By T. D. Thornton
The Horseracing and Safety Integrity Authority (HISA) made it clear on Monday that by Oct. 16, it intends to ask the United States Supreme Court to step in and decide the current HISA constitutionality conflict that exists because of clashing opinions out of two separate federal appeals courts.
The move potentially sets up a final say, perhaps as early as 2025, on a legal showdown that has split factions of the Thoroughbred industry since HISA's initial passage in 2020.
One week after the U.S. Court of Appeals for the Fifth Circuit shot down a request for a rarely granted rehearing that the HISA Authority and the Federal Trade Commission (FTC) had asked for to review the Fifth Circuit's recent opinion that HISA's enforcement provisions are unconstitutional, the HISA Authority, on Sept. 16, requested that the court hold off on issuing its mandate for that decision.
“Pending disposition of a certiorari petition to be filed by Oct. 16, the Court should stay its mandate in full or at least as to operation of the judgment outside the Fifth Circuit,” the Authority's filing stated.
“In the alternative, the Court should enter an administrative stay for at least 21 days to permit the Authority to seek stay relief from the Supreme Court and to allow for the Circuit Justice's consideration before the mandate issues,” the filing stated.
The Fifth Circuit panel opined July 5, 2024, that not all of HISA is constitutional, while a Sixth Circuit Court of Appeals panel opined in a different case Mar. 3, 2023, that Congressional changes to the law in 2022 made HISA completely constitutional.
When two federal appeals courts differ in their opinions like that, it's called a “circuit split,” and the Supreme Court generally takes heightened interest in resolving such conflicts.
The 3 1/2-year-old underlying lawsuit that led to the Fifth Circuit's opinion is spearheaded by the National Horsemen's Benevolent and Protective Association (NHBPA) and 12 of its affiliates.
The losing legal entities in the Sixth Circuit case, led by the states of Oklahoma, West Virginia and Louisiana, have also asked the Supreme Court to have another look at the conflicting appeals court opinions. An initial attempt by those losing parties to get the Supreme Court involved failed earlier this year, but that was before the Fifth Circuit's conflicting opinion had been issued.
Eric Hamelback, the chief executive officer of the NHBPA, told TDN on Monday that his organization opposes any delay to having the Fifth Circuit issue its mandate.
“Horsemen and women deserve relief provided from the Fifth Circuit's opinion,” Hamelback wrote in an email. “If this case reaches the Supreme Court, that process could take months or even years to reach a decision. HISA should not be able to run roughshod over the constitutional rights of horsemen while we wait on that decision. The Fifth Circuit's ruling was clear that HISA's enforcement policies are unconstitutional, and the Authority should respect that decision and the rights of horsemen.”
The HISA Authority, in its filing, argued the opposite, that a stay of the Fifth Circuit mandate was necessary because both defendants and the public would suffer “irreparable harm” without one.
“Every other federal court that has resolved a challenge to the amended Act has reached the same conclusion: HISA is constitutional,” the Authority's Sept. 16 court filing stated. “But this Court recently contradicted that consensus, holding that HISA's enforcement provisions facially violate the private-nondelegation doctrine.
“Whatever the merits of that outlier decision, it should not trample other courts' considered judgments pending disposition of the Authority's forthcoming petition for a writ of certiorari,” the Authority's filing stated.
“Given the acknowledged circuit split on a question of undisputed legal and practical importance, all agree that Supreme Court review is likely (if not a foregone conclusion). There is at least a 'fair prospect' that the Supreme Court will agree with [a Sixth Circuit] view that Congress's amendment to HISA permits the FTC to exercise more than adequate oversight in multiple (if not all) applications to overcome this facial constitutional challenge,” the Authority's filing stated.
“And beyond the serious blow to separation-of-powers and comity concerns, allowing the Court's decision to take effect would plunge horseracing back into a confusing web of varying enforcement protocols, disrupt the entrenched expectations of a national industry that has adjusted to the reforms over two-plus years, and endanger the athletes who have been protected by the successful programs Congress directed,” the Authority's filing stated.
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