Horseracing Integrity and Safety Authority v. National Horsemen’s Benevolent and Protective Association

Horseracing Integrity and Safety Authority, Incorporated, et al.,

Petitioners,

v.

National Horsemen’s Benevolent and Protective Association, et al.,

Respondents.

On Petition for a Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit.

Summary of Argument

This case is obviously certworthy. The Horseracing Integrity and Safety Authority is an unaccountable agency that exercises significant federal rulemaking, investigation, and enforcement authority, even though its members haven’t been politically appointed and even though it doesn’t have meaningful oversight by any other agency. There is a circuit split on the private nondelegation issue. A circuit court has struck down part of a federal statute. Parties from both sides, including the federal government, agree that a grant of certiorari is warranted.

However, this Court shouldn’t merely grant certiorari on the private nondelegation issue. It should also grant certiorari on the Appointments Clause issue, because these two issues are closely related, and the Fifth Circuit reached the incorrect result on each of these issues.

The Fifth Circuit was wrong that the Authority’s enforcement power violates the “private nondelegation doctrine.” There is no such doctrine. The idea that delegations of power to private parties are judged by a stricter standard than delegations to public parties has no support in any holdings of this Court. Any decisions that seem to the contrary have either been misinterpreted or were in fact based on other doctrines, like the Due Process Clause. And the lack of such a doctrine makes sense, because the nondelegation doctrine, which is rooted in Article I, sensibly asks whether Congress has given up too much power, not who the recipient of such power is.

If the Authority is considered a private organization, the delegation to the Authority should be judged by the same “intelligible principle” standard as a delegation to a public agency—and the delegation here clearly passes that test.

However, the Fifth Circuit reached the partially right result, though for the wrong reason. Contrary to the Fifth Circuit’s holding, exercises of power by the Authority, whether rulemaking or enforcement power, violate the Appointments Clause, because the members of the Authority are Officers of the United States but weren’t appointed as Officers should be under Article II.

That the Authority members are nominally private is unimportant for Officer status. The statutory labeling of the Authority as private, and the fact that the Authority is organized as a private organization under state law, are constitutionally irrelevant, and in any event Appointments Clause doctrine doesn’t demand that an Officer formally be a public employee.

Even if public status were relevant to the Appointments Clause—and even if the Fifth Circuit were correct to assume that “state actor” status under the State Action Doctrine is relevant here—the Fifth Circuit still erred in holding that the Authority isn’t a state actor. On the contrary, this is an easy case for state action, because rulemaking, investigation, and enforcement of federal law are traditionally exclusive public functions. Therefore, an alternative way of deciding the case would be to hold that the Authority is public because it is a state actor, which would uncontroversially activate both the Appointments Clause and the traditional (public) nondelegation doctrine.

The difference between the “private nondelegation doctrine” and the Appointments Clause isn’t just of academic interest.

First, the doctrines are motivated by different theories. The nondelegation doctrine is giver-focused, asking whether Congress has given up too much power; the public-private question fits poorly with this concern. By contrast, the Appointments Clause is recipient-focused, asking, from a democratic accountability perspective, whether the recipient of major power has been validly authorized by the proper political process. The problem here fits more naturally with the Appointments Clause issue.

Second, the doctrines won’t always produce the same results. A private nondelegation doctrine requires tough judgment calls about whether an organization is public or private, so the results will depend on the vagaries of public-private doctrines. And when the doctrine finds private status, it would apparently invalidate all delegations of “government power” that aren’t subordinate to a public agency. Horsemen’s I, 53 F.4th at 878. By contrast, the Appointments Clause asks whether someone (public or private) is “exercising significant authority pursuant to the laws of the United States.” Thus, an Appointments Clause approach will turn on how much power the agent exercises, ignoring trivial cases and requiring political accountability for significant ones. This is a sensible approach—otherwise, countless private delegations could be indiscriminately invalidated, from qui tam suits to private prison contracting to incorporation of private actuarial standards into healthcare regulation. Whether these are valid should depend on an inquiry into “significant authority.”

Therefore, this Court should grant certiorari on the Appointments Clause question.

This Court could reach the right result by only considering the Appointments Clause issue, because the correct resolution of that issue (that the Authority wields power unconstitutionally) would correctly resolve the entire case. But because parties from both sides, including the federal government, are asking the Court to consider the private nondelegation issue, and because that issue is obviously certworthy, amici ask that the private nondelegation and Appointments Clause issues be considered as linked and decided together.

The Sixth Circuit case (Oklahoma v. United States, No. 23-402) didn’t consider the Appointments Clause at all, so it would not be a good vehicle for a grant of certiorari. By contrast, the Eighth Circuit case (Walmsley v. FTC, No. 24-420) did consider the Appointments Clause, essentially incorporating the Fifth Circuit’s analysis (though the Appointments Clause issue was not part of the Questions Presented in the petition in that case). Therefore, this Court should grant certiorari—making sure that the grant includes the Appointments Clause question—in this case or in the Eighth Circuit case (or in both cases together).

Full Brief: Horseracing Integrity and Safety Authority v. National Horsemen’s Benevolent and Protective Association

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Source: https://reason.org/amicus-brief/horseracing-integrity-and-safety-authority-v-national-horsemens-benevolent-and-protective-association/