RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 23a0035p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

STATE OF OKLAHOMA; OKLAHOMA HORSE RACING COMMISSION;

TULSA COUNTY PUBLIC FACILITIES AUTHORITY, dba Fair Meadows 

Racing and Sports Bar; STATE OF WEST VIRGINIA; WEST VIRGINIA 

RACING COMMISSION; HANOVER SHOE FARMS, INC.; OKLAHOMA 

QUARTER HORSE RACING ASSOCIATION; GLOBAL GAMING RP, 

LLC, dba Remington Park; WILL ROGERS DOWNS, LLC; UNITED 

STATES TROTTING ASSOCIATION; STATE OF LOUISIANA,

Plaintiffs-Appellants,

v.

UNITED STATES OF AMERICA; HORSERACING INTEGRITY AND 

SAFETY AUTHORITY, INC.; LEONARD S. COLEMAN, JR.; NANCY M.

COX; FEDERAL TRADE COMMISSION; REBECCA KELLY SLAUGHTER, 

in her official capacity as Acting Chair of the Federal Trade 

Commission; NOAH JOSHUA PHILLIPS, in his official capacity as 

Commissioner of the Federal Trade Commission; ALVARO 

BEDOYA, in his official capacity as Commissioner of the Federal 

Trade Commission; CHRISTINE S. WILSON, in her official capacity 

as Commissioner of the Federal Trade Commission; STEVE 

BESHEAR; ADOLPHO A. BIRCH, JR.; ELLEN MCCLAIN; CHARLES P.

SCHEELER; JOSEPH DEFRANCIS; SUSAN STOVER; BILL THOMASON;

D.G. VAN CLIEF; LINA KHAN,

Defendants-Appellees.

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No. 22-5487

Appeal from the United States District Court for the Eastern District of Kentucky at Lexington.

No. 5:21-cv-00104—Joseph M. Hood, District Judge.

Argued: December 7, 2022

Decided and Filed: March 3, 2023

Before: SUTTON, Chief Judge; COLE and GRIFFIN, Circuit Judges.

>
No. 22-5487 State of Okla., et al. v. United States, et al. Page 2

_________________

COUNSEL

ARGUED: Matthew D. McGill, GIBSON, DUNN & CRUTCHER LLP, Washington, D.C., for 

Appellants. Courtney L. Dixon, UNITED STATES DEPARTMENT OF JUSTICE, 

Washington, D.C., for Federal Appellees. Pratik A. Shah, AKIN GUMP STRAUSS HAUER & 

FELD LLP, Washington, D.C., for Horseracing Authority Appellees. ON BRIEF: Matthew D. 

McGill, Lochlan F. Shelfer, GIBSON, DUNN & CRUTCHER LLP, Washington, D.C., Zach 

West, Bryan Cleveland, OFFICE OF THE OKLAHOMA ATTORNEY GENERAL, Oklahoma 

City, Oklahoma, Lindsay S. See, OFFICE OF THE WEST VIRGINIA ATTORNEY 

GENERAL, Charleston, West Virginia, Joseph Bocock, BOCOCK LAW PLLC, Oklahoma City, 

Oklahoma, Todd Hembree, CHEROKEE NATION BUSINESS, Catoosa, Oklahoma, Elizabeth 

B. Murrill, LOUISIANA DEPARTMENT OF JUSTICE, Baton Rouge, Louisiana, Michael 

Burrage, WHITTEN BURRAGE, Oklahoma City, Oklahoma, Jared C. Easterling, GREEN 

LAW FIRM PC, Ada, Oklahoma, for Appellants. Courtney L. Dixon, Joseph F. Busa, UNITED 

STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Federal Appellees. Pratik A. 

Shah, Lide E. Paterno, AKIN GUMP STRAUSS HAUER & FELD LLP, Washington, D.C., 

John C. Roach, RANSDELL ROACH & ROYSE, Lexington, Kentucky, for Horseracing 

Authority Appellees. Benjamin M. Flowers, OFFICE OF THE OHIO ATTORNEY GENERAL, 

Columbus, Ohio, Paul E. Salamanca, Lexington, Kentucky, April A. Wimberg, DENTONS

BINGHAM GREENEBAUM LLP, Louisville, Kentucky, Gregory G. Garre, Blake E. Stafford, 

LATHAM & WATKINS LLP, Washington, D.C., for Amici Curiae.

SUTTON, C.J., delivered the opinion of the court in which GRIFFIN and COLE, JJ., 

joined. COLE, J. (pp. 20–31), delivered a separate concurring opinion.

_________________

OPINION

_________________

SUTTON, Chief Judge. Sometimes government works. In 2020, when Congress enacted 

the Horseracing Safety and Integrity Act to create a national framework to regulate thoroughbred 

horseracing, it generated several non-delegation and anti-commandeering challenges to the 

validity of the Act. The lead challenge—the non-delegation challenge—turned on the reality that 

the Act replaced several state regulatory authorities with a private corporation, the Horseracing 

Authority, which became the Act’s primary rule-maker and which was not subordinate to the 

relevant public agency, the Federal Trade Commission, in critical ways. The Fifth Circuit 

declared the Act unconstitutional because it gave “a private entity the last word” on federal law. 
No. 22-5487 State of Okla., et al. v. United States, et al. Page 3

Nat’l Horsemen’s Benevolent & Protective Ass’n v. Black, 53 F.4th 869, 872, 888–89 (5th Cir. 

2022).

In response, Congress amended the Act to give the Federal Trade Commission discretion 

to “abrogate, add to, and modify” any rules that bind the industry. Consolidated Appropriations 

Act of 2023, Pub. L. No. 117-328, 136 Stat. 4459 (2022). The Constitution anticipates, though it 

does not require, constructive exchanges between Congress and the federal courts. See 

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring) 

(explaining that “interdependence” and “reciprocity” should characterize the relationship 

between the branches as much as “separateness” and “autonomy”). A productive dialogue 

occurred in this instance, and it ameliorated the concerns underlying the non-delegation 

challenge. As amended, the Horseracing Act gives the FTC the final say over implementation of 

the Act relative to the Horseracing Authority, allowing us to uphold the Act as constitutional in 

the face of this non-delegation challenge as well as the anti-commandeering challenge. 

I.

Unlike other sports, no one authority traditionally has regulated horseracing. Instead, 38 

state regulatory schemes have supplied an array of protocols and safety requirements. Kjirsten 

Lee, Transgressing Trainers and Enhanced Equines, 11 J. Animal & Nat. Res. L. 23, 26 (2015). 

Most Americans know horseracing through occasional high-visibility races, say the Kentucky 

Derby on the first Saturday of May, or high-visibility books, say Seabiscuit. But as the partly 

and fully initiated alike can appreciate, the sport comes with risk. Racing a dozen or more 

jockeys atop large horses around a mile or more track, all with prize money and gambling 

positions at stake, creates plenty of danger. Over the last seventy years or so, fatal accidents for 

jockeys during horseraces have exceeded that of drivers in NASCAR races. Peta L. Hitchens et 

al., Jockey Falls, Injuries, and Fatalities Associated with Thoroughbred and Quarter Horse 

Racing in California 2007–2011, at 3, Orthopedic J. Sports Med. (2013) (129 jockeys killed 

between 1940 and 2012); How Many NASCAR Drivers Have Died Racing?, Motor Racing 

Sports, https://tinyurl.com/2d3xnazy (last visited Feb. 6, 2023) (82 NASCAR drivers killed 

between 1950 and 2021). Faring no better, almost 500 thoroughbreds died in 2018 alone due to 
No. 22-5487 State of Okla., et al. v. United States, et al. Page 4

racing injuries. Why Horse Racing Is So Dangerous, Nat’l Geographic (Jan. 21, 2020), 

https://tinyurl.com/ycyf5rhv. 

Whether it’s the risk of pushing horses past their limits or the risks associated with unsafe 

tracks and doping, or other health and safety issues facing horses and jockeys, no one doubts the 

imperative for oversight. The question, as is so often the case, is whether the regulation should 

be national or local. 

In 2020, Congress answered national but did so in conventional and unconventional 

ways. Conventionally, it enacted the Horseracing Integrity and Safety Act to nationalize 

regulatory authority over thoroughbred racing. 15 U.S.C. §§ 3051–60. Less conventionally, it 

chose to use a private nonprofit corporation—the Horseracing Integrity and Safety Authority—to 

do some of the regulating. 

The Act charges the Horseracing Authority with “developing and implementing a 

horseracing anti-doping and medication control program and a racetrack safety program.” Id.

§ 3052(a). The Authority’s jurisdiction also includes the “safety, welfare, and integrity” of 

covered thoroughbreds, jockeys, and horseraces. Id. § 3054(a)(2)(A). The Authority may 

expand the Act’s coverage to other breeds upon request by a state racing commission or a breed 

governing organization. Id. § 3054(l).

