States challenge constitutionality of federal horseracing authority

Petitions of the week

The Petitions of the Week column highlights a selection of cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.

National attention was not focused on the plight of thoroughbred horses when Congress passed the Horseracing Integrity and Safety Act in the fall of 2020, in the throes of the COVID-19 pandemic and the heat of a presidential election. But the law caught the attention of a number of states and industry players, which have been fighting it in court ever since. This week, we highlight petitions that ask the justices to consider, among other things, whether the act violates the Constitution by delegating Congress’s authority to rein in horseracing’s troubles to a private company.

Thoroughbred racing can be a dangerous sport – for both the horses and the human jockeys who ride them. Until 2020, the industry was governed primarily by the states, which employed a patchwork of varying regulations. Unsatisfied with the industry’s high rates of injury, death, and use of performance-enhancing drugs, Congress created the Horseracing Integrity and Safety Authority: a private, nonprofit corporation with the power to issue nationwide safety and anti-doping rules, monitor state industries for compliance, and sanction or sue violators. Instead of appropriating federal funds, the authority is funded primarily through fees on the horseracing industry, which states either collect themselves or allow the authority to collect directly.

Congress gave the Federal Trade Commission limited oversight over the horseracing authority. Although the FTC formally publishes the authority’s rules, unless those rules violated the 2020 law or another FTC regulation, however, it was unable to override them.

No longer the only horseracing regulators in town, a group of states, led by Oklahoma, and their racing commissions went to federal court in Kentucky. They argued that the law was unconstitutional because it delegated federal power to a private company – a concept known as the private non-delegation doctrine. Moreover, they contended, forcing the states to fund the authority conscripts state resources to implement a federal program – a concept known as the anti-commandeering doctrine. The district court dismissed both claims.

In a parallel challenge to the law in Texas, the U.S. Court of Appeals for the 5th Circuit ruled that the limits on the FTC’s control over the horseracing authority violated the private non-delegation doctrine because they allowed the company to exercise unchecked legislative power.

In response to that ruling, Congress amended the 2020 law to give the FTC greater oversight powers. The new statute authorizes the agency to issue its own rules that “abrogate, add to, and modify the rules of the” horseracing authority.

Evaluating the newly amended law in Oklahoma’s appeal, the U.S. Court of Appeals for the 6th Circuit affirmed the dismissal of both claims. Because an independent federal agency now has the “final say” over how the private horseracing authority carries out the will of Congress, the court of appeals held, the amended law cured the private non-delegation defect identified by the 5th Circuit. And the 6th Circuit concluded that the annual fees are merely an example of federal law superseding a state regime – a concept known as preemption – as opposed to commandeering states to carry out a federal program.

In Oklahoma v. United States, the states ask the justices to grant review and reverse the 6th Circuit’s ruling. The states argue that the amended law merely grants the FTC a “back-end” workaround of the non-delegation problem, leaving the horseracing authority’s “front-end primary rulemaking power (and the FTC’s obligation to promulgate those rules) … unchanged.”  And the states maintain that the annual fees do more than preempt their own horseracing regulations, coercing them into carrying out the authority’s whims by holding hostage an important source of tax revenue.

A list of this week’s featured petitions is below:

Hopman v. Union Pacific Railroad
23-362
Issue: Whether the Americans with Disabilities Act requirement of reasonable accommodation of employees with disabilities is limited to accommodations that enable an employee to perform the essential functions of a position, and accommodations that provide equal access to a program or service that is provided or sponsored by the employer and that is not directly job-related.

Mckesson v. Doe
23-373
Issue: Whether the First Amendment and this court’s decision in NAACP v. Claiborne Hardware Co. foreclose a state law negligence action making a leader of a protest demonstration personally liable in damages for injuries inflicted by an unidentified person’s violent act, when it is undisputed that the leader neither authorized, directed, nor ratified the perpetrator’s act, nor engaged in or intended violence of any kind.

Dutra v. Jackson
23-377
Issues: (1) Whether this court’s precedents the only source of clearly established law for purposes of qualified immunity; and (2) whether the U.S. Court of Appeals for the 9th Circuit construed clearly established law too abstractly when it denied qualified immunity by citing only its own precedents involving the use of tasers, police dogs, and neck restraints on already handcuffed or subdued suspects when — as the body-cam footage shows — none of those facts were present here.

Oklahoma v. United States
23-402
Issues: (1) Whether the Horseracing Integrity and Safety Act of 2020 violates the private non-delegation doctrine; and (2) whether the act violates the anti-commandeering doctrine by coercing states into funding a federal regulatory program.