McConnell, Barr, Tonko Advocate for HISA in Supreme Court Brief

Three federal legislators who were instrumental in getting the Horseracing and Safety Integrity Act (HISA) passed into law in 2020 on Tuesday submitted a “friend of the court” brief to the United States Supreme Court in support of the HISA Authority's application for the stay of an unconstitutionality mandate that is pending but currently administratively stayed out of the Fifth Circuit court of appeals.

Senator Mitch McConnell (R-Kentucky), who introduced HISA when he served as the Majority Leader, plus Congressmen Andy Barr (R-Kentucky) and Paul Tonko (D-New York), who both sponsored HISA and similar precursor bills, on Sept. 24 advocated for the Supreme Court to grant a stay of the Fifth Circuit mandate pending the filing and disposition of a petition for a writ of certiorari that the HISA Authority will be seeking to get the Supreme Court to take the case.

A possible decision by the Supreme Court has long been speculated as the final destiny for the 3 ½-year legal odyssey in which the National Horsemen's Benevolent and Protective Association and 12 of its affiliates are trying to nullify HISA as an allegedly unconstitutional law.

Three federal appeals courts (the Fifth, Sixth and Eighth Circuits) have already opined in three different lawsuits that HISA's rulemaking provisions are constitutional. Only the Fifth Circuit has opined that HISA's enforcement mechanisms are unconstitutional.

“The Authority easily satisfies this Court's standard for a stay of the court of appeals' mandate,” the three legislators wrote in their brief.

“First, there is a 'reasonable probability' that four members of this Court will deem [that the case is] 'sufficiently meritorious' for a grant of certiorari, given that the decision [by the Fifth Circuit] both invalidates important federal legislation and creates a split with the Sixth and Eighth Circuits.

“Second, there is a 'fair prospect' that a majority of this Court will vote to reverse, given the Fifth Circuit's failure to heed this Court's instructions about the difficulty of a facial challenge to an Act of Congress, and given as well HISA's many procedural safeguards.

“Third, it is 'likely that irreparable harm will result from the denial of a stay,' given the dangerous patchwork of regulatory regimes-or, even worse, regulatory voids if states were not prepared to step in immediately or state rules remained preempted

by HISA's still-valid rules-that would ensue for horseracing if HISA were rendered unenforceable by the Authority,” the brief stated.