Does the Horseracing Integrity and Safety Act of 2020 violate the private non-delegation doctrine and the anti-commandeering doctrine?

QUESTIONS PRESENTED The Horseracing Integrity and Safety Act of 2020, 15 U.S.C. §§ 3051-3060, delegates federal rulemaking power to a private corporation—the Horseracing Integrity and Safety Authority (the “Authority”)—to govern the horseracing industry. The Federal Trade Commission must promulgate the private Authority’s rules as federal law, even if it disagrees with them as a policy matter, so long as they are “consistent” with the Act. The Act also gives the Authority the power to enforce its rules against regulated parties in federal court. And the Authority possesses numerous other federal powers, including the power to impose sanctions, issue subpoenas, and conduct investigations. Congress did not appropriate any federal money to fund this program; instead, the Act requires the States either to remit fees to the Authority or else lose their longstanding power to tax the horseracing industry. After the Fifth Circuit held that the Act violated the private non-delegation doctrine, Congress amended the law to allow the Federal Trade Commission to undertake its own after-the-fact notice-andcomment rulemaking process if it wished to try to amend the Authority’s rules. Congress otherwise left the law—and all the Authority’s powers—in place. The Sixth Circuit then upheld the amended law. The questions presented are: 1. Does the Act violate the private non-delegation doctrine? 2. Does the Act violate the anti-commandeering doctrine by coercing States into funding a federal regulatory program?