Congress gave horse racing authority too much power, court rulings

NEW ORLEANS — Congress unconstitutionally gave too much power to a nonprofit agency it created in 2020 to develop and enforce horseracing rules, a federal appeals court in New Orleans ruled Friday.

The 5th US Circuit Court of Appeals said the Horseracing Integrity and Safety Act, or HISA, was “unconstitutional.”

The authority created by the law was intended to provide unified policy and enforcement for horse racing amid doping scandals and racetrack horse deaths. But the 5th circuit — in two rulings issued on Friday — ruled in favor of opponents of the law in lawsuits filed by horse racing associations and state officials in Texas, Louisiana and West Virginia.

The Federal Trade Commission has ultimate authority to approve or disapprove HISA regulations, but cannot change them. And the authority can reject proposed changes.

Three Fifth Circuit judges agreed with opponents of the law — including the National Horsemen’s Benevolent and Protective Association and similar groups in several states — that the order gave the NGO too much power and the FTC too little power.

“A fundamental constitutional principle is that federal power can only be exercised by the federal government. Private entities may only do so if they report to a government agency,” Judge Stuart Kyle Duncan wrote for the panel ruling the Texas case.

The same panel, which also included Justices Carolyn Dineen King and Kurt Engelhardt, cited the Texas ruling in a separate order in favor of horse racing interests and regulators challenging HISA in another case.

The Horse Racing Authority’s chief executive said he would seek further judicial review. Friday’s ruling could be appealed to the full 5th Circuit Court of the Supreme Court.

“If today’s judgment were upheld, the earliest it would come into effect would be January 10, 2023,” Charles Scheeler said in an email. “We are focused on continuing our important work to protect the safety and integrity of thoroughbred racing, including the launch of HISA’s anti-doping and drug control program on January 1, 2023.”

The ruling was criticized by Marty Irby, executive director of Animal Wellness Action. “Over the course of three congresses, the most brilliant legal minds on Capitol Hill debated the constitutionality of the Horseracing Integrity and Safety Act and ultimately decided that the Federal Trade Commission’s limited oversight was sufficient,” Irby said in an email.

Topics covered by the rules and the agency’s enforcement included jockey safety (including a national concussion protocol), the riding crop and how often riders can use it during a race, accreditation for the circuit and reporting on Training and veterinary records.

Animal rights groups supporting the law cited scandals in the drug and equine treatment industry.

Duncan wrote that in declaring HISA unconstitutional, “we are not challenging Congress’ judgment on problems in the horseracing industry. This political call falls outside of our lane.”

Louisiana Attorney General Jeff Landry hailed the ruling on Twitter, calling HISA a “state takeover of Louisiana horse racing.”

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