U.S. District Court upholds HISA's constitutionality

A U.S. District Court judge has once again ruled that the federal legislation establishing the Horseracing Integrity and Safety Authority passes constitutional muster, but the legal issues involved in the case will face a steeper hurdle when it is appealed to the U.S. Fifth Circuit.

Judge James Wesley Hendrix wrote in a ruling issued on Thursday night that the plaintiffs in the case, which included the National Horsemen’s Benevolent and Protective Association and most of its affiliates, failed to demonstrate that the enabling legislation violated several constitutional doctrines involving the ability of the federal government to vest regulatory power in a private company.

The ruling relied heavily on the insertion of an amendment to the legislation late in 2022 that was intended to address an earlier decision by the U.S. Fifth Circuit Court of Appeals that invalidated HISA. The amendment gave broader powers over HISA’s rule-making process to the Federal Trade Commission.

“In light of Congress’s amendment to HISA and the undisputed evidence following a bench trial, each of these arguments fall short,” Hendrix wrote, referring to the plaintiffs’ arguments in a hearing held two weeks ago.

Hendrix had earlier upheld the constitutionality of HISA in a decision released early last year, but the National HBPA and the other plaintiffs appealed that decision to the U.S. Fifth Circuit. Late in 2022, a three-judge panel of the court overruled Hendrix’s decision and then sent it back to his court for re-consideration, but only after Congress had already approved the amendment.

The National HBPA, in a statement released on Thursday night, said that it would once again appeal to the Fifth Circuit, which has a reputation for hewing to positions limiting federal power and other causes associated with the conservative movement.

“We’ve been down this road before,” said Eric Hamelback, the chief executive officer of the National HBPA. “After a loss in district court, we secured a win in the Fifth Circuit Court of Appeals. We will win there again. We will fight to protect horsemen and their constitutional rights all the way to the Supreme Court if needed.”

The legal tussle is complicated by a separate ruling issued by the U.S. Sixth Circuit Court of Appeals in a case that considered nearly identical arguments, brought by a number of state racing commissions, racing companies, and state attorneys general. In that ruling, issued early this year, the U.S. Sixth Circuit upheld HISA’s constitutionality. That decision also cited the impact of the late-2022 amendment.

HISA, which has strong support from several powerful racing constituencies, is designed to devise and enforce rules for all racing jurisdictions in the U.S., replacing the current state-by-state system that has been in place for a century. The effort has faced pushback from some horsemen’s groups and racing commissions, who have said that HISA’s mandate is too broad, that it has failed to involve horsemen in its rule-making process, and that the expense of the effort is too high for the industry to bear.

HISA is currently enforcing a set of rules covering safety practices at racetracks, and the second prong of its legislative mandate – administering a national drug and medication program, including sampling, testing, enforcement, and adjudications – is set to be rolled out on May 22. The drug and medication program was first implemented on March 27, the date that the FTC announced its approval of the rules, but Hendrix delayed the start of the program for at least 30 days after the National HBPA filed a suit seeking the 30-day grace period.

In a statement released on Thursday night, HISA said that it remained on track to launch the program on May 22.

“The urgent need for nationwide, uniform rules to enhance the safety and integrity of Thoroughbred racing has never been clearer,” the statement said. “We look forward to the resumption of HISA’s Anti-Doping and Medication Control program on May 22.”

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