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A lawsuit challenging the constitutionality of the Horseracing Integrity and Safety Act (HISA) will not be argued before the United States Supreme Court.
The justices refused to hear objections in Oklahoma, et al. v. United States, et al. to the Sixth Circuit Court of Appeals ruling that found HISA constitutional. The lawsuit claims that HISA illegally delegates legislative authority to a private group not accountable to a government agency. The U.S. Anti-Doping Agency (USADA), a private organization, enforces the drug control program. The law 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 challenge also questions how the law is funded.
“It’s well known that the Supreme Court only takes about 80 out of 8,000 discretionary cases filed, and we in racing know a longshot when we see one,” says Russell Williams, president of the U.S. Trotting Association (USTA), which among the plaintiffs in the suit. “But HISA threatens to turn the racing industry into a club sport, so we are extremely disappointed. Given that the plaintiffs in our case include several states, a Cherokee Nation entity, and several tracks and breeders along with U.S. Trotting, our disappointment is felt at the highest levels.”
The lawsuit was filed in April 2021 by the state of Oklahoma; the Oklahoma Racing Commission; the state of West Virginia; the West Virginia Racing Commission; the United States Trotting Association (USTA); the Oklahoma Quarter Horse Racing Association; Hanover Shoe Farms, Tulsa County Public Facilities Authority, which owns Fair Meadows Racing and Sports Bar; Global Gaming, which owns Remington Park; and Will Rogers Downs. The defendants are the United States government, the Horseracing Integrity and Safety Authority (HISA), the Federal Trade Commission (FTC), and individuals working for HISA and FTC.
“We are pleased the Supreme Court has decided to let the Sixth Circuit Court's ruling affirming HISA’s constitutionality stand,” according to a written statement attributed to Charles Scheeler, chair of the Horseracing Integrity and Safety Authority board. “As evidenced by the 38% decline in equine fatalities recorded for the first quarter of this year, HISA’s uniform standards are having a material, positive impact on the health and well-being of horses.”
Rep. Andy Barr, a Kentucky Republican, lauds the court’s decision to leave HISA “undisturbed.”
“This decision validates HISA’s constitutionality, allowing the Authority to continue its crucial work,” says the HISA co-author. “This decision reinforces our efforts to establish national, uniform standards to protect the welfare of our equine athletes and reinforce public confidence in the sport.”
Although the court’s decision effectively ends litigation in Oklahoma v. U.S., two other constitutional challenges of HISA remain.
The National Horseman’s Benevolent and Protective Association (NHBPA) filed a similar but different lawsuit. Its challenge has seen mixed results in the courts.
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 authority, a private organization, to implement anti-doping and racetrack safety protocols, regulations and penalties. The Federal Trade Commission, 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. Congress changed the law that “remedied the offending provisions,” the U.S. District Court for the Northern District of Texas ruled in May 2023. The NHBPA is appealing this decision.
“The Oklahoma case is now effectively closed, but our case is still very much active,” according to Eric Hamelback, CEO of the NHBPA, in a memo to the association’s members. “We still could hear any day from the Fifth Circuit on whether HISA remains unconstitutional after the congressional tweak. The oral argument last October went very well for us. If the Fifth Circuit rules our way again, that could shut down HISA in many, if not all, states.”
A third challenge to HISA remains in the Eighth Circuit Court of Appeals in which the Iowa Horsemen’s Benevolent and Protective Association and others argue that the changes Congress made to HISA authorize FTC to act after a rule is passed rather than during the process of creating rules. The FTC disputes the claim, arguing there is a “clear hierarchy.”
