U.S. Supreme Court puts toe in water on legality of HISA

With a stay order issued Monday by judge Samuel Alito, The U.S. Supreme Court has begun to weigh in on the Horseracing Integrity and Safety Act, putting a hold on a lower federal court’s ruling that current federal enforcement of the sport is unconstitutional.

“Upon consideration of the application of counsel for the applicants, it is ordered that the mandate of the United States Court of Appeals for the Fifth Circuit ... is hereby administratively stayed pending further order of the undersigned or of the court,” Alito wrote in what was filed Monday as a miscellaneous order. “It is further ordered that a response to the application be filed on or before Monday, Sept. 30, 2024, by 4 p.m. EDT.”

Alito’s response was reported first by SCOTUS Blog.

HISA asked Thursday to have the effects of the Fifth Circuit order put on hold until arguments could be heard. The New Orleans federal court ruled that the federal authority has sidestepped the Constitution by violating the private, non-delegation doctrine. That is the legal principle that says that constitutional powers may not handed off outside the federal government.

Led by the National Horsemen’s Benevolent and Protective Association and its state affiliates, the legal argument against HISA has been rooted in the belief that it is a private organization that may not legally carry out the work of the government, in this case the Federal Trade Commission.

The ruling by the Fifth Circuit last Tuesday was diametrically opposite of that issued in March 2023 by the Cincinnati-based Sixth Circuit in March 2023, which said HISA is constitutional. The Eighth Circuit in St. Louis sided with HISA on a separate challenge Monday, rejecting a call for a preliminary injunction that would have taken Arkansas, Iowa and Minnesota out of the authority’s influence.

“The Fifth Circuit denied (HISA’s) request to stay its mandate even as to operation of the judgment outside the Fifth Circuit,” attorney Pratik Shah wrote in HISA’s petition. “(The Supreme) Court should step in to prevent that single court from jeopardizing enforcement of critical HISA rules across the nation, including in key horse-racing states like Kentucky and Arkansas, especially after the Sixth Circuit rejected an identical facial challenge, and while the Eighth Circuit is presently considering a parallel challenge after the Arkansas district court also rejected it.”

HISA has been expected to make a full appeal to the Supreme Court, something that the NHBPA welcomes as a way to get clarity on the future of the authority once and for all. As it always does, the court will lay out its case calendar for the coming term on the first Monday in October, in this case Oct. 7.