STUART KYLE DUNCAN, Circuit Judge:
We consider challenges to the Horseracing Integrity and Safety Act ("HISA" or the "Act").
We cannot agree. While we admire the district court's meticulous opinion, we conclude that HISA is facially unconstitutional. A cardinal constitutional principle is that federal power can be wielded only by the federal government. Private entities may do so only if they are subordinate to an agency. See generally A.L.A. Schechter Poultry Corp. v. United States [Schechter Poultry], 295 U.S. 495, 537 (1935); Carter v. Carter Coal Co., 298 U.S. 238, 311 (1936); Currin v. Wallace, 306 U.S. 1, 15-16 (1939); Sunshine Anthracite Coal Co. v. Adkins [Adkins], 310 U.S. 381, 399 (1940). But the Authority is not subordinate to the FTC. The reverse is true. The Authority, rather than the FTC, has been given final say over HISA's programs.
While acknowledging the Authority's "sweeping" power, the district court thought it was balanced by the FTC's "equally" sweeping oversight. Not so. HISA restricts FTC review of the Authority's proposed rules. If those rules are "consistent" with HISA's broad principles, the FTC must approve them. And even if it finds inconsistency, the FTC can only suggest changes. What's more, the FTC concedes it cannot review the Authority's policy choices. When the public has disagreed with those policies, the FTC has disclaimed any review and instead told the public to "engag[e] with the Authority."
The Constitution forbids that. For good reason, the Constitution vests federal power only in the three branches of the federal government. Congress defies this basic safeguard by vesting government power in a private entity not accountable to the people. That is what it has done in HISA. The Authority's power outstrips any private delegation the Supreme Court or our court has allowed. We must therefore declare HISA facially unconstitutional. In doing so, we do not question Congress's judgment about problems in the horseracing industry. That political call falls outside our lane. Nor do we forget that "[t]he judicial power to declare a law unconstitutional should never be lightly invoked." Sveen v. Melin, 138 S.Ct. 1815, 1831 (2018) (Gorsuch, J., dissenting). We only apply, as our duty demands, the settled constitutional principle that forbids private entities from exercising unchecked government power.
The district court's judgment is reversed and the case is remanded for further proceedings consistent with this opinion.
American horseracing is older than the founding. "Despite the disapproval of the Puritan hierarchy, by the mid 1600s, horse racing had become a popular and largely unregulated recreation throughout the colonies." Joan S. Howland, Let's Not "Spit The Bit" In Defense Of "The Law Of The Horse": The Historical and Legal Development of American Thoroughbred Racing, 14 Marq. Sports L. Rev. 473, 483 (2004).
The Authority submits proposed rules to the FTC, § 3053(a), which publishes them in the Federal Register for public comment, § 3053(b)(1). A proposed rule "shall not take effect" unless the FTC approves it, § 3053(b)(2), which must occur no later than 60 days after publication, § 3053(c)(1). The FTC "shall approve" a proposed rule if it finds the rule "consistent" with the Act and with "applicable rules approved by the [FTC]." § 3053(c)(2). Conversely, the FTC can "make recommendations" to the Authority to modify proposed rules, and the Authority "may resubmit" proposed rules incorporating those modifications. § 3053(c)(3). The FTC itself may adopt an "interim final rule" under the APA's good cause standard, provided it finds this "necessary to protect—(1) the health and safety of covered horses; or (2) the integrity of covered horseraces and wagering on those horseraces." § 3053(e); see also 5 U.S.C. § 553(b)(B).
Rules promulgated by the Authority in accordance with HISA "shall preempt any provision of State law or regulation with respect to matters within the jurisdiction of the Authority[.]" § 3054(b).
B. Procedural History
In March 2021, the National Horsemen's Benevolent and Protective Association and twelve affiliates (collectively, "Horsemen") sued the FTC and the Authority (collectively, "Appellees") in federal district court. The Horsemen claimed HISA was facially unconstitutional on various grounds, including the private non-delegation doctrine and the Fifth Amendment's Due Process Clause.
