Authority Tells Supreme Court That Of Three HISA Constitutionality Cases, Fifth Circuit Dispute Should Take Precedence

With three separate requests involving three different federal appeals court cases pending before the Supreme Court of the United States to take up the question of whether or not the Horseracing and Safety Integrity Act (HISA) is constitutional, the Horseracing Integrity and Safety Authority on Wednesday told the nation's highest court that the one involving a lawsuit spearheaded by the National Horsemen's Benevolent and Protective Association (NHBPA) is the one that should take precedence.

In two separate legal filings Nov. 6, the Authority made its case for the Supreme Court to grant the “writs of certiorari” that the Authority and the federal government have both requested to re-examine a Fifth Circuit U.S. Court of Appeals opinion that had struck down the constitutionality of HISA's enforcement provisions.

One of the Authority's Wednesday filings involved a different lawsuit out of the Sixth Circuit, in which the states of Oklahoma, West Virginia and Louisiana are the entities asking for the Supreme Court to intervene.

Those two cases-plus a third one out of the Eighth Circuit–are similar in nature in that they all want clarification on whether HISA is constitutional.

But they differ on details, such as which party is making its plea for the Supreme Court's attention and exactly which legal questions the Supreme Court should rule on.

“Beside this [Sixth Circuit] rehearing petition, the Court now has before it certiorari petitions from the Fifth and Eighth Circuit cases presenting the same question regarding the facial constitutionality of HISA's enforcement provisions,” stated the HISA Authority's response to the Sixth Circuit petition backed by Oklahoma, West Virginia and Louisiana.

“Although the Authority welcomes consideration of that question presented through any of the three cases, the petitions filed by the Authority and the Solicitor General in [the NHBPA case] present the best vehicle for resolving it,” the filing continued. “Granting [the Fifth Circuit] petitions would allow for direct review of the reasoning of the only court of appeals that has held the Act facially unconstitutional.”

Although the NHBPA and the HISA Authority are at odds over whether the federal law that regulates the sport is constitutional, both organizations have stated for months now in court filings and media interviews that the Supreme Court needs to be the entity that resolves the current “circuit split” in which different U.S. appeals courts have issued conflicting opinions.

How the Supreme Court will handle the multiple cases filed by different petitioners is a legal hurdle that first must be cleared before the Supreme Court makes any decision on HISA's constitutionality.

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The Supreme Court could choose to individually hear (or deny hearing) any of the HISA constitutionality cases. Or, if it deems the questions of law are similar, the Supreme Court could decide to combine or consolidate them into one larger case and come up with one common judgment that addresses all of the issues that have been raised.

A Fifth Circuit appeals court panel opined July 5, 2024, that even though HISA's rulemaking structure is constitutional, HISA's enforcement provisions are unconstitutional.

A Sixth Circuit appeals court panel opined in a different case Mar. 3, 2023, that Congressional changes to the law in 2022 made all of HISA completely constitutional. The plaintiffs in that case already once asked the Supreme Court to hear the case, but were denied on June 24, 2024. Then, after the Fifth Circuit opinion was issued, creating a circuit split of differing opinions at the appeals court level, the Sixth Circuit plaintiffs on July 18 asked the Supreme Court to reconsider hearing the case.

Separately, a group of plaintiffs led by Bill Walmsley, the president of the Arkansas HBPA, and Jon Moss, the executive director of the Iowa HBPA, on Oct. 15, 2024, filed a writ of certiorari in a different case asking the Supreme Court to review judgment by the U.S. Court of Appeals for the Eighth Circuit. That Eighth Circuit opinion had affirmed a ruling out of a lower federal court in Arkansas denying a preliminary injunction the horsemen had sought to halt HISA and its Anti-Doping and Medication Control program.

The Fifth, Sixth and Eighth Circuit appeals courts have all agreed that HISA's rulemaking structure is constitutional. Only the Fifth Circuit has disagreed, in part, by opining that HISA's enforcement provisions are unconstitutional.

“The Court should grant the petitions [in the Fifth Circuit case] and hold the petition in this [Sixth Circuit] case pending resolution of the merits in those cases,” the Authority's Sixth Circuit filing stated.

The three states in the Sixth Circuit case disagreed with this line of reasoning when they filed their July 18 petition for rehearing. They wanted their writ of certiorari acted upon ahead of any others.

“This case also presents a clean vehicle to resolve the constitutional question,” the three states had argued. “There is a threshold jurisdictional issue in the Fifth Circuit case concerning the finality of the district court's decision which could prevent this Court from reaching the merits. And a similar challenge to the constitutionality of HISA [that was at the time] pending in the Eighth Circuit arises in an interlocutory posture. This [Sixth Circuit] case, by contrast, cleanly presents the constitutional question after a final judgment on the merits without any complicating vehicle issues.”

The Authority's Nov. 6 filing relating to the Sixth Circuit writ offered an alternative.

“If the Court does grant certiorari in [the Sixth Circuit] case, it should reformulate the question presented to limit its review to the only issue on which the courts of appeals are divided: whether HISA's enforcement provisions are facially unconstitutional under the private-nondelegation doctrine,” the Authority's filing stated.

A separate Nov. 6 reply brief filed in the Authority's case out of the Fifth Circuit stated that, “The case for this Court's review is about as clear as it gets…. The only remaining point of dispute [is] whether to inject additional constitutional claims the lower courts have rejected uniformly [and] there is no need to complicate this case by incorporating those peripheral issues.”