Federal legislation to satisfy constitutional concerns about the Horseracing Integrity and Safety Act is not enough for an appellate court to retract its ruling, nor will it rehear the case.
“The motion to vacate the panel’s opinion is denied,” wrote the United States Fifth Circuit Court of Appeals on Jan. 31, 2023. “The motions for panel rehearing are denied. The case is remanded to the district court for further proceedings. Any further appeal will be to this panel. The mandate shall issue forthwith.”
The U.S. District Court for the Northern District of Texas will consider the case and whether the federal legislation that became law in late December satisfies constitutional muster. While supporters of the amendment, which was part of an omnibus spending bill, believe that it solves the constitutional concerns, the plaintiffs in the lawsuit argue that the rewrite did not go far enough.
“We view this as additional strong evidence as to the valid concerns we have been raising all along, and this should remind everyone that constitutionality isn’t optional,” according to a statement from Eric Hamelback, chief executive officer of the National Horsemen’s Benevolent & Protective Association, which is a plaintiff in the lawsuit. We have made it very clear that the one-sentence so-called fix tucked into Congress’ must-pass year-end spending bill did not address all the legal questions created in the HISA corporation’s enabling legislation. With that said, it’s extremely gratifying that the Fifth Circuit Court of Appeals has denied the HISA corporation’s motion to vacate the Appellate Court’s original unanimous opinion that found the Horseracing Integrity & Safety Act unlawful.”
The Horseracing Integrity and Safety Authority vows to continue its work in those states that the lawsuit doesn’t affect.
“In the aftermath of the recent Congressional amendment, and without opining on the newly amended HISA law, the Fifth Circuit has sent the case back to the district court,” according to a statement by the Authority. “Outside Louisiana and West Virginia, the Authority will continue enforcing the Racetrack Safety Program and preparing for the implementation of its Anti-Doping and Medication Control Program on March 27, subject to the Federal Trade Commission’s approval of the rules.”
The Fifth Circuit Court ruled Nov. 18, 2022, “that HISA is facially unconstitutional under the private non-delegation doctrine.” The Authority, a private organization, is responsible for implementing anti-doping and racetrack safety protocols, regulations and penalties. The Federal Trade Commission (FTC), which has oversight of the Act, has the authority to accept or reject proposed rules from the Authority; however, it could not amend them. The omnibus law amendment allowed the FTC to “abrogate, add to, and modify the rules of the Authority.”
HISA, passed as part of the Dec. 21, 2020, COVID-19 stimulus bill, was a response from federal lawmakers after a series of doping scandals and equine racetrack fatalities.
The Authority will continue reviewing its Racetrack Safety Program and is accepting comments and suggestions. It will establish a public comment period after the committee drafts revisions of the rules. Public comments will be considered before submitting the rules to the FTC. Another round of public comments will follow before the rules are finalized. Comments and suggestions can be submitted to HISA by emailing feedback@hisaus.org.
