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The first law establishing federal regulations for the sport of horseracing is tied up in the courts, increasing the chances the U.S. Supreme Court will make the ultimate decision on whether the law violates the U.S. Constitution.
On the other hand, the intervention of two of the biggest power players in Washington at the end of 2022 may result in a settlement before the Horseracing Integrity and Safety Act (HISA) ever reaches the Supreme Court.
Congress passed HISA in 2020, a year marred by a series of doping scandals in the industry and the deaths of 20 horses at Santa Anita Park, a thoroughbred racetrack about 20 miles northeast of downtown Los Angeles.
Earlier this month, the Sixth U.S. Circuit Court of Appeals in Cincinnati ruled that the Horseracing Integrity and Safety Act (HISA) of 2020, which creates a private agency to regulate the industry, does not violate the U.S. Constitution.
The private agency, known as the Horseracing Integrity and Safety Authority, is overseen by the Federal Trade Commission (FTC), which can approve or reject regulations proposed by the authority.
The decision on March 3 by the Sixth Circuit contradicts a ruling issued exactly 15 weeks earlier on November 22 by the Fifth U.S. Circuit Court of Appeals in New Orleans, Louisiana.
The Fifth Circuit declared HISA is unconstitutional because Congress cannot delegate government power to a private entity like the Horseracing Integrity and Safety Authority.
Only about 1 percent of more than 7,000 appeals are accepted each year by the U.S. Supreme Court.
But the odds improve if there is a split between federal circuit courts as there is in the HISA case.
Nevertheless, Dennis Drazin, chairman and CEO of Darby Development, which operates Monmouth Park Racetrack in Oceanport, New Jersey, said he does not think the HISA case will reach the Supreme Court.
“It’s just my opinion, but I think there is more of a likelihood that ultimately, the Fifth and Sixth Circuits agree,” Drazin told VIXIO GamblingCompliance in a phone interview.
Drazin bases his opinion on an amendment tacked onto the massive omnibus federal budget package approved by Congress on December 30.
Crafted by Senate Majority Leader Charles Schumer, a Democrat from New York, and Senate Republican Minority Leader Mitch McConnell of Kentucky in response to the Fifth Circuit’s ruling in November, the amendment vests more power in the FTC to control HISA’s regulations.
The Fifth Circuit, after finding out about the Schumer-McConnell amendment, sent the HISA case to U.S. District Judge James Wesley Hendrix in Lubbock, Texas.
Before he was reversed by the Fifth Circuit last November, Hendrix had ruled in August 2022 that HISA does not violate the constitution but includes matters which need to be clarified.
Despite the uncertainty in the courts, the private agency regulating horseracing under the oversight of the FTC assumed jurisdiction over the medication of racehorses on March 27.
“I don’t think the public wants to hear about horses being medicated and running,” Drazin said. “I think the image of horses being medicated is something the industry wants to get away from.”