The Horseracing Authority funds its operations through fees on the horseracing industry. 

Each year, it calculates its budget and apportions amounts owed by each State. Id.

§ 3052(f)(1)(C). The States have two options. They may collect the fees themselves from 

covered entities and remit the fees to the Authority. Id. § 3052(f)(2)(D). Or they may allow the 

Authority to collect the fees directly. Id. § 3052(f)(3)(A)–(C). 

The Act empowers the Horseracing Authority to promulgate rules on a variety of 

subjects: prohibited medications, laboratory protocols and accreditation, racetrack standards and 

protocols, injury analysis, enforcement, and fee assessments. Id. § 3053(a). The Authority also 

develops procedures for its investigatory and subpoena powers. Id. § 3054(c). Once issued, the 

rules preempt state law. Id. § 3054(b). 
No. 22-5487 State of Okla., et al. v. United States, et al. Page 5

The Horseracing Authority implements the rules, monitors compliance, and investigates 

potential rule infractions. Id. § 3054(c), (h), (i). The Act directs “the Authority and Federal or 

State law enforcement authorities” to “cooperate and share information” whenever a covered 

person may have violated federal or state law in addition to one of the Authority’s rules. Id.

§ 3060(b). After investigating, the Authority may enforce the rules through internal 

adjudications or civil lawsuits. Id. §§ 3054(j), 3057(c). 

Under the Horseracing Act as originally passed, the Federal Trade Commission played a 

limited role. The FTC published the Authority’s proposed rules for public comment. Id.

§ 3053(b)(1). After the comment period, the FTC had to approve the rules if they were 

“consistent” with the Act and with other “applicable rules approved by the Commission.” Id.

§ 3053(b)–(c). The FTC also could issue an “interim” rule if it had “good cause” to do so and if 

the rule was “necessary to protect” the welfare of horses or the integrity of the sport. Id. 

§ 3053(e) (2020); see 5 U.S.C. § 553(b)(B). 

This framework prompted legal challenges. In a case filed in federal court in Texas, 

several claimants argued that the Act violated the Constitution by delegating unmonitored 

lawmaking power to a private entity. The Fifth Circuit agreed, reasoning that the FTC’s 

oversight was insufficient because the FTC could not modify the rules or otherwise question the 

Horseracing Authority’s policy choices. Black, 53 F.4th at 872–73, 886–87. Our court faced a 

similar challenge. Oklahoma, West Virginia, Louisiana, their racing commissions, and other 

entities (collectively, Oklahoma) claimed that the Act unlawfully delegated federal power to a 

private entity and unlawfully commandeered the States. The district court dismissed 

Oklahoma’s claims. 

After the Fifth Circuit issued its decision and after we heard oral argument in our case, 

Congress enacted, and the President signed into law, an amendment to the Act that increased the 

FTC’s oversight role. The amendment eliminated the FTC’s interim-rule authority and instead 

gave sweeping power to the FTC to create rules that “abrogate, add to, and modify the rules of 

the Authority.” 15 U.S.C. § 3503(e) (as amended). Oklahoma maintains that the Act remains 

unconstitutional. 
No. 22-5487 State of Okla., et al. v. United States, et al. Page 6

II.

Mootness. First things first: Does the amendment to the Act transform this live 

controversy into a moot one? When Congress amends a statute, it is true, pending claims 

challenging the law sometimes become moot. See City of Pontiac Retired Emps. Ass’n v. 

Schimmel, 751 F.3d 427, 430 (6th Cir. 2014) (en banc) (per curiam). Not invariably, however. 

If the revised statute continues to place a non-trivial burden on the plaintiff that arises from the 

same theory of unconstitutionality set forth in the complaint, the case remains live. Kenjoh 

Outdoor, LLC v. Marchbanks, 23 F.4th 686, 692–93 (6th Cir. 2022). A similar conclusion 

applies if the amendment does not affect other features of the challenge. Both exceptions apply 

here. 

The amendment to § 3053(e) of the Horseracing Act does not moot Oklahoma’s nondelegation claim. While significant to the outcome of the case, this singular amendment changes 

little about the Act’s basic structure. The revised Act “operates in the same fundamental ways,” 

with the Authority proposing and enforcing rules and with the FTC overseeing all of them, the 

key difference being that the FTC has far more oversight authority than it had before. Id. at 693. 

The revised Act likewise presents fundamentally the “same controversy,” with Oklahoma 

continuing to argue that the Act gives too much unsubordinated power to a private entity. Id.; 

see Cam I, Inc. v. Louisville/Jefferson Cnty. Metro Gov’t, 460 F.3d 717, 720 (6th Cir. 2006). 

Nor does the Act moot Oklahoma’s anti-commandeering claim. In reality, the amendment does 

not change that dispute in any material way. 

Remand. One other preliminary point remains. If the legislature changes a law while a 

live challenge to it remains on appeal, appellate courts may remand the case for the district court 

to take the first look at the revised law. Hadix v. Johnson, 144 F.3d 925, 934 (6th Cir. 1998), 

abrogated on other grounds, 530 U.S. 327 (2000). The option is discretionary, not mandatory. 

In this instance, we see “little to be gained” from a remand because Oklahoma brings facial 

challenges that raise only legal issues and because the parties and panel have already devoted 

considerable time and resources to the dispute. Id. at 935; see Phelps-Roper v. Troutman, 

712 F.3d 412, 417 (8th Cir. 2013) (per curiam). Fortifying this conclusion is the reality that the 

challengers have asked us to proceed to the merits.
No. 22-5487 State of Okla., et al. v. United States, et al. Page 7

III.

A.

Non-delegation. Through the United States Constitution, the People separated the 

powers of the National Government into three branches. They vested the legislative power in 

Congress, the executive in the President, and the judicial in the federal courts. U.S. Const. art. I, 

§ 1; id. art. II, § 1; id. art. III, § 1. The People also constrained each branch’s use of its power 

through counterweights in the other branches. To preserve this balance, the Constitution bars 

further delegations of power between the branches. Whitman v. Am. Trucking Ass’ns, 531 U.S. 

457, 472 (2001). 

What about delegations to private entities? Surely, if the Vesting Clauses bar the three 

branches from exchanging powers among themselves, those Clauses bar unchecked 

reassignments of power to a non-federal entity. Just as it is a central tenet of liberty that the 

government may not permit a private person to take property from another private person, 

Calder v. Bull, 3 U.S. (Dall.) 386, 388–89 (1798) (Chase, J.), or allow private individuals to 

regulate other private individuals, Washington ex rel. Seattle Title Tr. Co. v. Roberge, 278 U.S. 

116, 122 (1928), it follows that the government may not empower a private entity to exercise 

unchecked legislative or executive power. Those who govern the People must be accountable to 

the People. Completely transferring unchecked federal power to a private entity that is not 

elected, nominated, removable, or impeachable undercuts representative government at every 

turn. 

Precedent confirms that unchecked delegations to private entities at a minimum violate 

core separation-of-power guarantees. Consider A.L.A. Schechter Poultry Corp. v. United States, 

295 U.S. 495 (1935). A federal statute gave the President discretion to create codes of fair 

competition based on proposals from private entities. Id. at 542. Rejecting the government’s 

view that private participation cured any surplus delegation to the President, the Court explained 

that transforming private groups into legislatures was “utterly inconsistent” with the 

constitutional design. Id. at 537.
No. 22-5487 State of Okla., et al. v. United States, et al. Page 8

The Court applied the same standard to the Bituminous Coal Act. In Carter v. Carter 

Coal Co., the Court concluded that, by empowering coal producers to set wages and to control 

the businesses of others, the Act amounted to a “delegation in its most obnoxious form” because 

such regulation “is necessarily a governmental function.” 298 U.S. 238, 310–11 (1936). 

Appreciating the problem, Congress amended the Act the next year to give the Coal 

Commission, a government entity, the power to set prices. See Sunshine Anthracite Coal Co. v. 

Adkins, 310 U.S. 381, 388 (1940). After Congress subordinated the private coal producers to a 

public body (the Coal Commission) that could modify or reject their proposals, the Court 

determined that the statute did not impermissibly delegate “legislative authority to the industry.” 

Id. at 399. 

Taken together, these cases draw a line between impermissible delegation of unchecked 

lawmaking power to private entities and permissible participation by private entities in 

developing government standards and rules. Adkins shows that a private entity may aid a public 

federal entity that retains authority over the implementation of federal law. Id. at 388. But if a 

private entity creates the law or retains full discretion over any regulations, Carter Coal and 

Schechter tell us the answer: that it is an unconstitutional exercise of federal power. See Carter 

Coal, 298 U.S. at 311; Schechter, 295 U.S. at 537.

