The National Horsemen's Benevolent and Protective Association (NHBPA) on Monday urged the United States Supreme Court not to grant the stay of an unconstitutionality mandate that the U.S. Court of Appeals for the Fifth Circuit is waiting to issue regarding the Horseracing Integrity and Safety Act (HISA).
That mandate, stemming from a July 5 unconstitutionality opinion on HISA by the Fifth Circuit, was administratively stayed by the Supreme Court on Sept. 23. The HISA Authority had requested a stay on Sept. 19 pending the filing and disposition of its broader petition for a writ of certiorari that the Authority will be seeking to get the Supreme Court to take the underlying case.
The NHBPA actually agrees with the Authority that the Supreme Court should take on the case. But it further advocated in its Sept. 30 filing that if the Supreme Court grants the question concerning the delegation of executive powers, it should also “grant a second question presented to resolve the confusion among the circuits on private delegates' exercise of legislative powers as well.”
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 administrative stay that the Supreme Court put into effect one week ago is a type of stay used to freeze legal proceedings until a court can more fully consider and then rule on a party's more detailed request for expedited relief. An administrative stay is not the same thing as a court issuing an injunction or making a ruling in an overall case.
“The Fifth Circuit correctly concluded that level of private delegation violates Article II [of the U.S. Constitution],” the NHBPA's Sept. 30 filing stated.
“When asked to review this decision en banc, not a single judge requested a poll,” the NHBPA filing continued. “And the Fifth Circuit also rejected a request to stay the mandate. Now, the Authority comes to this Court and asks permission to continue trampling on the Horsemen's constitutional rights while the [Supreme] Court considers this case.
“While the case deserves this Court's consideration, the Authority fails to justify its demand for a stay for the mandate,” the NHBPA filing stated.
“Most obviously, that demand is premature: the Authority's imagined harms all stem from hypothetical injunctive relief that has not been granted-or even sought,” the NHBPA filing stated.
Back on Sept. 19, the HISA Authority had explained its reasoning for wanting the Fifth Circuit mandate stay.
“Three federal courts (including the Sixth Circuit) have now resolved materially identical challenges to the amended Act and reached the same conclusion: HISA is constitutional,” the Authority's Sept. 19 filing stated. “But the Fifth Circuit recently contradicted that consensus, holding that HISA's enforcement provisions facially violate the private-nondelegation doctrine…The Fifth Circuit's outlier decision should not be permitted to trample other courts' considered judgments pending disposition of the Authority's forthcoming petition for a writ of certiorari.
The NHBPA disagreed in its Sept. 30 filing: “A stay is unwarranted in any event. The Horsemen won [in the Fifth Circuit] for a good reason-what the Authority is doing here is unconstitutional. And letting the Authority exercise government enforcement power irreparably harms the Horsemen's constitutional rights.
“The Authority hardly tries to identify any irreparable harms facing itself, instead painting a generalized and unjustified picture of chaos if regulation returns to the states, which had regulated horseracing for over a century,” the NHBPA filing stated.
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