Petition for Writ of Certiorari — Texas, et al., Petitioners v. Jerry Black, et al.
Supreme Court briefSep 9, 2026
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No. ______
In the Supreme Court of the United States
STATE OF TEXAS AND TEXAS RACING COMMISSION,
Petitioners,
v.
JERRY BLACK, ET AL.,
Respondents.
On Petition for Writ of Certiorari to the
United States Court of Appeals for the Fifth Circuit
PETITION FOR WRIT OF CERTIORARI
KEN PAXTON
Attorney General of Texas
BRENT WEBSTER
First Assistant Attorney
General
WILLIAM R. PETERSON
Solicitor General
Counsel of Record
WILLIAM F. COLE
Principal Deputy Solicitor
General
BETH KLUSMANN
Deputy Solicitor General
OFFICE OF THE TEXAS ATTORNEY GENERAL
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
William.Peterson@oag.texas.gov
(512) 936-1700
Counsel for Petitioners
i
QUESTION PRESENTED
In 2020, Congress enacted the Horseracing Integrity
and Safety Act (HISA) to federally regulate the
horseracing industry. 15 U.S.C. §§ 3051-60. HISA gives
the power to “develop[] and implement[] a horseracing
anti-doping and medication control program and a racetrack safety program” to the Horseracing Integrity and
Safety Authority (the Authority), a “private, independent, self-regulatory, nonprofit corporation.” Id.
§ 3052(a).
HISA’s delegation of rulemaking authority to a private corporation is unconstitutional under this Court’s
recent holding that an agency “may enlist private parties
to give it recommendations” provided that the agency
“retains decision-making power.” FCC v. Consumers’
Rsch., 606 U.S. 656, 692 (2025). Under HISA, the Authority does not make recommendations, and the Federal
Trade Commission (FTC) does not exercise decisionmaking power: The Authority writes the rules, and the
FTC must approve them unless they violate HISA or
other applicable rules. 15 U.S.C. § 3053(c)(2). If the FTC
disagrees with the Authority’s policy choices, its only option is to engage in notice-and-comment rulemaking, id.
§ 3053(e), a “poor means of micromanaging [an entity]’s
affairs,” Free Enter. Fund v. PCAOB, 561 U.S. 477, 504
(2010). For all practical purposes, the horseracing industry is governed by the Authority, a private entity operating outside the government’s control.
The question presented is:
Whether Congress, through HISA, has unconstitutionally delegated legislative authority to a private entity.
ii
PARTIES TO THE PROCEEDING
Petitioners the State of Texas and the Texas Racing
Commission were intervenor plaintiffs-appellants below.
Respondents Jerry Black; Katrina Adams; Leonard
Coleman; MD Nancy Cox; Joseph Dunford; Frank Keating; Kenneth Schanzer; Lisa Lazarus; Steve Beshear;
Adolpho Birch; Ellen McClain; Charles Scheeler; Joseph
DeFrancis; Susan Stover; Bill Thomason; D.G. Van Clief;
the Horseracing Integrity and Safety Authority, Incorporated; the Federal Trade Commission; Chair Andrew
Ferguson; and Commissioner Mark R. Meador were defendants-appellees below. 1
Respondents 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
Under Supreme Court Rule 35.3, Commissioners Ferguson and
Meador were automatically substituted for their predecessors. Former Chair Lina Khan and former Commissioners Noah Phillips,
Christine Wilson, Rebecca Slaughter, Alvaro Bedoya, and Melissa
Holyoak are not parties to the proceeding because they no longer
hold Commission titles.
1
iii
Protective Association; 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. were plaintiffs-appellants below.
As far as petitioners are aware, no party has a stock
ticker symbol.
iv
STATEMENT OF RELATED PROCEEDINGS
District Court:
Nat’l Horsemen’s Benevolent & Protective Ass’n v.
Black, No. 5:21-CV-00071-H, U.S. District Court for the
Northern District of Texas. Judgment entered May
4, 2023.
Gulf Coast Racing, LLC v. Horseracing Integrity &
Safety Auth., No. 5:23-CV-00077-H, U.S. District Court
for the Northern District of Texas. Case transferred and
consolidated April 11, 2023.
Court of Appeals:
Nat’l 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.
Nat’l 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.
Supreme Court of the United States:
Horseracing Integrity & Safety Auth., Inc. v. Nat’l
Horsemen’s Benevolent & Protective Ass’n, No. 24A287,
Supreme Court of the United States. Administrative
stay entered September 23, 2024.
Horseracing Integrity & Safety Auth., Inc. v. Nat’l
Horsemen’s Benevolent & Protective Ass’n, No. 24-433,
Supreme Court of the United States. Granted, vacated,
and remanded June 30, 2025.
Fed. Trade Comm’n v. Nat’l Horsemen’s Benevolent
& Protective Ass’n, No. 24-429, Supreme Court of the
United States. Granted, vacated, and remanded June 30,
2025.
v
Texas v. Black, No. 24-465, Supreme Court of the
United States. Granted, vacated, and remanded June 30,
2025.
Nat’l Horsemen’s Benevolent & Protective Ass’n v.
Horseracing Integrity & Safety Auth., Inc., No. 24-472,
Supreme Court of the United States. Granted, vacated,
and remanded June 30, 2025.
Gulf Coast Racing, LLC v. Horseracing Integrity &
Safety Auth., Inc., No. 24-489, Supreme Court of the
United States. Granted, vacated, and remanded June 30,
2025.
Horseracing Integrity & Safety Auth., Inc. v. Nat’l
Horsemen’s Benevolent & Protective Ass’n, No. 26-199,
Supreme Court of the United States. Petition for writ of
certiorari filed August 10, 2026.
Fed. Trade Comm’n v. Nat’l Horsemen’s Benevolent
& Protective Ass’n, No. 26-201, Supreme Court of the
United States. Petition for writ of certiorari filed August
14, 2026.
vi
TABLE OF CONTENTS
Page
Question Presented............................................................ i
Parties to the Proceeding ................................................. ii
Statement of Related Proceedings ................................. iv
Table of Authorities ....................................................... viii
Petition for Writ of Certiorari ......................................... 1
Opinions Below.................................................................. 3
Jurisdiction ........................................................................ 3
Constitutional and Statutory Provisions Involved ......... 3
Statement of the Case ...................................................... 3
I. Horseracing Integrity and Safety Act ................. 3
A. The Authority .................................................. 3
B. The Authority’s rulemaking power ................ 5
C. The Authority’s enforcement power .............. 7
II. Procedural History................................................ 9
A. Texas’s complaint ............................................ 9
B. Texas’s first appeal ........................................ 10
C. Texas’s second appeal ................................... 12
Reasons for Granting the Petition................................. 16
I. The Fifth Circuit’s Decision Conflicts with
This Court’s Precedent. ...................................... 16
A. The Fifth Circuit’s decision is contrary
to the Court’s private-nondelegation
precedent. ....................................................... 17
B. Notice-and-comment rulemaking is not
adequate supervision under this Court’s
precedent. ....................................................... 21
II. The Circuits Do Not Agree on the Constitutional
Test. ...................................................................... 27
III. This Question Is Exceptionally Important........ 29
Conclusion ....................................................................... 33
vii
Appendix A — Court of Appeals Opinion
(June 11, 2026) .................................... 1a
Appendix B — Supreme Court of the United
States Order Granting, Vacating,
and Remanding (June 30, 2025)....... 51a
Appendix C — District Court Memorandum
Opinion and Order (May 4, 2023) .... 52a
Appendix D — Relevant Provisions of the United
States Constitution ........................ 112a
Appendix E — Horseracing Integrity and Safety
Act ................................................... 113a
viii
TABLE OF AUTHORITIES
Page(s)
Cases:
A.L.A. Schechter Poultry Corp. v. United States,
295 U.S. 495 (1935) .................................................. 16
Ass’n of Am. R.Rs. v. U.S. Dep’t of Transp.,
721 F.3d 666 (D.C. Cir. 2013),
vacated, 575 U.S. 43 (2015) ................11, 24-25, 27, 29
Biden v. Nebraska,
600 U.S. 477 (2023) .................................................. 26
Carter v. Carter Coal Co.,
298 U.S. 238 (1936) ................................... 1, 17, 18, 28
Dep’t of Transp. v. Ass’n of Am. R.Rs.,
575 U.S. 43 (2015) ................... 1, 11, 16, 17, 20, 25, 32
Edmond v. United States,
520 U.S. 651 (1997) .................................................. 21
FCC v. Consumers’ Rsch.,
606 U.S. 656 (2025) ........................... i, 1, 14, 16-22, 30
Free Enter. Fund v. PCAOB,
561 U.S. 477 (2010) ........................................... i, 2, 22
Gundy v. United States,
588 U.S. 128 (2019) .............................................. 1, 30
INS v. Chadha,
462 U.S. 919 (1983) .................................................. 31
Kennedy v. Braidwood Mgmt., Inc.,
606 U.S. 748 (2025) .................................................. 21
Loving v. United States,
517 U.S. 748 (1996) .................................................. 16
MCI Telecomms. Corp. v. Am. Tel. & Tel. Co.,
512 U.S. 218 (1994) .................................................. 26
ix
Mistretta v. United States,
488 U.S. 361 (1989) .................................................. 23
Nat’l Horsemen’s Benevolent & Protective
Ass’n v. Black,
53 F.4th 869 (5th Cir. 2022) ................... 1, 4, 6, 10, 11
Nat’l Horsemen’s Benevolent & Protective
Ass’n v. Black,
107 F.4th 415 (5th Cir. 2024) ...................... 12, 13, 14
Oklahoma v. United States,
62 F.4th 221 (6th Cir. 2023),
vacated, 145 S. Ct. 2836 (2025) ................................ 12
Oklahoma v. United States,
163 F.4th 294 (6th Cir. 2025) ...................... 22, 24, 27
Paul v. United States,
589 U.S. 1087 (2019) ................................................ 30
Pittston Co. v. United States,
368 F.3d 385 (4th Cir. 2004) ............................. 28, 29
R.H. Johnson & Co. v. SEC,
198 F.2d 690 (2d Cir. 1952) ..................................... 31
Riverbend Farms, Inc. v. Madigan,
958 F.2d 1479 (9th Cir. 1992)............................. 28-29
Sorrell v. SEC,
679 F.2d 1323 (9th Cir. 1982).................................. 31
Sunshine Anthracite Coal Co. v. Adkins,
310 U.S. 381 (1940) ................................. 16-21, 28, 29
Texas v. Comm’r for Internal Revenue,
142 S. Ct. 1308 (2022) .................................... 2, 19, 30
Trump v. Slaughter,
146 S. Ct. 2283 (2026) ........................................ 21, 31
United States v. Arthrex, Inc.,
594 U.S. 1 (2021) ...................................................... 30
United States v. Frame,
885 F.2d 1119 (3d Cir. 1989) ................................... 28
x
United States v. Martinez-Flores,
428 F.3d 22 (1st Cir. 2005) ................................ 24, 25
United States v. Palazzo,
558 F.3d 400 (5th Cir. 2009) ................................... 24
Util. Air Regul. Grp. v. EPA,
573 U.S. 302 (2014) ............................................ 22, 25
W.V. ex rel. Morrisey v. U.S. Dep’t of the Treasury,
59 F.4th 1124 (11th Cir. 2023) ................................ 25
Walmsley v. FTC,
117 F.4th 1032 (8th Cir. 2024),
vacated, 145 S. Ct. 2870 (2025) ................................ 22
Whitman v. Am. Trucking Ass’ns,
531 U.S. 457 (2001) ............................. 2, 17, 22, 24, 25
Constitutional Provisions, Statutes and Rules:
U.S. Const. art. I, § 1 ....................................... 1, 16, 17, 29
15 U.S.C.
§ 78s(c) ..................................................................... 11
§§ 3051-60 ........................................................... i, 1, 3
§ 3051(4) ..................................................................... 4
§ 3051(5) ..................................................................... 4
§ 3051(6) ..................................................................... 4
§ 3052(a) ............................................. i, 4, 5, 16, 19, 25
§ 3052(b) ......................................................... 5, 21, 25
§ 3052(c) ............................................................... 5, 21
§ 3052(f)(2) ................................................................. 5
§ 3052(f)(3) ................................................................. 5
§ 3052(f)(3)(D) ........................................................... 5
§ 3052(f)(5) ................................................................. 5
§ 3053(a) ............................................................... 6, 25
§ 3053(b)(1) .......................................................... 6, 26
§ 3053(c) ................................................................... 26
§ 3053(c)(2)................................... i, 1, 6, 16, 20, 28, 29
§ 3053(e) ........................... i, 2, 7, 12, 17, 22, 26, 28, 29
xi
15 U.S.C.
§ 3054(b) ..................................................................... 6
§ 3054(c) ................................................................... 26
§ 3054(c)(1)(A) ........................................................... 8
§ 3054(c)(1)(B) ........................................................... 8
§ 3054(e)(1)(B) ........................................................... 8
§ 3054(g) ....................................................... 20, 26, 29
§ 3054(g)(3) .............................................................. 20
§ 3054(h) ................................................................... 26
§ 3054(j)................................................................ 8, 26
§ 3054(l) ...................................................................... 4
§ 3054(l)(1) ............................................................... 26
§ 3055 ......................................................................... 5
§ 3055(c)(4)(B) ........................................................... 8
§ 3056 ......................................................................... 5
§ 3057 ......................................................................... 7
§ 3057(d)(3)(A) ........................................................... 8
§ 3058 ....................................................................... 26
§ 3058(b) ..................................................................... 9
§ 3058(b)(2)(A)(iii) ..................................................... 9
§ 3058(c) ..................................................................... 9
28 U.S.C. § 1254(1) ............................................................ 3
Tex. Occ. Code
§ 2021.002 ................................................................... 9
§ 2022.001(a) .............................................................. 9
§ 2033.051 ................................................................... 9
§ 2033.151 ................................................................... 9
16 C.F.R.
§§ 1.140-.144 .............................................................. 7
§§ 1.150-.152 .............................................................. 7
§§ 1.153-.156 .............................................................. 7
47 C.F.R. § 54.702(c) ....................................................... 20
HISA Rule 8400 ................................................................ 8
xii
Sup. Ct. R. 35.3.................................................................. ii
16 Tex. Admin. Code
§§ 309.1-.53 ................................................................ 9
§§ 309.101-.299........................................................... 9
§§ 311.101-.112........................................................... 9
§§ 313.1-.450 .............................................................. 9
§§ 319.1-.112 .............................................................. 9
§§ 319.301-.364........................................................... 9
Other Authorities:
Amicus Br. of Sen. McConnell, Horseracing
Integrity & Safety Auth. v. NHBPA,
No. 24A287 (U.S. Sept. 24, 2024) ........................... 31
Bituminous Coal Act of 1937, Pub. L. No. 75-48,
50 Stat. 72 (1937) ...................................................... 18
Consolidated Appropriations Act, 2021,
Pub. L. No. 116-260, 134 Stat. 1182 (2020) ............... 3
Consolidated Appropriations Act, 2023,
Pub. L. No. 117-328, 136 Stat. 4459 (2022) ............... 7
FINRA Am. Br., NHBPA v. Black,
No. 23-10520 (5th Cir. July 14, 2026) ..................... 31
HISA, 2025 Annual Metrics Report, available at
https://bphisaweb.wpengine.com/wpcontent/uploads/2026/03/2025-Annual-MetricsReport.pdf .................................................................. 4
HISA, 2025 Annual Performance Report, available
at https://bphisaweb.wpengine.com/wpcontent/uploads/2026/03/2025-AnnualPerformance-Report.pdf ........................................... 8
HISA, Regulations,
https://hisaus.org/regulations ................................... 6
John F. Manning, Lawmaking Made Easy,
10 Green Bag 2d (2007) ............................................ 32
xiii
Order, Horseracing Integrity & Safety Auth. v.
NHBPA,
No. 24A287 (U.S. Sept. 23, 2024) ........................... 14
Order, NHBPA v. Black,
No. 23-10520 (5th Cir. July 14, 2026) ..................... 15
Order, NHBPA v. Black,
No. 22-10387 (5th Cir. Jan. 31, 2023) ..................... 12
Pet. for Writ of Cert., FTC v. NHBPA,
No. 26-201 (U.S. Aug. 14, 2026).......................... 2, 15
Pet. for Writ of Cert., Horseracing Integrity &
Safety Auth. v. NHBPA,
No. 26-199 (U.S. Aug. 10, 2026).......................... 2, 15
PETITION FOR WRIT OF CERTIORARI
Deciding that the Thoroughbred horseracing industry should be regulated at the national level, Congress
enacted the Horseracing Integrity and Safety Act. 15
U.S.C. §§ 3051-60. But Congress did little more in HISA
than generally decree that racetracks should be safe and
illicit substances banned. Congress instead delegated to
a private corporation—the Authority—the power to
write and enforce substantive, industry-wide standards.
The Authority’s mandate goes far beyond “fill[ing] up
the details” of a congressionally crafted scheme, Gundy
v. United States, 588 U.S. 128, 157 (2019) (Gorsuch, J.,
dissenting), but requires it to create entire regulatory
programs largely from scratch and then enforce its rules
against industry participants.
Under the Constitution, “[a]ll legislative Powers
herein granted shall be vested in a Congress,” U.S.
Const. art. I, § 1, and “handing off regulatory power to a
private entity is ‘legislative delegation in its most obnoxious form,’” Dep’t of Transp. v. Ass’n of Am. R.Rs.
(Amtrak II), 575 U.S. 43, 62 (2015) (Alito, J., concurring)
(quoting Carter v. Carter Coal Co., 298 U.S. 238, 311
(1936)). While this Court permitted the delegation of “accounting functions” in Consumers’ Research, 606 U.S. at
695, the delegation in HISA is different in kind. Under
HISA, the Authority writes the rules that govern an entire industry, and the FTC is obligated to approve them.
15 U.S.C. § 3053(c)(2). The Authority sets policy, and the
members of its board cannot be appointed or removed by
any federal official. The Fifth Circuit rightly concluded
that this delegation was unconstitutional. Nat’l Horsemen’s Benevolent & Protective Ass’n v. Black (Black I),
53 F.4th 869, 890 (5th Cir. 2022).
(1)
2
Congress’s solution was to give rulemaking power to
the FTC to abrogate, add to, and modify the Authority’s
rules. 15 U.S.C. § 3053(e). The Fifth Circuit wrongly concluded that the option to engage in notice-and-comment
rulemaking meant the Authority now functioned subordinately to the FTC. App. 10a-15a. This Court has already held that rulemaking is a poor means of supervision, PCAOB, 561 U.S. at 504; and that an agency cannot
remedy a delegation violation through its own actions,
Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 472
(2001). The conclusion that a private entity is sufficiently
supervised as long as a federal actor could someday override the entitiy’s decisions vitiates the private-nondelegation doctrine because Congress always retains that
power. HISA’s delegation lacks the Constitution’s
“checkpoints” designed “[t]o ensure the Government remains accountable to the public.” Texas v. Comm’r for
Internal Revenue (CIR), 142 S. Ct. 1308, 1309 (2022)
(Alito, J., concurring in denial of review).
