Supreme Court rejects appeal, upholds HISA's constitutionality

The U.S. Supreme Court on Monday declined to hear an appeal of a U.S. Sixth Circuit Court of Appeals ruling upholding the constitutionality of the federal legislation that established the Horseracing Integrity and Safety Authority.

The decision by the Supreme Court was hailed by supporters of HISA, though the decision does not impact a court case still undecided in the U.S. Fifth Circuit Court of Appeals. That court had ruled late in 2022 that the federal legislation violated certain doctrines associated with non-delegation clauses in the Constitution, setting up competing rulings.

The appeal of the Sixth Circuit decision that was denied by the Supreme Court was made by the states of Oklahoma, Louisiana, and West Virginia, along with their state racing commissions. Two of those states, Louisiana and West Virginia, are not currently under the jurisdiction of HISA due to a lower-court ruling that remains in effect due to the pending Fifth Circuit decision.

Charles Scheeler, the chairman of HISA, said in a statement released on Monday that the organization was “pleased” by the Supreme Court ruling. The statement also called on HISA’s detractors to drop their pursuit of litigation in the Fifth Circuit and withdraw from support of ongoing litigation.

“It is long past time for opponents of HISA to drop their outstanding lawsuits,” Scheeler said. “In light of this decision, continued litigation only serves to take time and valuable resources away from our core mission of improving the safety and integrity of Thoroughbred racing.”

While the Sixth Circuit and its feeder courts have consistently ruled in favor of HISA, the Fifth Circuit, which is based in New Orleans, has taken a much dimmer view of the powers that Congress granted to HISA in the enabling legislation first passed at the end of 2020.

The Sixth Circuit initially ruled in 2022 that HISA was unconstitutional and remanded the case to a lower court to amend its earlier ruling upholding HISA’s constitutionality based on its decision. But the lower court once again ruled in HISA’s favor on remand, citing a late-2022 amendment to the federal legislation giving HISA’s federal overseer, the Federal Trade Commission, broader rule-making authority.

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That amendment was added to the legislation after the initial Fifth Circuit ruling. HISA’s supporters have contended that the language explicitly addressed the shortcomings that the Fifth Circuit cited in its initial decision in 2022.

Eric Hamelback, the chief executive of the National Horsemen’s Benevolent and Protective Association, which was a party to the suit that ended up in the Fifth Circuit, said on Monday that the court is expected to issue its amended ruling “any day.” He also predicted that if the Fifth Circuit upholds the constitutionality of HISA, the National HBPA will appeal to the Supreme Court despite its decision on Monday.

“Our case and the Oklahoma cases did vary on the points of unconstitutionality that were being challenged, so there are some differences that could lead to different decisions on whether to take each case,” Hamelback said.

Many horsemen’s organizations have remained steadfast in their opposition to HISA since the legislation was passed with the support of a number of powerful constituencies in racing. HISA’s safety and welfare rules went into effect in mid-2022, and the organization began enforcing a national medication and drug-testing program in the late spring of 2023.

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