5th Circuit Court of Appeals Strikes Down HISA for Third Time
Today, the Fifth Circuit Court of Appeals unanimously declared the Horseracing Integrity and Safety Act (HISA) to be unconstitutional. The court ruled in favor of the National Horsemen’s Benevolent and Protective Association (HBPA) and twelve state affiliates, saying, “The Horsemen … contend that HISA facially delegates unsupervised enforcement power to private actors. They are right.”
The Court held that HISA violates Article II, Section 1, Clause 1 of the Constitution, which delegates all executive power to the President. Instead, HISA delegates executive power to a private corporation called the Horseracing Integrity and Safety Authority, Inc. The court ruled that this private corporation is not properly overseen by the Federal Trade Commission (FTC). It is unlawfully enforcing government horse- racing regulations directly on horsemen. Therefore, HISA violates the nondelegation doctrine.
As the court declared, because “HISA is enforced by private entities that are not subordinate to the FTC, we DECLARE that HISA violates the private nondelegation doctrine.” It further stated, “The statute empowers the Authority to investigate, issue subpoenas, conduct searches, levy fines, and seek injunctions—all without the FTC’s say-so. That is forbidden by the Constitution.”
The court continued, “HISA’s explicit division of enforcement responsibility empowers the Authority with quintessential executive functions and gives the FTC scant oversight until enforcement has already occurred. Such back-end review by the FTC does not subordinate the Authority.” The court concluded that HISA is “a radical delegation.”
Today’s decision marks the third time the Fifth Circuit Court of Appeals has ruled HISA unconstitutional. In November 2022, the court ruled HISA an unconstitutional violation of the private nondelegation doctrine, resurrecting a doctrine that had been little used in the last 90 years. The court ruled that Congress had illegally given legislative powers to a private corporation. Shortly thereafter, Congress tweaked the law, and the case returned to the Court of Appeals. In July 2024, the Fifth Circuit ruled that Congress had illegally given executive powers to a private corporation.
Last year, the Supreme Court decided another nondelegation case, FCC v. Consumers’ Research, and returned the horsemen’s case to the Fifth Circuit for a third decision in light of the Consumers’ Research decision. Today, the Fifth Circuit ruled that “Consumers’ Research does not change our analysis.”
National HBPA CEO Eric Hamelback said, “We have been fighting this battle for the constitutional rights of horsemen for over five years, and we continue to win. It is just common sense that Congress cannot make a private corporation the judge, jury, and executioner of our industry.”
Daniel Suhr, President of the Center for American Rights and HBPA lead counsel, added, “We are thrilled that the court sided with our legal arguments once again. By basically reissuing the prior ruling, the Fifth Circuit has laid down a strong marker that government power must be wielded by government officials, who are accountable to the people. That is a cornerstone of our Constitution.”
Peter Ecabert, General Counsel of the National HBPA, stated, “The HBPA will fight this legal battle all the way to the Supreme Court if we have to. If today’s victory is upheld by the Supreme Court, as we expect, it will mean that horsemen will no longer be controlled by a small number of industry elite.”
States are also challenging HISA in the courts. The State of Texas joined today’s victory in National Horsemen’s Benevolent and Protective Association v. Black. Oklahoma, West Virginia, and Louisiana lost a separate lawsuit against HISA in the Sixth Circuit Court of Appeals, but they have petitioned the Supreme Court to take the case. A third case is pending before the Eighth Circuit Court of Appeals. Because today’s ruling creates a circuit split between the Fifth and Sixth Circuits and because it enjoins a federal law, the Supreme Court is likely to make the final decision.
