Journalists Wandering Eyes Posted July 10 Journalists Posted July 10 When the National Horsemen's Benevolent and Protective Association first started warning that the Horseracing Integrity and Safety Act would flunk constitutional due diligence as a violation of the private nondelegation doctrine, its arguments were laughed off. The smart set scoffed that the private nondelegation doctrine was dead, a defunct relic of pre-New Deal “Lochner era” jurisprudence. The NHBPA pressed ahead anyway with the simple yet powerful point that in our constitutional system, a private entity cannot wield public powers like making and enforcing law. The Fifth Circuit agreed–twice–and now the U.S. Supreme Court has validated the continued vitality of the private non-delegation doctrine. I couldn't disagree more with Professor Lucinda Finley's assessment of how to read Consumers' Research v. Federal Communications Commission (FCC), the Supreme Court's recent decision on the Universal Service Fee (USF) and the FCC's delegation to a private organization to administer the USF program (Q & A With Lucinda Finley: “HISA On Very Solid Constitutional Footing,” TDN, July 4, 2025.) First, the Consumers' Research decision is a resounding endorsement of the private nondelegation doctrine. It's not dead or dormant or outdated or a myth, contrary to many of the pundits and experts we've heard in the past few years. Eight justices of the Court reaffirmed its ongoing vitality as an important and enforceable limit on government power (only Justice Ketanji Brown Jackson, in a short concurrence, questioned the doctrine's theoretical foundation, even as she ultimately joined the majority opinion). Second, the Consumers' Research decision emphasized that the USF delegation was acceptable because the Universal Service Administrator was prohibited by law from making policy decisions–it could only make recommendations and then carry out ministerial acts like mailing checks. Compare that to HISA. On dozens of occasions, HISA has issued policy statements announcing whether certain rules are or are not in force or rewriting them to different standards. Separately, HISA retains the powers of a law enforcement agency–it has a private police department, a private prosecutor's office, and a private system of administrative law judges. That looks very different than a government contractor responsible for collecting and mailing checks. Third, the Consumers' Research decision emphasized why the FCC had sufficient oversight of the Universal Service Administrator: the FCC appoints the Administrator's board. Compare that with the HISA Board, which is self-selecting and self-perpetuating, entirely protected from any meaningful accountability to the Federal Trade Commission (little less the United States Senate). Fourth and finally, Justice Kavanaugh's concurring opinion is a strong condemnation of delegation without democratic accountability. Professor Finley previously told TDN that only three justices–Gorsuch, Alito, and Thomas–were enthusiastic about reviving the nondelegation doctrine. Not only did eight justices agree to the doctrine's ongoing force, but we can add Justice Kavanaugh as a likely enthusiast. He wrote separately in Consumers' Research to warn against times “when Congress delegates authority to an independent agency [because] no democratically elected official is accountable. Whom do the people blame and hold responsible for a bad decision or policy adopted by an independent agency?” HISA is a double-dose of insulation from democratic accountability: a private corporation is overseen by an independent agency. The NHBPA recognizes that this has been a long road and that the industry hungers for clarity as to its regulatory framework, though the length of this legal process has been exacerbated over and again by litigation decisions made by HISA. We are not quite in the home stretch of this litigation, but we are definitely only one turn away. After a quick trip back to the Fifth Circuit to make all the points above, I expect that we will soon return to seek a final call from the Supreme Court. And I'm confident a majority of the Court will not be comfortable with HISA. At the end of the day, the Universal Service Administrator is just that–an administrator. And the Horseracing Integrity and Safety Authority is also just that–an authority. As HISA described itself in its own press release reacting to the Consumers' Research decision, it is “the national regulatory body overseeing safety and integrity in Thoroughbred racing.” To quote Sesame Street, one of these things is not like the other. Daniel Suhr is president of the Center for American Rights and lead counsel for the National HBPA in its case against HISA. The post Letter To The Editor: SCOTUS Decision Underlines HISA’s Constitutional Problems appeared first on TDN | Thoroughbred Daily News | Horse Racing News, Results and Video | Thoroughbred Breeding and Auctions. View the full article Quote
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