug

Free Sport International, which operates as the

Horseracing Integrity and Welfare Unit (“HIWU”).

HIWU then acts as “the independent . . . enforcement organization” for those rules, “implement[s]”

HISA’s anti-doping programs, and exercises related

powers “including independent investigations, charging

and adjudication of potential medication control rule

violations, and the enforcement of any civil sanctions

for such violations.” § 3054(e)(1)(E)(i), (iii), (iv);

§ 3055(c)(4)(B).3 HIWU’s decisions on such matters

Similarly, the Authority may contract out enforcement of the

racetrack safety program to “State racing commissions” or “other

“shall be the final decision or civil sanction of the

Authority,” subject to de novo review by an

administrative law judge (“ALJ”) and the FTC.

§ 3055(c)(4)(B); § 3058.

B. Procedural History

Horsemen’s I concluded that HISA’s delegation of

rulemaking power was facially unconstitutional. HISA

delegated rulemaking power to a private organization

(the Authority) whose policy choices could not be

second-guessed by the agency (FTC). The Authority’s

rulemaking powers were therefore not subordinate to

the FTC, meaning HISA facially violated the private

nondelegation doctrine. Horsemen’s I, 53 F.4th at 872.

We did not consider the plaintiffs’ distinct nondelegation challenges to the Authority’s investigative and

enforcement powers nor their due process claims. Id.

at 890 n.37. Finally, as noted, Congress responded to

Horsemen’s I by empowering the FTC to “abrogate, add

to, and modify” the Authority’s rules. § 3053(e).

On remand, the National Horsemen’s Association

(“Horsemen”) and Texas continued to press their

private nondelegation claims, arguing Congress’s

amendment did not actually subordinate Authority

rulemaking to the FTC. They also continued to press

their nondelegation challenge to the Authority’s

enforcement powers (as well as their due process

claims). In addition, a new plaintiff, Gulf Coast Racing

LLC (“Gulf Coast”), raised separate challenges to

HISA in a different division of the same district. See

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

Black (Black II), 672 F. Supp. 3d 220, 224–25 (N.D. Tex.

2023). Gulf Coast claimed (1) HISA’s directors qualify

State regulatory agencies.” § 3054(e)(2), (3); see also § 3056

(discussing racetrack safety program).

as “officers of the United States” and are therefore

subject to Article II’s appointment and removal

requirements; and (2) HISA commandeers Texas in

violation of the Tenth Amendment. Gulf Coast’s suit

was consolidated with the remanded Horsemen’s I

case. Id. at 230–31. Following a one-day bench trial,

the district court rejected all the plaintiffs’ claims.

As to private nondelegation, the district court

followed the Sixth Circuit’s decision in Oklahoma I, 62

F.4th 221. The district court reasoned that Congress’s

amendment empowering the FTC to “abrogate, add to,

and modify” proposed rules “cured the constitutional

issues identified by [Horsemen’s I]” by making the

Authority’s rulemaking power “subordinate” to the

FTC. Black II, 672 F. Supp. 3d at 241, 243–44 (citing

Oklahoma I, 62 F.4th at 230, 232). As to the separate

challenge to the Authority’s enforcement powers, the

district court largely relied on its previous order

rejecting the claim because those powers “comport

with due process.” See id. at 248 (quoting Nat’l

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

(Black I), 596 F. Supp. 3d 691, 725 (N.D. Tex. 2022)).

The court also relied on the fact that the FTC could

review civil sanctions and control enforcement

through rulemaking. Id. at 248–49 (citing Black I, 596

F. Supp. 3d at 725–26); see also Oklahoma I, 62 F.4th

at 231. Finally, the court rejected the due process

claims because the Horsemen failed to show the

Authority’s directors have financial interests in regulating competitors. Black II, 672 F. Supp. 3d at 252.

As to Gulf Coast’s claims, the district court

concluded that our Horsemen’s I decision required it to

reject them. Specifically, the court reasoned that

Horsemen’s I necessarily decided the Authority was a

private entity, and so its directors were not subject to

the Appointments Clause. Id. at 234–37. Alternatively,

the court reasoned that the Authority is private

because “it is not government created, and its directors

are not government appointed.” Id. at 234 (citing

Lebron, 513 U.S. 374). Finally, the court rejected the

Tenth Amendment anti-commandeering argument for

lack of standing. Id. at 249–50.

Accordingly, the district court entered final

judgment dismissing all claims. The Horsemen, Texas,

and Gulf Coast timely appealed.

II. STANDARD OF REVIEW

We review the district court’s legal conclusions

following a bench trial de novo. Deloach Marine Servs.,

L.L.C. v. Marquette Transp. Co., L.L.C., 974 F.3d 601,

606 (5th Cir. 2020). To prevail on their facial challenge,

the plaintiffs “must show that no set of circumstances

exists under which [HISA] would be valid.” Horsemen’s

I, 53 F.4th at 878 (cleaned up).

III. DISCUSSION

The various plaintiffs raise these issues on appeal:

(A) Did Congress’s amendment to HISA cure the

private nondelegation problem with the Authority’s

rulemaking powers?

(B) Do the Authority’s enforcement powers

separately violate the private nondelegation doctrine?

self-interested industry participants to regulate their

competitors?

(D) Are the Authority’s directors subject to the

Appointments Clause?

10a

(E) Does HISA violate the Tenth Amendment’s anticommandeering rule by forcing States to administer a

federal program?

We consider each issue in turn.

A. Private Nondelegation Challenge to Authority’s

Rulemaking

We previously discussed the origins of the private

nondelegation doctrine in Horsemen’s I. See id. at 880–

81. In essence, the doctrine teaches that “a private

entity may wield government power only if it

‘functions subordinately’ to an agency with ‘authority

and surveillance’ over it.” Id. at 881 & n.21 (citing

Texas v. Rettig, 987 F.3d 518, 532 (5th Cir. 2021));

Pittston Co. v. United States, 368 F.3d 385, 394 (4th Cir.

2004); United States v. Frame, 885 F.2d 1119, 1128 (3d

Cir. 1989).4 Or, as our sister circuit has explained:

“Congress may formalize the role of private parties in

proposing regulations so long as that role is merely as

an aid to a government agency that retains the

discretion to approve, disapprove, or modify them.”

Ass’n of Am. R.Rs. v. U.S. Dep’t of Transp. (Amtrak I),

721 F.3d 666, 671 (D.C. Cir. 2013) (cleaned up) (quoting

Adkins, 310 U.S. at 388), vacated and remanded on

other grounds, Dep’t of Transp. v. Ass’n of Am. R.Rs.

(Amtrak II), 575 U.S. 43 (2015).

In Horsemen’s I, we ruled the Authority’s rulemaking

power was an unconstitutional private delegation. Our

analysis focused on the fact that the Authority’s

proposed rules were subject only to the FTC’s limited

“consistency review,” which did not permit the agency

See also generally A.L.A. Schechter Poultry Corp. v. United

States, 295 U.S. 495, 537 (1935); Carter v. Carter Coal Co., 298 U.S.

238, 311 (1936); Currin v. Wallace, 306 U.S. 1, 15–16 (1939);

Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 399 (1940).

11a

to second-guess the Authority’s policy choices. See

Horsemen’s I, 53 F.4th at 882–87. In response,

Congress amended HISA to provide that:

The [FTC], by rule in accordance with section

553 of Title 5, may abrogate, add to, and

modify the rules of the Authority promulgated in accordance with this chapter as

the Commission finds necessary or appropriate to ensure the fair administration of

the Authority, to conform the rules of the

Authority to requirements of this chapter and

applicable rules approved by the Commission,

or otherwise in furtherance of the purposes of

this chapter.

15 U.S.C. § 3053(e). This new provision was borrowed

from the Maloney Act, which allocates authority

between the Securities and Exchange Commission

(“SEC”) and private, self-regulatory organizations (such

as the Financial Industry Regulatory Authority

(“FINRA”)). See Oklahoma I, 62 F.4th at 231–32.

Although HISA was originally modeled on the Maloney

Act, it lacked this provision until the recent amendment. See Consolidated Appropriations Act, Pub. L. No.

117-328, div. O, tit. VII, § 701, 136 Stat. 4459, 5231–32

(2023). As noted, the district court followed the Sixth

Circuit in ruling that the amendment cured the

nondelegation problem with the Authority’s rulemaking power. See Black II, 672 F. Supp. 3d at 241–45

(citing Oklahoma I, 62 F.4th at 230, 232).

