A Fifth Circuit ruling that declared the Horseracing Integrity and Safety Authority’s oversight of federal horse safety regulation to be unconstitutional was put on hold by the U.S. Supreme Court on Monday while it decides whether to hear the authority’s appeal.
The Supreme Court voted 8-1 to stay the Fifth Circuit’s July ruling, which said that in granting a private corporation power over thoroughbred horse racing, Congress’ approval of the Horseracing Integrity and Safety Act violated the Constitution. Justice Samuel Alito asked his colleagues last month to stay the ruling against HISA and the law that created it, which had been implemented in the wake of high-profile horse deaths and corruption scandals.
Several state horsemen and racing organizations, led by the National Horsemen’s Benevolent and Protective Association, are challenging the law. HISA petitioned the Supreme Court for a writ of certiorari on Oct. 18, just under a month after Justice Alito recommended the stay of the Fifth Circuit decision. The Federal Trade Commission, which has oversight and approval power over HISA, also requested for the Fifth Circuit ruling to be stayed and for the Supreme Court to hear an appeal.
No timetable is known for the Supreme Court’s decision on whether to grant the petitions by HISA and the FTC. Its decision could resolve a circuit split on the lawfulness of the act, which the Sixth Circuit ruled constitutional in March 2023.
The NHBPA and its co-petitioners, who also challenged the law that was upheld by the Sixth Circuit last year, have argued that the law gives a private, nongovernmental entity enforcement power that it constitutionally is not entitled to have.
Justice Ketanji Brown Jackson was the lone dissenter in Monday’s decision, writing in her one-paragraph dissent that a stay was unnecessary, since a lower court would be unlikely to interfere with a pending decision on certiorari by issuing an injunction to block the law.
“Thus, whatever the stay factors might portend, I see no reason for us to intervene in an emergency posture,” she wrote.
Through a spokesperson, HISA applauded the Supreme Court for taking “the rare step of staying (or pausing) the Fifth Circuit’s outlier judgment declaring the Act unconstitutional. That means the Authority can continue to enforce the Act and its rules in every racing jurisdiction where HISA is currently operative.”
“In other words, the status quo will remain until the Supreme Court issues a final decision sometime before the end of its term in June 2025,” HISA’s statement continued. “The Authority is pleased to continue its mission of improving the safety and integrity of horseracing without interruption (or further intervening litigation).”
National Horsemen’s Benevolent and Protective Association CEO Eric Hamelback told Law360 in an emailed statement Monday, “The National HBPA Full Board remains steadfast on exercising its due diligence to protect horsemen and women within horse racing. The goal has not changed, the National HBPA intends to obtain a ruling from the Supreme Court by the end of this term.”
“Such a ruling will add clarity, restore constitutional rights and finally resolve whether HISA is unconstitutional nationwide. We remain on track for that result,” Hamelback continued.
In an emailed statement to Law360 Monday, Corpus Christi, Texas-based Gulf Coast Racing, one of the many horse racing entities joining the national horsemen’s association in their suit, said it planned to file a petition for certiorari to the Supreme Court as well, and agreed with Justice Jackson’s dissent.
The stay requests, Gulf Coast Racing said, “failed to demonstrate any exigency that justifies deferring the relief that the parties challenging HISA won in the Fifth Circuit. We also agree that there is no reason for the Supreme Court to have intervened in an emergency posture.”
“Whatever the case,” Gulf Coast Racing added, “we remain optimistic that the Supreme Court ultimately will vindicate the Fifth Circuit judgment and grant even broader relief against the Horseracing Integrity and Safety Authority, the Federal Trade Commission, and their affiliated parties based on the private non-delegation doctrine or Appointments Clause arguments that challenge the constitutionality of this improper means of federally regulating an entire industry that, for more than a century, had been successfully regulated by the states.”
A representative for the FTC declined to comment Monday.
HISA is represented by Pratik A. Shah and Lide E. Paterno of Akin Gump Strauss Hauer & Feld LLP and John C. Roach of Ransdell Roach & Royse PLLC.
The U.S. government is represented by Elizabeth B. Prelogar of the U.S. Department of Justice.
The National Horsemen’s Benevolent and Protective Association is represented by Fernando M. Bustos of Bustos Law Firm PC and Daniel R. Suhr of the Center for American Rights.
Gulf Coast Racing LLC, LRP Group Ltd., Valle de Los Tesoros Ltd., Global Gaming LSP LLC and Texas Horsemen’s Partnership LLP are represented by Gregory P. Sapire of Maynard Nexsen PC.
The State of Texas and the Texas Racing Commission are represented by Aaron L. Nielson of the Office of the Texas Attorney General.
The case is Horseracing Integrity and Safety Authority Inc. et al. v. National Horsemen’s Benevolent and Protective Association et al., case number 24-433, before the U.S. Supreme Court.
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