Texas, et al. v. Jerry Black, et al.

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.