We agree with the district court and the Sixth

Circuit that the amendment cured the nondelegation

defect identified in Horsemen’s I. That defect lay in the

agency’s being at the mercy of the Authority’s policy

choices. See Horsemen’s I, 53 F.4th at 872 (“[T]he FTC

concedes it cannot review the Authority’s policy

12a

choices.”). For instance, when the Authority issued

rules on the kinds of horseshoes permitted during

races, the FTC told objecting commenters it lacked the

power to question the Authority’s views. See id. at 885

& n.29 (discussing FED. TRADE COMM’N, ORDER

APPROVING THE ENFORCEMENT RULE PROPOSED BY THE

HORSERACING INTEGRITY AND SAFETY AUTHORITY 26

(Mar. 25, 2022), https://www.ftc.gov/system/files/ftc_g

ov/pdf/P222100HISAOrderRacetrackSafety.pdf [https://

perma.cc/G3VQ-JPJR]). The amendment has corrected

that imbalance. Now, the FTC may “abrogate, add to,

and modify” the Authority’s rules. § 3053(e). So, unlike

before, if the FTC now disagrees with the policies

reflected in the Authority’s rules, it may change them.

See Oklahoma I, 62 F.4th at 230 (noting recent rule

explaining that FTC’s “new ‘rulemaking power’ allows

it to ‘exercise its own policy choices’” (quoting FED.

TRADE COMM’N, ORDER RATIFYING PREVIOUS COMMISSION

ORDERS AS TO HORSERACING INTEGRITY AND SAFETY

AUTHORITY’S RULES 3 (Jan. 3, 2023), https://www.ftc.

gov/system/files/ftc_gov/pdf/HISA%20Order%20re%20

Ratification%20of%20Previous%20Orders%20-%20Fi

nal%20not%20signed.pdf [https://perma.cc/44BK-37A9])).

As the Sixth Circuit correctly observed, “§ 3053(e)’s

amended text gives the FTC ultimate discretion over

the content of the rules,” which “makes the FTC the

primary rule-maker, and leaves the Authority as the

secondary, the inferior, the subordinate one.” Ibid.

(citing Adkins, 310 U.S. at 388).

Appellants’ arguments to the contrary do not

persuade us.

First, the Horsemen argue the Authority remains

superior because it continues to write the rules in the

first place and the agency must approve them if they

hurdle the low bar of consistency review. We disagree.

13a

The problem was never that the private entity

proposed the rules; the problem was that the agency

lacked power to second-guess them once they were

proposed. See Horsemen’s I, 53 F.4th at 884 (“The

FTC’s oversight is too limited to ensure the Authority

functions subordinately to the agency.” (cleaned up)

(quoting Adkins, 310 U.S. at 399)). Now the FTC has

been given that power: it can “abrogate” or “modify”

Authority rules it disagrees with. § 3053(e). And that

new power gives consistency review new bite.

Previously, consistency review “exclude[d] . . . the

Authority’s policy choices in formulating rules.”

Horsemen’s I, 53 F.4th at 885. Now it implicitly

includes review of those choices. The FTC must

approve only those rules “consistent with . . . applicable

rules approved by the [FTC],” and, thanks to the

amendment, it is the FTC that has final word over

what those rules are. § 3053(c)(2); see also Oklahoma

I, 62 F.4th at 231 (explaining that “the FTC’s later

authority to modify any rules for any reason at all,

including policy disagreements, ensures that the FTC

retains ultimate[] authority over the implementation

of the Horseracing Act”).5

Texas contends § 3053(e) does not solve the nondelegation

problem because it gives the FTC only limited rulemaking

authority—i.e., “to ensure the fair administration of the

Authority.” Because the FTC lacks plenary rulemaking authority,

Texas argues, the Authority still effectively calls the shots. We

disagree. Section 3053(e) empowers the FTC to engage in

rulemaking, not only for specified purposes, but also “otherwise

in furtherance of the purposes of [HISA].” This language,

borrowed from the Maloney Act, gives the agency “broad

authority to oversee and to regulate the rules adopted by the

[Authority] . . . , including the power to mandate the adoption of

any rules it deems necessary[.]” Shearson/Am. Express, Inc. v

McMahon, 482 U.S. 220, 233–34 (1987).

14a

Next, the Horsemen argue the FTC’s new review

power creates a timing problem. Because the FTC may

alter only rules “promulgated” by the Authority,

§ 3053(e), regulated entities may end up being subject

to the Authority’s rules until the FTC can intervene

and fix them. We disagree. The FTC has 60 days to

approve or disapprove a proposed rule. § 3053(c)(1). If

the FTC is concerned about a proposed rule going into

effect, then it can intervene and create safeguards to

prevent that from happening. See § 3053(a) (requiring

Authority to submit proposed rules to the FTC “in

accordance with such rules as the [FTC] may

prescribe”). For instance, the agency could adopt a rule

postponing the effective date of a newly enacted rule.

See Oklahoma I, 62 F.4th at 232 (suggesting this). Or

the agency could engage in emergency rulemaking to

delay the effective date of a rule. In any event, these

are hypothetical problems that, if they arise, can be

addressed in as-applied challenges. See Hersh P. U.S.

ex rel. Mukasey, 553 F.3d 743, 762 (5th Cir. 2008)

(holding that “as-applied challenges are preferred”).

This is a facial challenge, however, and we cannot say

that a potential timing gap in FTC’s § 3053(e) review

makes HISA unconstitutional in all its applications.

See United States P. Salerno, 481 U.S. 739, 745 (1987)

(holding that a facial challenger “must establish that

no set of circumstances exists under which the Act

would be valid”).6

The Horsemen also argue that the Authority can circumvent

the FTC by issuing unreviewable guidance documents, such as

dear colleague letters. We disagree. The Authority admits such

guidance would not have the force of law and, even if it did, the

FTC has authority to review guidance documents, § 3054(g)(2),

and to promulgate a rule overruling guidance it disagrees with.

15a

Finally, the Horsemen point to the SEC’s supervisory

authority over private self-regulatory organizations like

FINRA. They argue that, notwithstanding § 3053(e),

the FTC still has less sway over the Authority than

the SEC does over FINRA. We again disagree. We

previously pointed out that the “key distinction”

between the FTC and the SEC was the FTC’s lack of

general rulemaking power. See Horsemen’s I, 53 F.4th

at 887–88. “The SEC itself,” we explained, “can make

changes to FINRA rules, but the FTC can only

recommend changes to the Authority’s rules.” Id. at

888 (citation omitted). But Congress has now amended

HISA to give the FTC the same general rulemaking

authority that the SEC has with respect to FINRA. See

Oklahoma I, 62 F.4th at 225, 229 (reaching this

conclusion).

In sum, we agree with the district court and the

Sixth Circuit that, in light of Congress’s amendment

to HISA in § 3053(e), the Authority’s rulemaking

power is subordinate to the FTC’s. Because the FTC

has ultimate say on what the rules are, the Authority’s

power to propose horseracing rules does not violate the

private nondelegation doctrine.

B. Private Nondelegation Challenge to Authority’s

Enforcement

Appellants next argue that, apart from its rulemaking powers, the Authority’s enforcement powers

violate the private nondelegation doctrine. Recall that

the Authority enforces HISA by levying sanctions,

which are ultimately subject to FTC review, and by

bringing lawsuits. The Authority also has power to

investigate potential violations, although the actual

investigatory work is contracted to other private

organizations, such as HIWU in the case of doping

rules, or to state racing commissions in the case of

16a

racetrack safety rules. See supra Part I(A). Our

Horsemen’s I decision did not address this challenge to

the Authority’s enforcement powers, see 53 F.4th at

890 n.37, and on remand the district court treated it

as a due process claim and rejected it, see Black II, 672

F. Supp. 3d at 248–49. Appellants now bring the claim

to us, arguing that the Authority’s enforcement power

is not subordinate to FTC oversight.

Before addressing the merits of this claim, we must

address the Authority’s argument that it is premature.

Arguing both in terms of standing and ripeness, the

Authority contends that it has not yet tried to enforce

HISA against the Horsemen and that any challenge to

the Authority’s enforcement power can be raised if and

when it does. We disagree for several reasons.

First, the Authority misunderstands the Horsemen’s

claim. They do not challenge some particular

enforcement action undertaken by the Authority—

claiming, for instance, that the Authority issued an

overbroad subpoena for medical records or lacked

probable cause to search a racetrack.

