By T. D. Thornton
A legal filing made Tuesday by horsemen who lost a decision last month in a federal appeals court means there are now three separate cases involving the constitutionality of the Horseracing Integrity and Safety Act (HISA) vying for the attention of the Supreme Court of the United States.
A group of plaintiffs led by Bill Walmsley, the president of the Arkansas Horsemen's Benevolent and Protective Association (HBPA), and Jon Moss, the executive director of the Iowa HBPA, on Oct. 15 filed a writ of certiorari asking the Supreme Court to review a Sept. 20 judgment by the U.S. Court of Appeals for the Eighth Circuit. That 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.
In addition, on Oct. 16, that same group of plaintiffs asked the Eighth Circuit to stay its mandate on that decision pending the disposition of the group's petition to the Supreme Court.
By these actions, the plaintiffs from the Eighth Circuit case have joined the losing sides in cases out of both the Fifth and Sixth Circuits in the federal appeals court system who all want the Supreme Court to be the ultimate arbiter over whether HISA is constitutional.
How the Supreme Court will handle the multiple cases filed by different petitioners is a wild card 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 panel opined July 5, 2024, that even though HISA's rulemaking structure is constitutional, HISA's enforcement provisions are unconstitutional. The plaintiffs in that case are led by the national HBPA and 12 of its affiliates.
According to the Supreme Court docket for that case out of the Fifth Circuit, the issuance of the appeals court mandate is currently “administratively stayed” while the Supreme Court considers a formal application for a different form of stay requested by the HISA Authority. (The Authority has also indicated in court filings that it intends to lodge its own Supreme Court writ of certiorari.)
A Sixth Circuit 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) to file a response regarding the rehearing request by Nov. 6.
In the Eighth Circuit case, the opinion issued Sept. 20 affirming the lower court's denial of the preliminary injunction stated that the plaintiffs have “not established a fair chance of success on the merits [and] we agree with the Sixth and Fifth Circuits that the Act's rulemaking structure does not violate the private nondelegation doctrine.”
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.
The Oct. 15 filing by the Walmsley and Moss-led plaintiffs tried to underscore to the Supreme Court that their case presents the best opportunity for the Supreme Court to decide HISA's over-arching constitutionality.
“This case is a strong vehicle for resolving both questions presented,” the filing stated. “It presents both issues cleanly, without alternative holdings or the need to address preliminary questions. Moreover, this petition presents the Court with distinct circumstances in which the nondelegation question may arise: enforcement and rulemaking. Because the analyses
may differ somewhat across the two contexts, it makes sense for the Court to consider them together.
“Although the case arises in a preliminary injunction posture, the court of appeals definitively resolved the relevant legal questions,” the filing continued. “As to the private nondelegation claims, there is nothing left to do on remand. This Court regularly grants petitions for writs of certiorari in preliminary injunction cases, particularly when (as here) they raise pure questions of law.
“This petition offers the Court the cleanest, most complete opportunity for resolving the questions presented,” the filing stated. “The cases arising from the Fifth and Sixth Circuits both suffer from drawbacks not present here.”
Not a subscriber? Click here to sign up for the daily PDF or alerts.
