National Horsemen's Benevolent and Protective Association, et al. v. Horseracing Integrity and Safety Authority, Incorporated, et al.

In 2020, Congress nationalized regulation of the horseracing industry. But rather than create a governmental regulator, it delegated governmental powers to a newly created private corporation. Petitioners sued and won. The Fifth Circuit ruled that the Horseracing Integrity and Safety Authority, Inc. could not write the rules for horseracing without the Federal Trade Commission (“FTC”) being able to “approve[], disapprove[], or modif[y]” them. Nat’l Horsemen’s Benevolent and Protective Ass’n v. Black, 53 F.4th 869, 881 (5th Cir. 2022) (quoting Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 388 (1940)). After the Fifth Circuit’s ruling, Congress added one new sentence to the statute. Under the revised law, the private corporation still writes the first draft of all rules. 15 U.S.C. § 3053(a). And the FTC cannot change those rules: it “shall” promulgate them if they are “consistent” with the Horseracing Integrity and Safety Act and applicable FTC rules. 15 U.S.C. § 3053(c)(2). The new sentence only gives the FTC the power to institute a separate rulemaking to abrogate, add to, and modify the rules after the corporation’s rules have already been promulgated. 15 U.S.C. § 3053(e). Question Presented #2:1 Does it violate the private nondelegation doctrine if a private entity’s rules enter into force without the supervising federal agency being able to contemporaneously revise or reject them? 1 The Horsemen agree with the Authority and the FTC that the Court should grant certiorari on the first question presented, whether HISA unconstitutionally delegates executive powers.