Subordination as the Constitutional Safeguard: The Sixth Circuit’s Framework for Private Non‑Delegation and Conditional Preemption in State of Oklahoma v. United States

I. Introduction

In State of Oklahoma v. United States, the Sixth Circuit, on remand from the Supreme Court, revisited the constitutionality of the Horseracing Integrity and Safety Act (“HISA”) and its 2022 amendments. The case sits at the intersection of several important constitutional doctrines:

The non‑delegation doctrine, particularly its “private non‑delegation” strand;
The distinction between facial and as‑applied challenges, including in structural (separation‑of‑powers) cases;
Federal–state relations under the Tenth Amendment, especially the line between anti‑commandeering and permissible conditional preemption.

The plaintiffs—a coalition of States (Oklahoma, West Virginia, Louisiana) and state racing commissions, along with industry participants and associations—challenged HISA as:

An unconstitutional delegation of federal legislative and executive power to a private corporation, the Horseracing Integrity and Safety Authority (“the Authority”); and
An unconstitutional commandeering of States, by forcing them to cooperate with the Authority and to participate in the financing mechanism for the federal regulatory regime.

After the Fifth Circuit originally found the pre‑amendment version of HISA unconstitutional in Nat’l Horsemen’s Benevolent & Protective Ass’n v. Black (“Black I”), Congress responded by amending the statute to expand the Federal Trade Commission’s (“FTC”) oversight powers—most notably, to “abrogate, add to, and modify” the Authority’s rules. The Sixth Circuit initially upheld the amended Act in 2023. Later, the Fifth and Eighth Circuits split over the validity of HISA’s enforcement structure, prompting Supreme Court review.

Meanwhile, the Supreme Court decided FCC v. Consumers’ Research, addressing a similar private delegation challenge to the Universal Service Fund. After holding that a private administrator was permissible so long as the Federal Communications Commission (“FCC”) retained “decision‑making authority,” the Court granted, vacated, and remanded (GVR) the horseracing cases—including Oklahoma—for reconsideration in light of that ruling.

On remand, Chief Judge Sutton, writing for the panel, again rejected Oklahoma’s facial attacks. The opinion holds that HISA, as amended, does not violate the private non‑delegation doctrine because the FTC has the final say over both rulemaking and enforcement, and that the statute’s fee and cooperation provisions do not amount to unconstitutional commandeering.

The decision establishes an important and detailed framework for:

When private entities may constitutionally implement federal law;
How broad agency supervisory powers can “cure” private‑delegation concerns;
The high bar for facial challenges in structural cases; and
How conditional preemption fits comfortably within the Tenth Amendment.

II. Summary of the Opinion

A. Procedural Background

The key steps in the procedural history are:

2020: Congress enacts HISA, centralizing regulation of thoroughbred racing nationwide and delegating primary regulatory functions to the private Horseracing Authority, under FTC oversight.
2022: The Fifth Circuit in Black I finds the original statute facially unconstitutional under the private non‑delegation doctrine, because the Authority effectively had the “last word” on rules.
Late 2022: Congress amends HISA (Consolidated Appropriations Act of 2023) to give the FTC plenary authority to “abrogate, add to, and modify” the Authority’s rules, eliminating the prior “interim rule” device.
2023: The Sixth Circuit, in an earlier iteration of Oklahoma v. United States, upholds the amended Act against facial non‑delegation and anti‑commandeering challenges.
2024: The Supreme Court denies Oklahoma’s initial certiorari petition, but the Fifth Circuit in Black II finds that while the amendment cured the rulemaking defect, the enforcement structure still violates private non‑delegation.
2024: The Eighth Circuit in Walmsley v. FTC upholds both rulemaking and enforcement provisions. Circuit conflict emerges.
2025: The Supreme Court decides FCC v. Consumers’ Research, endorsing a “subordination” model: a private actor may assist so long as the agency retains final decisionmaking authority and the private entity functions “subordinately” and under “authority and surveillance.” The Court then GVRs Oklahoma, Black II, and Walmsley.

On remand, the Sixth Circuit re‑examines HISA through the lens of Consumers’ Research.

