By T. D. Thornton
The attorneys general from six new states have sided with existing plaintiffs in Oklahoma, West Virginia and Louisiana by filing a Sept. 21 “friend of the court” brief in one of two currently active federal lawsuits aiming to get the Horseracing Integrity and Safety Act (HISA) voided for alleged constitutional violations before HISA even goes into effect.
Curiously, two of those six states–Alaska and Mississippi–have no current forms of legal pari-mutuel horse racing. The other states expressing support for the alleged unconstitutionality of HISA are Arkansas, Idaho, Nebraska and Ohio.
The Tuesday filing in United States District Court (Eastern Division of Kentucky) refers to HISA as “the Horse Act” and terms the HISA Authority board that will craft Thoroughbred racing's new regulatory framework as “the Private Corporation.” The United States Anti-Doping Agency (USADA), which is slated to control the drug testing aspects of HISA, is labelled in the filing as “the Private Consultant.”
Although the Authority and USADA will both fall under the theoretical auspices of the Federal Trade Commission (FTC), which is a pre-existing federal agency within the executive branch, the brief calls into question how this hierarchy will actually function in practice if HISA goes into effect July 1, 2022, as mandated by the 2020 law that created it.
“Which entity is really calling the shots, the Private Corporation or FTC?” the filing asks rhetorically. “The answer is the Private Corporation.”
The filing continues: “The Horse Act unconstitutionally delegates legislative power. That follows from three insights. First, the Private Corporation is a private entity. Second, the Private Corporation wields governmental power. Third, the Private Corporation wields the power as a principal actor–it does not perform mere ministerial or advisory tasks for the federal government…
“The Horse Act gives the Private Corporation the power to act as the federal government.
The Private Corporation writes the rules governing horseracing, enforces those rules, and issues interpretive guidance at will. While a federal agency will oversee the Private Corporation in some instances, that oversight is more symbolic than substantive…
“Because the Constitution forbids allowing private entities to exercise governmental power, the Horse Act is unconstitutional,” the filing states.
The attorneys general wrote that “the Horse Act creates an imbalance of power, and it gives the lion's share to the Private Corporation. This delegation of power undermines the Constitution.”
The filing also asks the court to “remember the importance of accountability,” stating that “Under the Horse Act, the People have no power to hold the Private Corporation to account.”
The filing continues: “The People have no say, even indirectly, in who runs the Corporation: they cannot elect anyone to the Private Corporation's board of directors, and the People's elected representatives similarly have no authority to confirm, remove, or even manage those who sit on the board…
“It is thus the will of the Private Corporation that binds the People. The Constitution tolerates no such thing,” the filing states.
The six states also write in their brief that HISA would also be operating contrary to binding legal precedent.
“When Congress directs a private entity to assist a federal agency, Congress must make the federal agency the commanding regulator,” the filing states. “Congress failed to do that here… the Private Corporation does not 'function subordinately' to the [FTC]…. The Private Corporation is chief policymaker, and that role far exceeds any ministerial or advisory duties.”
Among the plaintiffs in this lawsuit, which was originally filed Apr. 26, are three Oklahoma tracks–Remington Park, Will Rogers Downs and Fair Meadows.
The defendants are the United States of America, the HISA Authority, and six individuals acting in their official capacities for either HISA or the 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.
Both lawsuits are facing motions to dismiss by the defendants that have yet to be ruled upon by the federal judges in each case.