On March 31, 2022, the district court denied the Horsemen's summary judgment motion and granted Appellees' motion to dismiss. Black, 2022 WL 982464. We discuss the district court's reasoning below. A few days after the ruling, the court ordered the parties to confer and file a joint status report regarding Texas's remaining anti-commandeering claim. On April 14, 2022, Texas filed a notice dismissing that claim under Federal Rule of Civil Procedure 41(a), leading to the court's entry of a final judgment on April 19, 2022. The Horsemen and Texas each filed notices of appeal on April 19 and 20, 2022, respectively.
In the district court, Appellants subsequently filed an emergency motion under Federal Rule of Civil Procedure 59(e) to amend the final judgment, realizing that the district court had improperly dismissed the case based on Texas's Rule 41(a) dismissal. On April 25, 2022, the district court denied the Rule 59(e) motion, ruling instead that the previous final judgment was a "nullity" and certifying the court's March 31 order as a final judgment under Rule 54(b). As the district court explained, it did so to remove any doubt as to our court's jurisdiction over the pending appeal. The district court then entered a new final judgment on April 25, 2022.
C. District Court Ruling
The district court upheld HISA in a thorough opinion which we only summarize here. The court first concluded the Horsemen had standing to bring their private non-delegation and due process claims. Black, 2022 WL 982464 at *4-8. The Horsemen faced a concrete, "certainly impending injury," because HISA requires passage of regulations that will aggrieve the Horsemen. Id. at *7. That injury is fairly traceable to HISA and would be redressed by a decision finding HISA unconstitutional, because the Horsemen "would no longer be subject to certainly impending regulatory control . . . and would be able to continue administering the race-day medications to their horses that the Authority's rules would inevitably prohibit." Id. at *8. The court also concluded that the claims were ripe. Id. at *8-10. It reasoned that the case "requires the [c]ourt to resolve a dispute over Congress's choice to create a hybrid rulemaking scheme and the words it used to do so." Id. at *10.
Turning to the merits, the district court first considered the claim that HISA unconstitutionally delegates government power to a private entity. Synthesizing precedent from the Supreme Court and our circuit, the court framed the pertinent inquiry as (1) whether HISA contains an "intelligible principle guiding the Authority and the FTC"; and (2) whether the Authority "function[s] subordinately to the FTC." Id. at 13. On the first question, the court concluded that HISA laid down sufficiently intelligible principles to guide the Authority and the FTC. Id. at *14-16.
The second question—whether the Authority is subordinate to the FTC—was more difficult. The court candidly "recognize[d] that HISA's regulatory model pushes the boundaries of public-private collaboration." Id. at *27. Nonetheless, the court found no violation of the private non-delegation doctrine, at least "within current constitutional limitations as defined by the Supreme Court and the Fifth Circuit." Ibid. Principally, the court reasoned that while the Authority drafts and proposes rules, those rules become law only after "the FTC's independent review and approval." Id. at *17. In this regard, HISA draws on the securities-regulation framework, which uses private organizations (like FINRA and its predecessor, the NASD)
All the same, the district court acknowledged that the challengers raised "compelling arguments" against HISA's "novel regulatory scheme" and its delegation to the Authority. Id. at *1, *10, *19. For instance, the court noted that the FTC's "limited ability to draft rules" was an "uncommon feature in public-private partnerships." Id. at *19. And while the FTC itself could adopt interim final rules under a "good cause" standard, the narrowness of that emergency power made it "not much of an answer to the Horsemen's concerns." Ibid. Still, the court found the restrictions on the agency did not render it subordinate to the Authority under existing precedent. Id. at *19-21 (relying principally on Currin v. Wallace, 306 U.S. 1 (1939) and Ass'n of Am. R.R.s v. U.S. Dep't of Transp. [Amtrak IV], 896 F.3d 539 (D.C. Cir. 2018)).