B. Holdings

Mootness and Remand: The 2022 amendment does not moot Oklahoma’s challenge because the revised Act “operates in the same fundamental ways” and presents the “same controversy,” just with more FTC oversight. Given the purely legal nature of the facial challenges and the extensive record, the panel declines to remand to the district court.
Private Non‑Delegation – Rulemaking: HISA’s rulemaking structure, as amended, is constitutional. Because the FTC must approve rules, and can unilaterally “abrogate, add to, and modify” the Authority’s rules across the field, the Authority is subordinate. The FTC holds “the final word on the substance of the rules,” satisfying Adkins and Consumers’ Research.
Private Non‑Delegation – Enforcement (Facial Challenge): HISA’s enforcement framework is likewise not facially unconstitutional. Internal adjudications are subject to de novo ALJ review and then full FTC review before sanctions become final, ensuring FTC control. The FTC can also micro‑manage enforcement practices via its § 3053(e) rulemaking authority. Because there are many constitutional applications, Oklahoma’s facial challenge fails under Salerno.
Reserved Questions – Civil Enforcement Actions: The court expressly declines to resolve, in this facial posture, whether the Authority’s power to initiate civil enforcement actions in federal court under § 3054(j) violates private non‑delegation. It notes serious, unbriefed issues (standing, ripeness, state action, unconstitutional conditions), and leaves them for future as‑applied challenges.
Facial Standard Applies to Structural Claims: The panel reaffirms that the Salerno “no set of circumstances” test applies equally to structural (separation‑of‑powers) challenges as to individual rights cases.
Anti‑Commandeering – Cooperation Clause (§ 3060(b)): The State plaintiffs lack Article III standing to challenge HISA’s requirement that state authorities “cooperate and share information” with the Authority and federal law enforcement. The provision includes no penalty, there is no credible threat of enforcement, and the Authority lacks power to sanction States. Any injury is speculative.
Anti‑Commandeering – Fee Collection and Preemption (§ 3052(f)): The fee mechanism is a permissible form of conditional preemption, not commandeering. States may choose to collect industry fees and remit them to the Authority or decline and allow the Authority to collect directly. If they decline, the statute preempts their ability to impose separate fees “relating to anti‑doping and medication control or racetrack safety matters.” That is a constitutional “regulate‑or‑be‑preempted” choice under Hodel, New York, FERC, and Murphy.

The judgment of the district court is affirmed.

III. Analysis

A. Procedural Thresholds: Mootness and Appellate Role after Amendment

The court first addresses whether the 2022 statutory amendment moots the controversy. Citing City of Pontiac Retired Employees Ass’n v. Schimmel and Kenjoh Outdoor, LLC v. Marchbanks, the panel distinguishes between amendments that fundamentally alter a statutory scheme and those that adjust it while preserving the basic structure and the alleged constitutional defect theory.

Here, HISA still uses the same architecture: the Authority proposes rules and enforces them, now under enhanced FTC oversight. Because Oklahoma’s core theory—that Congress vested unsubordinated federal power in a private entity—still applies, the case remains live. Similarly, the amendment does not touch the anti‑commandeering issues, so those claims also remain justiciable.

On whether to remand, the court stresses that:

The challenges are facial and purely legal;
The parties and panel have already expended significant resources; and
The challengers themselves prefer an appellate merits resolution.

This underscores a pragmatic approach: when amendments do not require factual development, appellate courts can and often should decide constitutionality in the first instance.

B. The Private Non‑Delegation Doctrine after Consumers’ Research

1. Classical Non‑Delegation and the “Private” Variant

The court situates private non‑delegation within the broader separation‑of‑powers framework. The Constitution vests:

“All legislative Powers” in Congress (Art. I);
“The executive Power” in the President (Art. II);
“The judicial Power” in the federal courts (Art. III).

Under Whitman v. American Trucking, Congress may delegate implementation to executive agencies if it supplies an “intelligible principle.” But delegations to private entities raise an additional concern: such actors are not politically accountable (no elections, confirmation, or impeachment), yet may be empowered to make binding rules or decisions over other private parties.