Instead, the Horsemen argue that HISA, on its face,

vests the Authority with enforcement power that is

effectively unreviewable by the agency. When a

regulated entity raises “a purely legal challenge” like

this one, “it is unnecessary to wait for the Regulation

to be applied in order to determine its legality.”

Contender Farms, L.L.P. v. U.S. Dep’t of Agric., 779 F.3d

258, 267 (5th Cir. 2015) (cleaned up); see also Nat’l

Env’t Dev. Ass’n’s Clean Air Project v. EPA, 752 F.3d

999, 1008 (D.C. Cir. 2014) (“Petitioner’s challenge in

this case presents a purely legal question . . . . It is

unnecessary to wait for the [statute] to be applied in

17a

order to determine its legality.”); Susan B. Anthony

List v. Driehaus, 573 U.S. 149, 163 (2014) (“Nothing in

this Court’s decisions requires a plaintiff who wishes

to challenge the constitutionality of a law to confess

that he will in fact violate that law.”).

Second, the Horsemen have a cognizable injury for

standing purposes. Pursuant to HISA, they have

already had to agree “to be subject to and comply with

the [Authority’s] rules, standards, and procedures”—

including rules requiring they cooperate with

investigations, consent to searches, and comply with

subpoenas. See 15 U.S.C. § 3054(c)–(f). In other words,

the Horsemen are themselves “objects of the

Regulation,” and so “there is ordinarily little question”

that they have standing to challenge it. Contender

Farms, 779 F.3d at 264–65 (quoting Lujan v. Defs. of

Wildlife, 504 U.S. 555, 561–62 (1992)). And courts

typically do not require a regulated party to “bet the

farm” by violating a regulation before allowing it to

test its validity. Free Enter. Fund v. Pub. Co. Acct.

Oversight Bd., 561 U.S. 477, 490 (2010); see also, e.g.,

Metro. Wash. Airports Auth. v. Citizens for Abatement

of Aircraft Noise, Inc., 501 U.S. 252, 265 n.13 (1991)

(explaining that a separation-of-powers challenge to a

board’s veto powers was “ripe even if the veto power

ha[d] not been exercised to respondents’ detriment”).

Finally, the record shows several instances in

which the Authority has enforced HISA against the

Horsemen. For example, the Authority has threatened

one of the Horsemen’s members with sanctions if it did

not repair a racetrack railing. Additionally, the

Authority has both threatened and actually barred

member racetracks in Texas from broadcasting races

out of state because they failed to register with the

Authority. More generally, the Horsemen represent

18a

some 30,000 members and, when the parties filed their

briefs, the Authority’s website already listed hundreds

of enforcement actions—and that number has now

grown to over 3,000.7 So, at a minimum, the Horsemen

have shown a credible threat that the Authority will

bring enforcement actions against their members in

the future. See Driehaus, 573 U.S. at 164.

In sum, the Horsemen have standing to challenge

the Authority’s enforcement powers and that

challenge is ripe. We proceed to the merits.

The Horsemen’s (as well as Texas’s) basic contention

is that HISA grants the Authority enforcement power

that is effectively unreviewable by the FTC. That claim

turns on the same standard as the challenge to the

Authority’s rulemaking addressed in Horsemen’s I: the

delegation is constitutional if, when enforcing HISA,

the Authority “‘functions subordinately’ to an agency

with ‘authority and surveillance’ over it.” 53 F.4th at

881 (quoting Rettig, 987 F.3d at 532). In other words,

the Authority may constitutionally enforce HISA only

if it acts “as an aid” to the FTC, which “retains the

discretion to approve, disapprove, or modify” the

private entity’s enforcement actions. Ibid. (cleaned up)

(quoting Amtrak I, 721 F.3d at 671).8

See generally Rulings, HORSERACING INTEGRITY & SAFETY

AUTH., https://portal.hisausapps.org/public-rulings [https://per

ma.cc/24TV-7NV3] (last visited June 3, 2026) (listing 3,307

enforcement rulings)

As explained in Horsemen’s I, the D.C. Circuit’s Amtrak I

decision was vacated only because the Supreme Court found

Amtrak was a governmental, as opposed to private, entity. 53

F.4th at 881 n.22 (citing Amtrak II, 575 U.S. at 46, 50–55). The

D.C. Circuit’s private nondelegation analysis, however, remains

19a

While the constitutional standard is the same, the

nature of the delegated authority is different this

time around. Horsemen’s I addressed delegation of

legislative authority—the power to make rules. See

Myers v. United States, 272 U.S. 52, 186 (1926)

(MCREYNOLDS, J., dissenting) (“The essence of the

legislative authority is to . . . prescribe rules for the

regulation of the society[.]”). Logically, we focused on

which actor—government agency or private entity?—

had final say over the content of those rules. See

Horsemen’s I, 53 F.4th at 884–87 (analyzing FTC’s lack

of authority over the Authority’s policy choices). Today,

by contrast, we address delegation of executive

authority. The power to launch an investigation, to

search for evidence, to sanction, to sue—these are all

quintessentially executive functions.9 And they have

sound and has been approved by our court. See id. at 881

(explaining that Amtrak I “expressed the [private nondelegation

doctrine] more precisely” than prior formulations).

See, e.g., Bowsher v. Synar, 478 U.S. 714, 733 (1986)

(“Interpreting a law enacted by Congress to implement the

legislative mandate is the very essence of ‘execution’ of the law.”);

Morrison v. Olson, 487 U.S. 654, 696 (1988) (reasoning “the power

to initiate an investigation” is executive power that must be

subject to the Attorney General’s “unreviewable discretion”);

Buckley v. Valeo, 424 U.S. 1, 138, 140 (1976) (per curiam)

(concluding the “discretionary power to seek judicial relief” and

“conduct[] civil litigation in the courts of the United States for

vindicating public rights” are exercises of Article II executive

power); Seila L. LLC v. Consumer Fin. Prot. Bureau, 591 U.S. 197,

225 (2020) (holding the CFPB director unconstitutionally

exercised “executive power” to “set enforcement priorities, initiate

prosecutions, and determine what penalties to impose on private

parties”); id. at 219 (holding the “power to seek daunting

monetary penalties against private parties . . . [is] a

quintessentially executive power”); Free Enter. Fund, 561 U.S. at

504 (holding the “power to start, stop, or alter individual Board

investigations” is part of the executive power); Collins v. Yellen,

20a

been considered so from our Nation’s founding.10 As

much as legislative power, the private nondelegation

doctrine forbids unaccountable delegations of executive

power. See, e.g., Amtrak II, 575 U.S. at 62 (ALITO, J.,

concurring) (“Private entities are not vested with

‘legislative Powers.’ Art. I, § 1. Nor are they vested with

the ‘executive Power,’ Art. II, § 1, cl. 1, which belongs to

the President.”). Accordingly, we must determine

594 U.S. 220, 254 (2021) (holding the power “to issue subpoenas”

is an “executive power”); id. at 289 (SOTOMAYOR, J., concurring in

part and dissenting in part) (noting “the power to impose fines” is

an “executive power”); id. at 287 (arguing the FTC had significant

executive power because it had “wide powers of investigation” and

“broad authority to issue complaints and cease-and-desist orders”

(quoting Humphrey’s Ex’r v. United States, 295 U.S. 602, 620–21

(1935))); United States v. Grubbs, 547 U.S. 90, 98 (2006) (describing

a search as an “exercise of executive power”); California v. Acevedo,

500 U.S. 565, 586 (1991) (STEVENS, J., dissenting) (“The Fourth

Amendment is a restraint on Executive power.”).

See generally Dina Mishra, An Executive-Power NonDelegation Doctrine for the Private Administration of Federal

Law, 68 VAND. L. REV. 1509, 1545 (2015) (discussing “[c]ertain

types of tasks that seem quintessentially executive,” including

“the tasks of law enforcement—that is, of forcing compliance with

the law”); id. at 1546 (“Ratification-era history further supports

the understanding that law enforcement consists of forcing

compliance or imposing sanctions on law violators.” (citing THE

FEDERALIST No. 21, at 134–35 (Alexander Hamilton) (Clinton

Rossiter ed., 1961))); Aditya Bamzai & Saikrishna Bangalore

Prakash, The Executive Power of Removal, 136 HARV. L. REV.