Decisions from the courts of appeals hold this line. Private entities may serve as advisors 

that propose regulations. See Sierra Club v. Lynn, 502 F.2d 43, 59 (5th Cir. 1974); Cospito v. 

Heckler, 742 F.2d 72, 87–89 (3d Cir. 1984); Todd & Co. v. SEC, 557 F.2d 1008, 1012–13 (3d 

Cir. 1977). And they may undertake ministerial functions, such as fee collection. See Pittston 

Co. v. United States, 368 F.3d 385, 395–97 (4th Cir. 2004); United States v. Frame, 885 F.2d 

1119, 1128–29 (3d Cir. 1989), abrogated on other grounds, 521 U.S. 457 (1997). But a private 

entity may not be the principal decisionmaker in the use of federal power, Pittston Co., 368 F.3d 

at 395–97, may not create federal law, Texas v. Rettig, 987 F.3d 518, 533 (5th Cir. 2021), may 

not wield equal power with a federal agency, Ass’n of Am. R.R. v. U.S. Dep’t of Transp. (Amtrak 

I), 721 F.3d 666, 671–73 (D.C. Cir. 2013), vacated on other grounds, 575 U.S. 43 (2015), or 

regulate unilaterally, Black, 54 F.4th at 872. 
No. 22-5487 State of Okla., et al. v. United States, et al. Page 9

An illuminating example comes from securities law. The Securities and Exchange 

Commission regulates the securities industry with the assistance of private, self-regulatory 

organizations called SROs. The SROs propose rules for the industry, and they initially enforce 

the rules through internal adjudication. The SEC oversees both the rulemaking and the 

enforcement. As to the rules, the SEC approves proposed rules if they are consistent with the 

Maloney Act, and may “abrogate, add to, and delete from” an SRO’s rules “as the Commission 

deems necessary or appropriate.” 15 U.S.C. § 78s(b)(2)(C), (c). As to enforcement, the SEC 

applies fresh review to the SRO’s decisions and actions. Id. § 78s(e); see Sartain v. SEC, 601 

F.2d 1366, 1369–71 (9th Cir. 1979). In case after case, the courts have upheld this arrangement, 

reasoning that the SEC’s ultimate control over the rules and their enforcement makes the SROs 

permissible aides and advisors. See R.H. Johnson & Co. v. SEC, 198 F.2d 690, 695 (2d Cir. 

1952); Todd & Co., 557 F.2d at 1012–13; First Jersey Secs., Inc. v. Bergen, 605 F.2d 690, 697 

(3d Cir. 1979); Sorrell v. SEC, 679 F.2d 1323, 1325–26 (9th Cir. 1982); see also Amtrak I, 721 

F.3d at 671 n.5 (describing the SROs’ role as “purely advisory or ministerial”). 

These sources all suggest that, at a minimum, a private entity must be subordinate to a 

federal actor in order to withstand a non-delegation challenge. Whether subordination always 

suffices to withstand a challenge raises complex separation of powers questions. Simplifying 

matters for today, if not for a future day, the parties accept this framing of the appeal. As the 

case comes to us, then, the determinative question is whether the Horseracing Authority is 

inferior to the FTC. 

B.

The Horseracing Authority is subordinate to the agency. The Authority wields materially 

different power from the FTC, yields to FTC supervision, and lacks the final say over the content 

and enforcement of the law—all tried and true hallmarks of an inferior body. 

Rulemaking. As amended, the Horseracing Act gives the FTC supervision over the rules 

that govern the horseracing industry. At the outset, the Horseracing Authority drafts rules on 

racetrack safety and anti-doping matters, and the FTC must approve those proposals if they are 

consistent with the Act. 15 U.S.C. § 3053(c)(2). But, critically, as the FTC “deems necessary or 
No. 22-5487 State of Okla., et al. v. United States, et al. Page 10

appropriate,” it “may abrogate, add to, and modify the rules.” Id. § 3053(e) (as amended). 

The FTC’s power to abrogate and change the Authority’s rules creates “a clear hierarchy.” 

Black, 53 F.4th at 888–89. 

Section 3053(e)’s amended text grants the FTC a comprehensive oversight role. The Act 

provides that the FTC may act as it “finds necessary or appropriate to ensure the fair 

administration of the Authority, to conform the rules of the Authority to requirements of this Act 

and applicable rules approved by the Commission, or otherwise in furtherance of the purposes of 

this Act.” 15 U.S.C. § 3053(e) (as amended). The final catchall indicates that § 3053(e) spans 

the Horseracing Authority’s jurisdiction. The parties are one in agreeing that this section allows 

the FTC to modify rules “if it wishes.” Appellants’ Suppl. Br. 1. 

A comparison with § 3053(e)’s pre-amendment language reenforces the point. Before 

the amendment, § 3053(e) allowed the FTC to adopt interim rules only if “necessary,” and only 

if good cause existed to bypass the Administrative Procedure Act’s notice and comment 

procedures. 15 U.S.C. § 3053(e) (2020). The Fifth Circuit concluded that the ability to “make 

temporary rules on a break-glass-in-case-of-an-emergency basis” did not give the FTC sufficient 

control. Black, 53 F.4th at 883. The FTC could overrule the Authority only in rare, extreme 

cases, making it the inferior, not the superior, rule-maker. The amended section, by contrast, 

requires no emergency, no good cause, no necessity. The FTC now may create new rules or 

modify existing rules as it deems “appropriate to” advance “the purposes of [the] Act.” 

15 U.S.C. § 3053(e) (as amended). That amounts to true oversight authority.

With § 3053(e)’s broad power to write and rewrite the rules comes policymaking 

discretion. See Cospito, 742 F.2d at 88–89. When the FTC decides to act—whether by 

abrogating one of the Horseracing Authority’s rules or introducing its own—the FTC makes a 

policy choice and necessarily scrutinizes the Authority’s policies. That is no less true when the 

FTC decides not to act. In either setting, the FTC may “unilaterally change regulations,” Amtrak 

I, 721 F.3d at 671, and “is free to prescribe” the rules, showing that it “retains ultimate 

authority,” Cospito, 742 F.2d at 88. In a recent rule, the FTC recognized as much, 

explaining that its new “rulemaking power” allows it to “exercise its own policy choices.” 
No. 22-5487 State of Okla., et al. v. United States, et al. Page 11

Order Ratifying Previous Commission Orders 3, Fed. Trade Comm’n (Jan. 3, 2023), 

https://tinyurl.com/dkenwspt. 

In full, § 3053(e)’s amended text gives the FTC ultimate discretion over the content of 

the rules that govern the horseracing industry and the Horseracing Authority’s implementation of 

those rules. By the same token, ultimate “law-making is not entrusted to the [Authority].” 

Adkins, 310 U.S. at 399; see Frame, 885 F.2d at 1129. That makes the FTC the primary rulemaker, and leaves the Authority as the secondary, the inferior, the subordinate one. See Adkins, 

310 U.S. at 388.

Accountability considerations lead to the same destination. Before the amendment, the 

Fifth Circuit determined that the FTC could not question the Horseracing Authority’s policy 

choices or modify its rules. Black, 53 F.4th at 886–87. It followed that the Authority, a private 

entity beyond public control, alone was responsible for the exercise of government power in this 

area. Not so anymore. With its new ability to have “the final word on the substance of the 

rules,” the FTC bears ultimate responsibility. Id. at 887; cf. Lynn, 502 F.2d at 59. The People 

may rightly blame or praise the FTC for how adroitly (or, let’s hope not, ineptly) it “ensure[s] the

fair administration of the Authority” and advances “the purposes of [the] Act.” 15 U.S.C. 

§ 3053(e) (as amended).

Enforcement. A similar conclusion applies to enforcement of the Act. The Horseracing 

Authority’s enforcement duties are extensive, granted. The Authority implements the Act, 

investigates potential rule violations, and enforces the rules through internal adjudications and 

external civil lawsuits. Even so, the FTC’s rulemaking and rule revision power gives it 

“pervasive” oversight and control of the Authority’s enforcement activities, just as it does in the 

rulemaking context. Adkins, 310 U.S. at 388. 

Take an example to illustrate the point. Imagine that the Horseracing Authority began 

enforcing its rule without giving thought to the procedural rights of jockeys, trainers, and other 

industry participants. Section 3053(e) gives the FTC the tools to step in. To ensure a fair 

enforcement process, the FTC could issue rules protecting covered persons from overbroad 

subpoenas or onerous searches. The FTC could require that the Authority provide a suspect with 
No. 22-5487 State of Okla., et al. v. United States, et al. Page 12

a full adversary proceeding and with free counsel. And the FTC could require that the Authority 

meet a burden of production before bringing a lawsuit or preclear the decision with the FTC. In 

these ways as well as others, the FTC may control the Authority’s enforcement activities and 

ensure that the FTC, not the Authority, ultimately decides how the Act is enforced. 

