# *Horseracing Integrity and Safety Authority v. National Horsemen’s Benevolent and Protective Association* The Authority has the power to issue binding federal rules, which means its directors exercise significant federal authority. September 16, 2026 • Legal Briefs By Alexander Volokh and [Thomas A. Berry](https://www.cato.org/people/thomas-berry) [ Download PDF ](https://www.cato.org/sites/cato.org/files/2026-09/HISA%20Cato%20Cert%20brief.pdf) Learn more about [Cato’s Amicus Briefs Program](/about/cato-amicus-program). In 2020, Congress passed the Horseracing Integrity and Safety Act (HISA). HISA established a private nonprofit corporation called the Horseracing Integrity and Safety Authority (the Authority). HISA empowered the Authority to formulate detailed rules governing the thoroughbred horseracing industry. Through this rulemaking power, the Authority could create programs regulating anti-doping efforts, horse medication, and racetrack safety. Several groups sued to challenge HISA on multiple grounds. Their case reached the U.S. Court of Appeals for the Fifth Circuit, which held that one of those claims was successful. The court found that HISA unconstitutionally granted unchecked governmental power to a private entity, namely the Authority. Although the Federal Trade Commission (FTC) had some power to review rules issued by the Authority, the FTC could not review the Authority’s policy judgments. Because the Authority had the final word on questions of government policy, the Court held that HISA was unconstitutional. In response to this decision, Congress amended HISA in 2022. In an attempt to save the law, Congress gave the FTC more supervisory power over the Authority than it had before. Now the FTC can issue its own rules that abrogate, add to, or modify the Authority’s rules, including on questions of policy. But unless and until the FTC chooses to do so, the Authority’s rules remain just as binding as before. A new lawsuit ultimately found its way back to the Fifth Circuit, where that court once again held that the law violated the Constitution by delegating too much government power to a private entity. However, the Fifth Circuit held that the law did *not* violate the Constitution’s Appointments Clause, reasoning that the Authority is a private entity and that its members therefore need not be appointed as the Constitution would demand for government officers. Now the Supreme Court has been asked to review the case, and Cato has filed a brief urging review, along with the Competitive Enterprise Institute and Professor Alexander Volokh (with thanks to Professor Volokh and an Emory Law School clinic for drafting the brief). Our brief urges the Supreme Court to review not only the private delegation claim but also the Appointments Clause claim. As our brief explains, the Fifth Circuit wrongly rejected the latter claim. The challengers argued that the directors of HISA are “Officers of the United States” because they still hold significant governmental power, even after the 2022 amendments. And if the directors are indeed officers, there is no doubt they were appointed unconstitutionally. None of the directors were appointed by the president, a department head, or a court. In our brief, we explain how the Fifth Circuit failed to properly evaluate this Appointments Clause argument. Under Supreme Court precedent, “officers” are those who have continuing positions and wield “significant authority pursuant to the laws of the United States.” But instead of asking whether the Authority’s directors possess significant federal power, the Fifth Circuit instead focused on whether the Authority is “public” or “private.” Because the Fifth Circuit held that the Authority is private, that court concluded that the Authority’s directors cannot be officers. But as our brief explains, that cannot be right. The government cannot evade constitutional limits by simply vesting governmental power in a private entity. Otherwise, the government could easily create private corporations and grant them legal authority to suppress the freedom of speech, violate due process, or engage in other constitutional violations. What matters is not whether an entity is private but whether it has been granted the government’s power. The Authority has the power to issue binding federal rules, which means its directors exercise significant federal authority. The Authority’s directors are thus “Officers of the United States” who were never properly appointed. For that reason, the Supreme Court should grant review of the Appointments Clause question and ultimately hold that HISA’s directors were unconstitutionally appointed. [![Horseracing Integrity_pubcover](/sites/cato.org/files/styles/serial_cover_phone/public/2026-09/Horseracing%20Integrity_pubcover.jpg?itok=csE8uBoP)](https://www.cato.org/sites/cato.org/files/2026-09/HISA%20Cato%20Cert%20brief.pdf) ### Download This Legal Brief ##### *Horseracing Integrity and Safety Authority v. National Horsemen’s Benevolent and Protective Association* [ Download PDF ](https://www.cato.org/sites/cato.org/files/2026-09/HISA%20Cato%20Cert%20brief.pdf) ##### About the Authors ##### Alexander Volokh Emory Law School [![Thomas Berry](/sites/cato.org/files/styles/author_picture/public/2026-02/2025-10-16-Thomas%20Berry-sq_0.jpg?itok=SW7WagUw)](/people/thomas-berry) ##### [Thomas A. Berry](/people/thomas-berry) Director, Robert A. Levy Center for Constitutional Studies, Cato Institute [ ](https://x.com/Thomas_A_Berry) [ ](mailto:tberry@cato.org) [![Creative Commons License](/build/cato_2020/images/creative-commons.svg)](http://creativecommons.org/licenses/by-nc-sa/4.0/) This work is licensed under a [Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License](https://creativecommons.org/licenses/by-nc-sa/4.0/). [ Download PDF ](https://www.cato.org/sites/cato.org/files/2026-09/HISA%20Cato%20Cert%20brief.pdf)