The opinion catalogues classic private non‑delegation precedents:

A.L.A. Schechter Poultry v. United States: The Court condemned a scheme in which private trade associations proposed binding “codes of fair competition” that the President could approve. Turning private groups into de facto legislatures was “utterly inconsistent” with the Constitution.
Carter v. Carter Coal Co.: Allowing coal producers and miners to set wages and hours binding on non‑consenting competitors was “delegation in its most obnoxious form,” because regulation of others is “necessarily a governmental function.”
Sunshine Anthracite Coal Co. v. Adkins: After Congress amended the Bituminous Coal Act to empower the public Coal Commission to “approve, disapprove, or modify” industry‑proposed prices, the Court upheld the statute. The decisive change was that final authority rested in a public body, with the industry serving only in an advisory role.

From this lineage, Chief Judge Sutton draws a binary:

If a private entity has final and unchecked lawmaking or enforcement authority, the arrangement is unconstitutional.
If the private entity only proposes rules or assists in enforcement, subject to public‑agency “authority and surveillance,” the arrangement is permissible.

2. Consumers’ Research and the “Subordination” Test

FCC v. Consumers’ Research (2025) crystallizes the modern test in the private context. There, Congress structured the Universal Service Fund so that the FCC set policy, while a private corporation administered the program. The Supreme Court held:

An agency may “rely on advice and assistance from private actors” if the agency “retains decision‑making power.”
The private entity must “function subordinately to” the agency and remain “subject to [its] authority and surveillance” (quoting Adkins).
Because the private administrator “follows the FCC’s rules” and merely “makes recommendations,” the FCC remains “in control.”

The Sixth Circuit adopts that framework explicitly: the “determinative question” is whether the Authority is “inferior to the FTC with respect to rulemaking and enforcement.” The parties themselves accept subordination as the relevant test, and the court proceeds on that shared understanding.

C. Rulemaking under HISA: Demonstrating Subordination through § 3053(e)

1. The Statutory Structure

HISA assigns the Authority responsibility for:

Developing and implementing anti‑doping and medication control programs; and
Establishing racetrack safety standards.

Initially, the FTC’s role was limited: it published the Authority’s proposed rules for comment and approved them if “consistent” with the Act and existing FTC‑approved rules. It also had a narrow “interim rule” power. This constrained oversight led the Fifth Circuit in Black I to conclude that the Authority effectively had the “last word” on horseracing rules, violating private non‑delegation.

In the 2022 amendment, Congress greatly expanded FTC oversight by granting the Commission authority to:

“abrogate, add to, and modify the rules of the Authority … as the Commission finds necessary or appropriate to ensure the fair administration of the Authority, to conform the rules of the Authority to [HISA] and applicable rules approved by the Commission, or otherwise in furtherance of the purposes of [HISA].” (15 U.S.C. § 3053(e))

This is the linchpin of the Sixth Circuit’s analysis.

2. The FTC as “Primary Rulemaker”

The opinion emphasizes several features of § 3053(e) and related provisions:

The Authority merely proposes rules; the FTC must approve them before they become binding.
The FTC can abrogate existing Authority rules entirely, add new rules of its own, and modify any rule in any substantive way it deems “necessary or appropriate” to advance statutory purposes.
The statute’s “catchall” phrase—“otherwise in furtherance of the purposes of [HISA]”—confirms that this power extends across the Authority’s jurisdiction.

This breadth mirrors both the Coal Commission’s power under the amended Bituminous Coal Act and the SEC’s power over securities self‑regulatory organizations (SROs) under the Maloney Act, where the SEC may “abrogate, add to, and delete from” SRO rules as it deems necessary or appropriate. Courts have consistently upheld such SRO arrangements, seeing them as advisory or ministerial bodies under SEC control.

Thus, the Sixth Circuit concludes:

“Ultimate law‑making is not entrusted to the [Authority];”
The Authority “must carry out all its tasks consistent with the [FTC’s] rules;”
The FTC is the “primary rule‑maker,” leaving the Authority as the “secondary,” “inferior,” and “subordinate” actor.

3. Answering Oklahoma’s Counterarguments

a. “Consistency” Review Is Not Too Narrow

Oklahoma argues that because the FTC’s initial review of proposed rules is limited to “consistency” with the statute and existing rules, the Authority could embed policy choices with which the FTC disagrees but is nonetheless forced to accept.