The State of Texas and the Texas Racing Commission
(collectively, Texas) agree with the Authority and the
FTC that this case presents a question of “legal and
practical importance.” See Pet. for Writ of Cert. at 3,
Horseracing Integrity & Safety Auth. v. NHBPA,
No. 26-199 (U.S. Aug. 10, 2026)—indeed, two such questions—and merits this Court’s review. Texas does not oppose the Authority’s and FTC’s petitions for writ of certiorari, which concern whether HISA’s vesting of executive power in a private entity violates the private-nondelegation doctrine. See Pet. for Writ of Cert. at i,
Horseracing Integrity & Safety Auth. v. NHBPA, supra; Pet. for Writ of Cert. at I, FTC v. NHBPA, No. 26201 (U.S. Aug. 14, 2026).
3
This Court should also address the antecedent question of whether HISA’s vesting of legislative power in
that same private entity violates the private-nondelegation doctrine. It makes little sense for this Court to resolve whether the Authority can enforce its rules without
first determining whether the Authority can make those
rules in the first place.
OPINIONS BELOW
The opinion of the United States Court of Appeals for
the Fifth Circuit, 178 F.4th 224, is reproduced at
App. 1a-50a. The opinion of the United States District
Court for the Northern District of Texas, 672
F. Supp. 3d 220, is reproduced at App. 52a-111a.
JURISDICTION
The Fifth Circuit entered its judgment on June 11,
2026. Texas invokes the Court’s jurisdiction under
28 U.S.C. § 1254(1).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
Pertinent constitutional provisions and the Horseracing Integrity and Safety Act, 15 U.S.C. §§ 3051-60, are
set forth in the appendix to this brief. App. 112a-156a.
STATEMENT OF THE CASE
I. Horseracing Integrity and Safety Act
A. The Authority
Having decided to federally regulate the horseracing
industry, Congress enacted HISA in 2020 as part of the
Consolidated Appropriations Act, 2021, Pub. L. No. 116260, §§ 1201-12, 134 Stat. 1182, 3252-75 (2020) (codified
at 15 U.S.C. §§ 3051-60). HISA’s broad scope encompasses:
4
• “all trainers, owners, breeders, jockeys, racetracks,
veterinarians, persons (legal and natural) licensed by
a State racing commission and the agents, assigns,
and employees of such persons and other horse support personnel who are engaged in the care, training,
or racing of covered horses,” 15 U.S.C. § 3051(6);
• “any Thoroughbred horse, or any other horse made
subject to this chapter by election of the applicable
State racing commission or the breed governing organization for such horse,” id. § 3051(4); and
• “any horserace involving covered horses that has a
substantial relation to interstate commerce, including
any Thoroughbred horserace that is the subject of interstate off-track or advance deposit wagers,” id.
§ 3051(5).
HISA currently regulates more than 94,000 Thoroughbred horses and 39,000 individuals. See HISA, 2025 Annual Metrics Report at 7. 2
But Congress did not set the national horseracing
standards itself or require a federal agency to do so. Instead, Congress gave that “sweeping” power, Black I, 53
F.4th at 882, to the Authority, a “private, independent,
self-regulatory, nonprofit corporation,” 15 U.S.C.
§ 3052(a), that was incorporated in anticipation of
Available at https://bphisaweb.wpengine.com/wp-content/uploads/2026/03/2025-Annual-Metrics-Report.pdf. That is just for
now. Under HISA and upon appropriate request, the Authority can
extend its jurisdiction to other breeds, without seeking permission
from Congress or the FTC. 15 U.S.C. § 3054(l).
2
5
HISA’s passage, ROA.4223-28 (incorporation), 4229-51
(bylaws). 3
The Authority is governed by a nine-member Board
of Directors, none of whom is appointed or removable by
the President or any other federal official. See 15 U.S.C.
§ 3052(b), (d); ROA.4236. Nor is the Authority funded by
appropriations from Congress. See 15 U.S.C.
§ 3052(f)(5). Instead, it charges fees allocated against
each State, collected by the State’s racing commission or
recovered directly from covered persons. See id.
§ 3052(f)(2), (3). If a state racing commission refuses to
remit fees to the Authority, HISA prohibits the commission from imposing or collecting “a fee or tax relating to
anti-doping and medication control or racetrack safety
matters for covered horseraces.” Id. § 3052(f)(3)(D).
B. The Authority’s rulemaking power
1. In HISA, Congress delegated power to the Authority to “develop[] and implement[]” by rule both an antidoping and medication-control program and a racetracksafety program. Id. § 3052(a). The anti-doping and medication-control program allows the Authority to impose
federal restrictions on administering medication to
horses, create standards for “laboratory testing accreditation and protocols,” and determine which medications
and substances will be permitted and at what levels. Id.
§ 3055. Through the racetrack-safety program, the Authority sets training and racing standards, identifies permitted and prohibited practices, creates a racing-surface
quality-maintenance system, and maintains programs
for injury- and fatality-data analysis. Id. § 3056.
“ROA” refers to the paginated record on appeal on file with the
Fifth Circuit.
3
6
At present, the Authority’s 273 pages of rules, which
preempt conflicting state laws, id. § 3054(b), are not
found in the Code of Federal Regulations but on the Authority’s private website. See HISA, Regulations,
https://hisaus.org/regulations. Consistent with the Authority’s broad statutory mandate, these rules cover a
wide variety of topics, including racetrack safety; antidoping and controlled medication; standards for testing,
investigation, and laboratories; arbitration; enforcement; and the methodology for determining assessments. Id.
2. The Authority must submit its rules to the FTC for
publication in the Federal Register. 15 U.S.C. § 3053(a),
(b)(1). The FTC then undertakes what the Fifth Circuit
termed “consistency review,” in which the FTC determines whether the rules are “consistent” with HISA and
applicable FTC rules. Id. § 3053(c)(2); Black I, 53 F.4th
at 886. If the Authority’s rules are consistent, the FTC
“shall approve” them. 15 U.S.C. § 3053(c)(2). As recognized by the FTC itself, consistency review does not permit it to alter or reject the Authority’s policy choices.
E.g., ROA.3288 (noting the Authority’s proposed rule
was consistent with HISA and that commenters raised
only policy disagreements), 3319 (explaining that the
FTC does not review “general policy”), 3326 (noting that
policy differences do not demonstrate inconsistency with
HISA).
HISA’s “consistency review” thus leaves policy decisions regarding governance of the horseracing industry
with the Authority and obligates the FTC to approve
those choices. The Fifth Circuit held this legislative delegation was unconstitutional. Black I, 53 F.4th at 890.
7
3. In response, Congress did not withdraw or narrow
its delegation to the Authority. Instead, it made an additional delegation to the FTC by amending one subsection
of HISA and, again, including it in a consolidated appropriations act. See Consolidated Appropriations Act, 2023,
Pub. L. No. 117-328, § 701, 136 Stat. 4459, 5231-32 (2022).
Specifically, the FTC may now engage in notice-andcomment rulemaking to:
abrogate, add to, and modify the rules of the Authority promulgated in accordance with [HISA]
as the [FTC] finds necessary or appropriate to
ensure the fair administration of the Authority,
to conform the rules of the Authority to requirements of [HISA] and applicable rules approved
by the [FTC], or otherwise in furtherance of the
purposes of [HISA].
15 U.S.C. § 3053(e).
To date, the FTC has adopted rules (1) prescribing
how the Authority must submit its proposed rules to the
FTC, 16 C.F.R. §§ 1.140-.144 (2026); (2) requiring the
Authority to submit its budget to the FTC for approval,
id. §§ 1.150-.152; and (3) requiring strategic plans, yearend reports, risk management, and transparency, id.
§§ 1.153-.156. The FTC, however, has not abrogated,
added to, or modified any of the Authority’s substantive
regulations or policies that govern the horseracing industry.
C. The Authority’s enforcement power
In addition to making the rules, the Authority also
enforces and adjudicates them. Congress gave the Authority the ability to determine what conduct is sanctionable and to set the penalties for rule violations. See 15
U.S.C. § 3057. Congress also empowered the Authority
8
to make rules “authorizing” “access to offices, racetrack
facilities, other places of business, books, records, and
personal property of covered persons,” “issuance and enforcement of subpoenas and subpoenas duces tecum,”
and “other investigatory powers.” Id. § 3054(c)(1)(A).
The Authority has, accordingly, written a rule giving itself broad investigative authority. See HISA Rule 8400.
Congress further authorized the Authority to contract with another entity to act as the anti-doping and
medication-control “enforcement agency.” 15 U.S.C.
§ 3054(e)(1)(B). The Authority has done so, contracting
with Drug Free Sport International (DFSI), another independent, private entity to operate a Horseracing Integrity and Welfare Unit (HIWU). App. 6a-7a. 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.” 15 U.S.C. § 3055(c)(4)(B).
Sanctions issued by the Authority may include “lifetime bans from horseracing, disgorgement of purses,
monetary fines and penalties, and changes to the order
of finish in covered races.” Id. § 3057(d)(3)(A). Last year,
the Authority assessed $1.6 million in fines and required
the forfeiture of over $2.7 million in purses. 4 The Authority may bring suit in federal court to obtain injunctive
relief to stop alleged rule violations and to enforce civil
sanctions. 15 U.S.C. § 3054(j). Additionally, the Authority may recommend that the FTC commence an action
for unfair or deceptive acts. See id. § 3054(c)(1)(B).
See HISA, 2025 Annual Performance Report at 6, available at
https://bphisaweb.wpengine.com/wp-content/uploads/2026/03/2025Annual-Performance-Report.pdf.
