In 2020, Congress nationalized regulation of the horseracing industry. But rather than create a governmental regulator, it delegated governmental powers to a newly created private corporation. Petitioners sued and won. The Fifth Circuit ruled that the Horseracing Integrity and Safety Authority, Inc. could not write the rules for horseracing without the Federal Trade Commission (“FTC”) being able to “approve[|], disapprove[], or modif[y]” them. Nat7 Horsemen’s Benevolent and Protective Ass’n v. Black, 53 F.4th 869, 881 (5th Cir. 2022) (quoting Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 388 (1940)).

After the Fifth Circuit’s ruling, Congress added one new sentence to the statute. Under the revised law, the private corporation still writes the first draft of all rules. 15 U.S.C. § 8053(a). And the FTC cannot change those rules: it “shall” promulgate them if they are “consistent” with the Horseracing Integrity and Safety Act and applicable FTC rules. 15 U.S.C. § 3058(c)(2). The new sentence only gives the FTC the power to institute a separate rulemaking to abrogate, add to, and modify the rules after the corporation’s rules have already been promulgated. 15 U.S.C. § 3053 (e).

Question Presented #2:! Does it violate the private nondelegation doctrine if a private entity’s rules enter into force without the supervising federal agency being able to contemporaneously revise or reject them?

1 The Horsemen agree with the Authority and the FTC that the Court should grant certiorari on the first question presented, whether HISA unconstitutionally delegates executive powers.

1. Whether the Due Process Clause permits a State to convict a defendant of the crime of refusing to submit to a breath test without requiring the jury to determine that the defendant voluntarily refused, where the defendant presented evidence that a physical condition prevented immediate compliance and requested an _ instruction distinguishing physical inability from voluntary refusal.

2. Whether the Sixth and_ Fourteenth Amendments permit a State to exclude qualified defense-expert testimony concerning material deviations from standardized field- sobriety-test protocols while permitting the State’s officer to characterize the same exercises as evidence supporting impairment and probable cause.

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When a government actor’s conduct “shocks the conscience” it violates Due Process, full stop. Rochin v. California, 342 U.S. 165 (1952). That single element— conscience-shocking conduct—has always been the only element of a shocks-the-conscience claim. See Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973) (Friendly, J.).

Here, the Third Circuit held that what Officer Culver did to petitioner and her family shocks the conscience: Culver took graphic photographs of petitioner’s son as he lay dying after jumping from a highway overpass, and sent them to colleagues as a joke. By 2-1 vote, however, the panel affirmed the grant of qualified immunity to Culver on the theory that petitioner failed to prove a second element: that she had a clearly established “protected liberty interest” in “control over a loved one[’s| death-scene images.”

The Seventh, Tenth, and Eleventh Circuits recognize conscience-shocking executive misconduct as enough for substantive-due-process liability, without requiring a separate showing that the official infringed a fundamental right. Sandra T.E. v. Grindle, 599 F.3d 583, 589 (7th Cir. 2010); Seegmiller v. LaVerkin City, 528 F.3d 762, 767 (0th Cir. 2008); DeMarcus v. University of South Alabama, 133 F.4th 1805, 1316 (11th Cir. 2025).

The question presented is:

Whether a plaintiff who sues an executive official under the Due Process Clause must prove only that the official’s conduct shocks the conscience, or must also prove that the conduct invaded a fundamental right deeply rooted in this Nation’s history and tradition.

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Whether the government may use 18 U.S.C. §1956(a)(1), the domestic money laundering statute, to prosecute an individual for conduct that constitutes the ordinary commission of the underlying criminal activity, rather than a distinct transaction involving a subsequent disposition of proceeds of that activity?

Whether 18 U.S.C. §3663A, the Mandatory Victim Restitution Act, permits a district court to order a defendant to make restitution for losses attributable to criminal conduct of others that occurred before he joined a conspiracy, or after his participation in the conspiracy ended?

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Federal Rule of Criminal Procedure 52(b) allows a court of appeals to correct an unpreserved error when the error is “plain.” An error is “plain” when it is “clear” or “obvious” under current law, meaning it is not “subject to reasonable dispute.” United States v. Olano, 507 U.S. 725, 734 (1993); Puckett v. United States, 556 U.S. 129, 135 (2009).

Congress likewise limits supervised-release conditions. Under 18 U.S.C. § 3583(d)(2), a condition may impose “no greater deprivation of liberty than is reasonably necessary’ to serve the purposes of sentencing.

The court of appeals held that the condition here—a one-year ban on any contact with any member of Congress for any reason—violated that limit and burdened Mr. Hayes’s First Amendment right to petition. But the court still refused to correct the error. In the court’s view, the violation was not “plain” because no prior case involved a materially similar condition and because the violation was not severe enough.

The question presented is:

Whether a court of appeals may hold that a condition squarely violated a statutory limit but still say the error was not “plain” because the violation was not severe enough.

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