Authority Tells Appeals Court Not To Be Persuaded by HBPA's 'Scattershot' Attempts to Derail HISA



With oral arguments in the United States Court of Appeals for the Fifth Circuit looming in less than two months, the Horseracing Integrity and Safety Act (HISA) Authority defendants in a two-year-old lawsuit spearheaded by the National Horsemen's Benevolent and Protective Association (NHBPA) asserted in a legal brief Friday that the panel of judges should “dismiss this appeal or affirm the judgment” from a lower court that ruled the 2022 rewrite of the HISA law was constitutionally compliant.

“Congress, the Executive, and all three federal courts that have considered the amended Act have reached the same conclusion: HISA is now constitutional,” the Authority defendants stated in the Aug. 4 filing.

“As every court to consider Congress's amendment has held, HISA no longer violates the private-nondelegation doctrine because the Authority is now subordinate to the Federal Trade Commission [FTC],” the filing continued.

“Appellants' scattershot attempts to invalidate the Act on other grounds come up short, too,” the Authority's brief stated.

“The district court correctly rejected Appellants' due-process claim,” the brief continued. “Alongside ample statutory safeguards, a trial revealed 'no evidence of actual, unconstitutional self-dealing.' The contention that HISA violates the President's appointment (and removal) powers-which all Appellants concede is 'mutually exclusive' with the private-nondelegation claim-also fails under Supreme Court precedent.

“The Authority's private creation and control confirm what this Court's prior opinion made clear: the Authority's Board members are private individuals rather than 'Officers of the United States'-and thus 'the Appointments Clause says nothing' about them,” the brief stated.

“Finally, NHBPA's feeble attempts to contrast HISA with other statutes upheld against private-nondelegation challenges rest on supposed differences that are either factually inaccurate or constitutionally irrelevant,” the Authority's filing stated.

Back on July 5, the NHBPA, along with 12 of its affiliates, told the Fifth Circuit Court in their own brief that even after being amended by Congress, the December 2022 version of HISA remains “patently unconstitutional,” and that the Authority overseeing the sport “is basically a private police department” whose sweeping powers equate to “oligarchic tyranny.”

In addition to the HISA Authority, personnel from the FTC are defendants in the lawsuit.

The first time the HBPA plaintiffs attempted to challenge the original 2020 version of the HISA statute in federal court, on Mar. 15, 2021, the suit was dismissed on March 31, 2022.

The HBPA plaintiffs then appealed, leading to a Fifth Circuit Court reversal on Nov. 18, 2022, that remanded the case back to the lower court. In the interim, an amended version of HISA got signed into law Dec. 29, 2022.

On May 4, 2023, the lower court deemed that the new version of HISA was constitutional because it fixed the problems the Fifth Circuit had identified.

The HBPA plaintiffs then swiftly filed another appeal back to the Fifth Circuit, underscoring in the July 5 brief that, “This Court's job is to again tell Congress-'No.'”

The Fifth Circuit is hearing this appeal on an expedited basis, with oral arguments tentatively scheduled for the week of Oct. 2.

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