The legal fate of the Horseracing Integrity and Safety Act took a step closer to finality as the United States Sixth Circuit Court of Appeals again ruled in favor of its constitutionality.
The decision was rendered Dec. 17 in a lawsuit challenging HISA brought by the State of Oklahoma and others that originated in a Kentucky federal district court. It marks the second time the constitutionality of HISA's rulemaking and enforcement powers was upheld by the Sixth Circuit.
Two other federal appellate courts have dealt with legal challenges to HISA, and with varying results.
The Eighth Circuit Court of Appeals, in a case that began in Arkansas, found HISA's rulemaking and enforcement powers constitutional. The Fifth Circuit Court of Appeals, ruling on a case that arose in Texas, initially found the entire statutory scheme facially unconstitutional. After a congressional amendment designed to "fix" the issue by delineating the Federal Trade Commission's superior role over HISA, the Fifth Circuit upheld HISA's rulemaking authority but, in the words of the Sixth Circuit opinion, "facially invalidated the law on the ground that the Act afforded the Horseracing Authority to enforce federal law 'without the FTC's say-so.'"
In the latest decision, the U.S. Sixth Circuit Court of Appeals found the FTC had enough oversight of HISA.
"The Supreme Court held the various petitions (for review of the decisions of the three courts) while it considered a separate non-delegation challenge to another federal law that used a private entity in implementing the law," Sixth Circuit chief judge Jeffrey Sutton wrote in a 30-page opinion for a unanimous three-judge panel. "In FCC v. Consumers’ Research, the Court considered an as-applied challenge to the Federal Communications Commission's Universal Service Fund, premised on the reality that the FCC relied on a private administrator's policy recommendations in administering its program. The Court ruled that the program did not impermissibly delegate government authority to a private entity because the FCC retained final 'decision-making authority.'"
"That brings us to our second look at the Act," Sutton wrote. "We reject this facial challenge because the Act, as amended, gives the FTC, not the Horseracing Authority, the final say over the Act's key rulemaking and enforcement provisions."
"HISA is pleased with the decision rendered by the Sixth Circuit once again affirming HISA's constitutionality and finding that the private nondelegation challenge against the Horseracing Integrity and Safety Act has no merit," a HISA spokesperson told BloodHorse. "HISA has remained singularly focused on its mission to promote the health and safety of the human and equine athletes at the heart of Thoroughbred racing and has implemented the first-ever uniform national set of rules applicable to every Thoroughbred racing participant and racetrack facility. These reforms are delivering transformative results, including meaningful decreases in equine fatalities, consistent standards at racetracks, a fairer and more balanced medication and drug-testing framework and an increased focus on jockey welfare. The data is clear that Thoroughbred racing is safer under HISA than ever before."
"The Jockey Club applauds yesterday's unanimous decision by the U.S. Sixth Circuit Court of Appeals panel that once again affirmed the constitutionality of the Horseracing Integrity and Safety Act of 2020," said Jockey Club president and chief operating officer Jim Gagliano. "Through this thorough and clearly reasoned ruling, the court has reinforced our industry's commitment to the highest standards of safety and integrity for our horses, jockeys, and fans."
Oral arguments in the Sixth Circuit case were held Nov. 12 while briefing schedules in the Sixth and Eighth Circuits slowed during a government shutdown. As a result, oral arguments have not been scheduled in those courts. The U.S. Supreme Court is unlikely to take further action until all three appellate courts have finalized their work.
This story may be updated.