The court also acknowledged that the FTC can review the Authority's proposed rules only for "consistency" with HISA and existing rules, thus giving the Authority unreviewable power to "fill up the details" of regulation and relegating the FTC to an "adjudicative, rather than a regulatory, function." Id. at *22 (quoting Gundy v. United States, 139 S.Ct. 2116, 2136 (2019) (Gorsuch, J., dissenting)). Still, the court noted that the Act sought to cabin "consistency" review by incorporating various "elements, considerations, baseline rules, and express prohibitions." Ibid. And the court pointed out that the SEC also reviews FINRA rules only for consistency with the enabling statute. Ibid. (citing 15 U.S.C. § 78s(b)(2)(C)(i)).
Finally, the court conceded that, unlike the agencies examined in any other private non-delegation case, the FTC lacked any power "to formally modify the Authority's rules." Id. at *23. But this was "not fatal" to the Act's constitutionality, because relevant precedents did not turn on the agency's power to modify the private entity's rules, only on its power to "approve or disapprove" them. Ibid. (discussing Adkins, 310 U.S. 381; Rettig, 987 F.3d at 532; Todd & Co., 557 F.2d at 1012). Nonetheless, the court conceded that "the Horsemen's grievance is understandable" and highlighted the following:
Ibid. (citations omitted). Yet the court again found no private non-delegation problem, based on what it deemed controlling precedents from the Supreme Court and our court. Id. at *23-24 (discussing Currin, 306 U.S. at 16; Rettig, 987 F.3d at 532; Boerschig v. Trans-Pecos Pipeline, LLC, 872 F.3d 701, 708-09 (5th Cir. 2017)). Given that "the FTC controls the promulgation of binding rules," there was no private non-delegation problem. Id. at *24.
The district court then turned to the due process challenges. The court dismissed those claims, concluding that the Authority is not a self-interested industry competitor because: the Act requires a majority independent board and standing committees; includes a conflicts-of-interest section that precludes those with financial and familial relations from serving on the board; and enrolls impartial hearing officials or tribunals to conduct adjudications for rule violations, which are approved by the FTC. Id. at *25-26.
In sum, the district court concluded that (1) the Horsemen had standing; (2) their claims were ripe; (3) and HISA did not violate the private non-delegation doctrine or the Due Process Clause.
II. Standard of Review
"We review de novo a district court's rulings on a motion to dismiss and a motion for summary judgment, applying the same standard as the district court." TOTAL Gas & Power N. Am., Inc. v. FERC, 859 F.3d 325, 332 (5th Cir. 2017).
Appellants facially challenge HISA's constitutionality. To sustain such a challenge, they must show "that no set of circumstances exists under which the [statute] would be valid." United States v. McGinnis, 956 F.3d 747, 752 (5th Cir. 2020) (alteration in original) (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)). "Facial challenges to the constitutionality of statutes should be granted sparingly and only as a last resort." Id. at 752-53 (citations omitted).
III. Appellate Jurisdiction
We must first address our appellate jurisdiction. See Chandler v. Phoenix Servs., L.L.C., 45 F.4th 807, 812 (5th Cir. 2022). The Authority
The district court entered final judgment on April 19, 2022. That same day, the Horsemen filed a notice of appeal seeking review of the March 31, 2022 order dismissing all of their claims with prejudice. The April 19 final judgment was invalid, however, because it also purported to dismiss without prejudice Texas's anti-commandeering claim under Rule 41(a). Our precedent does not allow that.
But the district court subsequently cured any problem with the premature notice. On April 25, 2022, the court certified its March 31, 2022 order as final and appealable under Federal Rule of Civil Procedure 54(b).
