Many skeptics of the regulatory state root their arguments in separation of powers principles: Congress is tasked with lawmaking, the judiciary is tasked with interpreting the laws, and executive agencies cannot encroach on Congress or the judiciary's roles. In the wake of the Supreme Court's Loper Bright and Relentless decisions last term overturning Chevron deference'wherein the Court held that the 40-year-old doctrine deferring to agencies' interpretation of ambiguous laws contravened courts' role of interpreting laws'other doctrines of agency skepticism have percolated. One such doctrine, the private nondelegation doctrine, sits at the Supreme Court's doorstep.
The nondelegation doctrine is a principle restricting Congress from ceding its legislation power to other entities. A related but distinct principle, the private non-delegation doctrine, restricts the legislative branch from transferring certain powers to private actors. In short, 'a private entity may aid a public federal entity that retains authority over the implementation of federal law,' but 'if a private entity creates the law or retains full discretion over any regulations,' that exercise of federal power is unlawful. Oklahoma v. United States, 62 F.4th 221, 228-29 (6th Cir. 2023), cert. denied, 144 S. Ct. 2679 (2024).
With these principles likely in mind, on October 28, 2024, the Supreme Court issued a preliminary stay of the Fifth Circuit's opinion in National Horsemen's Benevolent & Protective Ass'n v. Black, 107 F.4th 415 (5th Cir. 2024) (Nat'l Horsemen's II), which struck down the enforcement mechanism for the Horseracing Integrity & Safety Authority ('Authority'), a private corporation created through the Horseracing Integrity and Safety Act of 2020 ('HISA'). This means the challenged law will remain in effect while the Court considers the pending cert petition.
Horseracing has been a part of American culture since the 1600s. See Nat'l Horsemen's Benevolent & Protective Ass'n v. Black, 53 F.4th 869, 873 (5th Cir. 2022) (Nat'l Horsemen's I). Unlike other sports though, there was no authority to regulate the industry, and despite its popularity, horseracing proved dangerous for human and horse alike. Against this backdrop, in 2020, Congress enacted HISA with broad bipartisan support. Nat'l Horsemen's II, 107 F.4th at 421. HISA created the Authority, a 'private, independent, self-regulatory, nonprofit corporation,' 15 U.S.C. ' 3054(a), to develop and implement 'nationwide rules governing doping, medication control, and racetrack safety in the thoroughbred horseracing industry,' Nat'l Horsemen's II, 107 F.4th at 421 (citing 15 U.S.C. ' 3054(a)). The statute empowers the Authority to enforce HISA by exercising subpoena and investigatory authority, imposing civil sanctions, and filing civil actions seeking injunctions or enforcement of sanctions. HISA also instructs the Authority to contract enforcement of...
