There's been a lot of recent legal action involving the Horseracing Integrity and Safety Authority. The Fifth Circuit found HISA unconstitutional in 2022; Congress changed the statute within about six weeks; in a parallel case, the Sixth Circuit found that the statutory change had fixed the problem; the Fifth Circuit found that the statutory change partially fixed the problem but still struck down HISA's enforcement (but not regulatory) power. Meanwhile, in yet another parallel challenge, the Eighth Circuit upheld HISA.
Because none of the parties in the latest Fifth Circuit iteration got exactly what they wanted, basically everyone is petitioning for cert—and what with the circuit split and the fact that the Fifth Circuit partly struck down a federal statute—a cert grant is very likely. But there's still some dispute about whether the cert grant should be limited to the "private nondelegation doctrine" question or also include an Appointments Clause question. I favor the latter approach, so I just filed a brief yesterday making this argument on behalf of the Reason Foundation (which owns the reason.com website that hosts this blog) and the Goldwater Institute. (My position on this supports that of the Gulf Coast Racing plaintiffs, represented by Ilan Wurman of University of Minnesota Law School, and Reeves Jordan, Greg Sapire, and Carlos Soltero of Maynard Nexsen PC.)
(For previous posts of mine on the topic, see here, here, here, and here. Also see my Notre Dame Law Review article, The Myth of the Federal Private Nondelegation Doctrine, which discusses these issues in depth.)
