Amicus Brief: National Horsemen’s Benevolent & Protective Association v. Black

In 2020, Congress passed a law that nationalized the regulation of thoroughbred horseracing. It gave rulemaking, enforcement, and investigation authority to a private nonprofit, the Horseracing Integrity and Safety Authority. This organization enjoys governmental powers but doesn't have any of the political accountability that goes with traditional federal regulators, such as appointment and removal. The case has been through a number of iterations and various challengers have raised various arguments, but at this stage, the district court was reacting to the argument made by Ilan Wurman, an Arizona State law professor and leading young originalist scholar, that the members of the Horseracing Authority need to be nominated by the president and confirmed by the Senate. The district court rejected that argument on the ground that the Authority is private and therefore doesn't require constitutional appointment. Now before the Fifth Circuit, Emory law professor Sasha Volokh wrote an amicus brief arguing that anyone exercising significant federal power on an ongoing basis is an "Officer of the United States" and thus requires constitutional appointment. MI has joined five other think tanks on this brief, which hopes to rein in such unbridled government power.

Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.

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