Report: HISA case likely is headed to Supreme Court

The question of the constitutionality of the Horseracing Integrity and Safety Authority appears headed to the U.S. Supreme Court.

Thoroughbred Daily News reported that the U.S. Fifth District Court of Appeals denied a request for an "en banc" procedure, which would have granted a rehearing on the court's July 2024 opinion that HISA is unconstitutional. The rehearing was sought by HISA and the Federal Trade Commission, which oversees the horse-racing authority.

An en banc petition often is a formality to show the Supreme Court that all procedural options in appeals court have been exhausted, according to the report.

In its July ruling, the Fifth Circuit court in New Orleans endorsed most of a Texas district ruling in favor of HISA, but the three judges said the regulators overstepped their boundaries when it came to enforcing their rules in violation of the private non-delegation doctrine.

The effort to overturn HISA has been led by the National Horsemen's Benevolent and Protective Association and affiliates.

In a statement emailed to Horse Racing Nation, NHBPA president Eric Hamelback said, "When this motion was originally filed, I made the comment that all this did was delay the inevitable. The Horseracing Integrity and Safety Act remains unconstitutional. We can now safely say that 15 other federal court of appeals judges looked at this, and not one of them voted to review judge (Kyle) Duncan's decision and opinion. We hope the authority and the FTC will abide by this decision promptly.

"The next step will be the closing mandate issued from the Fifth Circuit, which we expect to be issued around Sept. 17. This is the mandate that closes in the Fifth Circuit and transfers to the lower court who will issue the relief to the plaintiffs unless the defendants request a stay, and they very well could.

"We would like to believe that HISA and HIWU will take the appropriate and proper action and cease and desist from any further unconstitutional and illegal enforcement activity until the Supreme Court has an opportunity to review this matter."

Contacted by HRN, a HISA spokesperson declined to comment.