1756, 1764 (2023) (“Law execution was the executive power’s

principal component.”); Saikrishna Prakash, The Essential

Meaning of Executive Power, 2003 U. ILL. L. REV. 701, 737

(“Executive officers investigate, apprehend, and prosecute

potential lawbreakers. As the wielder of the executive power, the

president is the chief of these law enforcement executives.”); Ilan

Wurman, In Search of Prerogative, 70 DUKE L.J. 93, 146–47

(2020) (arguing that law enforcement and prosecution powers

have been considered core executive functions since the Founding).

21a

whether HISA delegates enforcement power to private

entities and, if so, whether that power is subordinate

to the FTC.

HISA divides enforcement authority among the

FTC, the Authority, and HIWU, “each within the scope

of their powers and responsibilities under this

chapter.” § 3054(a). Recall that HIWU is the private

non-profit to whom the Authority must delegate

anti-doping and medication enforcement. See

§ 3054(e)(1)(B).11 So, the answer to the question before

us turns on what “powers and responsibilities” each of

these three entities has under HISA. Although

HISA somewhat confusingly disperses the relevant

provisions throughout the Act, we can discern the

following division of labor.

First, the Authority has responsibility for (1) investigating potential violations, including by issuing

subpoenas (§ 3054(h)); (2) levying sanctions (§§ 3054(j)(1),

3057, 3058(a)); and (3) bringing suit against violators

for injunctive relief or to enforce sanctions (§ 3054(j)(1)–

(2)). Second, actual enforcement of doping and

medication rules is done by HIWU, which “implement[s]”

those rules “on behalf of the Authority.” § 3054(e)(1)(E)(i).

In this regard, HIWU’s responsibilities include “independent investigations, charging and adjudication of

potential medication control rule violations, and the

enforcement of any civil sanctions for such violations.”

§ 3055(c)(4)(B); see also § 3054(e)(1)(E)(iv). Third, the

FTC may ask an ALJ to review any sanction de novo,

The Authority also “may enter into agreements” with State

racing commissions to enforce the racetrack safety program. See

§ 3054(e)(2)(A)(i), (3); § 3056(c). The Authority remains in charge,

however, and dictates the “scope of work, performance metrics,

reporting obligations, budgets, and any other matter [it] considers

appropriate.” § 3054(e)(2)(B).

22a

§ 3058(b)(1), and the FTC may itself review the ALJ’s

decision de novo, either on its own motion or upon

petition by an aggrieved party, § 3058(c).

The Act’s plain terms permit only one conclusion:

HISA is enforced by a private entity, the Authority. The

Authority decides whether to investigate a covered

entity for violating HISA’s rules. The Authority decides

whether to subpoena the entity’s records or search its

premises. The Authority decides whether to sanction

it. And the Authority decides whether to sue the entity

for an injunction or to enforce a sanction it has

imposed. To be sure, the Authority does not perform

these functions itself. Rather, HISA requires the

Authority to contract with another private entity,

HIWU, which undertakes enforcement “on behalf of

the Authority.” § 3054(e)(1)(E)(i). The bottom line,

though, is that a private entity, not the agency, is in

charge of enforcing HISA.

Consider also what HISA does not say. It does not

empower the FTC to decide whether to investigate a

covered entity, whether to subpoena its records,

whether to search its premises, whether to charge it

with a violation, or whether to sanction or sue it. Nor

does the Act empower the FTC to countermand any of

the Authority’s investigatory or charging decisions (or,

more precisely, HIWU’s decisions). Nor does it require

the Authority or HIWU to seek the FTC’s approval

before investigating, searching, charging, sanctioning,

or suing. All these actions are enforcement actions,

and, by the plain terms of the Act, they can be done by

the private entities without the FTC’s involvement.

The inescapable conclusion is that the Authority

does not “function subordinately” to the FTC when

enforcing HISA. Horsemen’s I, 53 F.4th at 881. That is

not permitted under the private nondelegation doctrine.

23a

A private entity that can investigate potential

violations, issue subpoenas, conduct searches, levy

fines, and seek injunctions—all without the say-so of

the agency—does not operate under that agency’s

“authority and surveillance.” Ibid. Put another way,

with respect to enforcement, HISA’s plain terms show

that the Authority does not merely act “as an aid” to

the FTC because the FTC does not “retain[] the

discretion to approve, disapprove, or modify” the

Authority’s enforcement actions. Ibid. (cleaned up)

(quoting Amtrak I, 721 F.3d at 671).

One might counter, though, that the FTC at least

partially supervises the Authority because it can

review sanctions at the back end, after ALJ review.

See §§ 3055(c)(4)(B), 3058(b)(3)–(c)(3). That is true, and

it is the Authority’s best argument for why its

enforcement power is subordinate to the FTC.

The argument nonetheless fails. Suppose the

Authority sanctions a horse owner for a doping

violation, but the sanction is later reversed by the FTC.

Does that make the Authority’s enforcement power

subordinate to the agency? No, it does not. Consider

everything the Authority was permitted to do up to

that point: launch an investigation into the owner,

subpoena his records, search his facilities, charge him

with a violation, adjudicate it, and fine him.12 Each and

every one of those actions is “enforcement” of HISA.

Not only does HISA facially permit that, but it has already

happened. For example, in one FTC appeal, it is uncontested that

three private Authority investigators showed up at the

appellant’s residence and served her with a notice of an alleged

doping violation (there is no personal service requirement under

the statute). The investigators then “subjected [the appellant] to

24a

Each can occur under HISA without any supervision

by the FTC. Moreover, penalties imposed by the

Authority are not automatically stayed pending

appeal. See 16 C.F.R. § 1.148(a) (2022). So, any penalty

goes into effect as soon as the Authority makes its

decision, unless the ALJ or FTC exercises its discretion

to implement a stay pending appeal. See § 3058(d).

It is no answer to say that the FTC can come in at

the tail-end of this adversarial process and review the

sanction. As far as enforcement goes, the horse was

already out of the barn. (You knew that was coming.)

a coercive interrogation in a small room” and searched “her barn

and . . . her mother’s car” for banned substances. Statement of

Contested Facts and Specification of Additional Evidence, In re

Lynch, 2024 WL 1111724 (F.T.C.), at *2, Dkt. No. 9423. She was

then fined $55,000 and banned from racing for 48 months. Id. at

*3. She later settled with the Authority, and the case was

dismissed. Order of Withdrawal from Review by the

Administrative Law Judge, In re Lynch, 2024 WL 4298917

(F.T.C.), Dkt. No. 9423. Authority investigators have also searched

defendants’ property and extracted fines under HISA’s strict

liability regime for possession of banned substances. For example,

one veterinarian forgot to clean out his trailer and still had two

buckets of a newly banned substance two weeks after the effective

date. Private Authority investigators searched his trailer, found

the buckets, fined him $5,000, and banned him from practice for

14 months. The ALJ affirmed on appeal. All this despite the fact

that the Authority and the ALJ conceded that the appellant

purchased the substance long before it was banned, forgot it was

in his trailer, and did not even attempt to use it on a horse. The

appellant petitioned the FTC to review the decision. That petition

was denied. Decision of the Commission on Application for

Review Under 15 U.S.C. § 3058, In re Perez, 2024 WL 3824065

(F.T.C.), Dkt. No. 9420; see also Administrative Law Judge

Decision on Application for Review, In re Poole, 2023 WL 8435860

(F.T.C.), Dkt. No. 9417 (affirming an $18,000 fine and banning him

from practice for 22 months for a similar inadvertent possession

of a newly banned substance).

25a

Besides, what if the sanctioned owner, instead of

fighting the process, opts to settle for a lower fine? See,

e.g., In re Lynch, 2024 WL 4298917 (F.T.C.), Dkt. No.

9423 (dismissing case due to settlement). In that case,

according to the Authority’s logic, no one has enforced

HISA. That is obviously not true. To the contrary, the

settlement scenario—which will likely happen often—

only underscores that it is the private entity that acts

as HISA’s enforcer in any meaningful sense.

Consider a hypothetical. Suppose a city structures

its speeding laws to let a group of private car

enthusiasts monitor speeds with their own radar guns,

pull speeders over, and ticket them. Fines are reviewed

by the police department and, ultimately, the mayor.

Who enforces the speeding laws? Anyone would say the

private group. After all, consider how many cases we

decide concerning whether the police have wrongly

stopped someone or used excessive force during the

stop. See, e.g., Terrell v. Town of Woodworth, No. 2330510, 2024 WL 667690 (5th Cir. Feb. 19, 2024) (per

curiam). All would agree that the police were

“enforcing” the law when they stopped the person. The

same goes for the private entity in the hypothetical.

