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  • Writer's pictureElizabeth Slattery

Oklahoma v. United States

In this feature, we highlight noteworthy cert petitions.


Why do we care?

This case concerns the creation of a private regulatory body that has wide-ranging authority to regulate the thoroughbred racing industry. In the "one good year" for nondelegation, the Supreme Court explained that delegation of regulatory authority to private entities is “legislative delegation in its most obnoxious form.” Court watchers have been anticipating (or bracing themselves for, depending on their perspective) a nondelegation resurgence. Perhaps a private delegation concerning horseracing will bring back the Four Horsemen of the Apocalypse's effort to stop Congress from giving away its legislative power.


What's the background?

Following a string of scandals in the thoroughbred racing community, Congress passed the Horseracing Integrity and Safety Act (HISA) in 2020 to replace the patchwork of state regulations with national standards. The law created the Horseracing Integrity and Safety Authority, a private, nonprofit corporation empowered to promulgate rules on doping, medication control, and racetrack safety. The Authority (which sounds like the ruling class in a young adult dystopian novel) also has the power to investigate and adjudicate violations of these rules, issue subpoenas, bring civil actions in federal court for known or anticipated violations, and impose lifetime bans from horseracing, disgorgement of winnings, and monetary fines and penalties.

Horse racing
And they're off (lawsuits and horses)!

As originally written, the law nominally placed the Authority under the supervision of the Federal Trade Commission (FTC), which was instructed by Congress to approve and issue Authority regulations as long as they were consistent with the law. The Authority's . . . authority was quickly challenged in court. Suits were filed in federal court by a group of horsemen's associations (later joined by the State of Texas) and a group of states led by Oklahoma.


How did this case get to SCOTUS?

The first case was decided by the U.S. Court of Appeals for the Fifth Circuit. A three-judge panel held HISA unconstitutionally delegated government power to an unaccountable private entity. While the second suit was pending, Congress amended the law, authorizing the FTC to “abrogate, add to, and modify” any Authority rules that bind the horseracing industry. (The Fifth Circuit recently heard oral arguments for a second time, after remanding the case to the district court after HISA was amended. That ruling is forthcoming.)


The U.S. Court of Appeals for the Sixth Circuit upheld HISA, concluding that Congress had fixed the private delegation problem. It also rejected the states' claim that HISA unconstitutionally commandeers state officials by requiring state law enforcement to cooperate and share information with the Authority about individuals whose conduct may violate state law and the Authority's regulations. The court concluded Oklahoma failed to show there is a credible threat of future enforcement – the standard for a pre-enforcement challenge.


The court rejected a second commandeering argument that HISA forces states to choose between collecting fees for the Authority or stop collecting fees entirely. The court explained that this is simply an exercise of conditional preemption since Congress could preempt the field of horseracing entirely, preventing states from imposing any fees.


The coalition of states, led by Oklahoma, has asked the Supreme Court to reverse the Sixth Circuit ruling.


What are the questions presented?

  1. Does the Horseracing Integrity and Safety Act violate the private non-delegation doctrine

  2. Does the Act violate the anti-commandeering doctrine by coercing States into funding a federal regulatory program?

Click here to view the docket, including the petition for a writ of certiorari, any amicus briefs, and a brief in response (when filed).


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