4
9
Any civil sanctions imposed by the Authority may be
reviewed by an administrative law judge (ALJ) within
the FTC, followed by FTC review. Id. § 3058(b)-(c). Although ALJ review of claimed violations of the Authority’s rules is de novo, review of any sanctions the Authority chooses to assess is limited to whether they are “arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.” Id. § 3058(b)(2)(A)(iii).
II. Procedural History
A. Texas’s complaint
For nearly four decades, the Texas Racing Commission has been tasked with regulating horseracing and associated wagering in Texas. See Tex. Occ. Code
§ 2021.002. The nine-member Commission—comprising
seven members appointed by the Governor and two ex
officio members, id. § 2022.001(a)—has done so by
adopting rules covering racetrack licenses, 16 Tex. Admin. Code §§ 309.1-.53; licenses for owners, trainers, and
jockeys, among others, id. §§ 311.101-.112; racetrack operations, id. §§ 309.101-.299; the rules of horseracing, id.
§§ 313.1-.450; medical treatment of horses, id. §§ 319.1.112; and testing for prohibited substances, id.
§§ 319.301-.364. The Commission may also pursue administrative penalties for violations of relevant law, as
well as suspend, revoke, or refuse to renew a license issued under its authority. Tex. Occ. Code §§ 2033.051,
.151. The Commission has licensed over 14,000 individuals in Texas as part of its comprehensive operations.
ROA.6117.
After HISA took effect, Texas was forced to choose:
either (1) become subject to HISA and surrender control
over horseracing and its associated gambling activities
or (2) avoid application of HISA by surrendering the
10
ability to simulcast Texas races to other States.
ROA.3083, 3086-87, 6123. Because the former created
complications under state law that the Commission
deemed untenable, the Commission has opted for the latter, resulting in losses for the Texas horseracing industry. ROA.3086-87, 4594, 6124.
To protect its sovereign interests, Texas and the
Commission intervened as plaintiffs in a suit brought by
a group of Horsemen’s Benevolent and Protective Associations (collectively, the NHBPA Plaintiffs) challenging
the constitutionality of HISA. ROA.1328-38. As relevant
here, Texas asserts that HISA’s delegation of legislative
and executive power to a private entity—the Authority—
violates the private-nondelegation doctrine. ROA.252932. Following summary-judgment motions, the district
court rejected those claims, ROA.2706-60, and all plaintiffs appealed. ROA.1562-65.
B. Texas’s first appeal
The Fifth Circuit reversed, concluding that the delegation of rulemaking authority was unconstitutional.
Black I, 53 F.4th at 890. Surveying the handful of cases
to address the private-nondelegation doctrine, the Fifth
Circuit held 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 (internal
quotation marks omitted). It then determined that the
Authority was not subordinate to the FTC: Congress
granted the Authority “‘sweeping’ power,” id. at 882,
that permitted it “to craft entire industry ‘programs,’”
which “strongly suggests it is the Authority, not the
FTC, that is in the saddle,” id. at 883. The Fifth Circuit
rejected consistency review as sufficient oversight
11
because it is “too limited to ensure the Authority ‘function[s] subordinately’ to the agency.” Id. at 884.
The Fifth Circuit then distinguished the relationship
that HISA creates between the Authority and the FTC
from that which the Maloney Act creates between the Financial Industry Regulatory Authority (FINRA) and the
Securities Exchange Commission (SEC). See id. at 88788. The court explained that Congress gave the SEC authority to “abrogate, add to, and delete from” FINRA
rules as the SEC deemed “necessary or appropriate.” Id.
at 887 (quoting 15 U.S.C. § 78s(c)). Because the FTC
lacked such power, the court concluded that the FTC
served as an advisor to, rather than a supervisor of, the
Authority. Id. at 888.
The Fifth Circuit also examined litigation concerning
Amtrak, which Congress had tasked with “jointly” developing railroad performance standards with the Federal
Railroad Administration (FRA). Ass’n of Am. R.Rs. v.
U.S. Dep’t of Transp. (Amtrak I), 721 F.3d 666, 669 (D.C.
Cir. 2013), vacated, 575 U.S. 43 (2015). There, the D.C.
Circuit concluded that “Amtrak enjoys authority equal
to the FRA,” id. at 671, which “vitiates the principle that
private parties must be limited to an advisory or subordinate role in the regulatory process,” id. at 673. Although this Court reversed the D.C. Circuit’s judgment
because Amtrak is a public, not private, entity, see
Amtrak II, 575 U.S. at 46, the Fifth Circuit found the
D.C. Circuit’s analysis persuasive with respect to the Authority, Black I, 53 F4th at 890. The court accordingly
concluded that HISA delegated “unsupervised government power to a private entity” and was therefore unconstitutional. Id.
12
In response to the Fifth Circuit’s ruling, Congress
amended HISA to give the FTC the power to “abrogate,
add to, and modify the rules of the Authority” through
notice-and-comment rulemaking. 15 U.S.C. § 3053(e).
The Fifth Circuit remanded the case for consideration of
the impact of that statutory amendment. See Order,
NHBPA v. Black, No. 22-10387 (5th Cir. Jan. 31, 2023).
C. Texas’s second appeal
1. On remand, a separate case raising additional constitutional challenges brought by a group of racetrack
owners and other interested parties (collectively, the
Gulf Coast Plaintiffs) was consolidated with this case.
ROA.2213-18. After a bench trial, ROA.3028-205, the district court again found no constitutional infirmity, App.
86a-98a.
Regarding Texas’s only claim—private nondelegation—the district court concluded that the FTC’s new
authority to abrogate, add to, and modify the Authority’s
rules empowered the FTC to make its own policy choices,
thus curing any constitutional problem. App. 93a-94a.
The court also reasoned that HISA now paralleled
FINRA’s relationship with the SEC, App. 96a, and relied
heavily on a Sixth Circuit ruling upholding the constitutionality of HISA as amended, App. 97a-98a (discussing
Oklahoma v. United States (Oklahoma I), 62 F.4th 221
(6th Cir. 2023), vacated, 145 S. Ct. 2836 (2025)). With respect to the Authority’s enforcement powers, the district
court found no constitutional violation due to the FTC’s
ability to review sanctions. App. 102a-03a.
2. All plaintiffs again appealed. ROA.2825-31. This
time, the Fifth Circuit affirmed in part and reversed in
part. Nat’l Horsemen’s Benevolent & Protective Ass’n v.
Black (Black II), 107 F.4th 415, 421 (5th Cir. 2024).
13
First, the Fifth Circuit agreed with the Sixth Circuit
that the amendment to the FTC’s authority cured the
private-nondelegation problem with respect to the Authority’s rulemaking powers. Id. at 424. The court focused on the FTC’s ability to “exercise its own policy
choices” through rulemaking if it disagreed with the Authority—a power it did not previously have. Id. The court
believed that allowing the FTC to make its own rules
would give consistency review “new bite” because the
FTC could adopt its own policies via rulemaking that the
Authority would then be bound to follow. Id. at 425. In
response to the argument that the Authority’s rules
would become law before the FTC could act, the court
proposed several “hypothetical” procedural maneuvers
the FTC might undertake to prevent that from happening. Id. Concluding that this was sufficient to ensure that
the Authority functions subordinately to the FTC, the
court held that there was no unconstitutional delegation
of legislative authority. Id. at 426.
Second, the Fifth Circuit held that the Authority’s
largely unsupervised ability to enforce HISA violated
the private-nondelegation doctrine with respect to executive power. Id. at 435. After all, the powers to investigate, sanction, and sue—all of which the Authority can
exercise—are “quintessentially executive functions.” Id.
at 428. Asking the same constitutional question as before, the court considered whether the Authority “functions subordinately to an agency with authority and surveillance over it.” Id. at 427 (cleaned up). The court rejected the argument that the FTC’s general (and limited)
back-end review gave it adequate supervisory control
over the Authority, emphasizing that the Authority can
and does perform significant enforcement functions before the FTC reviews anything. Id. at 430-31. The Fifth
14
Circuit also disagreed that the FTC could further subordinate the Authority’s enforcement powers by exercising
its rulemaking authority. Id. at 431-33. Accordingly, the
court declared HISA unconstitutional to the extent it is
enforced by private entities. Id. at 435. 5
3. Upon the Authority’s request, this Court administratively stayed the issuance of the mandate. Order,
Horseracing Integrity & Safety Auth. v. NHBPA,
No. 24A287 (U.S. Sept. 23, 2024). The parties then filed
a combined five petitions for writs of certiorari. The
Court granted, vacated, and remanded each one after issuing its decision in Consumers’ Research. App. 51a.
4. On remand, the Fifth Circuit concluded that its
prior decision was unaffected by Consumers’ Research,
App. 3a. Accordingly, the court reissued the same decision with an additional six footnotes and a section addressing Consumers’ Research. App. 3a, 34a-39a.
The court made no change to the portion of its opinion
holding that the delegation of rulemaking authority was
constitutional. See App. 39a n.23. With respect to enforcement, the Fifth Circuit readopted its reasoning and
explained why it believed Consumers’ Research did not
alter its conclusions. App. 16a-39a. As the court saw it,
the Administrator’s actions in Consumers’ Research
could have no effect until the FCC said so. App. 37a-38a.
But under HISA, the Authority could “launch numerous
intrusive enforcement actions—investigations, subpoenas, searches, charges, adjudications—all without any
agency oversight.” App. 38a. Finding this left the
The Fifth Circuit also rejected the private Respondents’ remaining
constitutional claims based on the Due Process Clause, Appointments Clause, and anticommandeering doctrine. Id. at 435-40.
5
15
Authority “in control,” the court held the delegation unconstitutional. App. 39a.
