Q and A With Lucinda Finley: A Lot Rests on Pending Fifth Circuit HISA Ruling

Earlier this month, the United States Court of Appeals for the Fifth Circuit in New Orleans heard oral arguments in a pivotal case—led by the National Horsemen's Benevolent and Protective Association (NHBPA)—seeking to overturn the Horseracing Integrity and Safety Act (HISA) on grounds that it is constitutionally flawed.

In short, the Fifth Circuit's pending ruling could have profound implications for the short and long-term future of the federal law.

Oral arguments in the Fifth Circuit follow a key decision earlier this year out of the United States Court of Appeals for the Sixth Circuit, finding the HISA statute indeed to be constitutional.

There is also a separate HISA-related case in the Eighth Circuit led by Bill Walmsley, Jon Moss, and the Horsemen's Benevolent and Protective Association (HBPA) for Iowa.

To get a handle on the various implications from the pending Fifth Circuit ruling, the TDN once again spoke with constitutional law expert Lucinda Finley, Frank Raichle Professor of Trial and Appellate Advocacy, and director of Appellate Advocacy at the University of Buffalo Law School.

The following has been edited for brevity and clarity.

TDN: When is the Fifth Circuit likely to issue its ruling?

Lucinda Finley: It could be within a month. It could be up to several months. It's very hard to tell how long a court will take in ruling on an appeal. They don't have any deadline.

TDN: Can we glean any kind of meaning on how they might rule from the length of time it takes to deliver that ruling?

LF: In general in federal appellate cases, the length of time that it takes for a ruling to come out can vary by several factors. One is how many other opinions still to be issued are backlogged in the court. Another is whether there's disagreement within the panel of three judges. Is there going to be a dissent? Is there going to be a concurring opinion?

So, if there's going to be more than one unanimous majority opinion, it'll obviously take longer for the final result to be issued because multiple judges will be writing opinions and perhaps circulating their drafts amongst each other, trying to persuade someone to modify their position.

TDN: How do you think the Fifth Circuit will rule?

LF: I can't predict. I have no basis to make a prediction.

TDN: Are you able to look at any other of their rulings as a potential barometer?

LF: No. I mean, it's really going to come down to whether they agree with the Sixth Circuit that the changes congress made to give the [Federal Trade Commission] more rulemaking authority are sufficient to fix the constitutional problem that the Fifth Circuit previously identified.

TDN: What are the implications from the pending Fifth Circuit ruling for HISA?

LF: If the Fifth Circuit agrees with the Sixth Circuit and finds that the current amended version of HISA is constitutional, that makes it much less likely that the U.S. Supreme Court would take up the cases because there would not be a conflicting view between different U.S. circuit courts of appeals about the constitutionality of the federal statute.

Conversely, if the Fifth Circuit disagrees with the Sixth Circuit and finds that the amendments that Congress made are not sufficient to make the law constitutional, that makes it close to a hundred percent likely that the U.S. Supreme Court would take up the cases.

Having two different circuit courts in the country saying the same federal statute is and is not constitutional is not a situation that's tenable. The U.S. Supreme Court would have to resolve that one.

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TDN: Just yesterday, the former president of the National HBPA said that no matter how the Fifth Circuit rules, the nation's highest court will eventually have to be called upon to settle the matter. Sounds like it's not that simple.

LF: Let me back up.

You currently have the Sixth Circuit already having ruled that the HISA statute is constitutional. You have the Fifth Circuit having heard oral arguments. A decision will come within the next few months.

You also have the Eighth Circuit considering the constitutional question, the briefs of the challengers already having been filed and the briefs of the FTC and the defenders of HISA yet to be filed. So, you have three circuit courts being asked to consider the constitutionality of HISA.

If all three of them wind up agreeing that HISA as currently written is constitutional, I don't think it's likely that the Supreme Court would hear the case.

[But] if the circuit courts disagree about the constitutionality piece, as I said, I think that makes it close to a hundred percent likely that the Supreme Court would take the case.