The court responds on two levels:

The “consistency” criterion itself is a standard constraint in administrative law and is not inherently suspect. It obliges the Commission to ensure statutory fidelity.
Even if some policy disagreements were immune at the threshold approval stage (a premise the court doubts), the FTC’s § 3053(e) power to later abrogate, add to, or modify rules for any policy reason eliminates any enduring delegation of final policymaking to the Authority.

The FTC’s ability to initiate its own rules, to delay publication of Authority proposals until the FTC has crafted modifications, and to build over time a body of FTC‑made or FTC‑approved rules that shape future “consistency” review all reinforce this conclusion.

b. Timing Gaps and Notice‑and‑Comment

Oklahoma worries about a “timing gap” between:

The FTC’s initial approval of an Authority rule as “consistent” and its later decision to modify or abrogate that rule after full rulemaking; and
The time it takes to conduct notice‑and‑comment proceedings under the APA.

The court suggests several reasons this gap does not create a structural problem:

The FTC could adopt meta‑rules ensuring that Authority rules do not take immediate effect, giving itself time to evaluate and potentially modify them.
The FTC has substantial discretion under the APA: it only must provide “good reasons” for policy shifts and need not show that the new policy is “better” than the old, just that the agency believes it is and explains itself rationally (FCC v. Fox).
Even if some temporary misalignment occurs, that does not amount to the kind of unchecked, permanent private power condemned in Carter Coal or Schechter, especially in a facial challenge.

c. Expansion to Other Breeds and “Scope of Powers” Language

Oklahoma contends that the Authority’s ability to expand HISA’s coverage to other breeds of horse “escapes” FTC review. The court rejects this, reading § 3053(e) broadly enough to allow the FTC to revoke or condition any such expansion.

Likewise, the general statement in § 3054(a) that the FTC and the Authority shall act “within the scope of their powers and responsibilities” is harmonized with FTC supremacy: the FTC’s “scope” explicitly includes the sweeping power to “abrogate, add to, and modify” any Authority rule.

4. Constitutional Avoidance and Reading Statutes to Minimize Risk

The court draws on Consumers’ Research’s admonition that courts should not read statutes “extravagantly, the better to create a constitutional problem.” It notes that:

HISA nowhere grants the Authority “exclusive” enforcement power; the word “exclusive” appears only to describe joint national authority of the FTC and the Authority.
Oklahoma’s preferred reading—vesting exclusive enforcement authority in the Authority—would maximize constitutional concerns and therefore should be avoided if a plausible, narrower construction is available.

This is standard constitutional avoidance applied in the private non‑delegation context: when Congress has amended a statute specifically to address constitutional concerns, courts should adopt a reasonable construction that aligns with that purpose, so long as the text can fairly bear it.

D. Enforcement: Internal Adjudication, FTC Oversight, and the Limits of Facial Review

1. Facial vs As‑Applied Challenges and the Salerno Standard

The court underscores that Oklahoma brought a facial challenge to the “Act’s delegation of law‑enforcement power to the Authority” as a whole. Under United States v. Salerno, a facial challenge succeeds only if “no set of circumstances exists under which the Act would be valid.”

Importantly, the panel rejects any suggestion that structural claims enjoy a more relaxed standard. It cites Sabri v. United States and Moody v. NetChoice to emphasize that the “very high bar” of facial invalidation applies regardless of whether the challenge is framed in individual‑rights or separation‑of‑powers terms.

2. Internal Enforcement: ALJ and FTC Review as Constitutional Safeguards

HISA’s primary enforcement mechanism is internal adjudication:

The Authority investigates potential violations, often relying on its investigatory and subpoena powers.
It proposes sanctions against covered persons.
Any aggrieved party may seek review before an Administrative Law Judge (ALJ).
Thereafter, the FTC conducts de novo review and may reverse any sanction.
The ALJ or FTC may stay sanctions pending review.

This layered review structure closely tracks the SRO model under the Maloney Act, where:

SROs such as FINRA bring enforcement actions and impose sanctions; but
The SEC reviews these actions independently and retains final authority to affirm, modify, or overturn sanctions.

