Whether Congress unconstitutionally delegated legislative authority to a private entity in the Horseracing Integrity and Safety Act (HISA)

QUESTION PRESENTED In 2020, Congress enacted the Horseracing Integrity and Safety Act (HISA) to, for the first time, 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 a “private, independent, self-regulatory, nonprofit corporation”—the Horseracing Integrity and Safety Authority (the Authority). Id. §3052(a). Under HISA, the Authority proposes rules that are reviewed by the Federal Trade Commission (the FTC), id. § 3053(a), but the FTC is prohibited from rejecting the rules unless they violate HISA or other applicable rules, id. §3053(c)(2). The Fifth Circuit initially held that this delegation of legislative authority is unconstitutional. Congress reacted, not by altering this process, but by giving the FTC the option (but not the duty) to undertake its own notice-and-comment rulemaking to abrogate, add to, and modify the Authority’s rules. Id. §3053(e). Accordingly, unless and until the FTC decides to intervene, the horseracing industry remains governed by the Authority—a private entity operating outside of any constitutional safeguards. And even if the FTC choses to intervene, its statutory powers are limited. The question presented is whether Congress has unconstitutionally delegated legislative authority to a private entity in HISA. (I)