NEW ORLEANS — Congress unconstitutionally gave too much power to a nonprofit authority it created in 2020 to develop and enforce horseracing rules, a federal appeals court in New Orleans ruled Friday.
The 5th U.S. Circuit Court of Appeals said the Horseracing Integrity and Safety Act, or HISA, is “facially unconstitutional.”
The authority created by the act was meant to bring uniform policies and enforcement to horseracing amid doping scandals and racetrack horse deaths. But the 5th Circuit – in two rulings issued Friday – ruled in favor of opponents of the act in lawsuits brought by horseracing associations and state officials in Texas, Louisiana and West Virginia.
The Federal Trade Commission has the ultimate authority to approve or reject HISA regulations, but it can’t modify them. And the authority can reject proposed modifications.
Three 5th Circuit judges agreed with opponents of the act – including the National Horsemen’s Benevolent and Protective Association and similar groups in multiple states – that the setup gave too much power to the nongovernmental authority and too little to the FTC.
“A cardinal constitutional principle is that federal power can be wielded only by the federal government. Private entities may do so only if they are subordinate to an agency,” Judge Stuart Kyle Duncan wrote for the panel that ruled in the Texas case.
The same panel, which also included judges Carolyn Dineen King and Kurt Engelhardt, cited the Texas ruling in a separate order in favor of horseracing interests and regulators challenging HISA in a different case.
The chair of the horseracing authority’s board of directors said it would ask for further court review. Friday’s ruling could be appealed to the full 5th Circuit court of the Supreme Court.
“If today’s ruling were to stand, it would not go into effect until January 10, 2023 at the earliest,” Charles Scheeler said in an email. “We are focused on continuing our critical work to protect the safety and integrity of Thoroughbred racing, including the launch of HISA’s Anti-Doping and Medication Control Program on January 1, 2023.”
The ruling was criticized by Marty Irby, executive director of the Animal Wellness Action organization. “Over the course of three Congresses, the most brilliant legal minds on Capitol Hill addressed the Horseracing Integrity and Safety Act’s constitutionality and ultimately decided that the Federal Trade Commission’s limited oversight was sufficient,” Irby said in an email.
Among the subjects covered by the authority’s rules and enforcement were jockey safety (including a national concussion protocol), the riding crop and how often riders can use it during a race, racetrack accreditation, and the reporting of training and veterinary records.
Animal rights groups, who supported the law, pointed to scandals in the industry involving medication and the treatment of horses.
Duncan wrote that in declaring HISA unconstitutional, “we do not question Congress’s judgment about problems in the horseracing industry. That political call falls outside our lane.”
Louisiana Attorney General Jeff Landry, hailed the ruling on Twitter, calling HISA a “federal takeover of Louisiana horse racing.”