Courts have long held such structures constitutional, emphasizing that no SRO action becomes final without SEC approval and that SROs are “aids” to the SEC rather than principal decisionmakers. The Sixth Circuit applies the same reasoning here: because the Authority cannot impose final sanctions without FTC “say‑so,” there is no unconstitutional private wielding of executive power, at least in many applications.

The court explicitly notes that many enforcement scenarios—e.g., straightforward violations captured on video, with uncontested evidence—pose no meaningful risk of private overreach once the FTC’s de novo review and stay powers are accounted for. Those constitutional applications suffice to defeat a facial challenge.

3. FTC’s Rulemaking Power over Enforcement Practices

The panel further bolsters FTC supremacy by pointing again to § 3053(e). The Commission can:

Promulgate procedural rules constraining investigations (e.g., requiring pre‑approval for subpoenas or civil suits, elevating burdens of proof, imposing mens rea requirements, limiting penalties, mandating robust hearing rights and appointed counsel);
Issue substantive rules narrowing the scope of violations and limiting when and whom the Authority may pursue; and
Even require the Authority to drop or pursue specific investigations in particular circumstances.

In other words, the FTC holds not only ex post review power over sanctions, but also ex ante control over investigative and charging policies, should it choose to exercise that authority.

The opinion notes a concrete development illustrating this subordination: the Authority itself has proposed a rule for FTC approval that would require the FTC’s prior approval before the Authority issues subpoenas or files civil enforcement actions. This is presented as evidence of a private entity not “running riot” but acknowledging federal oversight.

4. The Reserved Question: Civil Enforcement Actions under § 3054(j)

The one enforcement feature the court refuses to adjudicate in this facial setting is the Authority’s power under § 3054(j) to initiate civil enforcement actions in federal court on its own initiative. Oklahoma suggests that such private civil enforcement is categorically unconstitutional.

The court flags several reasons for restraint:

Pleading scope: Oklahoma chose to bring a broad facial challenge to “the Act’s delegation of law‑enforcement power,” not a targeted challenge to § 3054(j). It did not separately argue that, if § 3054(j) were invalid and unseverable, all enforcement provisions must fall.
Justiciability problems: The Authority has never used § 3054(j) to file a civil suit. Without any credible threat of use, any challenge to that provision alone would face standing and ripeness obstacles. Moreover, if the FTC approves rules requiring prior FTC assent for such suits, the issue may become moot.
Unbriefed constitutional questions:
- Whether Authority enforcement constitutes “state action” for constitutional purposes, invoking the Fourth and Fifth Amendments.
- The scope and validity of the statutory “registration” and waiver requirement in § 3054(d), which obliges covered persons to agree to comply with the Authority’s “rules, standards, and procedures.” That resembles SRO membership agreements under the Maloney Act, raising potential “unconstitutional conditions” questions if the waiver is too broad.

Invoking Saginaw County v. STAT Emergency Medical Services, the court insists that resolving the “gritty who/what/when details of enforcement” should await an actual or threatened enforcement action. It analogizes to the D.C. Circuit’s Alpine Securities v. FINRA, an as‑applied challenge where an SRO’s summary expulsion of a firm without prior SEC review was found problematic; the proper time to address similar issues under HISA, the panel suggests, is in a concrete future case.

E. Facial Review of Structural Claims: A “Very High Bar”

A key doctrinal contribution of the opinion is the reinforcement that facial challenges in structural cases are not easier to win than those in individual‑rights contexts. The Sixth Circuit squarely applies the Salerno standard, requiring Oklahoma to show that:

the FTC lacks supervisory power over all of the Authority’s rulemaking or enforcement powers.

Because HISA allows for “numerous applications” in which the Authority is clearly subordinate to the FTC, the court rejects the facial challenge. This approach undercuts strategies that attempt to leverage extreme hypothetical applications into facial invalidation.

F. Anti‑Commandeering and Conditional Preemption

1. Standing to Challenge the Cooperation Requirement (§ 3060(b))

Section 3060(b) instructs the Authority and “Federal or State law enforcement authorities” to “cooperate and share information” where violations of HISA also implicate other federal or state laws.