Topping this oversight off, the FTC has full authority to review the Horseracing 

Authority’s enforcement actions. 15 U.S.C. § 3058(c)(1)–(2). After an independent review, the 

FTC may reverse the Authority’s decision. Id. § 3058(c)(3). As with rulemaking, so with 

adjudication: The Authority’s adjudication decisions are not final until the FTC has the 

opportunity to review them. See Cospito, 742 F.2d at 88; Todd & Co., 557 F.2d at 1012–14. All 

told, the Horseracing Authority is “subject to [the FTC’s] pervasive surveillance and authority,” 

revealing that the Authority “operate[s] as an aid to the [FTC],” nothing more. Adkins, 310 U.S. 

at 388. 

Whether the FTC becomes a demanding taskmaster or a lenient one, the FTC could

subordinate every aspect of the Authority’s enforcement “to ensure the fair administration of the 

Authority . . . or otherwise in furtherance of the purposes of [the] Act.” 15 U.S.C. § 3053(e) (as 

amended). That potential suffices to defeat a facial challenge, where Oklahoma must show that 

the Act is unconstitutional in all its applications. United States v. Salerno, 481 U.S. 739, 745 

(1987).

C.

In seeking to head off this conclusion, Oklahoma points out that the amendment does not 

change one feature of the Act—that the FTC has power only to review proposed rules by the 

Authority for “consistency” with the Act, a standard of review that, it says, does not pick up 

policy disagreements. 15 U.S.C. § 3053(c). Maybe so. But even if that is the case, the FTC’s 

later authority to modify any rules for any reason at all, including policy disagreements, ensures 

that the FTC retains ultimately authority over the implementation of the Horseracing Act. The 

FTC’s review authority in this respect parallels similar authority exercised by the SEC under the 

Maloney Act. Compare 15 U.S.C. § 78s(c) (providing that the SEC “may abrogate, add to, and 

delete from . . . the rules of [the private entity] as the Commission deems necessary or 
No. 22-5487 State of Okla., et al. v. United States, et al. Page 13

appropriate”), with 15 U.S.C. § 3053(e) (as amended) (providing that the FTC “may abrogate, 

add to, and modify the rules of the Authority . . . as the Commission finds necessary or 

appropriate”). The same is true in the Coal Act. See Bituminous Coal Act of 1937, Pub. L. No. 

75-48, § 4, 50 Stat. 72, 78 (providing that the Coal Commission could “approve, disapprove, or 

modify” proposals). 

Before the amendment, Oklahoma observed that the SEC’s modification power gives the 

SEC “largely unbounded authority to craft [the private entity’s] regulations as it sees fit.” Reply 

Br. 7. The same is now true under the Horseracing Act. The lack of a modification power, 

moreover, was the “key distinction” the Fifth Circuit identified between the Maloney and 

Horseracing Acts. Black, 53 F.4th at 887. The amendment to § 3053(e) eliminates that 

distinction. Even if other less-material distinctions between the two laws remain, the FTC’s new 

discretion to adopt and modify rules correctly places the private Horseracing Authority in a 

subordinate position to the public FTC. All of this explains why every court of appeals to 

address the validity of such delegations under the Maloney Act and the Coal Act, as noted, has 

upheld them. 

Oklahoma worries that the Horseracing Authority’s rules could govern a dispute until the 

FTC undoes rules it dislikes. It’s true that the FTC’s modification authority under § 3053(e), as 

it currently exists, customarily would run through ordinary rulemaking. But that current reality 

need not be a future reality. For one, the threat of modification is not likely to miss the attention 

of the Authority. For another, the FTC has power to initiate new rules, not just to modify rules it 

does not like. To the extent this timing gap creates a problem, the FTC is free to resolve it ahead 

of time. It might, for example, adopt a rule that all newly enacted rules do not take effect for 180 

days, thereby giving the FTC time to review rules and prepare preemptive modifications.

This argument overlooks another reality. When the FTC reviews the Horseracing 

Authority’s proposed rules, it asks not just whether they are “consistent” with the Act; it also 

asks whether they are “consistent” with other “applicable rules approved by the Commission.” 

Id. § 3053(c)(2). Any risk of a policymaking gap between initial consistency review and initial 

full review will diminish over time as the FTC chooses to exercise—or not to exercise—its 
No. 22-5487 State of Okla., et al. v. United States, et al. Page 14

complete authority to initiate new rules or modify old ones. Over time, the FTC’s threshold 

consistency review will account for its own full-throated rulemaking power.

Oklahoma notes that the FTC’s duty under the Administrative Procedure Act to explain 

any changes to the rules limits its hand. But that just means it may not arbitrarily alter the rules. 

The APA does not limit the FTC’s authority to disagree with the Horseracing Authority over a 

policy choice delegated to the agency by Congress. The FTC “need not demonstrate to a court’s 

satisfaction that the reasons for the new policy are better than the reasons for the old.” FCC v. 

Fox Television Stations, Inc., 556 U.S. 502, 515 (2009). It is enough that “there are good 

reasons” for the new policy “and that the agency believes it to be better.” Id.

No matter, Oklahoma adds: The Horseracing Authority’s ability to expand its 

jurisdiction to breeds other than thoroughbreds escapes the FTC’s review. Not so. The FTC’s 

§ 3053(e) power allows it to revoke the Authority’s decision or place procedural and substantive 

conditions on any such decision.

Oklahoma points to the Horseracing Authority’s ability to enforce the Act through civil 

lawsuits, asserting that the ability cannot reside outside the executive branch. “Difficult and 

fundamental questions,” we agree, arise when private entities enforce federal law. Friends of the 

Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 197 (2000) (Kennedy, J., 

concurring). But this is not an as-applied challenge to an individual enforcement action; it is a 

facial challenge to the Act. The FTC’s ultimate authority over all rules promulgated under the 

Act, which would include any rules related to enforcement, offers a potent answer to this concern 

in the context of a facial challenge. The Authority’s enforcement through internal adjudication 

and external lawsuits is subordinate to the FTC. The other reality is that the parties simply have 

not engaged with this feature of the Act, including briefing with respect to founding-era or 

contemporary analogs showing the role private entities may, and may not, play in law 

enforcement. That omission is understandable. From the start, Oklahoma litigated this claim as 

one turning on “governmental oversight” of and “accountability” for the Horseracing Authority’s 

activities, not as a categorical Article II inquiry or as a question of historical meaning. R.53 

¶ 150; R.98 at 23–24. We thus will decide the case as it comes to us, and save resolution of such 
No. 22-5487 State of Okla., et al. v. United States, et al. Page 15

questions, if such questions there be, for a day when the Authority’s actions and the FTC’s 

oversight appear in concrete detail, presumably in the context of an actual enforcement action. 

IV.

Oklahoma separately claims that two provisions of the Horseracing Act, § 3060(b) and 

§ 3052(f), violate the anti-commandeering guarantee of the Tenth Amendment. Oklahoma lacks 

standing to challenge the first provision, and the second one does not count as a cognizable form 

of commandeering. 

A.

Oklahoma initially sets its sights on § 3060(b), which requires state authorities to 

“cooperate and share information” with the Horseracing Authority or federal agencies. Right or 

wrong about whether this requirement amounts to commandeering, Oklahoma and the other 

State plaintiffs lack standing to challenge it. 

Standing arises from the Constitution’s mandate that federal courts decide only “Cases” 

or “Controversies.” U.S. Const. art. III, § 2, cl. 1. A plaintiff must establish standing for each 

claim he presses and each statutory provision he challenges. TransUnion LLC v. Ramirez, 141 S. 

Ct. 2190, 2207–08 (2021). To do that, he must point to an injury that is traceable to the 

defendant’s conduct and that a judicial decision can redress. Lujan v. Defs. of Wildlife, 504 U.S. 

555, 560–61 (1992). In a pre-enforcement challenge like this one, a plaintiff must also allege a 

“credible threat” of future enforcement. Susan B. Anthony List v. Driehaus, 573 U.S. 149, 159 

(2014). 

Oklahoma has not carried this burden. Even if Oklahoma is correct that § 3060(b) 

unlawfully orders the States to cooperate, the provision does not contain a penalty or 

enforcement mechanism. And Oklahoma does not point to any actual or threatened enforcement 

actions. An unenforceable statutory duty does not give rise to Article III standing, California v. 