In light of this Court’s previous grant of a stay of the
mandate, no party opposed the Authority’s request that
the Fifth Circuit stay its mandate pending resolution of
anticipated certiorari petitions, and the Fifth Circuit did
so. Order, NHBPA v. Black, No. 23-10520 (5th Cir. July
14, 2026).
The Authority and FTC have since filed petitions for
writ of certiorari, which Texas does not oppose. See Pet.
for Writ of Cert., Horseracing Integrity & Safety Auth.
v. NHBPA, supra; Pet. for Writ of Cert., FTC v.
NHBPA, supra.
Texas now respectfully petitions for certiorari as
well.
16
REASONS FOR GRANTING THE PETITION
I. The Fifth Circuit’s Decision Conflicts with This
Court’s Precedent.
The Constitution provides that “[a]ll legislative Powers herein granted shall be vested in a Congress of the
United States.” U.S. Const. art. I, § 1. It follows that “the
lawmaking function belongs to Congress and may not be
conveyed to another branch or entity.” Loving v. United
States, 517 U.S. 748, 758 (1996) (citation omitted). Delegating such authority to a private entity is “unknown to
our law” and “utterly inconsistent with the constitutional
prerogatives and duties of Congress,” A.L.A. Schechter
Poultry Corp. v. United States, 295 U.S. 495, 537 (1935).
Any delegation of rulemaking authority to a private entity lacks “even a fig leaf of constitutional justification.”
Amtrak II, 575 U.S. at 62 (Alito, J., concurring). 6
Certiorari is warranted because the Fifth Circuit’s
analysis conflicts with this Court’s cases. The Constitution vests legislative authority in Congress alone, and
this Court’s precedent indicates that private entities can
provide recommendations and advice to federal agencies
only as long as those agencies retain decision-making
power. See, e.g., Consumers’ Rsch., 606 U.S. at 692-93;
Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381,
388 (1940). But that is not the case with HISA, in which
the FTC is required by statute to approve all lawful rules
written by the Authority. 15 U.S.C. § 3053(c)(2).
Texas bases its argument on the understanding that the Authority
is, in fact, a private corporation. 15 U.S.C. § 3052(a). Should the
Court disagree, HISA would be unconstitutional under the Appointments and Vesting Clauses for the reasons explained by the Gulf
Coast Plaintiffs in their certiorari petition. Either way, HISA cannot stand.
6
17
Consistency review means the Authority’s proposals are
not recommendations but rules the FTC is obligated to
accept—an unconstitutional delegation of decision-making under Consumers’ Research.
Merely giving the FTC the option to engage in its
own notice-and-comment rulemaking, id. § 3053(e), does
not cure the constitutional violation that results from empowering the Authority to make the rules in the first
place. A nondelegation violation is a structural flaw that
cannot be remedied by unilateral agency action. Whitman, 531 U.S. at 472. Moreover, rulemaking is an ineffective means of supervision and cannot be used to rewrite HISA to transfer primary authority for rulemaking from the Authority to the FTC. This Court’s precedents forbid such statutory revision.
A. The Fifth Circuit’s decision is contrary to the
Court’s private-nondelegation precedent.
The People agreed to submit to laws enacted by Congress, U.S. Const. art. I, § 1, not “laws” adopted by private entities. That is why delegation to private entities is
“delegation in its most obnoxious form.” Carter Coal, 298
U.S. at 311; see also Amtrak II, 575 U.S. at 62 (Alito, J.,
concurring). Until recently, courts have applied a private-nondelegation doctrine derived from a pair of 80year-old cases: Carter Coal and Adkins. This past term,
the Court added a third to the list in Consumers’ Research. But rather than support the delegation here,
Consumers’ Research confirms HISA exceeds constitutional limits.
1. In Carter Coal, Congress delegated the ability to
set maximum labor hours and minimum wages to private
groups of producers and miners. 298 U.S. at 310-11. Because this allowed “one person . . . to regulate the
18
business of another,” this Court declared the law unconstitutional. Id. at 311. The law created “an intolerable
and unconstitutional interference with personal liberty
and private property.” Id.
Congress then rewrote the law. In Adkins, this Court
examined the revised statute, which provided for the creation of twenty “district boards” that were to “operate as
an aid to the [National Bituminous Coal] Commission but
subject to its pervasive surveillance and authority.” 310
U.S. at 388. The Act provided that the Commission could
remove board members in certain circumstances; the
board’s bylaws and rules of procedure were subject to
the Commission’s approval; and the Commission had
some authority to approve, disapprove, or modify proposed rules of each board regarding the sale of coal. See
Bituminous Coal Act of 1937, Pub. L. No. 75-48, § 4(I)(a),
(II)(a)-(c), 50 Stat. 72, 76-80 (1937). Significantly, although Congress gave the boards the authority to propose minimum coal prices, those proposed prices could
be approved, disapproved, or modified by the Commission and would not go into effect absent action by the
Commission. Id. § 4(II)(a), 50 Stat. at 78. This time, this
Court rejected a claim that private parties impermissibly
set the minimum prices, reasoning that the Commission,
not the district boards, made the decision. Adkins, 310
U.S. at 399.
The Court’s recent decision in Consumers’ Research
follows from Adkins. The private Administrator in Consumers’ Research was “broadly subordinate” to the
FCC: the FCC appointed the Administrator’s Board of
Directors and approved its budget; the Administrator
was prohibited from making policy but made financial
projections; and parties aggrieved by the Administrator
could seek de novo review from the FCC. 606 U.S. at
19
692-93. Specifically, the Administrator aided the FCC by
calculating a number—the “contribution factor”—which
involved “doing arithmetic” and estimating costs. Id. at
693. The FCC then had the ability to review and revise
the Administrator’s projections: “Not the Administrator,
but the Commission endorses final projections, converts
them into a contribution factor, and formally promulgates them.” Id. at 694. Accordingly, the Court concluded that the “transfer of accounting functions to the
Administrator” still left the FCC in control. Id. at 695.
2. The delegation in HISA differs from and exceeds
the delegations approved in Adkins and Consumers’ Research in multiple respects, rendering it unconstitutional.
First, the scope of the delegation in HISA far exceeds
the scope of the delegations approved in Adkins and
Consumers’ Research. The private entities in Adkins
and Consumers’ Research were recommending specific
numbers to the government agencies—the minimum
price of coal or the contribution factor—as part of a
broader regulatory scheme. Consumers’ Rsch., 606 U.S.
at 692; Adkins, 310 U.S. at 388. But the Authority has
been given a mandate to create entire regulatory programs largely from scratch to govern racetrack safety
and the use of illicit substances. 15 U.S.C. § 3052(a). The
sheer magnitude of the delegation separates HISA from
constitutional delegations. See also CIR, 142 S. Ct. at
1309 (Alito, J., concurring in denial of review) (questioning whether an agency could delegate setting actuarial
standards).
Second, the government agencies in Adkins and Consumers’ Research had the ability to approve, disapprove,
or
modify
the
private
entities’
numerical
20
recommendations before they ever became law. Consumers’ Rsch., 606 U.S. at 693-94; Adkins, 310 U.S. at
388; see also Amtrak II, 575 U.S. at 64 (Alito, J., concurring) (arguing that “nothing final should appear in the
Federal Register unless a Presidential appointee has at
least signed off on it”). As the Court explained in Consumers’ Research, an agency may take “recommendations” from a private entity as long as the agency retains
decision-making power. 606 U.S. at 692. But under
HISA, the Authority goes beyond making mere “recommendations”: By statute, the FTC “shall approve” the
Authority’s proposed rules unless they violate HISA or
the FTC’s own rules. 15 U.S.C. § 3053(c)(2). Unlike advice or recommendations that can be rejected, the Authority’s rules take effect unless and until the FTC
chooses to counter them with its own rules. See also infra
pp. 21-26 (explaining why notice-and-comment rulemaking does not remedy the constitutional violation).
Third, the Administrator in Consumers’ Research
was prohibited from setting policy but instead had to
seek guidance from the FCC if any application of the
rules was unclear. 606 U.S. at 693 (citing 47 C.F.R.
§ 54.702(c)). The Authority is not so constrained. The
FTC has recognized that the Authority makes policy
choices that the FTC cannot change when conducting
consistency review. See supra p. 6. Further, Congress
has given the Authority the power to issue unreviewed
guidance with respect to rule interpretations, policies,
and practices. 15 U.S.C. § 3054(g). Such guidance takes
immediate effect, id. § 3054(g)(3), leaving the FTC without the ability to disapprove any guidance other than
through the process of notice-and-comment rulemaking.
Fourth, the FTC has no control over who sits on the
Authority’s board. The Commission in Adkins had some
21
power to remove board members, see supra p. 18, and
the FCC appointed the Administrator’s board of directors in Consumers’ Research, 606 U.S. at 692-93. But the
Authority’s board members are privately appointed and
removable only by themselves—no federal official controls who is on the board. 15 U.S.C. § 3052(b), (d);
ROA.4236. As this Court has recognized, “the authority
to remove an officer at will is a ‘powerful tool for control’”
and “carries with it the power to supervise and direct
that subordinate.” Kennedy v. Braidwood Mgmt., Inc.,
606 U.S. 748, 762 (2025) (quoting Edmond v. United
States, 520 U.S. 651, 664 (1997)). The FTC’s inability to
remove any member of the Authority’s board deprives it
of that “powerful tool” of supervision and accountability.
See also Trump v. Slaughter, 146 S. Ct. 2283, 2310 (2026)
(explaining that the President’s subordinates must be removable by the President in order to “remain accountable to the President, and the President to the people”).
This Court has shown what a permissible delegation
looks like in Adkins and Consumers’ Research: a limited
task that does not set policy and producing a recommendation that the agency is free to reject. HISA follows
none of those limitations. This Court should grant certiorari and hold that HISA exceeds the upper limits of
Congress’s ability to delegate its legislative functions.
