By Sue Finley
Bill Walmsley, Jon Moss, and the Horsemen's Benevolent and Protective Association for Iowa filed suit against the Federal Trade Commission to “stop the illegally constituted Horseracing Integrity and Safety Authority (HISA)” on Thursday, according to a press release from the National HBPA.
The case, Bill Walmsley, et. al. v. Federal Trade Commission, was filed in United States District Court for the Eastern District of Arkansas.
“Congress cannot outsource regulatory authority to a private organization–unaccountable to the American people–that has the power to create rules, levy fines, and adjudicate disputes,” said John Kerkhoff, an attorney at Pacific Legal Foundation. “The Horseracing Integrity and Safety Authority plainly violates the separation of powers embodied in our Constitution.”
The Pacific Legal Foundation is a conservative non-profit legal organization that describes itself as defending “Americans threatened by government overreach and abuse.” They say they are fighting the case in court at no charge.
The FTC has been at the center of recent battles between the National HBPA and other horsemen's groups and the implementation of the Horse Racing Integrity and Safety Act. On November 18, 2022, the United States Court of Appeals for the Fifth Circuit ruled that HISA was unconstitutional because it “delegates unsupervised government power to a private entity,” thereby violating the private non-delegation doctrine.
On December 29, 2022, Congress passed a so-called “HISA fix” that tweaked the law by giving the FTC limited ability to modify Authority rules. As a result, the Authority resubmitted the medication control rules and issued a public statement saying they were hopeful and optimistic that they would be able to implement them around mid-March. And in fact, due to the resubmitted rules giving the FTC more authority, the United States Sixth Circuit upheld the constitutionality of HISA and its Anti Doping and Medication Controls went into effect March 27. But just last Friday, horsemen had another court victory when a federal judge in Texas delayed the implementation for 30 days due to a violation of the Administrative Procedures Act, which requires most rules to be published for 30 days before their implementation. The ADMC is currently scheduled to go back into effect on May 1.
Friday's press release from the NHBPA reads:
“HISA is a private nonprofit organization. But the Constitution does not permit unaccountable, private actors to wield regulatory authority. Regulators must be accountable to the people, through their representatives in government. The Constitution ensures this by requiring that officers of the United States be appointed by the president or head of an executive department.
In fact, HISA violates the separation of powers in myriad ways:
1. It violates the principle of nondelegation. Congress cannot delegate its power to make the law — especially to a private organization that is not accountable to the president.
2. It violates the Appointments Clause. The Constitution requires that regulations be approved by officers of the United States, and that those officers be nominated by the president and confirmed by the Senate. The members of HISA are not officers of the United States; they are not nominated by the president, and they are not confirmed by the Senate.
3. It violates due process, by requiring that industry participants — owners, trainers, racetrack owners, and others — regulate and oversee their competitors. In practice, HISA is controlled by large industry players.
4. It violates Article III by assuming judicial powers to adjudicate disputes and impose fines. HISA doesn't have to make its case in federal court. Instead, it only needs to convince its in-house tribunal, and appeals go to HISA itself. At no point do the accused have the benefit of meaningful judicial review.”
Somewhat more dramatically, Pacific Legal Foundation's website reads, “The Horse Act's penalties and onerous testing and safety standards could very well force people like Bill (Walmsley) and Jon (Moss), who are not among horseracing's elite or wealthy, out of the sport altogether.”
The PLF says that it has won 15 of the 17 cases it has brought before the Supreme Court, typically fighting against `government overreach' by entities such as the EPA's Clean Water Act, the National Forest Service, and affirmative action.