The legal battle surrounding the Horseracing Integrity and Safety Act will continue after a federal judge’s ruling that the amended law satisfies constitutional muster.
The National Horsemen’s Benevolent & Protective Association (NHBPA) will appeal the memorandum opinion and order by the United States District Court for the Northern District of Texas that “Congress remedied the offending provisions.”
Judge James Wesley Hendrix rejects the plaintiffs’ claims that HISA continues to violate the private-nondelegation doctrine under Article 1 and the Due Process Clause.
“Now that Congress expressly authorizes the [Federal Trade Commission] to modify the [Horseracing Integrity and Safety] Authority’s rules, the plaintiffs retreat and admit their true view: that there is nothing Congress could do to bring the HISA-Authority arrangement within constitutional bounds,” Hendrix writes in the memorandum. “But this argument ignores the long history of the executive branch leveraging — with court approval — expertise from private industry so long as the industry remains subordinate to a supervisory federal agency.”
The NHBPA vows that it will continue its fight until it exhausts its legal options.
“We’ve been down this road before,” according to a statement attributed to Eric Hamelback, CEO of the NHBPA. “After a loss in the district court, we secured a win in the Fifth Circuit Court of Appeals. We will win there again. We will fight to protect horsemen and their constitutional rights all the way to the Supreme Court if needed.”
Daniel Suhr, the lead attorney for the NHBPA and the 12 affiliates, says he is planning an “immediate appeal.”
“Congress cannot abdicate its authority to a private corporation,” according to a statement attributed to Suhr. “Challenging this law is critical to protecting democratic accountability enshrined in our Constitution.”
In the face of the constitutional challenges, the Authority continues its work of resuming its Anti-Doping and Medication Control Program on May 22.
“We appreciate the Federal District Court’s re-affirmation of HISA’s constitutionality,” according to a statement from HISA. “The urgent need for nationwide uniform rules to enhance the safety and integrity of Thoroughbred racing has never been clearer.”
The U.S. Fifth Circuit of Appeals ruled on Nov. 18, 2022, “that HISA is facially unconstitutional under the private non-delegation doctrine.” The law created the Horseracing Integrity and Safety Authority, a private organization, to implement anti-doping and racetrack safety protocols, regulations and penalties. The 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.”
The court remanded the case to the district court after the amendment became law, denying a motion to retract its ruling or rehear the case.
“Any further appeal will be to this panel,” the court stated. “The mandate shall issue forthwith.”
HISA, which was 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.
