FTC attorneys ask court to dismiss challenge to Horseracing Integrity and Safety Act

Government attorneys representing the Federal Trade Commission have filed a motion asking a federal court in Kentucky to dismiss a lawsuit filed by three states that seeks to invalidate the Horseracing Integrity and Safety Act.

The attorneys argue in the brief that the creation and structure of the regulatory body – known as the Horseracing Integrity and Safety Authority – created by the act does not violate doctrines in the federal constitution regarding the delegation of powers by Congress to a private entity, as the plaintiffs in the initial lawsuit contended. The suit is being heard in the U.S. District Court for Kentucky.

HISA was created by legislation passed last year as part of an omnibus coronavirus relief bill. Under the legislation, HISA would set standards for medication and safety practices at racetracks and enforce those standards through state racing commissions. Its rules and regulations would need to be reviewed and approved by the Federal Trade Commission. Its effective start date in the bill is July 1, 2022.

The motion to dismiss also argues that the plaintiffs, which include the states of Louisiana, Oklahoma, and West Virginia, plus their racing commissions, do not have standing to challenge HISA because it is still in its formative stages.

“Adjudicating the merits of plaintiffs’ legal claims now would require the court to evaluate HISA’s framework in the abstract, unaided by any concrete facts or interpretative rules from the agency that
Congress charged with the statute’s implementation,” the motion states. “There is no justification for the court treading this path under any circumstances, and it is doubly improper in a constitutional
challenge.”

The arguments in the brief are similar to those made by attorneys for the members of the nominating committee of HISA, who were targeted in a suit filed in April by the National Horsemen’s Benevolent and Protective Association and a number of its state affiliates. That suit was filed in U.S. District Court for the Northern District of Texas.

Coincidentally, on Monday, a racing-law expert, Bennett Liebman, said he believed that the constitutionality of the legislation authorizing HISA could be viewed by some in the judiciary as being ripe for review, given the change in the political and judicial landscape over the past several decades (click here for story). Liebman was speaking at a law conference addressing legal issues affecting racing and gambling.