Our Most MAGA Court Created Another Mess for SCOTUS to Clean Up

The nation’s most conservative appeals court keeps getting beaten up at the Supreme Court, but its judges adamantly refuse to take the hint. On Thursday, the 5^th U.S. Circuit Court of Appeals federal horse racing regulations to be unconstitutional, ignoring not one but two pointed signals from SCOTUS that the law is perfectly valid. Its decision arrived just hours after the Supreme Court’s of the 5^th Circuit so far this term, with several more likely to come—a humiliating record for the appeals court. This trend shows no sign of stopping: If anything, the 5^th Circuit’s MAGA judges seem proud of their reversal rate, eager to dig in and dare the justices to stop them. Now the lower court is forcing SCOTUS to clean up yet another mess of their own making by rescuing an important regulatory scheme that the 5^th Circuit remains strangely committed to destroying.

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Before diving into the 5^th Circuit’s latest misadventure, it’s worth lingering on the sheer scale of its losing streak. The numbers tell the story: Just last term, the justices took up 13 cases from the appeals court, more than from any other, and reversed it in 10 of them. The losses have continued to pile up this term: Once again, the 5^th Circuit looks poised to have the highest reversal rate of any appeals court. And that doesn’t even include shadow docket decisions, like SCOTUS’ 7–2 decision last month halting the 5^th Circuit’s attempt to block distribution of an abortion medication via telehealth. The pattern is impossible to miss: Republican litigants bring aggressive theories to the appeals court, which MAGA judges promptly embrace; the Supreme Court is then left to decide how much damage it’s willing to undo. For a different appeals court, that record might inspire some humility. On the 5^th Circuit, it only seems to inspire more defiance.

Consider Thursday’s in National Horsemen’s Benevolent and Protective Association v. Black. The 5^th Circuit’s ruling neuters a law that Congress enacted in 2020 to impose nationwide standards on the horse racing industry after the existing state-by-state patchwork failed to prevent . Rather than saddle an existing agency with additional duties, Congress delegated rulemaking and enforcement power to a private corporation known as the Horseracing Authority. In 2022, the 5^th Circuit that this arrangement delegated “government power to a private entity without sufficient agency supervision” and struck it down. So Congress amended the statute to give the Federal Trade Commission ultimate authority over horse racing rules and their enforcement. Yet in 2024, the 5^th Circuit once again the law, holding that it still gave the Horseracing Authority too much discretion over enforcement.

At that point, the government had no choice but to seek emergency relief from the Supreme Court. And the justices , preventing the 5^th Circuit from effectively nullifying federal horse racing regulations. That intervention sent a clear message that the justices were deeply skeptical of the appeals court’s ruling and unwilling to let it blow up the regulator. Then, seven months later, SCOTUS formally the 5^th Circuit’s decision and ordered it to reconsider in light of a recent decision, . That 6–3 ruling held that Congress can delegate oversight authority to a “private entity” as long as that entity “functioned subordinately to” a federal agency that “retains decision-making power.” The agency structure approved in Consumers’ Research neatly describes how the Horseracing Authority operates, too. As both the 6^th and 8^th U.S. Circuit Courts of Appeals the regulator’s powers in separate rulings, federal law (as amended) clearly makes the (private) Horseracing Authority subordinate to the (public) Federal Trade Commission, resolving any constitutional issues.

Consider the from the 6^th Circuit, which incorporated Consumers’ Research into its reasoning, and which presides over Kentucky, home of the Kentucky Derby. The appeals court rejected a claim that the Horseracing Authority violates the “private nondelegation doctrine,” a constitutional rule that limits Congress’ ability to imbue a private entity with significant legal authority on behalf of the federal government. In an opinion by Chief Judge Jeffrey Sutton, a George W. Bush appointee who is one of the more well-respected court of appeals judges in the country, the 6^th Circuit held that the horse racing statute was constitutional because it gave “FTC ultimate discretion over the content of the rules that govern the horseracing industry.” The FTC, after all, can review any safety rules the Horseracing Authority proposes. It also has full authority to review and reverse any investigation the Horseracing Authority makes into violations of the act, and can determine whom the Authority should investigate. No matter how you slice the statute, Sutton wrote, the fact remains that “the FTC is free to micromanage every particularized decision the Authority makes.” Notably, the conservative 8^th Circuit reached .

But the 5^th Circuit felt it knew better than these courts. In his decision for the court Thursday, Judge Stuart Kyle Duncan, a Donald Trump appointee, reiterated his earlier conclusion that Congress gave the Horseracing Authority too much power to enforce violations of law. Presented with arguments that the Authority’s structure mirrors another private board accountable to the Securities and Exchange Commission, he nitpicked random differences between the statutory schemes, such as how the SEC can remove board members for cause, but only the Authority as a whole can remove its board members.

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And what about the Supreme Court’s recent assessment of private nondelegation in Consumers’ Research, in which six justices indicated that Congress has sweeping discretion to empower a private entity as long as it’s under the ultimate control of a federal agency? That precedent didn’t stand a chance when pitted against the 5^th Circuit’s disdain for the administrative state. Duncan insisted that Consumers’ Research did nothing to change or alter this area of the law, because it involved an arrangement that ostensibly gave a federal agency more oversight than the FTC has here. He brazenly asserted that the Supreme Court’s narrowing of the private nondelegation doctrine “only reinforces our previous conclusion” to broadly apply the same doctrine to shut down another federal law. The Supreme Court will have to correct the 5^th Circuit’s error in Horsemen III just as it did with Horsemen II.

The 5^th Circuit’s opinion raises several questions. For starters, how many times can this very case go up to the Supreme Court with the same outcome? Will there be a Horsemen IV, V, VI? There may eventually be enough Horsemen to run a whole race with the number of reversed opinions the 5^th Circuit brings to bear. Moreover, could it actually be a good thing that the 5^th Circuit clutters SCOTUS’ docket with so many obviously wrong decisions? After all, this is a Supreme Court that sees each passing case as an opportunity to reconsider whether Americans have any fundamental rights. So if it has to waste its limited resources on reversing outrageous 5^th Circuit decisions all the time, could that really be so bad?

We wouldn’t be so sure. For one thing, SCOTUS’ incessant reversals of the 5^th Circuit have a way of sane-washing the Supreme Court itself, making the justices look restrained and moderate by comparison. More broadly, a lower court that’s detached from the legal reality of the rest of the judiciary is capable of committing grave harm even if its worst opinions are overturned in the end. As we mentioned, the 5^th Circuit is obsessed with imposing abortion pill bans. It is stacked with judges who use their opinions to audition for a future Supreme Court nomination. It laughs off the religious liberty of non-Christians by allowing the Ten Commandments in every public school classroom across Texas. And it rules again and again and again that federal agencies cannot possibly hold the authority that Congress gave them to improve the lives of the American people (and their horses).

Until they are formally reversed, these decisions create immense uncertainty for those whom the law is meant to benefit. Congress has spent six years trying to create a stable, uniform scheme of horse racing regulations. The 5^th Circuit is still trying to thwart its goal. The only winners here are bad actors who want to abuse horses and fix races without federal punishment. And the judges who keep enabling them should stop pretending that their crusade is about constitutional restraint rather than regulatory destruction.

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