National Horsemen's Benevolent v. Black, 53 F.4th 869

Background

Congress enacted the Horseracing Integrity and Safety Act (HISA) in 2020 to create national rules for Thoroughbred racing and related safety, anti-doping, and medication-control programs.
HISA empowers a private nonprofit, the Horseracing Integrity and Safety Authority, to draft detailed rules and enforce them; the Authority is funded primarily by fees on covered persons.
The Federal Trade Commission (FTC) has statutory "oversight," but its approval power is limited to determining whether proposed Authority rules are "consistent" with HISA; the FTC may only make recommendations to modify inconsistent rules and cannot unilaterally change Authority rules.
Plaintiffs (National Horsemen’s Benevolent & Protective Association and affiliates, later joined by Texas) sued, arguing HISA facially violates the private non‑delegation doctrine and the Due Process Clause; the district court upheld HISA.
The Fifth Circuit reversed, holding HISA facially unconstitutional under the private non‑delegation doctrine because the Authority wields final rulemaking power and the FTC’s review is too limited to render the Authority subordinate.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Private non‑delegation: may Congress vest federal regulatory power in a private entity?	HISA unconstitutionally delegates federal power to a private Authority that is not subordinate to a federal agency.	HISA is permissible because the FTC reviews and must approve proposed rules as "consistent" with the statute; model parallels SEC–FINRA.	Reversed: HISA is facially unconstitutional — the Authority is not subordinate and thus exercises unsupervised governmental power.
Sufficiency of FTC oversight ("consistency" review)	"Consistency" review is hollow: FTC cannot review policy choices, cannot force modifications, and often defers commenters to engage the Authority.	FTC’s publication, comment, and 60‑day consistency determination (plus limited interim rule power) provide meaningful oversight.	FTC review is too limited: it excludes substantive policy review and cannot compel changes; therefore it does not establish the requisite agency supervision.
Reliance on SEC–FINRA, Currin, Rettig, Amtrak precedents	These precedents are distinguishable because agencies there retained unilateral power to change or abrogate private rules or the private actors played a lesser role.	Those precedents (and the Maloney Act model) support HISA’s constitutionality.	Distinguished: SEC has broader abrogation power and Rettig involved more agency control; Amtrak I supports Plaintiffs. HISA’s scheme differs materially and fails constitutional tests.
Appellate jurisdiction and standing	Horsemen: appeal timely after district Rule 54(b) certification; they have standing to challenge HISA.	Authority argued untimely appeal and Texas lacked standing.	Appeal upheld as timely; Horsemen have Article III standing; court did not separately decide Texas’s standing.

Key Cases Cited

A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935) (private delegation of legislative power condemned)
Carter v. Carter Coal Co., 298 U.S. 238 (1936) (invalidating private actors’ power to set industry rules)
Currin v. Wallace, 306 U.S. 1 (1939) (upholding private veto over legislatively adopted rule timing, not private rulemaking)
Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381 (1940) (private bodies may propose rules only when subject to pervasive agency surveillance and authority)
Whitman v. American Trucking Ass’ns, 531 U.S. 457 (2001) (limits on public‑delegation doctrine and intelligible‑principle discussion)
Gundy v. United States, 139 S. Ct. 2116 (2019) (nondelegation doctrine discussion)
Dep’t of Transp. v. Ass’n of Am. R.R.s, 575 U.S. 43 (2015) (Amtrak decisions addressing government/private status and delegation issues)
Texas v. Rettig, 987 F.3d 518 (5th Cir. 2021) (distinguished: private body certified limited technical standards under stronger agency control)