U.S. Sixth Circuit Court of Appeals opinion: HISA is constitutional

By: Tom LaMarra

Posted: March 3, 2023

A three-judge panel for the United States Court of Appeals for the Sixth District on March 3 issued a unanimous opinion that the Horseracing Integrity and Safety Act of 2020 is constitutional.

The opinion conflicts with one issued last November by the U.S. Court of Appeals for the Fifth Circuit, which stated that the law at that time did not give the Federal Trade Commission enough power over the Horseracing Integrity and Safety Authority. An amendment to an omnibus federal spending bill that was signed into law at the end of December was designed to “fix” that issue; the Fifth Circuit Appeals Court sent its case back to district court.

The Sixth Circuit case was brought by the states of Oklahoma and West Virginia along with their respective racing commissions as well as various racetracks and Standardbred and Quarter Horse interests.

The Sixth Circuit opinion states that, “as amended, the Horseracing Act gives the FTC supervision over the rules that govern the horseracing industry. At the outset, the Horseracing Authority drafts rules on racetrack safety and anti-doping matters, and the FTC must approve those proposals if they are consistent with the Act. But, critically, as the FTC ‘deems necessary or appropriate,’ it ‘may abrogate, add to, and modify the rules.’ The FTC’s power to abrogate and change the Authority’s rules creates a clear hierarchy.”

The opinion also states that in regard to the state of Oklahoma’s claims that two provisions of HISA violate the anti-commandeering guarantee of the 10th Amendment of U.S. Constitution, it lacks standing on one provision and the second provision does not count as a cognizable form of commandeering.

Sixth Circuit Chief Judge Jeffrey Sutton said of the action by Congress in late 2022: “A productive dialogue occurred in this instance, and it ameliorated the concerns underlying the non-delegation challenge. As amended, the Horseracing Act gives the FTC the final say over implementation of the Act relative to the Horseracing Authority, allowing us to uphold the Act as constitutional in the face of this non-delegation challenge as well as the anti-commandeering challenge.”

In the wake of the ruling, HISA issued the following statement: “HISA is grateful to the Sixth Circuit for recognizing and affirming HISA’s constitutionality. We remain focused on preparing for the launch of HISA’s Anti-Doping and Medication Control Program on March 27 pending final approval by the FTC. Once launched, the combined ADMC and Racetrack Safety programs will, for the first time in racing’s history, see national, uniform integrity and safety rules applied consistently to every Thoroughbred horse, racing participant and racetrack in the country.”

The National Horsemen’s Benevolent and Protective Association, one of the plaintiffs in the ongoing Fifth Circuit case, said it intends to continue with legal challenges.

“Today, we stand firmly on our victory in the Fifth Circuit, however we are disappointed in the Sixth Circuit ruling,” the National HBPA said. “We have stated from the onset that there are multiple aspects of unconstitutionality plaguing HISA. The Fifth Circuit ruled on the arguments presented to them, and the Sixth Circuit ruled on the arguments they were presented. With that, we remain confident in our arguments and committed to our case.

“As seen now, the shifting legal uncertainty only upholds more confusion ahead for the industry and should lead everyone to agree we need a new bill to correct this uncertainty. We will keep fighting all the way to the Supreme Court if necessary to protect our industry and make sure our rules and regulations are built on a legal foundation.”

The full Sixth Circuit opinion is available here.