The court avoids the merits of whether this is unconstitutional commandeering because Oklahoma fails to show Article III standing:

The provision lacks any penalty or enforcement mechanism; there is no statutory sanction attached to state non‑cooperation.
The Authority’s sanction power runs only against “covered persons,” not States themselves, and it cannot sue States under § 3054(j).
Oklahoma identifies no past or threatened attempt by FTC or the Authority to compel cooperation or to penalize non‑cooperation.

Citing California v. Texas and Clapper v. Amnesty International, the court holds that an unenforceable duty or speculative risk of enforcement does not amount to the concrete injury required for standing, especially in a pre‑enforcement context (Susan B. Anthony List v. Driehaus).

2. Fee Collection & Preemption (§ 3052(f)) as Conditional Preemption

Section 3052(f) establishes the funding structure for HISA:

The Authority finances its operations through fees assessed on the horseracing industry.
Each State is apportioned a share of the industry‑wide budget.
States may either:
- Collect the required fees from covered entities and remit them to the Authority; or
- Decline to collect, in which case the Authority collects directly and the State “shall not impose or collect from any person a fee or tax relating to anti‑doping and medication control or racetrack safety matters.”

Oklahoma contends that this forces States into a coercive choice: either act as the Authority’s tax collector or forfeit their own fee‑collecting power in the field, amounting to commandeering.

The court situates this scheme squarely in the doctrine of conditional preemption:

Under Hodel v. Virginia Surface Mining and New York v. United States, Congress may offer States the option of regulating an activity under federal standards or standing aside and having federal law preempt the area.
FERC v. Mississippi and Murphy v. NCAA reaffirm that such “regulate or be pre‑empted” frameworks are permissible when Congress is acting within its enumerated powers.

Because Congress may regulate interstate horseracing under the Commerce Clause, it also may:

Fully preempt state regulation and fee regimes in that space; or
Offer States a meaningful choice: implement the federal standards and retain some implementation role, or decline and accept preemption.

The court concludes that § 3052(f) is a textbook conditional preemption scheme. The “shall not impose or collect” language is read as a typical preemptive command, akin to other statutes that say States “may not” impose certain taxes or standards. Following Murphy, it cautions against confusing preemption—where Congress regulates private actors directly and displaces contrary state law—with unconstitutional commandeering, where Congress issues commands to the States themselves to regulate.

On Oklahoma’s claim of coercion or punishment:

The court cites Hodel in rejecting arguments that the mere “threat of federal usurpation of regulatory roles” is coercive.
It notes that preempting a State’s taxing authority in a particular field is not unprecedented (Aloha Airlines, Exxon v. Hunt), and no case suggests that conditional preemption is measured by monetary impact as in the Spending Clause context (South Dakota v. Dole, NFIB v. Sebelius).
Oklahoma fails to quantify any fiscal impact, leaving no factual foundation for a “too coercive” argument even if such a theory applied.
The preemption also serves legitimate federal interests—avoiding “double taxation” and fostering uniform fee regimes—and is not purely punitive.

Finally, on accountability, the court echoes New York: because the State can choose whether to participate, political responsibility for that choice remains clear. Conditional preemption, properly structured, does not blur lines of accountability.

G. Statutory Interpretation and Constitutional Structure

Throughout, the opinion deploys canons of construction sensitive to separation‑of‑powers concerns:

Constitutional Avoidance: Where statutes are fairly susceptible to multiple readings, courts should adopt the construction that avoids grave constitutional difficulties, particularly where Congress has amended a law in response to judicial concerns.
Non‑expansive Reading of Delegations: Especially in private delegation contexts, courts should resist interpretations that unnecessarily maximize the scope of private authority, where public agency supervision can reasonably be read as comprehensive.

The court also draws a functional analogy to long‑standing statutory schemes (the SEC/SRO framework) that have survived scrutiny. By highlighting these parallels, the panel situates HISA within a familiar and judicially approved regulatory model.