Appellees nevertheless contend that Appellants' joint Rule 59(e) motion—filed on April 22, 2022—made the previously filed notices of appeal "nullities," thus requiring the Horsemen to file a new or amended notice. Appellees cite no authority for that proposition. Rather, they cite cases holding that a notice of appeal is ineffective if filed while a Rule 59(e) motion remains pending before the district court.
The Horsemen's notice of appeal was therefore timely and effective to appeal the district court's March 31, 2022 order. No one disputes the district court's conclusion that the Horsemen have standing. We therefore need not consider whether Texas does also. See Rumsfeld v. F. for Acad. & Institutional Rts., Inc., 547 U.S. 47, 52 n.2 (2006) ("[T]he presence of one party with standing is sufficient to satisfy Article III's case-or-controversy requirement.").
We proceed to the merits.
IV. Private Non-Delegation Doctrine
Our Constitution permits only the federal government to exercise federal power. This is why each of the first three articles begins by "vest[ing]" legislative, executive, and judicial power "in" specific entities: "a Congress," "a President," and a "supreme Court" and other federal "Courts."
This commonsense principle has come to be known as the "private non-delegation doctrine." See, e.g., Tex. v. Comm'r of Internal Revenue, 142 S.Ct. 1308 (2022) (statement of Alito, J., respecting the denial of certiorari) (noting "the need to clarify the private non-delegation doctrine").
From these decisions, courts have distilled the principle that a private entity may wield government power only if it "functions subordinately" to an agency with "authority and surveillance" over it.
In this case, the parties agree on these basic parameters, as did the district court. See Black, 2022 WL 982464, at *25. But they differ sharply over whether the Authority functions subordinately to the FTC. As noted, the district court found the Authority subordinate because the Authority's proposed rules become law only after the FTC "independently" reviews and approves them. Id. at *17. Appellants say the reverse is true: the FTC's arms-length oversight makes the agency subordinate to the Authority. We must decide which one, agency or Authority, has the whip hand.
A. The Authority Has Sweeping Rulemaking Power.
We start where we and the district court firmly agree: the Authority's rulemaking power is "sweeping." Id. at *18. HISA itself does not create anti-doping, medication, or racetrack safety programs. Nor does HISA empower the FTC to do so. Instead, as Texas's brief points out, "HISA delegates the task of creating such programs to the Authority." That follows from the Act's plain terms. It is "the Authority"—not the FTC—that "shall establish" the anti-doping, medication, and racetrack safety programs. §§ 3055(a)(1), 3056(a)(1). It is "the Authority"—not the FTC—that "approv[es]" a request (by a state racing commission or breed governing organization) to include breeds other than Thoroughbreds and that "consider[s]" how to adapt its programs to those breeds. §§ 3054(l)(1), 3055(a)(2).
To be sure, Congress also included various "considerations" and other factors to guide the Authority's development of the rules. But that only underscores the point that it is the Authority, not the agency, that is tasked with weighing polices that go into formulating rules. For instance, HISA broadly instructs the Authority to create a program that includes "[a] uniform set of training and safety standards and protocols consistent with the humane treatment of covered horses," § 3056(b)(2), while leaving the policy details up to the Authority. (And, as we shall see, the FTC has affirmatively disclaimed any authority to second-guess the Authority's policy choices). Keep in mind, moreover, that we are not considering here whether the "considerations" provide a sufficiently intelligible principle to satisfy the public non-delegation doctrine. See Big Time Vapes, Inc. v. F.D.A., 963 F.3d 436, 443-444 (5th Cir. 2020) (concluding the Tobacco Control Act provided a sufficiently intelligible principle). Instead, we are deciding whether the Authority is subordinate to the agency. And, on its face, HISA's generous grant of authority to the Authority to craft entire industry "programs" strongly suggests it is the Authority, not the FTC, that is in the saddle.