B. Notice-and-comment rulemaking is not
adequate supervision under this Court’s
precedent.
After the Fifth Circuit determined that consistency
review was not adequate supervision for purposes of private nondelegation, Congress attempted to remedy the
constitutional problem by giving the FTC ability to “abrogate, add to, and modify” the Authority’s rules through
22
its own rulemaking. 15 U.S.C. § 3053(e). The Fifth Circuit and other courts have concluded that the FTC’s option to override the Authority’s rules satisfied the private
nondelegation standard by rendering the Authority subordinate to an agency with authority and surveillance
over it. App. 10a-13a; Oklahoma v. United States (Oklahoma II), 163 F.4th 294, 311 (6th Cir. 2025), petition for
cert. filed (U.S. May 15, 2026) (No. 25-1325); Walmsley
v. FTC, 117 F.4th 1032, 1038 (8th Cir. 2024), vacated, 145
S. Ct. 2870 (2025). 7 This Court’s precedents say otherwise. Notice-and-comment rulemaking is not an adequate means of supervision, PCAOB, 561 U.S. at 504; an
agency cannot remedy a delegation violation through its
own actions, Whitman, 531 U.S. at 472; and an agency
may not rewrite a statute, Util. Air Regul. Grp. v. EPA
(UARG), 573 U.S. 302, 328 (2014). HISA’s amended
scheme is just as unconstitutional as the original.
1. The Fifth Circuit, as well as the Sixth and Eighth
Circuits, found notice-and-comment rulemaking an adequate means of subjecting a private entity to the authority and supervision of a government agency. App. 10a13a; Oklahoma II, 163 F.4th at 311; Walmsley, 117 F.4th
at 1038. But as this Court has already explained,
“[e]nacting general rules through the required notice
and comment procedures is obviously a poor means of
micromanaging [an entity]’s affairs.” PCAOB, 561 U.S.
at 504. This Court’s observation that “altering the
budget or powers of an agency as a whole is a problematic way to control an inferior officer” rings just as true
when applied to a private entity. Id. If the FTC disagrees
The Eighth Circuit has not yet issued a decision after the Court
granted, vacated, and remanded in light of Consumers’ Research.
7
23
with anything the Authority does, its only option is to go
through the notice-and-comment process.
But notice-and-comment rulemaking is time-consuming, meaning that the Authority’s rules will bind the industry until the FTC can act. And the FTC may not always have a quorum, a working majority, or the resources to scrutinize everything the Authority does. As
long as the Authority’s rules are lawful, the FTC is not
obligated to examine the Authority’s policy choices and
may leave the decision-making to the Authority as a
practical matter. The Fifth Circuit suggested such questions should be decided on an as-applied basis, App. 14a,
but offered no suggestion of how to determine whether
the FTC’s inaction was an intentional choice or for other
reasons.
Further, treating the possibility of overriding the Authority’s rules as sufficient supervision (even if that
power is never exercised) would deprive the private-nondelegation doctrine of any effectiveness. Congress always retains the power to override anything the Authority (or any other private entity delegated legislative
power) does. But that does not mean Congress could allow a private entity to make the law. No one would think
that Congress could “vote all power to the President and
adjourn sine die,” Mistretta v. United States, 488 U.S.
361, 415 (1989) (Scalia, J., dissenting), even if Congress
technically could revise such presidential regulations
later. Should the FTC choose to engage in notice-andcomment rulemaking, the process could take years—all
the while private parties and the States would be subject
to rules promulgated by an entity that lacks constitutional authority and with which the FTC disagrees.
24
2. The Fifth and Sixth Circuits have also erred in
holding that a structural flaw (improper delegation) can
be remedied by agency action. App. 13a; Oklahoma II,
163 F.4th at 311. The FTC’s hypothetical actions to rein
in the Authority are irrelevant to the constitutional analysis. This Court has previously held that whether a statute delegates legislative power “is a question for the
courts, and an agency’s voluntary self-denial” (or in this
case, voluntary exercise (or not) of a supervisory power)
“has no bearing upon the answer.” Whitman, 531 U.S. at
473. It is “the terms of Congress’ delegation”—in this instance HISA—“not . . . the terms of the agency’s subsequent exercise of the delegated authority,” that determine whether Congress has acted unconstitutionally.
United States v. Martinez-Flores, 428 F.3d 22, 27 (1st
Cir. 2005) (emphasis added) (following Whitman, 531
U.S. at 472-73); see also United States v. Palazzo, 558
F.3d 400, 404 n.4 (5th Cir. 2009) (change in the underlying regulations did not impact the delegation analysis).
Accordingly, just as an agency cannot “cure an unlawful
delegation of legislative power by adopting in its discretion a limiting construction of the statute,” Whitman, 531
U.S. at 472, the unconstitutional delegation here cannot
be cured because the FTC might someday engage in notice-and-comment rulemaking to limit the Authority’s
power.
The D.C. Circuit recognized as much in the Amtrak
litigation, concluding that even the possibility that a private entity might make industry rules violates the Constitution. See Amtrak I, 721 F.3d at 669. Finding that the
statute permitted a private arbitrator to break a stalemate between Amtrak and the FRA, the court concluded
that it was possible for Amtrak’s standards to take effect
without the approval of a single government official,
25
violating the private-nondelegation doctrine. Id. at 67374. Even though a private arbitrator had not been used,
“that the recipients of illicitly delegated authority opted
not to make use of it is no antidote. It is Congress’s decision to delegate that is unconstitutional.” Id. at 674. Justice Alito agreed in Amtrak II, explaining that “even the
possibility of a private arbitrator” would violate the Constitution. 575 U.S. at 62 (Alito, J., concurring). In other
words, the violation is complete upon the unlawful delegation. Other circuits are in accord. 8
3. Clawing back sufficient power to remedy the unconstitutional delegation here faces another hurdle from
this Court’s precedent: “an agency may not rewrite clear
statutory terms to suit its own sense of how the statute
should operate.” UARG, 573 U.S. at 328. Realigning the
balance of power between the Authority and FTC in
HISA would require a significant rewrite of the statute
because HISA is structured to give primary rulemaking
authority to the Authority.
The Authority has the primary obligation to “develop[] and implement[] a horseracing anti-doping and
medication control program and a racetrack safety program.” 15 U.S.C. § 3052(a). To that end, it may (among
other things) establish committees, id. § 3052(c); propose
rules setting laboratory and racetrack standards, identifying permitted substances, and setting a civil sanctions
schedule, id. § 3053(a); develop procedures regarding
See also, e.g., W.V. ex rel. Morrisey v. U.S. Dep’t of the Treasury,
59 F.4th 1124, 1140 (11th Cir. 2023) (applying Whitman to hold a
challenge is not mooted when the agency “had disclaimed an intention to enforce the allegedly unconstitutional provision at all”); Martinez-Flores, 428 F.3d at 27 (holding that, under Whitman, a memorandum from the U.S. Attorney General is “irrelevant to the nondelegation question”).
8
26
access to offices, issuance of subpoenas, and other investigatory powers, id. §3054(c); issue guidance, id.
§ 3054(g); investigate civil violations, id. § 3054(h); bring
lawsuits, id. § 3054(j); and extend its authority to new
breeds of horses, id. § 3054(l)(1). By contrast, the FTC is
generally limited to publishing items in the Federal Register, e.g., id. § 3053(b)(1); approving the Authority’s proposals, id. §§ 3053(c), 3054(c)(2); and reviewing the Authority’s assessment of sanctions, id. § 3058.
But, under the Fifth Circuit’s theory, the FTC can
change all of this by using its own authority to “modify”
the Authority’s rules to alter the statutory balance of
power. Yet “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)). There is no way to read
HISA to conclude that Congress intended the FTC, rather than the Authority, to be the primary rulemaker.
***
The reality for industry participants is that the Authority governs the horseracing industry both de facto
and de jure. The Fifth Circuit should not have changed
its conclusion about whether Congress delegated legislative power to the Authority merely because Congress
gave the FTC the option to engage in notice-and-comment rulemaking. 15 U.S.C. § 3053(e).
This threshold question is logically antecedent to the
question presented in the Authority’s and FTC’s petitions. It makes no sense for this Court to decide whether
the Authority can enforce its rules until it is clear that
the Authority lawfully can create those rules to begin
with.
27
II. The Circuits Do Not Agree on the Constitutional
Test.
Even apart from the Fifth Circuit’s conflicts with this
Court’s precedent, this Court’s intervention is warranted
because the Circuits do not agree among themselves.
The private-nondelegation doctrine is the subject of general confusion in the lower courts, which have adopted
inconsistent tests. The Fifth and Sixth Circuits have concluded that the nondelegation doctrine is not violated as
long as there is a possibility that the FTC could adopt
rules to counteract the Authority’s rules. App. 12a-13a;
Oklahoma II, 163 F.4th at 308-10. Other Circuits, in contrast, have adopted tests that focus, not on possibilities,
but on the role played by the private entity in administering the federal program and whether that role is advisory, ministerial, or subordinate.
A. Finding a private-nondelegation violation, the
D.C. Circuit in Amtrak I acknowledged that private entities may “help a government agency make its regulatory decisions.” 721 F.3d at 670-71. But it rejected the
federal government’s argument that “the government’s
‘active oversight, participation, and assent’ in its private
partner’s rulemaking decisions” sufficed to avoid a nondelegation violation Id. at 673 (quoting the appellee’s
brief). The court instead applied “the principle that private parties must be limited to an advisory or subordinate role in the regulatory process.” Id. Because Amtrak
“enjoy[ed] authority equal to the FRA,” it did not fall
within the scope of permissible delegation. Id. at 671.