H. Relationship to Other Circuit Decisions and Regulatory Models

While the opinion does not comprehensively recount other circuits’ reasoning, it references:

Fifth Circuit (Black I and Black II):
- Black I invalidated the original HISA on non‑delegation grounds because the FTC had no authority to change the Authority’s rules.
- Black II accepted that the amendment cured the rulemaking defect but still held the enforcement provisions unconstitutional, emphasizing the Authority’s independent investigative and enforcement authority.
Eighth Circuit (Walmsley v. FTC): Upheld both the rulemaking and enforcement structures against facial non‑delegation challenges, aligning more closely with the Sixth Circuit’s approach.
SRO Jurisprudence: The court relies extensively on SEC/SRO cases (R.H. Johnson & Co., Todd & Co., First Jersey Securities, Sorrell) to illustrate how private self‑regulation under public agency dominance reconciles with the non‑delegation doctrine.
Alpine Securities v. FINRA (D.C. Cir.): Cited not as a contrary facial precedent but as an example of an as‑applied private non‑delegation challenge to specific SRO enforcement actions. The Sixth Circuit invites similar as‑applied challenges under HISA if and when the Authority’s enforcement exceeds constitutional boundaries in concrete cases.

In essence, the Sixth Circuit re‑aligns its earlier Oklahoma decision with Consumers’ Research, while rejecting the Fifth Circuit’s broader facial invalidation of HISA’s enforcement provisions. It reinforces a model in which robust public oversight—not abolition of private participation—is the constitutional safeguard.

IV. Complex Concepts Simplified

A. Non‑Delegation Doctrine (Including Private Non‑Delegation)

What it is: A constitutional rule that Congress cannot hand over its lawmaking power to others without limits. For government agencies, Congress must provide meaningful guidance (“an intelligible principle”) about how to implement the law.
Private non‑delegation: A special problem arises when Congress gives power not to a public agency, but to a private actor (like an industry group or private corporation). Because private actors are not politically accountable, they may not be allowed to wield final government power over others.
Permissible use of private entities: They can:
- Propose rules or standards;
- Provide technical expertise;
- Perform ministerial tasks (like fee collection) or initial investigations;
- Conduct internal proceedings whose results are fully reviewable by a public agency.
Key requirement: A public agency must keep final decision‑making authority and have the practical ability to supervise and override private actors’ decisions.

B. “Subordination” Test from Consumers’ Research

A private entity may implement federal law if it:
- “Functions subordinately to” the public agency; and
- Is “subject to [the agency’s] authority and surveillance.”
If the agency:
- Sets binding rules that the private entity must follow;
- Can reject, alter, or replace the private entity’s proposals; and
- Has the final say over enforcement decisions;
then the private entity is an “aid,” not a substitute sovereign.

C. Facial vs As‑Applied Challenges

Facial challenge: Claims a law is unconstitutional in all its applications. To win, the challenger must show that there is no scenario in which the law can be applied constitutionally (Salerno standard).
As‑applied challenge: Attacks the law only as it has been applied to a particular person or set of facts. It does not necessarily invalidate the law for everyone, just for that use.
In structural cases: The Sixth Circuit insists that facial challenges still bear the same “very high bar”—it is not easier simply because the claim is about separation of powers.

D. Anti‑Commandeering vs Conditional Preemption

Anti‑commandeering: The federal government cannot:
- Force state legislatures to enact laws; or
- Order state executives or officers to enforce federal programs.
(see New York, Printz, Murphy).
Preemption: When Congress validly regulates under its enumerated powers, state laws that conflict are displaced. Preemption governs what private parties may do, not what States must legislate.
Conditional preemption: Congress gives States a choice:
- Regulate an activity in line with federal standards; or
- Stand aside and have federal standards apply directly, displacing state law.
This is constitutional so long as States retain a real option to decline.

E. Article III Standing in Pre‑Enforcement Cases

To sue in federal court, a plaintiff must show:
- Concrete injury (or credible threat of imminent injury);
- Traceable to the defendant; and
- Likely redressable by a court ruling.
In pre‑enforcement challenges, there must be a “credible threat” that the law will be enforced against the plaintiff, not just speculative fear.
If a statutory duty includes no enforcement mechanism, or the enforcing entity lacks power against the plaintiff, standing is often lacking.