The district court was candid about this aspect of the FTC-Authority relationship, calling it "unique," "unusual," and "uncommon." Black, 2020 WL 982464, at *19, *22. Still, the court insisted this did "not necessarily convert the Authority into an insubordinate entity in the rulemaking scheme." Id. at *19. To explain why, the court first pointed to the FTC's power to adopt "interim final rules." Ibid. (citing § 3053(e)). But in the same breath the court acknowledged this was "not much of an answer." Ibid. We agree. After all, as the court noted, the FTC's interim rulemaking power is subject to the APA good cause standard, which means it is "narrow" authority reserved for "emergency situations." Ibid. (citation omitted); see 5 U.S.C. § 553(b)(B) (good cause standard).
The district court placed heavier reliance on the Supreme Court's Currin decision. In that case, Congress established tobacco regulations that would go into effect only if approved by two-thirds of growers in a particular market. 306 U.S. at 6. This was not a private delegation, the Court held, because it only let the growers "determine exactly when [Congress's] exercise of the legislative power should become effective." Id. at 16 (quoting J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 407 (1928)). The Court emphasized, though, that the power to write the regulations "ha[d] already been exercised legislatively by the body vested with that power under the Constitution." Ibid.
The district court thought HISA's restrictions on the FTC's rulemaking power "parallels the private veto allowed in Currin." Black, 2022 WL 982464, at *19. We disagree. As the Supreme Court explained, the growers' veto "[wa]s not a case where a group of producers may make the law and force it upon a minority." Currin, 306 U.S. at 15-16 (citing Carter Coal, 298 U.S. at 310, 318). Nonetheless, the district court tried to analogize the growers' veto to "ultimately determin[ing] . . . what the substance of that rule would be." Black, 2022 WL 982464, at *19. But this limping analogy was rejected by Currin: "While in a sense one may say that [the growers] are exercising legislative power, it is not an exact statement, because the power has already been exercised legislatively by the body vested with that power under the Constitution." 306 U.S. at 16. The bottom line is that Currin involved no delegation of authority to make rules, whereas HISA does. The Currin growers had only a veto over regulations—important to them, no doubt—but they did not write the regulations. The Authority does.
B. The FTC Has Limited Power To Review Proposed Rules.
Despite the Authority's "sweeping" rulemaking power, the district court found the Authority was subordinate to the FTC. The court's reasoning proceeded in multiple steps. First, citing Adkins, the court reasoned that the "FTC's independent review and approval" meant that "[l]awmaking . . . [was] `not entrusted to the [Authority].'" Black, 2022 WL 982464, at *17 (quoting Adkins, 310 U.S. at 399). Second, the court reasoned that HISA followed the securities industry model of using private self-regulatory organizations under SEC oversight, a model that has "consistently withstood private nondelegation challenges." Ibid. Third, the court believed that our rejection of a private non-delegation claim in Rettig forecloses the challenge to HISA. Id. at *18. Fourth, the court declined to follow the D.C. Circuit's Amtrak I decision. Id. at *20-21. We address each point in turn.
1. The FTC lacks power to review the Authority's policy choices.
We turn first to the FTC's supposedly "independent" review and approval of the Authority's proposed rules. Id. at *17. Once the Authority submits proposed rules to the FTC, the agency must do two things. See § 3053(a), (c). First, it must publish the proposed rules in the Federal Register for public comment. § 3053(b)(1). Second, it must determine within 60 days whether a proposed rule is "consistent" with HISA and prior rules. § 3053(c)(1)-(2). If so, then the FTC "shall approve" the proposed rule. § 3053(c)(2). The district court principally relied on this "consistency" review to find the Authority operated subordinately to the agency. Id. at *22. The court was mistaken. The FTC's oversight is too limited to ensure the Authority "function[s] subordinately" to the agency. Adkins, 310 U.S. at 399.