The Authority’s role under HISA cannot be described as “advisory” or “subordinate” to the FTC. The
rules proposed by the Authority are not advice that the
FTC may reject if it disagrees with them. The FTC must
28
instead approve them if they are consistent with HISA
and the FTC’s rules, id. § 3053(c)(2), and the FTC can
counter them only with its own rulemaking, id. § 3053(e).
And the FTC’s rulemaking authority is optional. Even if
the FTC believes one of the Authority’s rules harms the
public interest, it is uncertain whether the FTC will fix
it, rather than using its resources elsewhere. By the D.C.
Circuit’s measure, HISA is unconstitutional: The Authority is not advisory or subordinate but exercises authority equal to that of the FTC.
B. Other circuits applying the private-nondelegation
doctrine have articulated tests similar to the D.C. Circuit’s test, allowing private entities to perform only limited, advisory roles. The Third Circuit concluded that a
private entity may serve “advisory” and “ministerial”
functions. United States v. Frame, 885 F.2d 1119, 1129
(3d Cir. 1989). The Fourth Circuit derived its nondelegation test from Carter Coal, Adkins, and Frame and held
that Congress may “employ private entities for ministerial or advisory roles, but [Congress] may not give these
entities governmental power over others.” Pittston Co.
v. United States, 368 F.3d 385, 395 (4th Cir. 2004). For
all of the reasons described above, the Authority does not
hold a ministerial or advisory role but rather the primary
role in crafting rules for the horseracing industry. It has
been given “governmental power over others” and would
fail the Third and Fourth Circuit’s nondelegation tests.
C. HISA fares no better under the Ninth Circuit’s
standard. Regarding the Secretary of Agriculture’s reliance on a “recommendation” from a private entity, that
court explained that “the Secretary is free to seek advice
from whatever sources he deems appropriate, so long as
he or his delegate in the Department retains ultimate authority to issue the regulation.” Riverbend Farms, Inc.
29
v. Madigan, 958 F.2d 1479, 1488 (9th Cir. 1992) (citing
Adkins, 310 U.S. at 399). But the FTC has not sought the
“advice” of the Authority. HISA requires the FTC to approve all proposed rules of the Authority that are lawful,
15 U.S.C. § 3053(c)(2), and the FTC has no role in approving the Authority’s “guidance,” id. § 3054(g). It does
not “retai[n] ultimate authority to issue” the Authority’s
proposed rules or guidance but can override them only
through notice-and-comment rulemaking.
The different tests used by the Circuits lead to different conclusions about HISA’s constitutionality. Under
the tests applied in the Third, Fourth, Ninth, and D.C.
Circuits, HISA’s delegation is constitutionally impermissible. The Authority is not subordinate to the FTC, nor
does it perform ministerial or advisory functions or give
advice and recommendations. Amtrak I, 721 F.3d at 67071; Riverbend Farms, 958 F.2d at 1488; Pittston Co., 368
F.3d at 395. It is writing rules to govern an industry that
can be overridden only if the FTC chooses to engage in
the process of rulemaking 15 U.S.C. § 3053(c)(2), (e). But
under the test used by the Fifth and Sixth Circuits, there
is no nondelegation violation in allowing the Authority to
make industry-wide rules and requiring the FTC to approve them provided that the FTC has the option to
adopt different rules. This Court’s intervention is warranted to resolve these differences.
III. This Question Is Exceptionally Important.
The question regarding delegation of legislative functions to private entities is exceptionally important. The
People granted legislative authority to Congress, U.S.
Const. art. I, § 1, yet Congress has increasingly delegated that authority to federal agencies and private entities. It is unsurprising that at least five members of the
30
Court have called for reexamination of the standards applicable to the nondelegation doctrine in the last decade.
See Gundy, 588 U.S. at 148-49 (Alito, J., concurring); id.
at 149 (Gorsuch, J., dissenting, joined by Roberts, C.J.,
and Thomas, J.); Paul v. United States, 589 U.S. 1087,
1087 (2019) (Kavanaugh, J., statement respecting the denial of certiorari). And at least three Justices have also
specifically recognized “the need to clarify the private
non-delegation doctrine in an appropriate future case.”
CIR, 142 S. Ct. at 1308 (Alito, J., concurring in denial of
review).
The Court addressed nondelegation in Consumers’
Research, but its opinion focused primarily on the publicnondelegation doctrine. 606 U.S. at 672-91. As a result,
the private-nondelegation doctrine remains largely unexplored.
Justice Kavanaugh’s concurrence in Consumers’ Research provides another reason for developing a strong
nondelegation doctrine. As he explained, delegating authority to independent agencies in the Executive
Branch—agencies whose officers are not removable at
will by the President—raise significant Article II concerns. 606 U.S. at 708-09 (Kavanaugh, J., concurring).
Such agencies remain largely unaccountable to the people, despite exercising significant power over them. Id.
at 709. One solution proposed by Justice Kavanaugh was
a more stringent application of the nondelegation doctrine, id., which would ensure that the law is made and
enforced by politically accountable individuals. See
United States v. Arthrex, Inc., 594 U.S. 1, 28 (2021) (Gorsuch, J., concurring in part) (noting that “the framers
took pains to ensure” that anyone who exercises federal
executive power must “always remain responsible to the
President and thus, ultimately, to the people”). Private
31
entities—whose members are also not removable at will
by the President—raise significant Article I concerns
when they exercise lawmaking authority and Article II
concerns when they exercise enforcement authority,
making a more stringent application of the nondelegation doctrine essential.
Guidance from this Court is necessary, even more so
because Congress appears to see this type of rulemaking
delegation as a model for other industries. See Amicus
Br. of Sen. McConnell at 4, Horseracing Integrity &
Safety Auth. v. NHBPA, No. 24A287 (U.S. Sept. 24,
2024). The Fifth Circuit cited a similar relationship between the SEC and FINRA in the Maloney Act as
grounds for finding HISA constitutional. App. 11a, 15a.
But the question of the Maloney Act’s authority has
never been addressed by this Court, and the circuits
have conducted only a truncated analysis. E.g., R.H.
Johnson & Co. v. SEC, 198 F.2d 690, 695 (2d Cir. 1952);
Sorrell v. SEC, 679 F.2d 1323, 1325-26 (9th Cir. 1982).
While the Maloney Act may be distinguishable, FINRA
Am. Br. at 19-20, NHBPA v. Black, No. 23-10520 (5th
Cir. Jan. 29, 2026), its existence does not require rejection of Texas’s theory here. The Court has “never endorsed such a practice-makes-perfect theory of congressional power.” Slaughter, 146 S. Ct. at 2309. Rather, “the
fact that a given law or procedure is efficient, convenient,
and useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Constitution.” INS v. Chadha, 462 U.S. 919, 944 (1983).
The federalism implications are also significant. It is
one thing for the States to be subject to preemptive rules
issued by a federal agency subject to checks and balances
and the President’s political control; it is something else
entirely for separate sovereigns to be regulated by
32
private citizens. This Court’s review is essential before
Congress federalizes in this unconstitutional way even
more industries that have been governed by the States
for centuries. “The Constitution’s deliberative process
was viewed by the Framers as a valuable feature, not
something to be lamented and evaded.” Amtrak II, 575
U.S. at 61 (Alito, J., concurring) (citing John F. Manning,
Lawmaking Made Easy, 10 Green Bag 2d 202 (2007)). It
is always in the public interest for this Court to vindicate
a core feature of the Constitution that, by design, “exists
to protect liberty.” Id.
This Court should grant review to clarify whether
and when legislative authority may be given to a private
entity before delegation of rulemaking power to private
entities becomes further entrenched. Granting certiorari
here would allow the Court to do just that.
The question presented in this petition is logically antecedent to the questions in the Authority’s (No. 26-199)
and the FTC’s (No. 26-201) petitions, which no one disputes warrant certiorari. The Court’s ability to effectively resolve those questions presented may well hinge
on its resolution of this one. Particularly given that multiple members of the Court have already publicly expressed interest in addressing the circumstances under
which Congress can delegate regulatory power to private entities, see supra pp. 29-30 this Court should grant
this petition to make sure that the entire issue is before
the Court.
33
CONCLUSION
For these reasons, this Court should grant the petition for certiorari.
Respectfully submitted.
KEN PAXTON
Attorney General of Texas
BRENT WEBSTER
First Assistant Attorney
General
WILLIAM R. PETERSON
Solicitor General
Counsel of Record
WILLIAM F. COLE
Principal Deputy Solicitor
General
BETH KLUSMANN
Deputy Solicitor General
OFFICE OF THE TEXAS ATTORNEY GENERAL
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
William.Peterson@oag.texas.gov
(512) 936-1700
Counsel for Petitioners
September 9, 2026
APPENDIX
AP PE ND IX T A BL E O F C O N TE N TS
Appendix A — Court of Appeals Opinion
(June 11, 2026) .................................... 1a
Appendix B — Supreme Court of the United
States Order Granting, Vacating,
and Remanding (June 30, 2025)....... 51a
Appendix C — District Court Memorandum
Opinion and Order (May 4, 2023) .... 52a
Appendix D — Relevant Provisions of the United
States Constitution ........................ 112a
Appendix E — Horseracing Integrity and Safety
Act ................................................... 113a
APPENDIX A
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
June 11, 2026
Lyle W. Cayce
Clerk
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
(1a)
2a
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:
3a
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
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.
1
4a
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, 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
5a
fines, and seek injunctions—all without the FTC’s sayso. 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 challenge to HISA’s enforcement provisions).
Accordingly, the district court’s judgment is 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
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
2
6a
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 “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”).
adjudications that afford due process); § 3057(d) (power to establish
civil sanctions); § 3054(c), (h) (investigatory and subpoena powers).
