By T. D. Thornton
The attorneys general from nine states on Thursday implored United States Senate minority leader Mitch McConnell not to use the end-of-term 'lame-duck' session of Congress to ram through legislation that would tweak non-constitutionality issues with the Horseracing Integrity and Safety Act (HISA) by burying the measure within a much larger bill.
“It has come to our attention that you are considering proposing language related to HISA in the Defense Spending Authorization Act or other end-of-year legislation,” the AGs wrote to the senior senator from Kentucky in a Dec. 8 letter. “We urge you not to do so. HISA has already caused enormous upheaval in our States. A lame-duck session is not the time to slip new language into legislation amending HISA in response to [a recent court ruling]. Indeed, language that attempts anything other than repealing this ill-advised legislation will only make a bad situation worse.”
The U.S. Court of Appeals for the Fifth Circuit on Nov. 18 ruled that the Horseracing Integrity and Safety Act (HISA) is unconstitutional because it “delegates unsupervised government power to a private entity” and thus “violates the private non-delegation doctrine.”
On Dec. 7, the U.S. Court of Appeals for the Sixth Circuit heard arguments in a similar case that also seeks to reverse a lower court's decision to dismiss a constitutional challenge of HISA.
The state of Louisiana's AG spearheaded the effort. Also signing the letter were the AGs from Arkansas, Indiana, Iowa, Mississippi, Ohio, Oklahoma, South Carolina and Texas.
U.S. Trotting News was the first media outlet to publish the letter.
The letter continued: “As enacted, HISA disrespects [the] system of dual sovereignty. HISA's very purpose is to take away a regulatory power individual States have exercised since the Founding–to oversee and regulate horse racing within their borders–and give that power exclusively to a private agency.”
The HISA Authority “is exercising federal regulatory powers without any meaningful restraint, oversight, or adequate time for notice and comment, rushed rules that displaced existing State laws governing horse racing and exposed jockeys and horses to unsafe conditions,” the letter stated.
“Adding insult to injury, the Authority required all participants in the horse racing industry to pay assessments to cover the cost of enforcing HISA's dangerous and poorly thought-out private rules. As a final blow, the Authority attempted to cannibalize existing State personnel to implement and enforce the rules it enacted,” the letter stated.
At a later point, the four-page plea continued: “If you seek a resolution that settles controversy in the industry, then you should organize discussions between all industry participants that would identify and address everyone's concerns with HISA instead of making a surprise amendment to HISA now. Several of our states are engaged in litigation regarding problems with HISA beyond the private nondelegation issue, and amendments cannot avoid continuing, costly litigation unless they are carefully tailored to resolve all concerns.”
Two years ago this month, when McConnell was the Senate majority leader, he was instrumental in making sure HISA got passed by tucking it into a massive, year-end government funding bill that included a $900-billion COVID-19 relief package.
“Enacting HISA in 2020 in vital national legislation that had nothing to do with horse racing is part of why it failed so miserably,” the Dec. 8 letter stated. “Amending HISA in the Defense Spending Authorization Act with no notice to industry participants or States will merely repeat the same flawed approach.”
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