Why Certiorari is Necessary
Since none of the parties in the latest Fifth Circuit iteration obtained their desired outcome, everyone is seeking cert. With a circuit split and the fact that the Fifth Circuit partially invalidated a federal statute, a cert grant is highly likely. There is a dispute over whether the cert grant should be limited to the "private nondelegation doctrine" question or also include an Appointments Clause issue. The author favors the latter approach and recently filed a brief on behalf of the Reason Foundation and the Goldwater Institute. (This position aligns with that of the Gulf Coast Racing plaintiffs represented by Ilan Wurman and others.)Summary of Argument
This case is clearly certworthy. The Horseracing Integrity and Safety Authority is an unaccountable agency with significant federal rulemaking, investigation, and enforcement authority. There is a circuit split on the private nondelegation issue, and a circuit court has struck down part of a federal statute. Parties from both sides, including the federal government, agree that cert is warranted. However, the Court should grant cert on both the private nondelegation and Appointments Clause issues as they are closely related, and the Fifth Circuit reached incorrect results on both.The Fifth Circuit was wrong in holding that the Authority's enforcement power violates the "private nondelegation doctrine." There is no such doctrine. Delegations of power to private parties should be judged by the same "intelligible principle" standard as those to public agencies, and the Authority's delegation passes this test. However, the Fifth Circuit partially reached the right result for the wrong reason. Exercises of the Authority's power violate the Appointments Clause as its members are Officers of the United States but were not appointed appropriately. The statutory labeling of the Authority as private and its organization under state law are irrelevant. Even if public status were relevant and the Fifth Circuit's assumptions about "state actor" status were correct, it still erred in holding that the Authority is not a state actor. The Authority's rulemaking, investigation, and enforcement powers are traditionally exclusive public functions, making it a state actor and subject to the Appointments Clause.
The difference between the "private nondelegation doctrine" and the Appointments Clause is not just academic. The doctrines have different motivations and will not always produce the same results. The nondelegation doctrine focuses on whether Congress has given up too much power, while the Appointments Clause focuses on the recipient of power and democratic accountability. In this case, the Appointments Clause approach is more appropriate as it turns on how much power the agent exercises. Therefore, the Court should grant cert on the Appointments Clause question. This could lead to the correct result by resolving the entire case. The Sixth Circuit case did not consider the Appointments Clause, while the Eighth Circuit case did. Thus, the Court should grant cert in this case or the Eighth Circuit case (or both) to ensure the proper consideration of the Appointments Clause issue.