The Authority’s argument, moreover, does not work

even on its own terms. In addition to levying fines,

HISA empowers the Authority to sue people and

racetracks to enjoin past, present, or impending

violations. See § 3054(j)(1) (providing “the Authority

may commence a civil action against a covered person

or racetrack that has engaged, is engaged, or is about

to engage, in acts or practices constituting a violation

of this chapter . . . to enjoin such acts or practices”);

§ 3054(j)(2) (allowing issuance of “a permanent or

temporary injunction or restraining order . . . without

bond”). HISA gives the FTC no role in this process,

26a

either before or after the fact. So, even assuming the

Authority is correct (and it is not) that the agency’s

after-the-fact supervision of sanctions makes the

Authority subordinate, the Authority is demonstrably

not subordinate when it comes to suing violators for

injunctions. That is plainly an unsupervised delegation of executive power that the Constitution does not

tolerate. See Buckley, 424 U.S. at 138 (“A lawsuit is the

ultimate remedy for a breach of the law, and it is to the

President . . . that the Constitution entrusts [this]

responsibility[.]”).

The Authority next argues that the FTC could use

its new rulemaking authority to rein in the Authority’s

enforcement actions or even require the Authority

to preclear lawsuits with the agency. See § 3053(e)

(empowering FTC to “abrogate, add to, and modify” the

Authority’s rules). This argument persuaded the

Sixth Circuit that at least a facial challenge to the

Authority’s enforcement powers should fail. See

Oklahoma I, 62 F.4th at 231 (through § 3053(e)

rulemaking, “the FTC could subordinate every aspect

of the Authority’s enforcement,” which “suffices to

defeat a facial challenge”). And we have already found

that the FTC’s rulemaking power has some purchase

in turning back a facial challenge to the Authority’s

rulemaking power: as explained, the agency could

ensure via rulemaking that no Authority rule could go

into effect until the agency had time to review it. See

supra Part III(A). With great respect to our colleagues

on the Sixth Circuit, however, we are not convinced

that this rulemaking argument can save the

Authority’s enforcement powers.

The Authority’s rulemaking argument would let the

agency rewrite the statute. In HISA, Congress set out

27a

a definite enforcement scheme, dividing responsibilities among the FTC, the Authority, and HIWU. See

§ 3054(c)(1), (e). HISA is quite clear about this: it

provides that those three entities “implement and

enforce” the Act, “each within the scope of their powers

and responsibilities under this chapter.” § 3054(a)(1)

(emphasis added). A mere agency cannot alter that

statutory division of labor. See, e.g., Gulf Fishermens

Ass’n v. Nat’l Marine Fisheries Serv., 968 F.3d 454, 460

(5th Cir. 2020) (“We will not defer to ‘an agency

interpretation that is inconsistent with the design and

structure of the statute as a whole.’” (quoting Util. Air

Regul. Grp. v. EPA, 573 U.S. 302, 321 (2014))); 5 U.S.C.

§ 706(2)(C) (authorizing courts to set aside agency

action “in excess of statutory jurisdiction, authority, or

limitations”).13 As the Supreme Court recently

See also Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 473

(2001) (holding that agency rulemaking “has no bearing upon”

whether a statutory delegation is constitutional); Hartford

Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6–

7 (2000) (“Where a statute names the parties granted the right to

invoke its provisions, such parties only may act.” (cleaned up));

Bayou Lawn & Landscape Servs. v. Sec’y of Lab., 713 F.3d 1080,

1084–85 (11th Cir. 2013) (holding it “axiomatic that an agency’s

power to promulgate legislative regulations is limited to the

authority delegate[d] to it by Congress” and that courts cannot

“locate . . . power in one agency where it had been specifically and

expressly delegated by Congress to a different agency”); Union

Pac. R.R. Co. v. Surface Transp. Bd., 863 F.3d 816, 823 (8th Cir.

2017) (finding express delegation to the Federal Railroad

Administration precluded implied authority claimed by the

private Board); Perot v. FEC, 97 F.3d 553, 559 (D.C. Cir. 1996) (per

curiam) (“We agree with the general proposition that when

Congress has specifically vested an agency with the authority to

administer a statute, it may not shift that responsibility to a

private actor[.]”); EPA v. EME Homer City Generation, L.P., 572

U.S. 489, 509 (2014) (relying on the statute’s “plain text and

28a

reiterated, even “statutory permission to ‘modify’ does

not authorize ‘basic and fundamental changes in the

scheme’ designed by Congress.” Biden v. Nebraska, 600

U.S. 477, 494 (2023) (quoting MCI Telecomms. Corp. v.

Am. Tel. & Tel. Co., 512 U.S. 218, 225 (1994)). Yet that

is just what the Authority says the FTC could do

through rulemaking.

Take the Authority’s power to seek injunctions.

HISA empowers the Authority to file suit to enjoin

violations, while saying nothing about FTC involvement in the process. See § 3054(j)(1). Yet the Authority

suggests the FTC could, by rule, require the Authority

to preclear any such action with the agency. We

disagree. That would let the agency amend the

enforcement scheme delineated by statute.14 The same

goes for investigatory and subpoena power: HISA

unqualifiedly gives that power to the Authority, see

§ 3054(h), and then requires the Authority to delegate

it to HIWU, see §§ 3054(e)(1)(E)(iv), 3055(c)(4)(B) (the

Authority “shall” contract with HIWU to “conduct and

oversee” anti-doping and medication enforcement

“including independent investigations”). And the same

goes for charging and adjudicating violations and

levying sanctions. See ibid. (the Authority “shall”

contract with HIWU to “conduct and oversee . . .

charging and adjudication of potential medication

structure [to] establish a clear chronology of federal and State

responsibilities” (quotation omitted)).

Nor could the Authority claim that the statute is merely

silent about FTC pre-approval and that gap could be filled by

rulemaking. Our circuit has repeatedly rejected this “nothingequals-something argument” for conjuring agency authority out

of thin air. Gulf Fishermens, 968 F.3d at 460–61 (citing Texas v.

United States, 809 F.3d 134, 186 (5th Cir. 2015), aff’d by an

equally divided court, 579 U.S. 547 (2016) (per curiam)).

29a

control rule violations, and the enforcement of any civil

sanctions for such violations”); § 3054(j) (recognizing

the Authority’s power to impose “civil sanctions”).

Congress enacted this reticulated scheme. The agency

cannot amend it by promulgating a rule.

Furthermore, when Congress wanted to put the

FTC in charge of enforcement, it knew how. Section

3059, for instance, is a separate part of HISA targeting

certain “unfair or deceptive” practices in selling

horses.15 With respect to that section, the Authority

can only “recommend” that the FTC “commence an

enforcement action.”16 § 3054(c)(1)(B). In other words,

only here did Congress limit the Authority’s enforcement discretion to “recommending” agency enforcement.

Cf. § 3054(j)(1) (providing “the Authority may commence

a civil action” seeking an injunction). Yet the Authority

contends that the agency could, by rulemaking,

make every enforcement action subject to similar FTC

approval. That would rewrite the enforcement scheme

Congress enacted. See Russello v. United States,

464 U.S. 16, 23 (1983) (“Where Congress includes

particular language in one section of a statute but

omits it in another section of the same Act, it is

generally presumed that Congress acts intentionally

See § 3059 (deeming it an unfair or deceptive practice under

15 U.S.C. § 45(a) to fail to disclose to a buyer that a horse was

administered “a bisphosphonate” before its fourth birthday or any

other prohibited substance).

See § 3054(c)(1)(B) (providing the “Authority . . . with respect

to an unfair or deceptive act or practice described in section 3059

of this title, may recommend that the Commission commence an

enforcement action”).

30a

and purposely in the disparate inclusion or exclusion.”

(cleaned up)).17

Additionally, the Sixth Circuit believed the FTC

could supervise the Authority through a slightly

different kind of rulemaking—that is, by issuing rules

governing how the Authority enforces HISA. See

Oklahoma I, 62 F.4th at 231. For instance, the agency

could issue rules against “overbroad subpoenas or

onerous searches” or “provid[ing] a suspect with a full

adversary proceeding and with free counsel.” Ibid.

Unhappily, we again disagree with our sister circuit.