Texas, 141 S. Ct. 2104, 2113–14 (2021), and “mere conjecture” about possible enforcement is 

not any better, Clapper v. Amnesty Int’l USA, 568 U.S. 398, 420 (2013). 
No. 22-5487 State of Okla., et al. v. United States, et al. Page 16

Oklahoma asserts in response that wrongdoing will “frequently” implicate both federal 

and state law, and thus trigger the duty to cooperate. R.86 at 10. But the question is not how 

often the opportunity for cooperation may arise; it is whether the defendants can or will mandate 

cooperation when that time comes. Even so, Oklahoma notes, the Horseracing Authority may 

penalize States that refuse to cooperate. But the Authority’s sanction power extends only to 

covered persons, a term that does not include States. 15 U.S.C. §§ 3051(5), 3054(d), 3057(a)(1); 

see Gregory v. Ashcroft, 501 U.S. 452, 464 (1991). The same is true of the Authority’s ability to 

initiate civil lawsuits. 15 U.S.C. § 3054(j). 

Absent a credible allegation that the Horseracing Authority or the FTC can or will 

enforce § 3060(b), Oklahoma lacks standing to challenge it. California, 141 S. Ct. at 2115.

B. 

Oklahoma separately claims that § 3052(f) puts the States to an unconstitutionally 

coercive choice. While § 3052(f)’s threat of preemption gives Oklahoma standing, Kentucky v. 

Biden, 23 F.4th 585, 597–601 (6th Cir. 2022), the provision does not commandeer the States. 

Congress may not require the States, separate sovereigns all, to implement federal 

programs. Printz v. United States, 521 U.S. 898, 925 (1997). Nor may the federal government 

issue “orders directly to the States” to carry out this or that federal program. Murphy v. NCAA, 

138 S. Ct. 1461, 1475 (2018). At the same time, Congress may “encourage a State to regulate” 

or “hold out incentives” in hopes of “influencing a State’s policy choices.” New York v. United 

States, 505 U.S. 144, 166 (1992). 

One option in this last respect is that Congress may encourage the States through 

conditional preemption. Hodel v. Va. Surface Mining & Reclamation Ass’n, Inc., 452 U.S. 264, 

290 (1981). Instead of preempting state law altogether, Congress may offer States a regulatory 

role contingent on following federal standards. New York, 505 U.S. at 167–68. The choice 

brings consequences. If a State participates, it often has discretion in how it implements the 

program. See Hodel, 452 U.S. at 289. If a State decides not to participate, the State’s activities 

are preempted. By offering States such a non-coercive choice—regulate or be preempted—
No. 22-5487 State of Okla., et al. v. United States, et al. Page 17

Congress has not violated any constitutional imperatives. Murphy, 138 S. Ct. at 1479; New York, 

505 U.S. at 167; Hodel, 452 U.S. at 288–91; FERC v. Mississippi, 456 U.S. 742, 769 (1982). 

That’s how § 3052(f) operates. It presents States with a choice, not a command. States 

may elect to collect fees from the industry and remit the money to the Horseracing Authority or 

States may refuse. That’s their call. If a State participates, it gains discretion over how the fees 

are collected. 15 U.S.C. § 3052(f)(2)(D). If a State refuses, the Authority collects the fees itself, 

and the State “shall not impose or collect from any person a fee or tax relating to anti-doping and 

medication control or racetrack safety matters.” Id. § 3052(f)(3)(D).

This scheme fits comfortably within the conditional preemption framework. 

Section 3052(f) “simply establish[es] requirements for continued state activity in an otherwise 

pre-emptible field.” FERC, 456 U.S. at 769; see Printz, 521 U.S. at 925–26. And because 

Congress may regulate horseracing under its commerce power, there is nothing unconstitutional 

about Congress “offer[ing] States the choice of regulating that activity according to federal 

standards or having state law pre-empted.” New York, 505 U.S. at 173–74. 

Section 3052(f) also lacks the hallmark of commandeering: a “direct” order to the States. 

Murphy, 138 S. Ct. at 1476. Section 3052(f)’s statement that a State “shall not impose or 

collect” certain fees may sound like a command, true enough. Id. § 3052(f)(3)(D). But 

preemption often carries that tone, as similar language in other statutes confirms. See, e.g., 42 

U.S.C. § 7543(a) (1988) (“No State . . . shall adopt or attempt to enforce any standard relating to 

control of emissions . . . .”); 49 U.S.C. § 40116(b) (“[A] State . . . may not levy or collect a tax 

[or] fee . . . on an individual traveling in air commerce . . . .”). Because Congress often speaks in 

this manner, “it is a mistake to be confused” by preemption provisions that “appear to operate 

directly on the States.” Murphy, 138 S. Ct. at 1480. Congress in this instance offers the States a 

choice, as Oklahoma all but concedes. Reply Br. 2, 25, 26, 27 (referring to § 3052(f) as a “threat 

of preemption”). A choice is not a command. See Printz, 521 U.S. at 925–26. 

All of this is not to say “that the choice put to the States—that of either abandoning 

regulation” or assisting the Authority—is an easy one or a good one as a matter of policy. 
No. 22-5487 State of Okla., et al. v. United States, et al. Page 18

FERC, 456 U.S. at 766. Fraught though it may be, Congress has not commandeered the States 

by putting them to this choice. 

Oklahoma’s principal counterargument is that a choice between collecting fees and losing 

fee collecting authority is illegitimate, coercive, or punitive. We don’t think so.

Oklahoma begins by arguing that § 3052(f)’s choice—collect fees for the Horseracing 

Authority or stop collecting entirely—commandeers the States because Congress may not force 

the States to adopt either alternative. See New York, 505 U.S. at 175–76. Congress may not 

force a State to collect fees, true. Printz, 521 U.S. at 933. But Congress may use its commerce 

power to preempt the field of horseracing, preventing States from imposing fees. See FERC, 456 

U.S. at 764; Gonzales v. Raich, 545 U.S. 1, 22 (2005). Threatening to do so, it follows, is a 

“conditional exercise of [a] congressional power.” New York, 505 U.S. at 176. 

Oklahoma’s response that a “threat of preemption,” Reply Br. 25, is coercive runs 

aground on contrary precedent. The Court has rejected the argument “that the threat of federal 

usurpation of their regulatory roles coerces the States.” Hodel, 452 U.S. at 289; New York, 505 

U.S. at 176. 

Even so, Oklahoma continues, threatening a State’s taxing authority is especially 

coercive. We fail to see how. The validity of conditional preemption does not fluctuate with the 

power that is threatened. See Hodel, 452 U.S. at 290–91. This would not be the first time a 

State’s taxing power was preempted. See Aloha Airlines, Inc. v. Dir. of Tax’n, 464 U.S. 7, 14 

n.10 (1983); Exxon Corp. v. Hunt, 475 U.S. 355, 360–63 (1986). 

Oklahoma presses the point that Congress’s financial incentives may become so 

overwhelming that a State effectively cannot refuse. See South Dakota v. Dole, 483 U.S. 203, 

211–12 (1987). Grafting this principle on conditional preemption raises legal and factual 

problems. Legally, it is bereft of support; no case evaluates conditional preemption by looking 

to a State’s monetary incentives. Factually, Oklahoma falters because it does not quantify its 

expected loss. See NFIB v. Sebelius, 567 U.S. 519, 580–82 (2012) (opinion of Roberts, C.J.) 

(comparing an incentive to a State’s budget). Without knowing how much money is at stake, 

how are we to say the sum is too high?
No. 22-5487 State of Okla., et al. v. United States, et al. Page 19

Oklahoma adds that the threat is punitive because it serves no purpose other than to 

obtain compliance. Conditional preemption, however, amounts to a “permissible method of 

encouraging a State to conform to federal policy.” New York, 505 U.S. at 168; see FERC, 456 

U.S. at 766. And a State that sees itself as a sovereign sometimes must act like one. Another 

reason is not difficult to find anyway. The fee provisions ensure that a single entity—whether a 

State or the Authority—imposes fees on the horseracing industry for all anti-doping and 

racetrack safety matters. Eliminating “double taxation” and fostering uniformity are adequate

grounds to preempt parallel collection regimes. Aloha Airlines, 464 U.S. at 9–10; see Coventry 

Health Care of Mo., Inc. v. Nevis, 581 U.S. 87, 97–99 (2017); Gade v. Nat’l Solid Waste Mgmt. 

Ass’n, 505 U.S. 88, 99 (1992) (plurality).

Oklahoma next argues that Congress failed to “appropriate the funds needed to 

administer the program” by forcing States to pay for collecting fees even if they refuse to act as 

the Authority’s fee collector. Murphy, 138 S. Ct. at 1477. Not so. Private parties pay for the 

Authority’s operations. 15 U.S.C. § 3052(f)(2)(D), (3)(B). And if a State does not collect fees 

under the Act, the Authority incurs the cost of doing so. Even if States suffer a pocket-book loss 

from preemption, that does not force them to pay for the program. See Hodel, 452 U.S. at 288. 

Oklahoma also worries that the scheme blurs accountability. Conditional preemption, 

however, leaves a State and its citizens with “the ultimate decision as to whether or not the State 

will comply.” New York, 505 U.S. at 168. The ability to choose ensures that state and federal 

entities are accountable for their roles. See id.