7a
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
“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 secondguessed 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
Similarly, the Authority may contract out enforcement of the
racetrack safety program to “State racing commissions” or “other
State regulatory agencies.” § 3054(e)(2), (3); see also § 3056 (discussing racetrack safety program).
3
8a
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 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
9a
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?
10a
(C) Does HISA violate due process by permitting
self-interested industry participants to regulate their
competitors?
(D) Are the Authority’s directors subject to the Appointments Clause?
(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).
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).
4
11a
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 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).
12a
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
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_gov/pdf/P222100
HISAOrderRacetrackSafety.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 AURULES
3
(Jan.
3,
2023),
THORITY’S
https://www.ftc.gov/system/files/ftc_gov/pdf/HISA%
20Order%20re%20Ratification%20of%20Previous%20Orders%20-%20Final%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
13a
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. 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
5
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 v. 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 v. Salerno, 481 U.S. 739, 745 (1987)
(holding that a facial challenger “must establish that no
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).
15a
set of circumstances exists under which the Act would be
valid”). 6
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.
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.
6
16a
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 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.
1.
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
17a
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 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
18a
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 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.
2.
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
See generally Rulings, HORSERACING INTEGRITY & SAFETY
AUTH., https://portal.hisausapps.org/public-rulings
[https://perma.cc/24TV-7NV3] (last visited June 3, 2026) (listing
3,307 enforcement rulings)
7
19a
(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
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
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 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).
8
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
9
20a
have been considered so from our Nation’s founding. 10 As
much as legislative power, the private nondelegation
U.S. 1, 138 (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, 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 Non-Delegation 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
10
21a
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 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
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).
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).
11
22a
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, § 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
23a
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. 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).
3.
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
24a
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. 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).
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 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).
12
25a
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.) 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. 23-30510, 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
26a
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, 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[.]”).
4.
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
27a
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 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
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
13
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Court recently 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
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 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 “nothing-equals-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)).
14
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§§ 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 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
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).
15
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”).
16
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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
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
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 (GRUENDER, 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.
17
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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 (recognizing 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.
5.
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 Horsemen argue that, for
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.”).
18
The Sixth Circuit relied on several cases upholding the constitutionality of FINRA to hold that “[i]n case after case, the courts
19
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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
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 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
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, 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, §§ 78u-1(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
20
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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
6.
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
Authority. For example, the United States can intervene in any qui
tam litigation, take control of the litigation, veto settlement 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.
21
35a
telecom carriers to pay quarterly into a 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
36a
agency . . . retains 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 policymaking” 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 decisionmaking 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.
a.
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: “[A] private entity
may wield government power only if it functions
37a
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.
b.
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, 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
38a
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 States145 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 F.4th at 312 (concluding FTC
could constrain the Authority’s investigatory powers by rule).
22
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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 enforcement provisions thus facially
violate the private nondelegation doctrine.
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).
23
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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 self-interested
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 selfinterest, 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
self-interested 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).
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
41a
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 governmental, 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
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.
24
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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 is a fundamental constraint on appellate decision-making. See
United States v. Sineneng-Smith, 590 U.S. 371, 376
The directors are appointed by the Authority itself. See
§ 3052(d)(3) (Board members are selected by the Authority’s nominating committee).
25
43a
(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, self-regulatory,
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 league[.]”). But deeming an
entity “private” does not settle whether it is legally part
44a
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).
26
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 486 (citing Lebron when referencing parties’ agreement that the Public
27
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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 Corporation, a private, forprofit corporation that has come to be known as
Amtrak”).
Second, the Authority was not created to further
“governmental objectives,” Lebron, 513 U.S. at 399, but
instead as a private association to address doping, medication, and safety issues in the thoroughbred racing industry. Again, contrast this with Amtrak, which Congress created “to avert the threatened extinction of
Company Accounting Oversight Board (“PCAOB”) “is ‘part of the
Government’ for constitutional purposes”); Amtrak II, 575 U.S. at
54–55 (explaining Lebron “provides necessary instruction” and
“teaches that, for purposes of Amtrak’s status as a federal actor or
instrumentality under the Constitution, the practical reality of federal control and supervision prevails over Congress’[s] disclaimer of
Amtrak’s governmental status”); Kerpen v. Metro. Wash. Airports
Auth., 907 F.3d 152, 158–59 (4th Cir. 2018) (applying Lebron to conclude that the Metropolitan Washington Airports Authority
(“MWAA”) is not “a federal entity” because “MWAA was not created by the federal government” and “is not controlled by the federal government”); Montilla v. Fed. Nat’l Mortg. Ass’n, 999 F.3d
751, 759–61 (1st Cir. 2021) (applying Lebron to conclude that Fannie
Mae and Freddie Mac are not government actors).
46a
passenger trains in the United States” and for other
goals Congress itself “establish[ed].” Id. at 383–84.
Third, the federal government does not “control[] the
operation of the [Authority],” nor has it “retain[ed] for
itself permanent authority to appoint a majority of the
[Authority’s] directors.” Id. at 399. To the contrary, the
government has no role in appointing the Authority’s
Board. Once again, contrast this with Amtrak—where a
majority of its directors was appointed by the President.
Id. at 397–98; see also Amtrak II, 575 U.S. at 51 (observing that seven of nine Amtrak board members “are appointed by the President and confirmed by the Senate”);
cf. Free Enter. Fund, 561 U.S. at 484, 484–85 (noting the
PCAOB—despite being statutorily deemed “private”—
is a “Government-created, Government-appointed entity,” whose five members are “appointed . . . by the
[SEC]”).
Instead of engaging with Lebron, Gulf Coast argues
that Lebron’s analysis is not “the only way” to tell
whether a corporation is a government instrumentality.
That takes too narrow a view of precedent, however. Lebron canvassed “the long history of corporations created
and participated in by the United States” and set out a
detailed analysis to determine whether a particular corporation—despite its designation as “private”—counts
as a government instrument for constitutional purposes.
See 513 U.S. at 386, 386–91. That is precisely the question we must answer with respect to the Authority. How
can we, as an inferior court, simply bypass Lebron? We
cannot.
Gulf Coast tries to offer us a way around Lebron, but
it is a dead end. Gulf Coast argues that Lebron addressed
only government-created corporations “that in no way
exercised government power.” But Lebron did not limit
47a
itself in that way—to the contrary, it relied on cases
where Congress turned to private corporations to “accomplish purely governmental purposes.” Id. at 395
(quoting Cherry Cotton Mills, Inc. v. United States, 327
U.S. 536, 539 (1946)). 28 Furthermore, the corporation actually addressed in Lebron—Amtrak—itself exercised
regulatory power, as the Supreme Court, the D.C. Circuit, and our court have all recognized. See Amtrak II,
575 U.S. at 50 (“Amtrak . . . cannot constitutionally be
granted the regulatory power[.]” (citation and quotation
omitted)); Amtrak I, 721 F.3d at 671 (“No case prefigures the unprecedented regulatory powers delegated to
Amtrak.”); Horsemen’s I, 53 F.4th at 889 (discussing how
Congress gave “regulatory power to the ‘economically
self-interested Amtrak’ ” (citation omitted)).
Gulf Coast also argues that, to determine whether directors of a private entity are “Officers of the United
States,” we should focus on their duration in office and
the nature of the entity’s power. We disagree. The two
principal cases Gulf Coast relies on for this argument addressed whether individuals already part of the government should be considered “Officers.” So, Buckley examined whether Federal Election Commission appointees
wielded “significant authority pursuant to the laws of the
United States.” 424 U.S. at 126. And Lucia v. SEC applied this same test to SEC ALJs. 585 U.S. 237, 244–45
(2018). Gulf Coast urges us to extend Buckley and Lucia
well beyond their facts to analyze whether persons in a
See also Inland Waterways Corp. v. Young, 309 U.S. 517, 524
n.4 (1940) (“The corporations, of course, perform ‘governmental’
functions.” (citation omitted)); id. at 522 (“The banking system
which Congress thus established embodied a blend of governmental
and private purposes.”).
28
48a
private entity are “Officers.” Even if we were inclined to
take that step, however, Lebron would remain an insuperable hurdle. As explained, Lebron addressed when a
private entity qualifies as part of the government for constitutional purposes. That is precisely the question before us. Post-Lebron, no case has applied Buckley to private actors. Instead, the Supreme Court has repeatedly
applied Lebron for three decades. See supra note 27. We
are not at liberty to displace the Supreme Court’s governing framework. 29
Finally, Gulf Coast argues that if Lebron is the test,
then the federal government can simply vest all executive power in a private corporation and avoid the Appointments Clause. This argument ignores the role of the
private nondelegation doctrine. The government cannot
delegate core governmental powers to unsupervised private parties. Pittston, 368 F.3d at 394. A private entity
can only act “subordinately to an agency with authority
and surveillance over it.” Horsemen’s I, 53 F.4th at 881
(quotations omitted). The private nondelegation doctrine
thus corrals any attempts to evade Lebron by giving unaccountable governmental power to a pre-existing private entity.
That principle also answers Gulf Coast’s reliance on a 2007
Office of Legal Counsel (“OLC”) opinion. The opinion argued that
the Appointments Clause applies to someone with significant and
continuing government authority, whether he is a private or a government employee. Officers of the United States Within the Meaning of the Appointments Clause, 31 Op. O.L.C. 73, 121–22 (2007). If
the opinion was suggesting its analysis as an alternative to Lebron
(a decision, it should be noted, the opinion cited, see id. at 121), that
is a suggestion only the Supreme Court could act upon, not a circuit
court bound by Lebron.
29
49a
In sum, Lebron is the governing test to determine
whether an entity is privat
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