The Horsemen are not complaining about how the

Authority exercises its enforcement power. They are

complaining about where the enforcement power is

lodged: on its face, HISA empowers private entities to

enforce it and permits agency oversight only after the

enforcement process is over and done with (and then

only with respect to fines, not injunctions). If the

Horsemen were objecting only to overbroad subpoenas,

unwarranted searches, or lack of free counsel, perhaps

those complaints could be addressed through rulemaking or as-applied challenges. But their complaint

is different. They contend that HISA facially delegates

unsupervised enforcement power to private actors.

They are right. See Salerno, 481 U.S. at 745 (recogniz17

Following our original Horsemen’s II decision, a split panel

of the Eighth Circuit disagreed with us on this point. See

Walmsley v. Fed. Trade Comm’n, 117 F.4th 1032, 1039–40 (8th Cir.

2024). In partial dissent, Judge Gruender agreed with our view.

See id. at 1041–44 (GxUENnEx, J., concurring in part and

dissenting in part). The Supreme Court subsequently vacated the

Eighth Circuit’s judgment and remanded for further consideration in light of Consumers’ Research. See 145 S. Ct. 2870 (2025)

(mem.). The Eighth Circuit has not yet issued a decision on

remand.

31a

ing challengers shoulder a “heavy burden” to demonstrate facial invalidity when they “establish that no set

of circumstances exists under which the Act would be

valid”).18

In sum, HISA’s clear delineation of enforcement

power between the FTC, the Authority, and HIWU

cannot be altered through rulemaking.

Finally, the Authority defends its enforcement role

by analogizing it to the role of self-regulatory

organizations (“SROs”)—specifically, FINRA—which

assist the SEC in enforcing securities laws. The

Authority seeks support in circuit cases concluding

that FINRA’s enforcement role presents no private

nondelegation problem. See, e.g., Oklahoma I, 62 F.4th

at 229, 232 (gathering cases).19 For their part, the

Moreover, consider the revealing premise of this line of

argument. Suppose the FTC issued a rule saying, “The Authority

can search racetracks only if it has probable cause.” Well and

good, but that rule still presupposes the Authority is the one doing

the search. Merely because the Authority would have to obey the

Fourth Amendment does not change the fact that a private entity

is searching your racetrack without agency say-so. And it is no

answer to say that the agency could issue a rule saying, “The

Authority can search racetracks only if the FTC approves the

search.” That rule, as explained, would amend the statute’s

division of authority. See § 3054(h) (“The Authority shall have

subpoena and investigatory authority with respect to civil

violations committed under its jurisdiction.”).

The Sixth Circuit relied on several cases upholding the

constitutionality of FINRA to hold that “[i]n case after case, the

courts have upheld [the Maloney Act’s] arrangement, reasoning

that the SEC’s ultimate control over the rules and their

enforcement makes the SROs permissible aides and advisors.”

Oklahoma I, 62 F.4th at 229. We do not read those cases quite so

broadly. They relied largely on the grounds that the SEC

32a

Horsemen argue that, for enforcement purposes, the

FTC–Authority relationship is meaningfully different

from the SEC–FINRA relationship. As we have before

noted, HISA was modeled on the Maloney Act, which

created FINRA. See Horsemen’s I, 53 F.4th at 887;

supra Part III(A). Moreover, we concluded in Horsemen’s I that HISA lacked a key feature of the Maloney

Act empowering the SEC to “abrogate, add to, and

delete” rules proposed by FINRA. Horsemen’s I, 53

F.4th at 887. As discussed, Congress added a similar

provision to HISA, which remedied the nondelegation

problem with the Authority’s rulemaking powers.

Supra Part III(A).

We agree with the Horsemen that, for enforcement

purposes, HISA gives the Authority an enforcement

role meaningfully different from FINRA’s. Unlike the

SEC–FINRA relationship, HISA does not give the FTC

potent oversight power over the Authority’s enforcement

such as the power to enforce HISA itself, deregister the

Authority as the enforcing entity, or remove its directors.

To begin with, Congress empowered the SEC to

enforce FINRA’s rules if needed. The SEC can “in its

discretion, make such investigations as it deems

necessary to determine whether any person has

violated, is violating, or is about to violate” the

Maloney Act. 15 U.S.C. § 78u(a)(1). The SEC can also,

ultimately approves any proposed rules and has its own generalized rulemaking power. See, e.g., R.H. Johnson & Co. v. SEC, 198

F.2d 690, 696 (2d Cir. 1952) (considering only whether the SEC

abused its discretion); Todd & Co. v. SEC, 557 F.2d 1008, 1012 (3d

Cir. 1977) (considering only a nondelegation challenge to the

SEC’s legislative rulemaking authority); First Jersey Sec., Inc. v.

Bergen, 605 F.2d 690, 697 (3d Cir. 1979) (same); Sorrell v. SEC,

679 F.2d 1323, 1325–26 (9th Cir. 1982) (same). But none

addressed a nondelegation challenge to executive power.

33a

on its own accord, seek criminal sanctions, injunctive

relief, or disgorgement. § 78u(c), (d), (d)(4). The FTC

cannot. See § 3054(c)(1)(A)(iii) (granting the Authority

investigatory power); § 3054(e) (granting the Authority

and HIWU enforcement responsibility). The SEC has

power to issue subpoenas, see §§ 77s(c), 78u(c), while

HISA gives the Authority that power, § 3054(h),

(c)(1)(A)(ii). The SEC can also revoke FINRA’s ability

to enforce its rules, § 78s(g)(2), and step in and enforce

any written rule itself, § 78o(b)(4). HISA gives the FTC

none of these tools.

Moreover, HISA diverges radically from the

Maloney Act in empowering the Authority to sue. The

SEC alone has the power to bring civil suits, §§ 78u1(a)(1), 78u(d)(1), while HISA gives that power

exclusively to the Authority, § 3054(j)(1). Giving a

private entity the sole power to sue in federal court to

enforce a statute cuts to the core of executive power.

See Buckley, 424 U.S. at 138 (“A lawsuit is the ultimate

remedy for a breach of the law, and it is to the

President . . . that the Constitution entrusts [this]

responsibility[.]”).20

One may reasonably ask whether HISA’s delegation of

enforcement authority is supported by an analogous delegation

in qui tam statutes. We think not. The Horsemen note our

decision in Riley v. St. Luke’s Episcopal Hospital, 252 F.3d 749

(5th Cir. 2001) (en banc), where we held that the False Claims Act

(“FCA”) does not violate Article I’s Take Care Clause. They argue

that Riley does not support HISA’s delegation because qui tam

relators are episodic and do not have a continuing relationship

with the government. That is true, but we see a more

fundamental distinction between the two statutes: under the

FCA, the executive branch has substantial power over qui tam

relators that the FTC does not have over the Authority. For

example, the United States can intervene in any qui tam

litigation, take control of the litigation, veto settlement

34a

Finally, the SEC “retains formidable oversight

power to supervise, investigate, and discipline

[FINRA] for any possible wrongdoing or regulatory

missteps.” In re NYSE Specialists Sec. Litig., 503 F.3d

89, 101 (2d Cir. 2007). The FTC does not. This

“formidable” power is manifest in the SEC’s ability to

derecognize FINRA’s regulatory role entirely, § 78s(a)(3),

(h)(1); remove FINRA board members for cause,

§ 78s(h)(4); remove any individual FINRA member,

§ 78s(h)(2); and bar any person from associating with

FINRA, § 78o-3(g)(2). HISA, on the other hand,

“recognize[s] for purposes of developing and implementing” the Act only “[t]he private, independent,

self-regulatory, nonprofit corporation, to be known as

the ‘Horseracing Integrity and Safety Authority.’”

§ 3052(a). And only the Authority’s Board can remove

members: directors by a two-thirds vote and

committee members for any reason.21

We now consider whether the Supreme Court’s

recent Consumers’ Research decision impacts our

private nondelegation analysis in this case.

Consumers’ Research addressed challenges to a federal

law tasking the Federal Communications Commission

(“FCC”) with providing affordable communications

services throughout the United States. The law

required telecom carriers to pay quarterly into a

agreements, and dismiss the suit “notwithstanding the objections

of the [relator].” Id. at 753–54. HISA gives the FTC none of those

powers.

In saying all this, we express no opinion on whether the

SEC–FINRA relationship poses any constitutional issues under

the private nondelegation doctrine (or any other doctrine). Such

questions are not posed by this case.

