Off to the Races

The Horseracing Integrity and Safety Act of 2020, and its novel use of a private entity (the “Horseracing Integrity and Safety Authority”) to make and enforce rules for horse racing, did not fare well on a previous visit to the Fifth Circuit. A return trip received a more favorable reception:

In sum, we affirm the district court’s judgment that (1) Congress’s recent amendment to HISA cured the private nondelegation flaw in the Authority’s rulemaking power; (2) HISA does not violate due process; (3) the Authority’s directors are not subject to the Appointments Clause under Lebron; and (4) Gulf Coast lacks standing to challenge HISA on anticommandeering grounds. We reverse the district court’s judgment in one respect. Insofar as HISA is enforced by private entities that are not subordinate to the FTC, we DECLARE that HISA violates the private nondelegation doctrine.

National Horsemen’s Benevolent & Protective Association v. Black, No. 22-10387 (July 5, 2024). The private-nondelegation holding creates a split with the Sixth Circuit.