We affirm.
No. 22-5487 State of Okla., et al. v. United States, et al. Page 20

_________________

CONCURRENCE

_________________

COLE, Circuit Judge, concurring. While I agree with the majority’s conclusions that the 

Act is facially constitutional, and its analysis in full in Part IV, I write separately because I depart 

slightly from its framing of the issue and its analysis of the private nondelegation doctrine.

I. ISSUE ON APPEAL

As a threshold matter, I note what is before us on appeal. In 2020, with wide bipartisan 

support, Congress passed, and then-President Trump signed into law, the Horseracing Integrity 

and Safety Act (“HISA” or “the Act”). Pub. L. No. 116-260, §§ 1201–12, 134 Stat. 1182, 3252–

75 (2020) (codified at 15 U.S.C. §§ 3051–60). Petitioners challenged the Act’s constitutionality 

and appealed the district court’s dismissal of the case for failure to state a claim. A few weeks 

after this panel heard oral argument in the appeal, Congress amended the Act. See Consolidated 

Appropriations Act of 2023, Pub. L. No. 117-328, 126 Stat. 4459, 5231–32 (2022) (codified as 

amended at 15 U.S.C. § 3053(e)). Congress amended section 3053(e), which now provides that:

The Commission, by rule, in accordance with section 553 of title 5, United States 

Code, may abrogate, add to, and modify the rules of the Authority promulgated in 

accordance with this Act as the Commission finds necessary or appropriate to 

ensure the fair administration of the Authority, to conform the rules of the 

Authority to requirements of this Act and applicable rules approved by the 

Commission, or otherwise in furtherance of the purposes of this Act.

15 U.S.C. § 3053(e). Under the current form of the statute, the Federal Trade Commission 

(“FTC”) can, in certain circumstances delineated in the Act, and through proper rule-making 

procedures as required by the Administrative Procedure Act, “abrogate, add to, and modify” 

existing rules promulgated by the Horseracing Integrity and Safety Authority (“Authority”). Id.

Today, our review is cabined to the statute as amended, withholding judgment on the 

previous version or other circuits’ handling of the original statute. To the extent that the 

cogent majority opinion goes further—opining in dicta that the original statute was 

unconstitutional—I note that not only does such analysis not carry the force of law, but also that 
No. 22-5487 State of Okla., et al. v. United States, et al. Page 21

I disagree, as I believe the original statute was constitutional because the private Authority has 

always been subordinate to the FTC.

II. PRIVATE NONDELEGATION DOCTRINE

The nondelegation doctrines broadly refer to judicially imposed limits on Congress’s 

ability to constitutionally delegate authority to others. Specifically, Congress cannot delegate its 

legislative authority to an executive agency unless the statute contains an “intelligible principle” 

guiding the agency. See Gundy v. United States, 139 S. Ct. 2116, 2123 (2019) (plurality 

opinion); see also Mistretta v. United States, 488 U.S. 361, 372 (1989). This is the public 

nondelegation doctrine. The private nondelegation doctrine refers to constitutional concerns that 

arise where a private entity—rather than a government entity—wields significant power to 

execute a statutory scheme. See Carter v. Carter Coal Co., 298 U.S. 238 (1936). Only the latter 

of these, private nondelegation, is at issue here. 

I agree with the majority that the Act is constitutional under the private nondelegation 

doctrine, and also that the main test for this issue is whether the private entity is subordinate to 

the federal agency. But I write separately because I diverge from the majority’s analysis in two 

ways: (1) the source of the private nondelegation doctrine, and (2) the precise framing of the 

private nondelegation question. 

A. Source of Private Nondelegation Doctrine

The private nondelegation doctrine is rooted in both due process and separation of 

powers concerns. Indeed, the earliest invocations of the private nondelegation doctrine arose in 

the context of local regulations. See Washington ex rel. Seattle Title Tr. Co. v. Roberge, 278 

U.S. 116, 121–22 (1928); Thomas Cusack Co. v. City of Chicago, 242 U.S. 526, 530 (1917); 

Eubank v. City of Richmond, 226 U.S. 137, 143–44 (1912). In these cases, localities granted 

private homeowners the power to create zoning laws for their neighborhood, and the Supreme 

Court found these ordinances violated property owners’ federal due process rights. Eubank, 

226 U.S. at 143–44. “The Court was concerned that private property owners, with their own 

interests at stake, had been given total, standardless control over an important aspect of their 
No. 22-5487 State of Okla., et al. v. United States, et al. Page 22

neighbors’ property.” Rice v. Vill. of Johnstown, 30 F.4th 584, 589 (6th Cir. 2022) (citing 

Eubank, 226 U.S. at 143).

The separation of powers concerns, meanwhile, stem from the Vesting Clauses, inasmuch 

as the Constitution vests each of the three branches of government with specific powers and 

responsibilities. Article I of the Constitution grants Congress legislative power, Article II grants 

the President executive power, and Article III grants the federal courts judicial power. 

“Accompanying that assignment of power to Congress is a bar on its further delegation.” Gundy, 

139 S. Ct. at 2123; see Mistretta, 488 U.S. at 371 (“The nondelegation doctrine is rooted in the 

principle of separation of powers that underlies our tripartite system of Government.”). 

Therefore, when a statute confers “the power to regulate the affairs of an unwilling minority” 

onto a private entity, that “is legislative delegation in its most obnoxious form[.]” Carter Coal, 

298 U.S. at 311. But when the private entity “operate[s] as an aid to the [agency]” and is 

“subject to [the agency’s] pervasive surveillance and authority, . . . law-making is not entrusted 

to the [private entity]” and so such a “statutory scheme is unquestionably valid.” Sunshine 

Anthracite Coal Co. v. Adkins, 310 U.S. 381, 388, 399 (1940).

Notably, in its federal private nondelegation cases, the Supreme Court has blurred the 

lines between the two rationales, opting not to definitively root the private nondelegation 

doctrine in one or the other, and often referring to both. For instance, in Carter v. Carter Coal,

the first case applying the private nondelegation doctrine to a federal statute, the Court ruled that 

a portion of the Bituminous Coal Conservation Act of 1935 was unconstitutional under the 

private nondelegation doctrine. 298 U.S. at 311. In invalidating the statute, the Court found the 

delegation at issue “so clearly arbitrary, and so clearly a denial of rights safeguarded by the due 

process clause of the Fifth Amendment, that it is unnecessary to do more than refer to decisions 

of this court which foreclose the question.” Id. at 311–12 (first citing Schechter Poultry Corp. v. 

United States, 295 U.S. 495, 537 (1935); then citing Eubank, 226 U.S. at 143; and then citing 

Roberge, 278 U.S. at 121–22). 

In so holding, the Court cited two of the zoning cases premised on the due process 

concerns of the private nondelegation doctrine, and also Schecter Poultry, addressing the 

separation of powers argument. By doing so, the Court maintained the public versus private 
No. 22-5487 State of Okla., et al. v. United States, et al. Page 23

division as opposed to a rationale-based division and endorsed both of the rationales 

underpinning the private nondelegation doctrine. See Carter Coal, 298 U.S. at 311.

The Fifth Circuit, when it ruled recently on the original version of the Act, recognized 

this ambiguity. See Nat’l Horsemen’s Benevolent & Protective Ass’n v. Black, 53 F.4th 869, 881 

n.23 (5th Cir. 2022). “Courts and commentators,” it wrote, “differ over the locus of the 

constitutional violation.” Id. (citing several articles and cases). Compare U.S. Dep’t of Transp. 

v. Ass’n of Am. R.R.s, 575 U.S. 43, 46 (2014) (“This argument [regarding private nondelegation] 

rests on the Fifth Amendment Due Process Clause and the constitutional provisions regarding 

separation of powers.”), with id. at 87–88 (“[O]ur so-called ‘private nondelegation doctrine’ 

flows logically from the three Vesting Clauses.”) (Thomas, J., concurring). But the Fifth Circuit 

concluded it “need not weigh in” to resolve the question at hand. Black, 53 F.4th at 881 n.23.

“Whatever the constitutional derivation, all parties and the district court agree that the outcome 

turns on whether the private entity is subordinate to the agency.” Id.; see also Ass’n of Am. R.R.s 

v. U.S. Dep’t of Transp. (Amtrak I), 721 F.3d 666, 671 n.3 (D.C. Cir. 2013), vacated on other 

grounds, 575 U.S. 43 (2015) (“While the distinction [between the due process clause and 

Vesting Clauses] evokes scholarly interest, . . . our own precedent describes the problem as one 

of unconstitutional delegation.”). When presented with the same ambiguity, the D.C. Circuit 

also did not decide the issue because the doctrine turns on unconstitutional delegation, regardless 

of its textual roots, and “neither court nor scholar has suggested a change in the label would 

effect a change in the inquiry.” Amtrak I, 721 F.3d at 671 n.3. 

