Bill Walmsley v. FTC, 117 F.4th 1032

Congress enacted the Horseracing Integrity and Safety Act (HISA) in 2020 to regulate horseracing, creating the Horseracing Integrity and Safety Authority (a private nonprofit) to promulgate rules, subject to oversight by the Federal Trade Commission (FTC).
The Authority's rules require FTC approval and public comment; the FTC can modify, add to, or abrogate Authority rules to ensure fair administration.
The Authority also has enforcement powers, including civil sanctions, hearings, investigative authority, and lawsuits against violators.
After a Fifth Circuit ruling deemed the original rulemaking scheme unconstitutional, Congress amended HISA to clarify the FTC's ultimate oversight.
Plaintiffs (Walmsley and others involved in the horseracing industry) sought a preliminary injunction against enforcement of HISA rules, arguing constitutional violations; the district court denied the motion.
The Eighth Circuit affirmed the denial, with a dissent from Judge Gruender on the constitutionality of the enforcement provisions.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Private nondelegation doctrine	Authority’s rulemaking power is an impermissible private delegation of legislative authority	FTC’s ultimate power to modify/add rules means Authority is subordinate	The Act does not violate the private nondelegation doctrine; FTC has ultimate control
Executive power delegation	Authority's enforcement powers are unconstitutionally delegated to a private party	FTC oversight and ability to set limits on Authority's actions	Not unconstitutional on its face; FTC’s broad supervisory power is sufficient
Public nondelegation doctrine	Congress did not provide an intelligible principle, allowing excessive agency discretion	Statute sets forth clear statutory purposes and requirements	No violation; Statute provides sufficient intelligible principles
Appointments Clause	Authority’s board are "officers of the United States" and must be properly appointed	Authority is a private, independent entity; not federal officers	No violation; Authority’s directors are not federal officers

A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (Congress may not delegate legislative authority to private entities)
Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381 (Delegation is proper if entity is subordinate to a government agency)
Am. Power & Light Co. v. SEC, 329 U.S. 90 (Permissible for Congress to grant agencies regulatory discretion with an intelligible principle)
Whitman v. Am. Trucking Ass’ns, 531 U.S. 457 (Statutes requiring regulation in the "public interest" can be valid delegations)
Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477 (Standing requirements for regulated parties to challenge regulatory schemes)
United States v. Salerno, 481 U.S. 739 (Standard for facial constitutional challenge)