“It soon may get another chance in a case over whether a private horse-racing authority can deploy regulatory powers usually reserved for the federal government,” they write. “HISA was shepherded by Kentucky Sen. Mitch McConnell, and anyone who follows the racing industry knows the Minority Leader's interest in creating national standards for safety and fairness. Most trainers are honest and reputable, but doping scandals and racehorse deaths have troubled the industry as trainers push animals to win high-stakes races. The issue is the regulatory vehicle. When Congress created HISA, it delegated its authority to the private association to regulate the sport nationwide. The authority was ostensibly under the umbrella of the Federal Trade Commission, but in reality it was running the show. In November 2022, the Fifth Circuit Court of Appeals ruled the law unconstitutional because the association had final say on regulation.”

They went on to call the “tweaks” made by Congress to satisfy the constitutionality measure “still slim power for the FTC to wield within a far larger grant of power to the private authority.”

The Journal points out that the case now heads back to the three-judge panel on the Fifth Circuit Court that heard it the first time, which could set up a Supreme Court hearing if they disagree with the Sixth Circuit, which found the “tweaks” to be sufficient to satisfy the constitutionality question.

“The Supreme Court has signaled its interest in hearing a private non-delegation case,” the Journal writes. “Denying certiorari in 2022's Texas v. Commissioner of Internal Revenue, Justice Samuel Alito (joined by Justices Clarence Thomas and Neil Gorsuch) wrote that there is a `fundamental question about the limits on the Federal Government's authority to delegate its powers to private actors' and therefore a `need to clarify the private non-delegation doctrine in an appropriate future case.' Here it comes.”

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