Constitutionality of the Horseracing Safety & Integrity Act; National Horsemen’s Benevolent & Protective Ass’n v Black (5th Cir); “Non-delegation” & “anti-commandeering” challenges; 15 USC §§ 3060(b) & 3052(f)

Holding that the amended Horseracing Integrity and Safety Act is constitutional, the court affirmed the district court’s dismissal of plaintiffs’ claims. Plaintiffs-Oklahoma, West Virginia, Louisiana, their racing commissions, and other entities (collectively, Oklahoma) sued the Federal Trade Commission (FTC) over the Act, arguing that it gave too much power to the Horseracing Integrity and Safety Authority (the Authority), a private entity, “and unlawfully commandeered the States.” In another case, the Fifth Circuit declared the Act facially unconstitutional because it delegated too much power to the Authority. While the appeal in this case was pending, Congress amended the Act to give the FTC final authority to abrogate or modify the Authority’s rules. The court first held that the amendment to the Act did not moot plaintiffs’ non-delegation and commandeering challenges, and found that remand for review by the district court was unnecessary. In considering the non-delegation claim, the court noted the difference between “impermissible delegation of unchecked lawmaking power to private entities and permissible participation by private entities in developing government standards and rules.” The court held that the Authority was properly “subordinate” to the FTC where the amended Act “gives the FTC supervision over the rules that govern the horseracing industry.” As for the commandeering claim, even if Oklahoma was “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, . . . and ‘mere conjecture’ about possible enforcement is not any better[.]” The court held that the other challenged provision, § 3052(f), “presents States with a choice, not a command.”