By T. D. Thornton
The Supreme Court of the United States (SCOTUS) on Monday granted a stay that will prevent the U.S. Court of Appeals for the Fifth Circuit from issuing a mandate stemming from a recent Fifth Circuit opinion that the Horseracing and Safety Integrity Act (HISA)'s enforcement mechanism is unconstitutional.
The stay is to be in effect pending a decision by the Supreme Court as to whether it will take up the larger issue of whether those enforcement provisions are unconstitutional under the private nondelegation doctrine, which is a basic principle of constitutional law that states that the powers the Constitution vests in the federal government cannot be delegated outside the government.
The request for the stay had been made by the HISA Authority back on Sept. 19.
The Authority then followed up by submitting a petition for a writ of certiorari on Oct. 15, which is the means by which the Authority asked the Supreme Court to intervene in what is a now a 3 ½-year legal odyssey spearheaded by the National Horsemen's Benevolent and Protective Association (NHBPA) and 12 of its affiliates in an attempt to get HISA declared unconstitutional and illegal.
A HISA Authority spokesperson responded to a TDN request for comment on the Supreme Court's order with the following emailed statement:
“Today, the Supreme Court granted the Authority's emergency application for relief and took the rare step of staying (or pausing) the Fifth Circuit's outlier judgment declaring the Act unconstitutional. That means the Authority can continue to enforce the Act and its rules in every racing jurisdiction where HISA is currently operative. In other words, the status quo will remain until the Supreme Court issues a final decision sometime before the end of its term in June 2025. The Authority is pleased to continue its mission of improving the safety and integrity of horseracing without interruption (or further intervening litigation).”
Eric Hamelback, the chief executive officer of the NHBPA, explained his organization's reaction to the Supreme Court's issuance of the stay with this emailed response:
“The National HBPA Full Board remains steadfast on exercising its due diligence to protect horsemen and women within horse racing. The goal has not changed, the National HBPA intends to obtain a ruling from the Supreme Court by the end of this term. Such a ruling will add clarity, restore constitutional rights and finally resolve whether HISA is unconstitutional nationwide. We remain on track for that result.”
Up until Oct. 28, the Fifth Circuit's unconstitutionality mandate had been prevented from being issued by what is known as an “administrative stay” ordered by the Supreme Court. An administrative stay is used to freeze legal proceedings until a court can more fully consider and then rule on a party's request for expedited relief.
Monday's order by the Supreme Court established the new ground rules for staying the issuance of the Fifth Circuit mandate:
“The mandate of the U.S. Court of Appeals for the Fifth Circuit is stayed pending the disposition of the petition for a writ of certiorari. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the issuance of the judgment of this Court.”
Supreme Court Justice Ketanji Brown Jackson dissented from her colleagues in issuing the stay, explaining her reasoning in the order:
“Applicants ask this Court to stay the Fifth Circuit's mandate, thereby preventing the entry of a future injunction by the District Court. In my view, their application fails to demonstrate any exigency that would warrant such emergency relief. Indeed, applicants have also filed an unopposed petition for certiorari in this Court, and it is reasonably likely that the lower courts would not do anything to change the status quo if this Court granted the petition. Thus, whatever the stay factors might portend, I see no reason for us to intervene in an emergency posture. I would therefore deny the application and promptly proceed to consider the pending petition for certiorari.”
Although the NHBPA and the HISA Authority are at odds over whether the federal law that regulates the sport is constitutional, both organizations have stated for months now in court filings and media interviews that the Supreme Court needs to be the entity that resolves the current “circuit split” in which different U.S. appeals courts have issued conflicting opinions about whether or not HISA is constitutional.
But the HBPA vs. the HISA Authority case is just one of three currently active lawsuits vying for the attention of the Supreme Court of the United States. How the Supreme Court will handle the multiple cases filed by different petitioners is a huge unknown at this point in the legal process.
The Supreme Court could choose to individually hear (or deny hearing) any of the HISA constitutionality cases. Or, if it deems the questions of law are similar, the Supreme Court could decide to combine or consolidate them into one larger case and come up with one common judgment that addresses all of the issues that have been raised.
A Fifth Circuit appeals court panel opined July 5, 2024, that even though HISA's rulemaking structure is constitutional, HISA's enforcement provisions are unconstitutional.
A Sixth Circuit appeals court panel opined in a different case Mar. 3, 2023, that Congressional changes to the law in 2022 made all of HISA completely constitutional.
The plaintiffs in that case, led by the states of led by the states of Oklahoma, West Virginia and Louisiana, already once asked the Supreme Court to hear the case, but were denied on June 24, 2024. Then, when the Fifth Circuit opinion was issued 12 days later, creating a circuit split of differing opinions at the appeals court level, the Sixth Circuit plaintiffs asked the Supreme Court to reconsider hearing the case.
According to the Supreme Court docket for that case out of the Sixth Circuit, the next step is for the defendants-the United States of America, the HISA Authority, and six individuals acting in their official capacities for the Federal Trade Commission (FTC)-to file a response regarding the rehearing request by Nov. 6.
Separately, a group of plaintiffs led by Bill Walmsley, the president of the Arkansas HBPA, and Jon Moss, the executive director of the Iowa HBPA, on Oct. 15, 2024, filed a writ of certiorari in a different case asking the Supreme Court to review judgment by the U.S. Court of Appeals for the Eighth Circuit.
That Eighth Circuit opinion had affirmed a ruling out of a lower federal court in Arkansas denying a preliminary injunction the horsemen had sought to halt HISA and its Anti-Doping and Medication Control (ADMC) program. The HISA Authority and FTC defendants in that case must file a legal response with the Supreme Court by Nov. 14.
So in sum, the Fifth, Sixth and Eighth Circuit appeals courts have all agreed that HISA's rulemaking structure is constitutional. Only the Fifth Circuit has disagreed, in part, by opining that HISA's enforcement provisions are unconstitutional.
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