HISA Opponents Dispute Fifth Circuit’s Unconstitutionality Ruling


The United States Court of Appeals for the Sixth Circuit is set to hear oral arguments on Dec. 7 in a case seeking to overturn a lower court’s decision to dismiss a constitutional challenge to the Horseracing Integrity and Safety Act (HISA). the two opposing sides filed new filings regarding a separate but related Nov. 18 decision by the Fifth Circuit that effectively declared HISA unconstitutional.

While it’s difficult at this stage to get a consensus on what might happen to HISA in the next six weeks, until an expected Jan. 10 warrant is issued by the Fifth Circuit to enforce its order ( petitions for legal stays, rehearings, or potential congressional action are all in play), there is one issue on which HISA supporters and opponents seem to agree: if the Sixth Circuit issues an opinion that directly conflicts with the one it just issued come the fifth circuit, HISA’s fate may very well be over. until it is decided by the US Supreme Court.

In the Sixth Circuit case, the plaintiffs are the State of Louisiana; Oklahoma and its racing commission, plus West Virginia and its racing commission. Three tracks in Oklahoma – Remington Park, Will Rogers Downs and Fair Meadows – are also plaintiffs, as are the Oklahoma Quarter Horse Association, the US Trotting Association and Hanover Shoe Farms, a Pennsylvania Standardbred breeding entity.

The defendants are the United States of America, the HISA Authority, and six individuals acting in their official capacity for the Federal Trade Commission (FTC).

On April 26, 2021, the plaintiffs sued, arguing that “HISA gives a private corporation broad regulatory authority.” On June 2, 2022, that motion was dismissed by a judge in the U.S. District Court, Eastern District of Kentucky (Lexington) for failure to state a cause of action. The plaintiffs then appealed to the US Sixth Circuit.

While the Sixth Circuit appeal was pending, the Fifth Circuit issued its decision in the similar case against HISA, led by the National Horsemen’s Protection and Benevolent Association (NHBPA).

That Nov. 18 ruling declared HISA unconstitutional because it “delegates unchecked governmental power to a private entity” and therefore “violates the private non-delegation doctrine.” The order remanded the case back to the U.S. District Court (Northern District of Texas) for “further proceedings consistent with” the Court of Appeals’ reversal.

So naturally, both sides preparing for Dec. 7 oral arguments in the Sixth Circuit case wanted to inform that court of this similar ruling from the US Court of Appeals, each side giving their own spin on the unconstitutionality ruling issued recently.

Plaintiffs/claimants commenced with a filing dated November 21.

“The Fifth Circuit reversed the decision of the Northern District of Texas on which the defendant-appellees and the district court below relied, and the court strongly rejected the very arguments that the defendant-appellees make in the HISA defense here “, the document states.

“The Fifth Circuit held that HISA violates the Constitution’s private non-delegation doctrine because ‘the Authority is not subordinate to the FTC’ [and] “Congress has given a private entity the final say on the rules governing our nation’s thoroughbred horse racing industry” [and the] “The authority’s power exceeds any private delegation that the Supreme Court or our courts have permitted.”

Plaintiffs’ brief summarized: “The Fifth Circuit has firmly rejected all of the arguments that defendant-appellees raise here. This court should do the same and vacate the district court’s judgment.”

The US defendants, HISA and the FTC took a different interpretation in their own Nov. 28 filing.

“The Fifth Circuit’s decision to invalidate HISA rests on at least two fundamentally flawed premises,” the pro-HISA response said.

“First, the panel determined that “the FTC’s consistency review does not include review of the substance of the rules themselves.” This is untrue: HISA requires the FTC to apply its independent judgment in reviewing the substance of all proposed rules for consistency with HISA standards.

“Whether characterized as an exercise in policy appreciation or in assessing compliance with the statute, the FTC (not the Authority) ultimately decides, for example, whether a proposed drug quantity is the “minimum necessary to address the health problems diagnosed identified during the examination and diagnosis process”. ,” or whether a proposed racetrack safety standard is “consistent with the humane treatment of covered horses…””

“Second, the commission determined that the FTC does not have the power to change the HISA rules,” the pro-HISA filing continued. “This contradicts (without addressing) the FTC’s interpretation of its independent regulatory authority [and] overturns constitutional avoidance…”.

The pro-HISA response summarized: “For both reasons, the Fifth Circuit panel’s decision is wrong — and at odds not only with the other two federal courts that have upheld HISA, but also with 80 years of Supreme Court precedent. [and] the courts of appeal.”

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