Natl Horsemen's Benevolent v. Black, 107 F.4th 415

The Horseracing Integrity and Safety Act of 2020 (HISA) established the Horseracing Integrity and Safety Authority (the Authority), a private nonprofit, to create and enforce rules in thoroughbred horseracing, under the oversight of the Federal Trade Commission (FTC).
In a previous decision (Horsemen’s I), the Fifth Circuit held HISA’s original rulemaking scheme violated the private nondelegation doctrine because the FTC could not overrule the Authority’s policy choices.
Congress amended HISA to give the FTC express authority to "abrogate, add to, and modify" the Authority’s rules, aiming to cure the nondelegation defect.
Plaintiffs (National Horsemen’s Benevolent and Protective Association and others, along with Texas and Gulf Coast Racing LLC) challenged HISA on multiple constitutional grounds, including nondelegation (as to both rulemaking and enforcement), due process, Appointments Clause, and the Tenth Amendment.
The district court upheld HISA as amended, finding the FTC’s new power solved the nondelegation problem for rulemaking and dismissed all other claims.
On appeal, the Fifth Circuit affirmed the cure for rulemaking but found the enforcement provisions still violate the private nondelegation doctrine, as private actors may enforce law without sufficient FTC oversight.

Issue	Plaintiff’s Argument	Defendant’s Argument	Held
Private nondelegation: rulemaking powers	FTC still lacks final say; Authority remains supreme	FTC’s new authority cures the defect; now has final word	Amendment cured nondelegation for rulemaking under private doctrine
Private nondelegation: enforcement powers	Enforcement power is still unsupervised by FTC	FTC can supervise after-the-fact or via rules	Enforcement powers remain unconstitutional for lack of oversight
Due Process: self-interested regulation	Self-interested actors may control rivals under HISA	Sufficient conflict-of-interest provisions exist	No facial/as-applied due process violation
Appointments Clause: are directors officers?	Authority is a government entity, must comply with Clause	Authority is private, so not subject to Clause	Authority is private under Lebron; Clause not applicable
Tenth Amendment: Anti-commandeering	HISA coerces Texas to implement a federal program	Plaintiff has no particularized injury	Plaintiff lacks standing; court did not reach merits

Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 374 (Supreme Court framework to determine when a nominally private entity is a federal instrumentality)
Buckley v. Valeo, 424 U.S. 1 (distinguishes between public and private officers for Appointments Clause)
Free Enter. Fund v. PCAOB, 561 U.S. 477 (rules for removal and appointment of government officers)
Carter v. Carter Coal Co., 298 U.S. 238 (due process violated when private interests regulate competitors)
Whitman v. Am. Trucking Ass’ns, 531 U.S. 457 (scope of agency authority and statutory interpretation)
Biden v. Nebraska, 600 U.S. --- (limits of amending statutory schemes)
Printz v. United States, 521 U.S. 898 (anti-commandeering principle under the Tenth Amendment)
New York v. United States, 505 U.S. 144 (federalism and state coercion)