35a

Universal Service Fund (“USF”), which would be

distributed to underserved populations. A “contribution

factor,” devised by the FCC, would set each carrier’s

USF share. See Consumers’ Rsch., 606 U.S. at 664,

666–67, 668; 47 U.S.C. §§ 151, 254.

Much of Consumers’ Research addressed whether

the law improperly delegated legislative power to the

FCC (i.e., a “public” nondelegation challenge). See 606

U.S. at 672–91. The Supreme Court held it did not. In

brief, the Court explained that Congress had placed

sufficiently “intelligible” guardrails around the FCC’s

exercise of its assigned powers. See id. at 680–91; see

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

U.S. 394, 409 (1928) (asking whether Congress enacted

“intelligible principle[s]” to guide an agency’s exercise

of delegated authority).

The part of Consumers’ Research relevant here

concerned a separate challenge to the FCC’s appointment of a private organization—the Universal Service

Administrative Company (the “Administrator”)—to

manage the USF. Consumers’ Rsch., 606 U.S. at 669.

Among other tasks, the Administrator produced the

financial projections the FCC used to determine

carriers’ quarterly USF contribution. Id. at 669–70.

The Administrator’s role was challenged as the

delegation of legislative power to a private organization. Id. at 692. The Court rejected this challenge. Id.

at 692–95.

Drawing on its earlier precedents, the Court

reaffirmed the basic idea that a federal agency can

delegate power to a private organization only if it

functions “subordinately” to the agency. Ibid. (first

citing Carter Coal, 298 U.S. 238; and then citing

Adkins, 310 U.S. 381). The Court summarized the

doctrine this way: “As long as an agency . . . retains

36a

decision-making power, it may enlist private parties to

give it recommendations.” Id. at 692.

Applying that standard, the Court held the

Administrator’s role was permissible. The Administrator

was “broadly subordinate to the [FCC]” because (1)

the FCC appointed the Administrator’s board and

approved its budget; (2) the Administrator engaged in

“no policy-making” but was “just doing arithmetic”; (3)

the Administrator had to carry out all tasks consistent

with FCC directives; and (4) the FCC could review the

Administrator’s actions de novo. Id. at 693. Critically,

the FCC always had “a chance to review—and, if

needed, to revise” the Administrator’s projections

before approving them. Id. at 694; see also id. at 695

(observing the Administrator’s projections could not

“go into effect without [the FCC’s] say-so”). In sum, the

FCC “alone” had decision-making authority, while the

Administrator played only an “advisory role.” Id. at

693. Accordingly, the Court concluded the FCC’s

“transfer of accounting functions to the Administrator”

was proper because “[i]n every way that matters to

the constitutional inquiry, the [FCC], not the

Administrator, is in control.” Id. at 695.

For the following reasons, we conclude the private

nondelegation analysis in Consumers’ Research does

not change the outcome in this case.

To begin with, Consumers’ Research articulated the

same private nondelegation doctrine we applied before

(and now reapply). An agency, the Court explained,

may “rely on advice and assistance from private

actors,” provided they remain “broadly subordinate” to

the agency’s “authority and surveillance.” Id. at 692.

That doctrinal formulation is identical to our own:

37a

“[A] private entity may wield government power only

if it functions subordinately to an agency with

authority and surveillance over it.” Horsemen’s II, 107

F.4th at 423 (internal citations omitted). Indeed,

the Court drew on the same precedents we did.

Compare Consumers’ Rsch., 606 U.S. at 692 (discussing

Schechter Poultry, 295 U.S. 495; Carter Coal, 298 U.S.

238; Adkins, 310 U.S. 381), with Horsemen’s II, 107

F.4th at 423 n.4 (citing same cases); see also

Horsemen’s I, 53 F.4th at 880–81 (same).

So, Consumers’ Research did not alter the doctrine,

whose touchstone remains the same it has always

been—namely, whether the private organization is

“subordinate” to a superintending agency.

Nor does the Court’s application of the doctrine to

the USF Administrator change our conclusion in this

case about the Authority’s enforcement powers. As we

held before and now reaffirm, in exercising those

powers, the Authority does not function subordinately

to the FTC.

To see why, just compare the private actors in the

two cases. In Consumers’ Research, the Administrator

played merely an “advisory role,” leaving the FCC

“alone” with “decision-making authority.” Id. at 693.

The Administrator only recommended how to calculate the contribution factor—but its advice could not

go into effect until the FCC reviewed it, revised it if

necessary, and gave the final “say-so.” Id. at 693–95.

This arrangement meant “the [FCC], not the

Administrator, [wa]s in control.” Id. at 695.

The Authority wields power of an entirely different

color. HISA gives the Authority (and its secondary

private partner) power to investigate, subpoena, sue,

38a

and sanction covered entities. See Horsemen’s II, 107

F.4th at 429. The FTC is given no statutory authority

to approve, review, or countermand any of the

Authority’s investigatory, prosectuory, or adjudicatory

decisions. Ibid. All of that enforcement, according to

HISA’s “plain terms,” “can be done by the private

entities without the FTC’s involvement.” Ibid.; see

generally supra Parts I(A), III(B)(2).

True, the FTC has some back-end review over the

Authority’s enforcement actions. See supra Part III(B)(3)

(discussing §§ 3055(c)(4)(B), 3058(b)(3)–(c)(3)). So, one

might ask: isn’t that like the “de novo review” exercised

over the Administrator by the FCC? See Consumers’

Rsch., 606 U.S. at 693. No, it is not. As the Supreme

Court explained, nothing the USF Administrator does

respecting the contribution factor has any “legal (or,

indeed, practical) effect” until the agency “decides [it]

should.” Id. at 694. Contrast that with the Authority,

which is empowered to launch numerous intrusive

enforcement

actions—investigations,

subpoenas,

searches, charges, adjudications—all without any

agency oversight.22

This is where we continue to differ with the Sixth Circuit. On

remand, see Oklahoma v. United States, 145 S. Ct. 2836 (2025)

(mem.), our sister circuit reaffirmed its holding that the

Authority’s enforcement powers are subordinate to the FTC. See

Oklahoma II, 163 F.4th 294. Specifically, Oklahoma II relied on

the agency’s de novo review of Authority sanctions. Id. at 311. But

we have already explained why that review comes far too late to

constitute genuine oversight of the Authority’s wide-ranging

enforcement powers—such as investigations and subpoenas. See

supra Part III(B)(3). In addition, we have previously explained

why the FTC’s § 3053(e) rulemaking authority cannot amend the

statutory allocation of power between the agency and the

Authority, see supra Part III(B)(4), another point on which we

part ways with our Sixth Circuit colleagues. Cf. Oklahoma II, 163

39a

All that is to say: Consumers’ Research only

reinforces our previous conclusion. By exercising a raft

of unsupervised enforcement actions that go far

beyond the USF Administrator’s “recommendations,”

it is evident that “the [Authority], not the [FTC], is in

control.” Id. at 695.23

* * *

In sum, we agree with the Horsemen that the FTC

lacks adequate oversight and control over the Authority’s enforcement power. HISA’s explicit division of

enforcement responsibility empowers the Authority

with quintessential executive functions and gives the

FTC scant oversight until enforcement has already

occurred. Such back-end review by the FTC does not

subordinate the Authority. And the FTC’s general

rulemaking power provides no answer because

executive rulemaking cannot amend the plain division

of enforcement power laid out in HISA’s text. Such a

radical delegation differs materially from the SEC–

FINRA relationship because the FTC lacks any tools

to ensure that the law is properly enforced. HISA’s

F.4th at 312 (concluding FTC could constrain the Authority’s

investigatory powers by rule).

Although the point is not strongly contested by the parties

on remand, we note that Consumers’ Research also does not

change our previous holding concerning the Authority’s

rulemaking. See supra Part III(A). Texas points out that, unlike

in Consumers’ Research, the FTC neither appoints the Authority’s

Board nor approves its budget. True, but that feature is

outweighed by the far more critical point that the HISA

amendments give the agency final say-so over the content of any

rule before it ever takes effect. See supra Part III(A); see also

Walmsley, 117 F.4th at 1039; Oklahoma II, 163 F.4th at 308

(agreeing with us on this point).

40a

enforcement provisions thus facially violate the

private nondelegation doctrine.

C. Due Process Challenge

We turn next to the Horsemen’s challenge based on

the Fifth Amendment’s Due Process Clause. They

argue that HISA, both facially and as-applied, deprives

them of due process by permitting economically selfinterested actors to regulate their competitors. See

Carter Coal, 298 U.S. at 311 (government violates due

process by allowing regulation by “private persons

whose interests may be and often are adverse to the

interests of others in the same business”). Specifically,

the Horsemen contend that Carter Coal does not

require proof of economic self-interest, only that the

private person “may be” adverse to those he regulates.

