Motions to Dismiss Now Active in Both HISA Constitutionality Lawsuits

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Sarah Andrew

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Defendants in one of two currently active federal lawsuits aiming to get the Horseracing Integrity and Safety Act (HISA) and its regulatory Authority voided for alleged constitutional violations fired back Aug. 16 with a two-pronged motion to dismiss the case.

This is the suit brought Apr. 26 by state governments and private entities. Oklahoma and its racing commission are joined as plaintiffs by West Virginia and its racing commission, plus the state of Louisiana. Three Oklahoma tracks–Remington Park, Will Rogers Downs and Fair Meadows are also among the plaintiffs.

The defendants are the United States of America, the HISA Authority, and six individuals acting in their official capacities for either HISA or the Federal Trade Commission (FTC).

This lawsuit is separate from the similar complaint over constitutional issues initiated by the National Horsemen's Benevolent and Protective Association against FTC members that is also currently facing a “motion to dismiss” by the defendants.

According to two documents filed Monday in United States District Court (Eastern Division of Kentucky), the defendants told the court that the plaintiffs' suit “falters out of the starting gate, as no Plaintiff has alleged an injury that satisfies Article III standing or has pressed a claim that is ripe for review.”

The motion to dismiss argues that “The FTC has not considered or subjected to notice-and-comment a single proposed rule under the Act, and any rule that the FTC may ultimately promulgate would not take effect until July 2022. Plaintiffs' allegations of harm are thus conjectural at best.

“Moreover, the non-Thoroughbred associations …will never be subject to the FTC-approved rules unless they or other third parties independently make that election. And the States' asserted harm from federal preemption is not fairly traceable to–rather, is inconsistent with–the commandeering claim they actually press.”

The filing continues: “Beyond those threshold stumbling blocks, Plaintiffs fail to state a claim on the merits. Their lead theory is that the Act unconstitutionally delegates legislative power to the Authority. But longstanding Supreme Court precedent makes clear that private entities may lawfully assist the development and implementation of federal regulation so long as the agency retains final review.”

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