The FTC's limited review of proposed rules falls short of the "pervasive surveillance and authority" an agency must exercise over a private entity. Adkins, 310 U.S. at 388. The district court itself could not even define what consistency review entailed. Black, 2022 WL 982464, at *22. "At a minimum," the court supposed the FTC would measure rules against the Act's purposes (such as ensuring "the safety, welfare, and integrity of covered horses," etc.), see § 3054(a)(2)(A), or against "the elements, considerations, baseline rules, and express prohibitions the Act contains." Black, 2022 WL 982464, at *22. The court likened this to "an adjudicative . . . function akin to courts reviewing agency action for whether it is `in excess of statutory jurisdiction, authority, or limitations.'" Ibid. (quoting 5 U.S.C. § 706(2)(C)).
Even assuming any of those notions can be read into HISA, such arms-length review hardly subjects the Authority's rules to "independent" oversight. What would it mean, for instance, to say a rule is "consistent" with the proposition that medication "should be the minimum necessary to address the diagnosed health concerns identified during the examination and diagnostic process"? See § 3055(b)(7). Or the aspiration that a safety program include "[a] uniform set of training and racing safety standards and protocols consistent with the humane treatment of covered horses"? See § 3056(b)(2). Even the "baseline" medication principles the district court cited are open-ended: for instance, the Authority must "take into consideration" that horses "should compete only when they are free from the influence of medications, other foreign substances, and methods that affect their performance." § 3056(b)(1). Saying a rule is or is not "consistent" with that standard says next to nothing. Such high-altitude oversight, the district court itself acknowledged, "largely gives the Authority the power to `fill up the details' of the Act in places with less specific directives," and "[f]illing up the details has long been recognized as the very business of regulating." Black, 2022 WL 982464, at *22 (citing Gundy, 139 S. Ct. at 2136 (Gorsuch, J., dissenting); United States v. Grimaud, 220 U.S. 506, 517 (1911)).
In any event, whatever "consistency" review includes, we know one thing it excludes: the Authority's policy choices in formulating rules. This blunt fact has been repeatedly confirmed by the FTC itself. For example, when approving the Authority's hearing rules (the "Proposed Rule Series 8300"), the FTC explained it "reviews the Authority's proposals for their consistency with the Act and the [FTC's] rule, not for general policy."
Order Approving the Assessment Methodology Rule Proposed by the Horseracing Integrity and Safety Authority 20, Federal Trade Comm'n (Apr. 1, 2022) (emphasis added). In short, the conclusion is inescapable that the FTC's consistency review does not include reviewing the substance of the rules themselves.
If the FTC cannot review the policy choices behind the rules, then logically the FTC cannot make the Authority modify those policies. That is again confirmed by HISA's plain terms. The modification power the Act gives the FTC is limited in two ways. It pertains only to whether a rule is "consistent" with the Act and does not include review of the policies informing the rule. See § 3053(c)(3)(A).
Despite finding the FTC unable to modify rules, the district court deemed this "not fatal" to HISA. Ibid. Again, we disagree. The district court reasoned that "the agency in Currin could not modify its regulation without industry approval." Ibid. But, as explained, the private growers in Currin could only stop regulations from going into effect; they could not rewrite them. Here, the Authority writes the regulations and the FTC cannot modify them. The court also reasoned that Adkins "did not rely" on the fact that the agency could modify the prices proposed by private parties. Ibid. That is mistaken. In finding no delegation, Adkins stated: "The members of the code [i.e., the private entity] function subordinately to the Commission [i.e., the agency]. It, not the code authorities, determines the prices." 310 U.S. at 399 (emphasis added). The opposite is true here. The Authority, not the FTC, determines the rules. The FTC's "consistency" review cannot touch the Authority's policy judgments when it does so.
In sum, we conclude that the FTC's limited review of proposed rules does not make the Authority function subordinately to the agency.
