Court seeks additional briefs in HISA case
A U.S. appellate court that has heard oral arguments on the constitutionality of the legislation that established the Horseracing Integrity and Safety Authority has asked both sides to file additional briefs in the wake of the passage of a federal bill amending the legislation.
The U.S. Sixth Circuit Court of Appeals, which heard oral arguments in the case on Dec. 7, sent a letter to the parties on Dec. 30 asking whether “the private delegation claims” made by the plaintiffs in the case “are now moot” due to the amendment. The plaintiffs in the case include horsemen’s groups, racing commissions, and state attorneys general who have argued that the enabling legislation violates constitutional principles preventing the federal government from delegating regulatory power to a private company.
The Sixth Circuit asked the parties to file the briefs by the close of business on Jan. 12.
The legal status of HISA was upended in mid-November when a three-judge panel of a different court, the U.S. Fifth Circuit, ruled that HISA was “facially unconstitutional,” in a decision that overturned a lower court’s decision upholding the authority’s legal foundation. HISA supporters then lobbied for the inclusion of the amendment to the enabling legislation, under the belief that it would address the Fifth Circuit’s concern.
In a brief filed with the Fifth Circuit earlier this week, HISA and the Federal Trade Commission, the agency that oversees HISA, argued that the amendment nullified the Fifth Circuit decision, pointing to several precedents. The Fifth Circuit then responded with a request for the plaintiffs in the case, which includes the National Horsemen’s Benevolent and Protective Association and many of its affiliates, to respond to HISA’s claims by Jan. 13, according to a ruling posted by the court on Wednesday night.
In that order, the Fifth Circuit also rejected a request by HISA to issue a ruling on an “emergency basis.” The National HBPA had filed a brief in opposition to the emergency basis on Tuesday night.
The request signals that the Fifth Circuit does not plan to issue a so-called “mandate” enforcing its order on Jan. 10, as the court initially planned. That mandate would have put its decision into effect.
The ruling by the Fifth Circuit caused HISA to shelve its anti-doping and medication control program indefinitely. The program was set to go into effect in 10 jurisdictions on Jan. 1, but the FTC has delayed issuing approval for the authority’s rules until the legal problems are ironed out.
Lisa Lazarus, the chief executive of HISA, said on a conference call on Thursday that she is confident that the legal problems were resolved by the amendment, which was inserted into a massive omnibus spending bill passed on Dec. 24. The legislation has been signed by President Joe Biden.
Lazarus could not provide an exact timetable as to when HISA plans to launch the anti-doping and medication control program, which will entail HISA taking over drug sampling, drug testing, and enforcement of drug and medication violations, but she said that she has “a lot of optimism about what the future holds” and said that HISA officials will now focus on “building trust” with the racing constituencies who have resisted HISA’s programs and policies.
“If we can bring the majority of the industry into a scenario or perspective where they accept or believe that HISA’s goals are to make racing better, then we can achieve our objectives,” Lazarus said.
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