- Published: Monday, 05 December 2022 09:12
The United States Court of Appeals for the Fifth Circuit Nov. 18 overruled a District Court and ruled that the Horseracing Integrity and Safety Act is unconstitutional on the grounds that it delegates “unsupervised government power to a private entity.”
The lawsuit challenging HISA’s constitutionality was filed in 2021 by the National Horsemen’s Benevolent and Protective Association, multiple HBPA affiliates, the state of Texas, and the Texas Racing Commission. The Fifth Circuit is one of 12 federal court circuits and its ruling is only applicable to the states of Louisiana, Texas and Mississippi. A parallel appeal of another District Court ruling that HISA was constitutional is now before the Sixth Circuit.
HISA Board of Directors Chairman Charles Scheeler indicated HISA intends to continue its work. If the ruling stands, it would not go into effect until Jan. 10, 2023, at the earliest, he said. HISA’s Racetrack Safety Program took effect July 1 of this year. The Anti-Doping and Medication Control Program begins January 1, 2023; as of December 4 it was awaiting approval from the Federal Trade Commission.
HISA Chief Executive Officer Lisa Lazarus said Dec. 2 that HISA is “continuing our important work without interruption despite this ruling, as it will not take effect until mid-January at the earliest. Our legal team also continues to explore all possible options related to the Fifth Circuit opinion, and we look forward to the arguments at the Sixth Circuit Court. As we proceed with our mandate outlined by Congress, the next major milestone in HISA’s implementation is the launch of our Anti-Doping and Medication Control Program. The Fifth Circuit ruling has not affected our preparations for this moment, nor our day-to-day operations.”
The Fifth Circuit ruling has created a confusing situation for the industry as HISA continues its rollout and the legal maneuvering continues. A number of scenarios are possible.
If the Sixth Circuit upholds HISA’s constitutionality, then a conflict among circuits would exist and resolution of the conflict would need to be resolved by the U.S. Supreme Court. If the Sixth Circuit agrees that HISA is constitutional, then there would not be a conflict and any appeal to the Supreme Court could be rebuffed because there is no conflict among circuits yet. In this scenario, states would need to consult with their Attorneys General to determine how to proceed.
HISA could also appeal directly to the Supreme Court, but there is no guarantee that the court would take the case. And, another option is that HISA could ask Congress to clarify and strengthen the FTC’s oversight authority to address the Fifth Circuit’s concerns. This could be done in the current lame-duck session which ends Jan. 3, 2023 or when the new Congress convenes later in January.
Under these circumstances, and until there is further clarity, the industry is reminded that HISA is the law and is enforceable. The Maryland Thoroughbred Horsemen’s Association is carefully monitoring the situation on a daily basis and will provide updates as necessary.