They then argue that several members of the Board

and standing committees violate the conflict of

interest provisions due to their professions and prior

financial interests. Finally, the Horsemen contend that

the statute fails to properly protect against selfinterested actors because it does not cover financial

interests other than interests in a covered horse, as

opposed to a racetrack or other facility.

The district court correctly rejected these claims. As

to the Horsemen’s facial challenge, the court concluded

it was defeated by HISA’s conflict-of-interest provisions. See Black II, 672 F. Supp. 3d at 252. Those

provisions prohibit a range of individuals from serving

as Board or independent committee members, including

individuals with financial interests in, or who provide

goods or services to, covered horses; officials, officers,

or policy makers for an equine industry; and

employees, contractors, or immediate family members

of the prior individuals. § 3052(e)(1)–(4).

41a

As to the as-applied challenge, the district court

rejected it on the facts. Following a bench trial, the

court found the Horsemen relied only on the

committee members’ biographical information but

adduced no other evidence showing their adverse

interests, financial or otherwise. See Black II, 672 F.

Supp. 3d at 252 (“HISA affords sufficient protection

through its conflicts-of-interest provisions, and the

plaintiffs have not met their burden to show

unconstitutional self-dealing by directors, committee

members, or others associated with the Authority.”). At

most, the court observed that the biographical

information may show the members do not qualify

as “independent members.” Ibid.; § 3052(b)(1)(A)

(“[I]ndependent members [must be] selected from

outside the equine industry.”). But, as the court

pointed out, even assuming that to be true, it says

nothing about the members’ financial interests. Black

II, 672 F. Supp. 3d at 252. On appeal, the Horsemen

fail to show any error by the district court here.

D. Appointments Clause Challenge

A separate plaintiff, Gulf Coast, challenges the

Authority’s structure under the Appointments Clause

of Article II.24 Recall that Gulf Coast raised this

distinct challenge in a suit later consolidated with the

Horsemen’s. See id. at 230. Gulf Coast argues that, for

constitutional purposes, the Authority is governmen24

The Appointments Clause reads “[The President] shall

nominate, and by and with the Advice and Consent of the Senate,

shall appoint . . . all other Officers of the United States, whose

Appointments are not herein otherwise provided for” but provides

“the Congress may by Law vest the Appointment of such inferior

Officers, as they think proper, in the President alone, in the

Courts of Law, or in the Heads of Departments.” U.S. Const. art.

II, § 2, cl. 2.

42a

tal, not private, and so is subject to the Appointments

Clause. This means the Authority’s directors, if they

are principal officers, must be appointed by the

President with Senate confirmation or, if they are

inferior officers, by the President, courts, or department heads according to law. See Free Enter. Fund, 561

U.S. at 487–88; Cochran v. SEC, 20 F.4th 194, 198 (5th

Cir. 2021) (en banc). The Authority’s directors are not

appointed in any of these ways,25 and so, if Gulf Coast

is right, their appointment would violate Article II.

The Authority and the FTC first respond that we

previously decided this question in Horsemen’s I. By

applying the private nondelegation doctrine to the

Authority, they argue we necessarily determined the

Authority is not governmental for constitutional

purposes. The district court took this view as well.

See Black II, 672 F. Supp. 3d at 234. That is understandable. Challenges based on private nondelegation,

on the one hand, and the Appointments Clause, on the

other, appear mutually exclusive. For constitutional

purposes, an entity is either governmental or not. See,

e.g., Lebron, 513 U.S. at 378–79; Amtrak II, 575 U.S. at

50–51. That is why the Horsemen themselves call Gulf

Coast’s claim “fundamentally incompatible” with their

private nondelegation challenge. Texas seems to agree,

noting that Gulf Coast’s Appointments Clause theory

would apply only if “the Court disagree[s]” with its

assumption that the Authority is private.

That said, however, we cannot agree that we decided

this question in Horsemen’s I. The Appointments

Clause question was never posed. Party presentation

The directors are appointed by the Authority itself. See

§ 3052(d)(3) (Board members are selected by the Authority’s

nominating committee).

43a

is a fundamental constraint on appellate decisionmaking. See United States v. Sineneng-Smith, 590 U.S.

371, 376 (2020) (“Courts . . . wait for cases to come to

them, and when cases arise, courts normally decide

only questions presented by the parties.” (cleaned up)).

The fact is that in Horsemen’s I, all parties proceeded

on the assumption that the Authority is private for

constitutional purposes. See Horsemen’s I, 53 F.4th at

875 n.11 (“The Horsemen also claimed HISA was

unconstitutional under the . . . Appointments Clause.

The district court did not rule on those claims and so

they are not before us.”). No one suggested that the

Authority might qualify as a government entity or that

its directors were subject to the Appointments Clause.

So, because we did not settle the question previously,

we can address it now. See Companion Prop. & Cas.

Ins. Co. v. Palermo, 723 F.3d 557, 561 (5th Cir. 2013)

(“Appellate powers are limited to reviewing issues

raised in, and decided by, the district court.” (cleaned

up)); Alpha/Omega Ins. Servs., Inc. v. Prudential Ins.

Co. of Am., 272 F.3d 276, 281 (5th Cir. 2001) (“[T]he law

of the case doctrine only applies to issues we actually

decided[.]”).

The basic premise of Gulf Coast’s argument is that

the Authority is part of the federal government for

Appointments Clause purposes. See Amtrak II, 575

U.S. at 50–51. We of course recognize that HISA calls

the Authority private, as does the Authority’s own

charter. See § 3052(a) (“The private, independent, selfregulatory, nonprofit corporation, to be known as the

‘Horseracing Integrity and Safety Authority,’ is

recognized for purposes of developing and implementing [HISA].”); HORSERACING INTEGRITY & SAFETY

AUTH., INC., DEL. SEC’Y OF STATE, CERTIFICATE OF

INCORPORATION 1 (2020) (“The Corporation is organized and shall be operated as a nonprofit business

44a

league[.]”). But deeming an entity “private” does not

settle whether it is legally part of the federal

government. Otherwise, the government could evade

constitutional restrictions by mere labeling. See

Lebron, 513 U.S. at 397 (“It surely cannot be that

government, state or federal, is able to evade the most

solemn obligations imposed in the Constitution by

simply resorting to the corporate form.”). So, we must

determine whether the Authority qualifies as part of

the federal government for constitutional purposes.

The analysis guiding that inquiry comes from

Lebron. In that case, the Supreme Court examined

“the long history of corporations created and participated in by the United States for the achievement of

governmental objectives.” Id. at 386.26 The specific

question before the Court was whether “Amtrak,

though nominally a private corporation, must be

regarded as a Government entity for First Amendment

purposes.” Id. at 383. The answer was yes. That was so,

the Court held, because “the Government create[d]

[the Amtrak] corporation by special law, for the

furtherance of governmental objectives, and retain[ed]

for itself permanent authority to appoint a majority of

the directors of that corporation.” Id. at 399. The

Supreme Court and circuit courts have since used

Lebron’s analysis to discern whether corporations are

part of the government for constitutional purposes.27

See also id. at 386–91 (discussing corporations such as the

first and second Banks of the United States, the Panama Railroad

Company, the United States Grain Corporation, the Reconstruction

Finance Corporation, the Federal Deposit Insurance Corporation,

the Communications Satellite Corporation, the Corporation for

Public Broadcasting, and the Legal Services Corporation).

See Nebraska, 600 U.S. at 490–93 (applying Lebron to

conclude that the Missouri Higher Education Loan Authority is

“an instrumentality of Missouri”); Free Enter. Fund, 561 U.S. at

45a

Applying Lebron, we conclude that the Authority is not

a federal instrumentality for purposes of the

Appointments Clause.

First, the Authority was not created by the federal

government “by special law,” ibid., but was incorporated under Delaware law shortly before HISA’s

passage. Contrast this with Amtrak, which “Congress

established” by enacting the Rail Passenger Service

Act of 1970. Id. at 383–84; see also Nat’l R.R. Passenger

Corp. v. Atchison, Topeka & Santa Fe Ry. Co., 470 U.S.

451, 454 (1985) (observing “Congress established the

National Railroad Passenger Corpor

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.