The United States Fifth Circuit Court of Appeals ruled unanimously July 5 that the Horseracing Integrity and Safety Authority's enforcement policies violate the private nondelegation doctrine. The National Horsemen's Benevolent and Protective Association, along with 12 state affiliates, is contesting HISA's legality.
The National HBPA claimed victory in a press release Friday night after the decision was rendered, writing it was the second time the Fifth Circuit has ruled in favor of the HBPA in its lawsuit. However, the Fifth Circuit justices sided, or "affirmed" another court ruling, with HISA on four other contested issues not related to the enforcement by a private entity such as HISA.
In November 2022, the same three-judge panel unanimously ruled HISA facially unconstitutional because HISA's rulemaking was not subordinate to the Federal Trade Commission. Later, the law underwent a "legislative fix" in response to the decision, giving the FTC power to abrogate, add to, or modify HISA rules.
Daniel Suhr, president of the Center for American Rights and HBPA lead counsel, said in the release, "This is a huge victory for horsemen and for the rule of law in this country. Our Constitution protects our freedom by ensuring regulatory power is exercised through transparent and accountable government agencies. The Constitution does not allow HISA to run a private police department that enforces federal law."
The Fifth Circuit decision comes after a separate June 24 legal victory for HISA, when the Supreme Court of the United States denied a request to review a 2023 appeals court ruling in favor of racing's new regulatory approach to overseeing the sport's anti-doping and medication policies and safety issues. HISA was fully implemented in May 2023.
"The statute empowers the Authority to investigate, issue subpoenas, conduct searches, levy fines, and seek injunctions—all without the FTC's say-so," the Fifth Circuit justices wrote. "That is forbidden by the Constitution. We therefore declare that HISA's enforcement provisions are facially unconstitutional on that ground. In doing so, we part ways with our esteemed colleagues on the Sixth Circuit."
The Fifth Circuit decision could potentially go before the Supreme Court.
"We are disappointed with the court's decision, particularly in light of the Sixth Circuit's strong endorsement of HISA's constitutionality," HISA CEO Lisa Lazarus said in a statement. "While the judicial review process continues, it is critical for all racing participants to know HISA is still the law of the land, its rules are still fully in effect and will remain so for the foreseeable future. We continue to focus on our mission of protecting the safety and integrity of Thoroughbred racing."
Eric Hamelback, CEO of the National HBPA, said in his organization's release: "The courts have proven once again that HBPA was right in our fight to protect horsemen across the country and their constitutional rights. Last year's tweak to HISA was nothing but a meaningless attempt to appease the industry. HISA has done nothing but impose exorbitant costs and headaches on horsemen and women with little to no benefit for the health of horses. It is time to recognize the reality that HISA is fundamentally broken and cannot be fixed."
He pushed for the passage of the Racehorse Health and Safety Act, which would establish an interstate compact that develops and enforces scientific medication control rules, and racetrack safety rules. Only participating states would be allowed to export simulcast signals for interstate, offsite betting.
Prior attempts to form and maintain meaningful compacts have been unsuccessful without widespread industry support and agreement.