Moreover, if we root the private nondelegation doctrine solely in separation of powers 

concerns, we circumvent our own court’s private nondelegation doctrine cases—many of which 

focus on local regulations, not federal ones, and are grounded in due process rights, as opposed 

to separation of powers principles. See Rice, 30 F.4th at 589–91; Kiser v. Kamdar, 831 F.3d 784, 

791–92 (6th Cir. 2016); Stevens v. City of Columbus, No. 21-3755, 2022 WL 2966396, at *9 (6th 

Cir. July 27, 2022). 

Whatever the exact underpinning of the private nondelegation doctrine, what is clear is 

that the statute is constitutional if the Authority remains subordinate to the FTC. See Adkins, 310 

U.S. at 388, 399 (holding a statute constitutional where the private entity is “an aid” to the 
No. 22-5487 State of Okla., et al. v. United States, et al. Page 24

agency and is “subject” to the agency’s “pervasive surveillance and authority”); Carter Coal, 

298 U.S. at 310–11 (invalidating a statute where private entities were granted the power to 

establish the maximum hours of labor without any governmental oversight or approval). 

That is the beginning and end of the inquiry as to whether a statute is constitutional under 

the private nondelegation doctrine. The Supreme Court has never suggested that this is the 

minimum finding, or that subordination on its own may not suffice to withstand a challenge to a 

statute on private nondelegation grounds. And so the parties could not have framed the appeal in 

a different way, because the only private nondelegation test is that of subordination. 

Now that the framing and source of the nondelegation doctrine is clear, I apply the 

existing precedent to HISA, finding that HISA as a whole is facially constitutional because the 

Authority is subordinate to the FTC in several ways.

B. HISA’s Constitutionality 

1. Rulemaking Authority

Oklahoma raises several concerns with the Act and its different components. I agree in 

full with the majority’s discussion of section 3053(e)’s amended text, and its conclusion that the 

amended text indicates that the Authority remains subordinate to the FTC. I diverge in that I find 

the rest of the Act to be nearly identical to the previously upheld Maloney Act and Coal Act. 

I also find that the amended text supports the Authority’s subordination but does not alone 

ensure the Act’s constitutionality.

To begin, the Authority does not have independent rulemaking power—only the FTC can 

promulgate regulations with the force of law:

A proposed rule or proposed modification to a rule cannot take effect unless 

approved by the Commission. The Commission is authorized to grant such 

approval if the proposed rule or modification of a rule is consistent with the 

requirements in this legislation and any applicable rules approved by the 

Commission. The Commission is granted the authority to prescribe rules and 

interim final rules to carry out their responsibilities under this section using the 

rulemaking process under the Administrative Procedure Act. 

H.R. Rep. No. 116-554, at 25 (2020). 
No. 22-5487 State of Okla., et al. v. United States, et al. Page 25

Like the private entities in the Maloney Act, known as self-regulatory organizations 

(“SROs”), and the private entity in Adkins, the Authority may only “propose[]” rules to the 

Commission. 15 U.S.C. § 3053(a). The Authority’s rule cannot go into effect “unless the 

proposed rule . . . has been approved by the Commission.” Id. § 3053(b)(2); accord Adkins, 310 

U.S. at 388 (upholding statute where boards “propose[d]” prices that only took effect once the 

agency “fix[ed]” them); 15 U.S.C. § 78s(b)(1) (writing that private entities in the securities arena 

may “propose[]” rules but, generally, “[n]o proposed rule change shall take effect unless 

approved by the [SEC]”). Here, a rule only goes into effect once the FTC has approved it, and to 

approve it, the FTC must first ensure that the rule “is consistent with” HISA and other 

“applicable rules approved by the [FTC].” 15 U.S.C. § 3053(c)(2).

This consistency review is no mere rubber stamp. The FTC, under the express terms of 

the Act, must review the Authority’s proposed rules to ensure they are consistent with “the 

safety, welfare, and integrity of covered horses, covered persons, and covered horseraces[.]” Id.

§ 3054(a)(2)(A). There are certain categories of rules for which Congress explicitly laid out 

clear boundaries for both the Authority and the FTC, and such rules provide “clearly defined 

policy” for the Authority and FTC to effectuate. (See D. Ct. Opinion, R. 105, PageID 1496.) 

But even for the ones with fewer constraints, all promulgated rules must abide by Congress’s 

explicit imperative to create rules for “the safety, welfare, and integrity” of covered entities. Id.

§ 3054(a)(2)(A). “[T]o the extent HISA affords rulemaking discretion to advance Congress’s 

broader objectives, such as the requirement that safety standards be ‘consistent with the humane 

treatment of covered horses,’ the FTC (not the Authority) ultimately exercises that statutorily 

conferred discretion—all of which is bound up with ‘the policy implications of rules proposed.’” 

(Authority Br. 41 (citations omitted).) 

HISA is remarkably similar to the constitutional Maloney Act, and was so even when 

assessed irrespective of the amendment. The Maloney Act provides the following parameters 

regarding the SEC’s approval of an SRO’s rules. The SEC “shall approve”—meaning it must

approve—a rule “if it finds that such proposed rule change is consistent with the requirements of 

this chapter and the rules and regulations issued under this chapter that are applicable to such 

organization.” 15 U.S.C. § 78s(b)(2)(C)(i) (emphasis added). Likewise, HISA provides that the 
No. 22-5487 State of Okla., et al. v. United States, et al. Page 26

FTC “shall approve a proposed rule or modification if the Commission finds that the proposed 

rule or modification is consistent with—(A) this chapter; and (B) applicable rules approved by 

the Commission.” Id. § 3053(c)(2) (emphasis added). 

Both the Maloney Act and HISA therefore provide for analogous consistency review: the 

reviewing agency must approve rules that are consistent with both the statute and previously 

issued rules. The Supreme Court held that the SEC “has broad authority to oversee and to 

regulate the rules adopted by the SROs” because rules are not enacted “unless the SEC finds that 

the proposed rule is consistent with the requirements of the Exchange Act, 15 U.S.C. § 78s(b)[.]” 

Shearson/Am. Exp., Inc. v. McMahon, 482 U.S. 220, 233–34 (1987). If that is true for 15 U.S.C. 

§ 78s(b), then that must also be true of 15 U.S.C. § 3053(c)(2). 

And neither agency’s review of the respective private entity ends there. Each act also 

provides additional requirements for the consistency review of proposed rules in specific 

instances. In the Maloney Act, specifically relating to rules proposed by one specific subset of 

SROs, the SEC’s consistency review includes that the rules be “designed[,] . . . in general, to 

protect investors and the public interest[,]” as well as not be “designed to permit unfair 

discrimination . . . among participants[.]” Id. § 78q-1(b)(3)(F); see also Susquehanna Int’l Grp., 

LLP v. SEC, 866 F.3d 442, 446 (D.C. Cir. 2017). In the context of another subset of SROs, the 

SEC must ensure that the proposed rules meet various textual standards, including that they “are 

designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable 

principles of trade, to foster cooperation and coordination with persons,” and additional 

standards. 15 U.S.C. § 78f(b)(5). 

In HISA, the Authority proposes rules or modifications to rules “relating to” eleven 

buckets of issues that it then “submits” to the FTC. Id. § 3053(a). Some of these include “a list 

of permitted and prohibited medications”; “standards for racing surface quality maintenance”; 

and “a description of safety, performance, and anti-doping and medication control rule violations 

applicable to covered horses and covered persons[.]” Id. But in addition to these categories, the 

Authority may also propose “rule[s], standard[s], or procedure[s] . . . to carry out the horseracing 

anti-doping and medication control program or the racetrack safety program.” Id. § 3053(d)(1). 

For these programs, HISA contains additional requirements and considerations that the FTC 
No. 22-5487 State of Okla., et al. v. United States, et al. Page 27

includes as part of its consistency review. See, e.g., id. § 3055(b) (listing seven categories of 

horse-welfare considerations); id. § 3055(g)(3)(b).

Both HISA and the Maloney Act therefore provide for similarly broad consistency 

review, with additional requirements for specific subsets of rules, such that consistency review 

on its own can ensure that a private authority remains subordinate to a federal agency.

HISA also matches the aforementioned Coal Act’s constitutional agency review of 

private entities’ proposed rules. The statute, which the Supreme Court upheld as 

“unquestionably valid,” Adkins, 310 U.S. at 399, granted the Coal Commission the power to 

“approve, disapprove, or modify” the private coal boards’ “proposed minimum prices to conform 

to the requirements of this subsection,” Bituminous Coal Act of 1937, § 4, pt. II(a), 50 Stat. 72, 

78 (emphasis added). Whether providing that the rule must be consistent with a statute, which 

both the Maloney Act and HISA require, or that the rule must conform to the requirements of a 

statute, as the Bituminous Coal Act requires, all three statutes properly and constitutionally 

subordinate the private entity to the federal agency.

