Congressional changes to the Horseracing Integrity and Safety Act (HISA) are enough to satisfy constitutional concerns, the United States Sixth Circuit Court of Appeals rules. However, disagreements abound, even among federal courts, and a date on the Supreme Court docket may loom on the horizon.

Legislative changes made in the waning days of the 117th Congress provide the Federal Trade Commission (FTC) with “sweeping power” over HISA and render the Horseracing Integrity and Safety Authority its subordinate, the three-judge panel states in its opinion.

“The Authority wields materially different power from the FTC, yields to FTC supervision, and lacks the final say over the content and enforcement of the law — all tried and true hallmarks of an inferior body,” according to the decision written by Chief Judge Jeffery S. Sutton. “As amended, the Horseracing Act gives the FTC the final say over the implementation of the Act relative to the Horseracing Authority, allowing us to uphold the Act as constitutional in the face of this non-delegation challenge, as well as the anti-commandeering challenge.”

The ruling buoys the Authority as it prepares to introduce its drug program this month and continues reviewing its Racetrack Safety Program, which includes horseshoeing regulations.

“HISA is grateful to the Sixth Circuit for recognizing and affirming HISA’s constitutionality,” according to a statement from the Authority. “We remain focused on preparing for the launch of HISA’s Anti-Doping and Medication Control (ADMC) Program on March 27, pending final approval by the FTC. Once launched, the combined ADMC and Racetrack Safety programs will, for the first time in racing’s history, see national, uniform integrity and safety rules applied consistently to every Thoroughbred horse, racing participant and racetrack in the country.”

The Sixth Circuit opinion deviates from a November 2022 ruling by the U.S. Fifth Circuit Court of Appeals in a separate lawsuit that finds “HISA facially unconstitutional under the private non-delegation doctrine.” Congress amended HISA a month later to satisfy constitutional concerns when it passed the Consolidated Appropriations Act of 2023. President Joe Biden signed the bill into law Dec. 29, 2022.

The Fifth Circuit Court denied motions to vacate its opinion and rehear the case in a decision it issued on Jan. 31, 2023. The three-judge panel remanded the case to the U.S. District Court for the Northern District of Texas for further proceedings. Appeals of the district court’s decision will return to the Fifth Circuit. Yet, the contradicting opinions of the Fifth and Sixth Circuit Courts could pave the way for a showdown at the Supreme Court.

“We stand firmly on our victory in the Fifth Circuit; however, we are disappointed in the Sixth Circuit ruling,” according to a statement from Eric Hamelback, chief executive officer of the National Horsemen’s Benevolent & Protective Association. “We have stated from the onset that there are multiple aspects of unconstitutionality plaguing HISA. The Fifth Circuit ruled on the arguments presented to them, and the Sixth Circuit ruled on the arguments they were presented. With that, we remain confident in our arguments and committed to our case. As seen now, the shifting legal uncertainty only upholds more confusion ahead for the industry and should lead everyone to agree we need a new bill to correct this uncertainty. We will keep fighting all the way to the Supreme Court, if necessary, to protect our industry and make sure our rules and regulations are built on a legal foundation.”

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.