The legal saga of the Horseracing Integrity and Safety Act continues with the U.S. Court of Appeals for the Fifth Circuit ruling for the third time that it is partially unconstitutional.
In its ruling, the three-judge panel finds that HISA’s rule enforcement configuration violates the private non-delegation doctrine. The doctrine prohibits the U.S. government from entrusting its core legislative or regulatory powers to private individuals, corporations or self-regulating industry groups.
The doctrine is at the core of The National Horseman’s Benevolent and Protective Association’s (NHBPA) federal lawsuit challenging the Horseracing Integrity and Safety Authority’s rule enforcement under the Act. The NHBPA argues the Federal Trade Commission (FTC) lacks oversight and control over the Authority’s enforcement power.
“HISA’s explicit division of enforcement responsibility empowers the Authority with quintessential executive functions and gives the FTC scant oversight until enforcement has already occurred,” states the court’s opinion. “Such back-end review by the FTC does not subordinate the Authority. And the FTC’s general rulemaking power provides no answer because executive rulemaking cannot amend the plain division of enforcement power laid out in HISA’s text. Such a radical delegation [occurs because] the FTC lacks any tools to ensure that the law is properly enforced. HISA’s enforcement provisions thus facially violate the private nondelegation doctrine.”
The U.S. District Court for the Northern District of Texas ruled that Congress addressed the court’s objections with legislation amending the law that allowed the FTC to “abrogate, add to, and modify” HISA’s rules. The ruling was appealed to the Fifth Circuit Court.
“We have been fighting this battle for the constitutional rights of horsemen for over 5 years, and we continue to win,” says Eric Hamelback, CEO of the NHBPA. “It is just common sense that Congress cannot make a private corporation the judge, jury and executioner of our industry.”
The ruling isn’t likely the end of the legal battle, though.
“Although expected, we are still disappointed by the Fifth Circuit’s ruling, particularly given the Sixth Circuit’s strong affirmation of HISA’s constitutionality after the Supreme Court sent the cases back to the lower courts last June,” says Lisa Lazarus, CEO of the Authority. “HISA remains the law of the land, and our rules and programs are fully in effect. While we await the Supreme Court’s ultimate word, we will continue to be focused on our mission of protecting the safety and integrity of Thoroughbred racing.”
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