2. The FTC has less supervisory power than the SEC.
The district court also relied on sister-circuit cases affirming the constitutionality of the Maloney Act, which created the SEC-FINRA model and after which Congress modeled HISA. Black, 2022 WL 982464, at *17 ("[E]very court to consider a non-delegation challenge to the Maloney Act has concluded that there is `no merit in the contention that the Act unconstitutionally delegates power to' a private entity." (quoting Sorrell v. SEC, 679 F.2d 1323, 1326 (9th Cir. 1982))); see also, e.g., Todd & Co., 557 F.2d at 1012. Like the Authority, FINRA is a private entity empowered to draft and propose regulations to the SEC. See 15 U.S.C. § 78s(b)(1) (providing a "self-regulatory organization shall file with the [SEC] . . . copies of any proposed rule"). Appellees also press this argument on appeal.
The argument misses a key distinction, however. Unlike HISA, the Maloney Act empowers the SEC to "abrogate, add to, and delete from" FINRA rules "as the [SEC] deems necessary or appropriate[.]" 15 U.S.C. § 78s(c); see also Aslin v. Fin. Indus. Regul. Auth., Inc., 704 F.3d 475, 476 (7th Cir. 2013) (observing that the SEC "may abrogate, add to, and delete from all FINRA rules as it deems necessary") (citation omitted). This rulemaking power meaningfully distinguishes the SEC-FINRA relationship from the FTC-Authority relationship, as the district court acknowledged: "[B]ecause Congress withheld the FTC's ability to modify proposed rules, the Authority wields greater power than FINRA and the private entities in Adkins." Black, 2022 WL 982464, at *22. Said another way: although FINRA plays an important role in formulating securities industry rules, its role is ultimately "in aid of" the SEC, which has the final word on the substance of the rules. See Adkins, 310 U.S. at 388. Not so here. The Authority not only formulates and proposes horseracing industry rules but, given the limits built into the FTC's oversight, it also has the final word on what those rules are. Again, the district court conceded this: "Unlike the SEC-FINRA relationship, the FTC needs the Authority to function as a typical regulator." Black, 2022 WL 982464, at *23; see also In re Series 7 Broker Qualification Exam Scoring Litig., 548 F.3d 110, 114 (D.C. Cir. 2008) ("Absent the unique self-regulatory framework of the securities industry, [FINRA's] responsibilities would be handled by the SEC.").
We therefore cannot agree with the district court and Appellees that the Maloney Act supports the constitutionality of HISA's delegation of rulemaking power to the Authority.
3. Texas v. Rettig does not foreclose the challenge to HISA.
The district court also concluded our private non-delegation decision in Rettig supported the constitutionality of HISA. Black, 2022 WL 982464, at *18. We disagree.
In Rettig, we considered a private non-delegation challenge to a Department of Health and Human Services ("HHS") subdelegation rule requiring a private board to certify as "actuarially sound" the rates states must pay insurers in their Medicaid contracts. 987 F.3d at 526. We rejected that challenge, in relevant part, because the private board "function[ed] subordinately to" HHS. Id. at 532 (quoting Adkins, 310 U.S. at 399). That was so because HHS "reviewed and accepted" the board's accounting standards. Id. at 533 (citation omitted). Moreover, HHS "ha[d] the ultimate authority to approve" the states' contracts and the agency "superintended" the contract approval process "in every respect." Ibid.
We agree with Appellants that Rettig is distinguishable from the delegation here. As they point out, in Rettig, HHS "retained the power to unilaterally rescind or modify the rule incorporating the private organization's standards." The power to strip the private organization's power altogether is on par with the SEC's power to abrogate the private organization's rules—a clear hierarchy exists in both cases. By contrast, the FTC has only limited review over the Authority's primary rulemaking power by design and, additionally, lacks the power to change the Authority's proposed rules. § 3053(c). Again, as the district court itself recognized, "[o]nly an act of Congress could permanently amend any Authority rule or divest it of its powers." Black, 2022 WL 982464, at *23.
