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The Horseracing Integrity and Safety Act (HISA), a federal anti-doping law enacted in 2020 that created a private agency to regulate the industry, has been struck down by a federal appeals court as an unconstitutional delegation of government power to a private entity.
Known as HISA, the federal law nationalized governance of the thoroughbred horseracing industry after a series of doping scandals and racetrack horse deaths.
To create rules for the industry, the federal law empowered a private entity called the Horseracing Integrity and Safety Authority to be overseen by the Federal Trade Commission (FTC).
The FTC had the ultimate authority to approve or reject HISA regulations, but it cannot change them. The authority can also reject any proposed FTC changes.
On Friday (November 18), the U.S. Court of Appeals for the Fifth Circuit ruled unanimously (3-0) in favor of horseracing associations and state officials in Texas, Louisiana and West Virginia that filed a lawsuit in opposition to HISA.
“By delegating unsupervised government power to a private entity, HISA violates the non-delegation doctrine” and the law is unconstitutional on that ground, the court said in a 35-page opinion written by Judge Stuart Kyle Duncan.
“The Constitution vests federal power only in the three branches of the federal government,” Duncan wrote.
“Congress defies this basic safeguard by vesting government power in a private equity not accountable to the people. That is what it has done in HISA.”
Duncan noted that a federal agency does have meaningful oversight “if it does not write the rules, cannot change them, and cannot second-guess their substance.”
The ruling was welcomed by those in the racing industry who were targets of HISA’s regulatory scheme.
“We have been saying for years this law and defined authority itself are unconstitutional and we are pleased the court has unanimously sided with our position, an outcome many in our industry thought was impossible,” said Eric Hamelback, CEO of the National Horsemen’s Benevolent and Protective Association (NHBPA).
Hamelback said the court’s ruling “clearly states that the entity constructed under HISA is an unconstitutional body and should not hold governing power over our industry, a position we have long supported.”
He added that the NHBPA supports “power reverting back into the hands of the state racing commissions.”
Among the initial supporters of HISA was the Jockeys’ Guild, an organization formed in 1940 to protect race jockeys and the best interest of racing. In August, the guild made it clear that it endorsed the creation of HISA and was not opposed to it, but that the rules that went into effect on July 1, 2022 did not address many of the Guild’s concerns.
In a statement, the guild said it joined the lawsuit to push HISA to modify its rules to address several concerns, including the costs of implementation and operation of HISA and its impact on the industry, a lack of guidelines as to when a jockey can return following injuries other than concussions, and permitting the use of only two models of riding crops.
Other concerns included that HISA rules penalize jockeys, and only jockeys, with a point system, and eliminates a rule adopted in many states of having one certified paramedic trackside during training, and two paramedics during racing.
HISA guidelines also regulate how often jockeys could use their crops during a race, racetrack accreditation, and the reporting of training and veterinary records.
Terry Meyocks, president and CEO of the Jockeys' Guild, told VIXIO GamblingCompliance on Monday (November 21) that he could not comment on the ruling at this time.
Republican Representative Andy Barr of Kentucky, who co-sponsored HR 1754 in Congress, expressed his disappointment Monday with the court’s decision.
“The Horseracing Integrity and Safety Act was carefully and thoughtfully crafted over a multi-year process in consultation with industry stakeholders, equine advocates and constitutional law experts to create a national uniform medication, anti-doping and racetrack safety program to enhance the safety and integrity of thoroughbred horseracing,” Barr said.
“I am confident that this transformational and beneficial reform will be ultimately upheld,” he said in a statement.
Louisiana attorney general Jeff Landry supported the ruling, calling HISA a “federal takeover of Louisiana horseracing.”
“This is a major victory for the rule of law and the horse industry,” Landry said in a statement. “This federal government overreach involved delegating unsupervised power to a private entity.”
In June, Landry joined the lawsuit challenging the constitutionality of HISA. HISA, which was included in a coronavirus relief bill, was signed into law in late 2020 by then-President Donald Trump.
Duncan, along with judges Carolyn Dineen King and Kurt Engelhardt, ruled in a separate case challenging HISA that a partial stay issued in August pending resolution of the appeal was lifted.
Charles Scheeler, chairman of the Horseracing Integrity and Safety Authority, issued a statement indicating that HISA intends to continue its work, including the launch of HISA’s anti-doping and medication control program on January 1, 2023.
“While HISA is disappointed by the Fifth Circuit’s decision, we remain confident in HISA’s constitutionality and will be seeking further review of this case,” Scheeler said.