And all three statutes provide the agency with independent rulemaking power. The 

Maloney Act provides that the SEC “may abrogate, add to, and delete from (hereinafter in this 

subsection collectively referred to as ‘amend’) the rules of a[n SRO] . . . as the [SEC] deems 

necessary or appropriate to insure the fair administration of the [SRO], to conform its rules to 

requirements of this chapter and the rules and regulations thereunder applicable to such 

organization, or otherwise in furtherance of the purposes of this chapter[.]” 15 U.S.C. § 78s(c). 

Such review is textually cabined to “Amendment by Commission of rules of self-regulatory 

organizations,” so it applies only to previously enacted rules, not the SRO’s proposed rules or its 

proposed changes to previously promulgated rules. Id. 

Further still, the Maloney Act provides a separate set of requirements for the SEC to 

approve an SRO’s new rule or rule change. See id. § 78s(b). Under this subsection, the SEC 

may either “approve or disapprove the propos[al,]” or it may “institute proceedings under 

subparagraph (B) to determine whether the propos[al] should be disapproved.” Id.

§ 78s(b)(2)(A)(i). Subparagraph B requires that the SEC “shall provide” the SRO with “notice 
No. 22-5487 State of Okla., et al. v. United States, et al. Page 28

of the grounds for disapproval under consideration” and the chance for a hearing on the rule. Id.

§ 78s(b)(2)(B)(i). The other portion of subparagraph B makes clear that within the mandated 

time frame, the SEC must “issue an order approving or disapproving the” proposed rule. Id.

§ 78s(b)(2)(B)(ii)(I). Notably missing from these procedures? The SEC’s ability to itself 

modify an SRO’s proposed rule. 

The Coal Act also provided the Coal Commission limited modification power. Much like 

the review described in the Maloney Act, the Coal Commission’s power to modify rules was not 

all-encompassing: it could only be done to conform the proposal to the requirements of the 

statute. § 4, 50 Stat. at 78. The importance of this power is that the Coal Commission could 

ensure that proposed rules that did not align with, or were inconsistent with, the statute’s purpose 

did not become promulgated rules with the power of law.

Both before and after the amendment, the FTC has had, and continues to have, 

independent rulemaking power. Prior to the amendment, section 3053(e) provided that the FTC 

could issue an interim final rule, which carries the power of law, under the standards articulated 

in the Administrative Procedures Act, 5 U.S.C. § 553(b)(B)—if “necessary to protect” “(1) the 

health and safety of covered horses; or (2) the integrity of covered horseraces and wagering on 

those horseraces.” 15 U.S.C. § 3053(e) (2020). 5 U.S.C. § 553(b)(B), known as the APA’s 

good-cause provision, allows agencies to issue rules where regular notice-and-comment 

procedures are “impracticable, unnecessary, or contrary to the public interest.” This section 

provided the FTC with broad rulemaking power without the need for notice-and-comment 

rulemaking that could be used beyond the emergency context, such as when notice and comment 

was “unnecessary”—for example, if there had already been sufficient notice-and-comment 

procedures regarding various alternative options presented in a proposed rule. See 16 C.F.R. § 

1.142(a)(3) (requiring the Authority to include a discussion of “any reasonable alternatives” to 

the proposed rule and explain why the specific proposal was chosen); Mobil Oil Corp. v. United 

States EPA, 35 F.3d 579, 584 (D.C. Cir. 1994) (“If the original record is still fresh, a new round 

of notice and comment might be unnecessary.”); Priests for Life v. United States Dep’t of Health 

& Human Servs., 772 F.3d 229, 276 (D.C. Cir. 2014) (similar), vacated on other grounds by 

Zubik v. Burwell, 578 U.S. 403 (2016).
No. 22-5487 State of Okla., et al. v. United States, et al. Page 29

Now, with the amendment, the FTC can utilize proper procedures under the APA, 

including either regular notice-and-comment procedures or the good-cause provision, to 

“abrogate, add to, and modify the rules of the Authority” whenever the FTC “finds necessary or 

appropriate to ensure the fair administration of the Authority, to conform the rules of the 

Authority to the requirements of this Act and applicable rules approved by the Commission, or 

otherwise in furtherance of the purposes of this Act.” 15 U.S.C. § 3053(3). Just as the Maloney 

Act and the Coal Act allow the agency to amend the private entity’s proposed rules in certain 

circumstances, so does HISA. Ultimately, none of Oklahoma’s arguments regarding the 

unlawfulness of HISA’s rulemaking structure carry substantial weight. 

One final note about the private nondelegation doctrine and the cases that have 

formulated the subordination test. I have noted the numerous ways in which HISA—both with 

and without the amendment—is nearly identical to the unquestionably constitutional Maloney 

Act. But even if there are slight differences between the two statutes, no case has ever said that 

the Maloney Act in its current form is a floor for private nondelegation purposes. In other 

words, it is not true that a statute must be identical to the Maloney Act, or provide more 

oversight than the SEC, to be a constitutional delegation. The private entity simply must be 

subordinate to the agency. The Authority is subordinate to the FTC, and so HISA remains 

facially constitutional.

2. Enforcement Authority

Oklahoma also challenges HISA’s enforcement structure. The Supreme Court has not 

ruled on this precise issue, but other circuit courts have relied upon Supreme Court precedent to 

do so in a way that supports the enforcement structure’s constitutionality. Courts’ review of the 

Maloney Act is once again instructive. All circuits that have ruled on the issue have held that the 

Maloney Act’s enforcement scheme is constitutional where, as here, a private entity (the 

National Association of Securities Dealers (“NASD”)) brought enforcement actions against 

covered entities. See, e.g., Sorrell v. SEC, 679 F.2d 1323 (9th Cir. 1982); First Jersey Sec., Inc. 

v. Bergen, 605 F.2d 690 (3d Cir. 1979), cert. denied, 444 U.S. 1074 (1980); R.H. Johnson & Co. 

v. SEC, 198 F.2d 690 (2d Cir. 1952), cert. denied, 344 U.S. 855 (1952). 
No. 22-5487 State of Okla., et al. v. United States, et al. Page 30

The Second Circuit held that because of “the [SEC’s] review of any disciplinary action” 

taken by the NASD, there is “no merit in the contention that the Act unconstitutionally delegates 

power to the association.” R.H. Johnson & Co., 198 F.2d at 695. The Ninth Circuit, citing to 

Second and Third Circuit decisions upholding the constitutionality of NASD’s enforcement 

powers, noted that “[petitioner’s] claim of unconstitutional delegation appears to rest on his 

mistaken idea that the SEC does not engage in an independent review of NASD decisions. As 

we stated in Sartain v. SEC, 601 F.2d 1366, 1371 n.2 (9th Cir. 1979), SEC review is de novo.” 

Sorrell, 679 F.2d at 1326 n.2. The unanimous principle from the circuit decisions—which the 

Supreme Court has not disturbed despite repeated opportunities to do so—is that so long as the 

agency retains de novo review of a private entity’s enforcement proceedings, there is no 

unconstitutional delegation of legislative or executive power, even if the agency does not review 

the private entity’s initial decision to bring an enforcement action. The consistency of this 

principle reinforces the constitutionality of HISA’s enforcement scheme.

In fact, the enforcement scheme in HISA is even more constitutionally sound than that 

found in the Maloney Act. The Maloney Act was amended in 1975, and, in relation to the 

enforcement scheme, the amendment may have constrained the SEC’s power to review the 

disciplinary proceedings the NASD pursued. See Bergen, 605 F.2d at 697. Nonetheless, this did 

not change the court’s analysis: 

We need not now decide whether this statutory change effects a significant 

alteration in the SEC’s power to review NASD disciplinary proceedings. It 

suffices to say that to the extent the amendment restricts the SEC’s ability to 

receive additional evidence not presented below, this does not alter our conclusion 

in Todd [Todd & Co., Inc. v. SEC, 557 F.2d 1008 (3d Cir. 1977)] that there is no 

unconstitutional delegation of legislative authority. 

Bergen, 605 F.2d at 697. HISA, unlike the Maloney Act, unambiguously empowers the FTC to 

obtain additional evidence not in the record below and to review the proceeding de novo. See

15 U.S.C. § 3058(c)(3)(C). The enforcement scheme in HISA, including two levels of de novo 

review and allowing the FTC to review evidence not in the record, ensures that HISA is soundly 

in the company of previously upheld enforcement mechanisms, and is thus not an 

unconstitutional delegation of power to a private authority.
No. 22-5487 State of Okla., et al. v. United States, et al. Page 31

* * *

Although the majority and I take different paths in our analysis, I fully agree that HISA is 

constitutional under Supreme Court precedent as well as the majority of federal court caselaw.