Another distinction lies in the scope of the private entity's power. In Rettig, the private board contributed to a small part of the regulatory scheme, merely acting as an aid to HHS. Cf. Adkins, 310 U.S. at 388. By contrast, HISA entrusts the entire regulatory scheme to the Authority, fettered only by the FTC's limited review. As the district court correctly put it: whereas "the subdelegated power in Rettig concerned only `a small part of the [contract] approval process,'" "[i]n HISA, by contrast, Congress instructs the Authority to draft myriad medication control and racetrack safety rules." Black, 2022 WL 982464, at *18 (quoting Rettig, 987 F.3d at 533).
Consequently, Rettig does not compel finding that HISA's delegation to the Authority clears the hurdle of the private non-delegation doctrine.
4. Amtrak I shows why HISA is unconstitutional.
Finally, to support their case against HISA, Appellants rely on the Amtrak litigation, which unspooled for years in the D.C. Circuit and the Supreme Court. See Amtrak I, 721 F.3d 666; Amtrak II, 575 U.S. 31; Ass'n of Am. R.R.s v. U.S. Dep't of Transp. [Amtrak III], 821 F.3d 19 (D.C. Cir. 2016); Amtrak IV, 896 F.3d 539. Those cases addressed a federal law (section 207 of the Passenger Rail Investment and Improvement Act of 2008) that empowered a putative private entity (Amtrak) and an agency (the Federal Railroad Administration or "FRA") to "jointly develop" railroad performance standards. Amtrak I, 721 F.3d at 668. If Amtrak and FRA disagreed, either could have an arbitrator settle the disagreement. Id. at 669. In Amtrak I, the D.C. Circuit found a private non-delegation problem. Id. at 677. In Amtrak II, the Supreme Court vacated and remanded because it concluded Amtrak was really a government actor. In Amtrak III, the D.C. Circuit found section 207 violated due process by giving regulatory power to the "economically self-interested Amtrak." 821 F.3d at 39. Finally, in Amtrak IV, the D.C. Circuit held that striking the arbitration provision cured that constitutional problem by "eliminat[ing] Amtrak's ability and power to exercise regulatory authority over its competitors." 896 F.3d at 548.
We agree with Appellants that the private non-delegation analysis in Amtrak I supports their claim that HISA is unconstitutional. The D.C. Circuit found the delegation to Amtrak exceeded what the Supreme Court approved in either Currin or Adkins. Unlike the private growers in Currin, Amtrak helped craft the regulations. 721 F.3d at 671. Unlike the industry actors in Adkins, Amtrak could check FRA's regulatory authority. Ibid. And, "more damningly," the agency in Adkins could "unilaterally change" proposed rules, whereas Amtrak's authority was "equal" to FRA. Ibid. Each of those features also condemns HISA. Unlike in Currin, the Authority writes the rules. Unlike in Adkins, the Authority can effectively veto the FTC's suggested modifications. And, "more damningly," the FTC cannot unilaterally change the Authority's proposed rules. Ibid. Indeed, given its limited review, the FTC can merely recommend modifications to rules insofar as they are "inconsistent" with the Act, but the agency cannot second-guess the Authority's policy choices. So, "should the [FTC] prefer an alternative to [the Authority's] proposed [rules], [HISA] leaves it impotent to choose its version without [the Authority's] permission." Ibid. These are not the marks of a private entity that "functions subordinately" to and "in aid of" an agency with "pervasive surveillance and authority" over it. Adkins, 310 U.S. at 388, 399. Amtrak I therefore supports our conclusion that HISA is unconstitutional.
The district court found more persuasive the D.C. Circuit's later decisions in Amtrak III and Amtrak IV. Black, 2022 WL 982464, at *20-21. We disagree. Those decisions sound in public non-delegation and due process and so have little bearing here.
By delegating unsupervised government power to a private entity, HISA violates the private non-delegation doctrine. We therefore DECLARE that HISA is unconstitutional on that ground.
The district court's decision is REVERSED and the case is REMANDED for further proceedings consistent with this opinion.