Today, the Fifth Circuit will be hearing oral arguments in National Horsemen's Benevolent and Protective Association v. Jerry Black (listen to the livestream at 3pm CT!). I submitted an amicus brief on the side of the challengers, arguing that the Horseracing Integrity and Safety Authority is unconstitutional because its members haven't been appointed consistently with the Appointments Clause.
A bit of background about the case: The Horseracing Integrity and Safety Authority is a nominally private organization that (thanks to the Horseracing Integrity and Safety Act of 2020) has regulatory authority over thoroughbred horseracing. The Fifth Circuit invalidated the authority under the nondelegation doctrine in November 2022; then, six weeks later, Congress amended the statute to beef up FTC oversight over the authority. In a parallel Sixth Circuit challenge, the Sixth Circuit held that the new statute saved the Authority; meanwhile, the Fifth Circuit remanded to the district court for further consideration. On remand, my friend Ilan Wurman, law professor at Arizona State, pushed the Appointments Clause argument (among others), but his arguments were rejected by District Judge James Wesley Hendrix; this appeal follows. The case is being heard today before Judges Carolyn Dineen King, Stuart Kyle Duncan, and Kurt D. Engelhardt, the same panel that decided the original case.
My amicus brief is filed on behalf of the Reason Foundation, the Cato Institute, the Competitive Enterprise Institute, the Goldwater Institute, the Manhattan Institute for Policy Research, and the Niskanen Center—organizations that all agree that any organization granted coercive power (whether a governmental administrative agency or a nominally private entity) needs to have political accountability. Thanks also to my law-school friend Raffi Melkonian of Wright Close & Barger, without whom I wouldn't have been able to file anything in the Fifth Circuit!
