Six additional states challenge constitutionality of Horseracing Integrity and Safety Authority
Six states, including Arkansas, Idaho, Nebraska, and Ohio, have filed a “friend of the court” brief contesting the constitutionality of legislation passed late last year that authorizes a federal regulatory body for racing.
The amicus curiae brief was filed in the U.S. District Court for the Eastern District of Kentucky, where a number of states, breed organizations, and racetrack owners filed the initial challenge to the lawsuit. The brief also includes Alaska and Mississippi, two states where racing is not conducted.
Like the initial challenge, the brief contends that the legislation violates several constitutional doctrines over the delegation of government powers to private companies. The legislation authorized the creation of the Horseracing Integrity and Safety Authority, a private company that would be overseen by the FTC.
“[HISA] creates an imbalance of power, and it gives the lion’s share to the private corporation,” the brief states. “This delegation of power undermines the Constitution.”
The suit filed in Kentucky has already been backed by the states of Louisiana, Oklahoma, and West Virginia, along with their racing commissions. Another suit challenging the act, which is supported by the National Horsemen’s Benevolent and Protective Association, has been filed in U.S. District Court for the Northern District of Texas.
Supporters of the legislation have said that it was modeled on bills creating other self-regulatory organizations, including FINRA, and that it was vetted to survive a challenge on Constitutional grounds.
This summer, a prominent racing legal expert, Bennett Liebman, said that the current make-up of the Supreme Court and the political landscape in the U.S. had made federal courts eager to take up a challenge to laws dealing with Congress’ powers of delegation.
“The Supreme Court is looking for an opportunity to review this issue,” Liebman said, at a conference on racing and gambling law held in August in Saratoga Springs. “And if it does, we are in for a very long and difficult amount of litigation. . . . This should be a major concern for the industry and for the proponents of HISA.”
Under the legislation, the authority has an effective start date of July 1, 2022.