TDN: What are the implications (either way) from the pending Fifth Circuit ruling for those jurisdictions currently operating outside of HISA's remit, like Louisiana and West Virginia?

LF: If the Fifth Circuit rules the same way that the Sixth Circuit did and finds that HISA as amended is now constitutional, that would mean that the lower court injunctions against the enforcement of HISA in certain states would most likely be dissolved and would go away.

If the Fifth Circuit rules that even the amendments to HISA are not sufficient to make it constitutional, that would mean the injunctions against enforcing HISA in certain states would remain in effect until the Supreme Court resolves the differences of opinions between the federal circuit courts.

TDN: Does this case hold other implications at the Supreme Court level for critics of the federal administrative state?

LF: In the current term of the Supreme Court, they've just taken several cases that raise challenges to decades old, well-established administrative law precedents.

There seems to be a lot of interest in the current U.S. Supreme Court of turning administrative law on its head and reining in the authority of the federal regulatory agencies in various ways. The non-delegation doctrines that are at the heart of the challenges to HISA have not yet been the areas of administrative law that the Supreme Court seems focused on upending of changing.

But they might—if they completely change the areas of administrative law they've agreed to consider this year—maybe next year say, 'okay, we got rid of the Chevron deference doctrine, we got rid of certain other things. Now let's go after the non-delegation doctrine.'

It's a long way of saying the current U.S. Supreme Court is showing great interest in rethinking decades of rules about the authority of federal regulatory agencies.

TDN: Could this focus of the Supreme Court have any bearing on the way in which the Fifth Circuit rules?

LF: I don't think judges rule in a particular way on a case strategically in order just to get it to go to Supreme Court. I think judges rule on cases based on what they think the law is.

The Fifth Circuit is the most dominated right now of all the circuits by judges who were appointed by the Trump administration with the imprimatur of the Federalist Society, which has long had as its goal to get judges on the appellate federal courts that want to rein in the regulatory state.

The Fifth Circuit is known as the most conservative circuit in terms of what it might mean these days to be a conservative, in the legal sense. Being skeptical of giving broad discretionary authority to make rules to agencies as opposed to congress is one of the aim of being a legal conservative.

As I've told you in previous conversations, there were clearly lawyers strategizing by the opponents of HISA about what states and therefore what federal circuits they filed their challenges in.

They filed them in parts of the country that go to circuit courts that they considered tilting conservative. They didn't file them in areas of the country like New York or Chicago where they think the circuit courts are not considered to be tilted conservative.

TDN: What are the implications from the pending Fifth Circuit ruling for the other HISA-related suits? 

LF: Well, neither the Sixth Circuit ruling nor the Fifth Circuit ruling would be binding precedent on the eighth circuit. They're just persuasive views.

If you're the eighth circuit and you've got two other circuits who agree on the constitutionality of the statute, then reading the tea leaves, that makes it more likely the eighth circuit would also agree.

If you're the eighth circuit and you've got two other federal circuits that have completely different views, you might just kind of sit on the case for a while and wait to see if the Supreme Court takes up the matter and let the Supreme Court decide on its constitutionality.

TDN: Which gets back to your earlier point—a lot rests on this Fifth Circuit ruling.

LF: Yes. Whether the Fifth Circuit will rule the same as the Sixth or differently from the Sixth is basically everything. What happens next is going to rest completely on that.

TDN: Do you see the pending Fifth Circuit ruling having any bearing on the relative success or failure of the proposed federal legislation to repeal HISA and replace it with a voluntary interstate compact to govern the nation's Thoroughbred, Standardbred, and Quarter Horse racing?

LF: That's an interesting question. Interesting, because right now we basically don't have a functioning congress. Who knows how long it will be before we have a functioning congress.

Right now, no federal legislation is going anywhere. But I guess my personal view is that there won't be any strong majority push in congress to come up with something different unless the U.S. Supreme Court says HISA is unconstitutional.