V. Likely Impact and Open Questions

A. Clarified Path for Private Implementation of Federal Law

The decision solidifies a model for structuring public–private partnerships in federal regulation:

Private entities may draw on industry expertise to propose detailed rules and run complex enforcement systems; but
A federal agency must:
- Hold the ultimate authority to approve, alter, or rescind those rules;
- Retain final say over sanctions and enforcement actions; and
- Possess the tools (including rulemaking power) to supervise and correct the private entity’s practices.

This framework will be particularly relevant for:

Existing SRO models in securities and commodities regulation;
Quasi‑public standard‑setting bodies (e.g., in health, environment, or finance);
Future regulatory schemes that may enlist private organizations in enforcement or adjudication.

By anchoring its reasoning in Adkins, Consumers’ Research, and SRO precedents, the Sixth Circuit reinforces that robust agency oversight—not categorical bans on private participation—is the constitutional norm.

B. Strategic Implications for Litigation

The opinion sharply distinguishes between facial and as‑applied challenges. For regulated entities and States, this has concrete implications:

Broad facial assaults on entire enforcement frameworks will be hard to sustain because some applications will almost always be constitutional.
Entities that believe a private actor has exceeded permissible delegated authority will likely need to bring targeted as‑applied challenges after, or in anticipation of, specific enforcement actions (mirroring Alpine Securities).
Courts are likely to demand concrete facts: how the investigation was conducted, what procedures were used, what oversight occurred, and whether the agency’s review was meaningful.

C. Anti‑Commandeering Boundaries and State Choices

On the Tenth Amendment side, the decision reaffirms that:

States cannot manufacture anti‑commandeering claims where Congress is simply offering them a choice between:
- Participating in implementation; or
- Being preempted in an area Congress could have regulated entirely on its own.
Financial or regulatory disincentives are not necessarily coercive. Absent extreme facts (as in NFIB’s Medicaid expansion), conditional preemption will generally stand.

States interacting with HISA and similar frameworks must therefore recognize:

They cannot insist on collecting parallel fees or maintaining parallel regulatory regimes in preempted spaces, once they decline participation.
Their main political recourse is whether to opt in or opt out, not a constitutional veto over Congress’s chosen implementation architecture.

D. Unresolved Issues and Future Litigation

The opinion flags significant open questions likely to generate future litigation:

Civil enforcement suits by the Authority (§ 3054(j)):
- Are they constitutionally permissible if filed without prior FTC approval?
- What level of FTC involvement (e.g., pre‑approval, post‑hoc review) is necessary to maintain “subordination”?
Constitutional constraints on investigations:
- Do the Fourth and Fifth Amendments apply directly to Authority investigations?
- Is the Authority a state actor for search, seizure, and due process purposes?
Registration and waiver requirements (§ 3054(d)):
- How broad are the waivers covered persons must sign?
- Do they amount to unconstitutional conditions, or are they akin to permissible membership conditions in SRO regimes?

The court explicitly reserves these issues for future as‑applied challenges, meaning the constitutional story of HISA enforcement is incomplete and will likely evolve as the Authority’s enforcement record grows.

VI. Conclusion

State of Oklahoma v. United States is a significant contribution to modern separation‑of‑powers and federalism doctrine. The Sixth Circuit, guided by Consumers’ Research, crystallizes a “subordination” framework for private non‑delegation: so long as a federal agency retains ultimate authority over rules and enforcement, and exercises “pervasive surveillance and authority,” private entities may constitutionally assist in administering federal law.

On the enforcement side, the court emphasizes the high bar for facial invalidation and channels disputes toward as‑applied challenges informed by concrete enforcement actions. That doctrinal move both preserves Congress’s chosen regulatory design and leaves room for judicial correction if future applications stray into unconstitutional territory.

On the Tenth Amendment front, the decision reaffirmed the distinction between impermissible commandeering and legitimate conditional preemption. HISA’s fee structure offers States a choice—participate in implementing federal standards or stand aside and accept preemption in a field Congress may regulate—without crossing constitutional lines.

Taken together, the opinion establishes a robust, structured blueprint for how Congress may harness private expertise and state cooperation while remaining faithful to separation‑of‑powers principles and state sovereignty. It confirms that, with sufficient public oversight and careful statutory design, “sometimes government works,” even when private and public actors share the regulatory stage.