A Dec. 17, 2025, decision by the Sixth Circuit Court of Appeals in Cincinnati ruled that the Horseracing and Safety Integrity Act (HISA) is constitutional. This is the second time HISA’s constitutionality has been affirmed by the Sixth Circuit.
The first was in 2023. This decision followed legislative changes made in the 117th Congress that provided the Federal Trade Commission (FTC) “sweeping power” over HISA and rendered HISA its subordinate.
“The Authority wields materially different power from the FTC, yields to FTC supervision, and lacks the final say over the content and enforcement of the law — all tried and true hallmarks of an inferior body,” according to the 2023 decision written by Chief Judge Jeffery S. Sutton. “As amended, the Horseracing Act gives the FTC the final say over the 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 June 2025, the Supreme Court refused to hear objections in Oklahoma, et al. v. United States, et al. Shortly after, American Farriers Journal reported that the Supreme Court is sending the HISA cases back to the original appeals courts after vacating the previous decisions. The justices want the Fifth, Sixth and Eighth Circuit Courts of Appeals to reconsider a new precedent handed down June 27, 2025, in Federal Communications Commission (FCC) vs. Consumers’ Research. The court nixed arguments that the FCC violated the non-delegation doctrine, which is at the heart of the HISA lawsuits.
The only court to deny HISA’s constitutionality has been the Fifth Circuit, which previously ruled on Nov. 18, 2022, “that HISA is facially unconstitutional under the private non-delegation doctrine.” The law created the authority, a private organization, to implement anti-doping and racetrack safety protocols, regulations and penalties. The FTC, which has oversight of the Act, has the authority to accept or reject proposed rules from the authority; however, it could not amend them. The omnibus law amendment allowed the FTC to “abrogate, add to, and modify the rules of the Authority.”
The appeal in 2024 resulted in a similar ruling.
“The Act’s plain terms permit only one conclusion: HISA is enforced by a private entity, the Authority,” the court states. “The Authority decides whether to investigate a covered entity for violating HISA’s rules. The Authority decides whether to subpoena the entity’s records or search its premises. The Authority decides whether to sanction it. And the Authority decides whether to sue the entity for an injunction or to enforce a sanction it has imposed.”
The two cases to be revisited with the June 27 ruling in mind — the Fifth and Eighth Circuit cases — have yet to begin oral arguments.
The Court's Ruling
According to Thoroughbred Daily News, Chief U.S. Circuit Judge Jeffrey Sutton wrote in his opinion, “Sometimes government works. And sometimes it works best after a dialogue between and within the various branches.
“In 2020, Congress enacted the HISA Act to establish a nationwide framework for regulating Thoroughbred horseracing. That led to several nondelegation and anti-commandeering challenges to the validity of the Act throughout the country.
“The lead challenge – the facial non-delegation challenge – focused on the reality that the Act replaced several state regulatory authorities with a private corporation, the HISA Authority, which became the Act's primary rulemaker and which was not subordinate to the relevant public agency, the FTC, in critical ways.
“The first circuit to assess the validity of the law, the Fifth Circuit, declared the Act facially unconstitutional because it gave 'a private entity the last word' on federal law.
“In response to the Fifth Circuit's decision and after oral argument in a similar case in our circuit, Congress amended the Act to give the FTC discretion to 'abrogate, add to, and modify' any rules that bind the industry.
“While the Constitution does not require constructive exchanges between Congress and the federal courts, it does not discourage them either, and good government sometimes benefits from them. A productive dialogue occurred in this instance, and, from our perspective, it ameliorated the concerns underlying the non-delegation challenge.”
He continued on to say, "In view of the guidance provided by the Supreme Court in Consumers' Research and other recent decisions, we reject this facial challenge because the Act, as amended, gives the FTC, not the HISA Authority, the final say over the Act's key rulemaking and enforcement provisions.
“The HISA Authority is subordinate to the agency. The Authority yields to FTC supervision and lacks the final say over rulemaking and enforcement of the law, all tried and true hallmarks of an inferior body.
“The HISA Act gives the FTC supervision over the rules that govern the horseracing industry. The Act permits the HISA Authority to draft proposed rules on racetrack safety and anti-doping matters. But they are just that: proposals. No such proposal becomes a binding rule until the FTC approves it, and the Act permits the agency only to approve proposed rules if they are 'consistent' with the Act.
“In addition, the Act gives the FTC authority, as it 'finds necessary or appropriate,' to 'abrogate, add to, and modify the rules.' The FTC's power to review proposed rules, to abrogate existing rules, and to add new rules makes clear who is in charge and who has the final say."
