By T. D. Thornton
The three lawsuits that have been simmering in the federal court system for several years and were all vying for the attention of the United States Supreme Court to decide the constitutionality of the Horseracing and Safety Integrity Act (HISA) are all headed back to their originating appeals courts, likely adding several more years to an already drawn-out adjudication process.
The Supreme Court on Monday morning issued nearly identical “summary dispositions” for all three of the active petitions before the court involving the constitutionality of HISA.
Each of the separate petitions for a “writ of certiorari” that were filed last year were answered by June 30, 2025, orders that technically granted consideration by the nation's highest court to take on their cases.
But instead of deciding those matters by full briefing and oral argument in front of the Supreme Court at a later date, the justices instead opted to deal with those cases right away by vacating each lower court's decision and sending each one back to its originating federal appeals court for reconsideration in light of a relevant decision the Supreme Court just issued on Friday.
The new precedent that the Supreme Court now wants the Fifth, Sixth and Eighth Circuits of the U.S. Court of Appeals to consider involves a case titled Federal Communications Commission (FCC) vs. Consumers' Research.
In that case, the justices, by a 6-3 vote June 27, rejected arguments that the funding mechanism for a service that provides subsidized telecommunications services for low-income customers, rural hospitals, schools, and libraries violated the non-delegation doctrine. In that opinion, the Supreme Court also shot down an allegation that the FCC delegated too much authority to a private company to administer the program.
The non-delegation doctrine, which bans Congress from delegating legislative power to federal agencies without an “intelligible principle” to guide the exercise of agency discretion, is central to each of the HISA-related cases.
The Supreme Court essentially decided that last Friday's just-issued precedent related to non-delegation now gives each of the appeals courts enough guidance to decide the cases at that level.
According to the American Bar Association Journal, the last time the Supreme Court cited the non-delegation doctrine to invalidate a federal law was in 1935.
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 petition to the Supreme Court out of the Fifth Circuit, which was initiated by the defendant, the HISA Authority, involved a lawsuit spearheaded by the National Horsemen's Benevolent and Protective Association (NHBPA). A Fifth Circuit appeals court panel opined July 5, 2024, that even though HISA's rulemaking structure is constitutional, HISA's enforcement provisions are unconstitutional.
The petition originating out of the Sixth Circuit stemmed from a lawsuit led by the states of Oklahoma, West Virginia and Louisiana. A Sixth Circuit appeals court panel opined on Mar. 3, 2023, that Congressional changes to the law in 2022 made all of HISA completely constitutional. The plaintiffs in that Sixth Circuit case had already once asked the Supreme Court to hear the case, but were initially denied on June 24, 2024.
In the Eighth Circuit petition, the plaintiffs, led by Bill Walmsley, the president of the Arkansas HBPA, and Jon Moss, the executive director of the Iowa HBPA, had asked the Supreme Court to review an Eighth Circuit opinion that 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.
With all of those appeals court judgments vacated by the June 30 Supreme Court orders, the plaintiffs and defendants in each case now begin another process of waiting for the appeals courts to reconsider and issue new rulings. That could take a year or so to happen.
And once it does, if the losing parties don't agree with the new decisions, they can petition the Supreme Court anew, perhaps adding yet another year or two to the potential timetable for resolving the underlying HISA constitutionality lawsuits that were initiated in 2021 (the cases that eventually got appealed to the Fifth and Sixth Circuits) and 2023 (the Eighth Circuit appeal).
Parties to the lawsuits that responded to TDN's requests for comment each portrayed the June 30 Supreme Court decisions as beneficial to their cases.
A statement from the HISA Authority that was not attributed to any specific executive with that organization said that unless and until the Supreme Court agrees to hear these cases on the merits, the Authority will continue to operate without disruption.
“We are encouraged by the Supreme Court's orders, which preserve the status quo and leave the Act undisturbed,” the Authority's press release stated. “HISA remains fully operational and will continue to be the national regulatory body overseeing safety and integrity in Thoroughbred racing while legal proceedings continue.”
The HISA Authority's statement spelled out how it interpreted the June 30 decision:
“In [Monday's] orders, the Supreme Court vacated the judgments of the appellate courts and returned the cases to those courts for further consideration. As a result, the sole adverse decision from the Fifth Circuit (which the Supreme Court had previously paused) is now off the books, and the opinions of the federal district courts-all of which upheld the Act's constitutionality in full-remain valid and operative.”
Yet on the other side of that Fifth Circuit case, a statement from the NHBPA described the Supreme Court's decision to remand as a “renewed opportunity for the Fifth Circuit to address the fundamental constitutional issues raised by horsemen nationwide-and do so in a manner consistent with the highest Court's recent guidance and precedent.”
The NHBPA's statement explained that the Fifth Circuit “twice declared HISA to be unconstitutional. In November 2022, the court decided that HISA illegally delegated legislative power to a private corporation. In response, Congress made a one-sentence tweak to the law. But in July 2024, the Fifth Circuit again declared that HISA unconstitutionally delegated governmental enforcement powers to a private corporation.”
Eric Hamelback, the NHBPA's chief executive officer, said via press release that, “We are confident that the Fifth Circuit, once again, will declare HISA to be unconstitutional.
“Our well-founded arguments regarding HISA remain unchanged-it is deeply flawed, unconstitutionally delegates governmental authority to a private corporation and places unfair burdens on horsemen,” Hamelback said.
“The HBPA will continue to fight for the constitutional rights of horsemen in the Court of Appeals and back at the Supreme Court again if we have to,” Hamelback said.
The NHBPA statement explained that the June 30 order “signals that the Court recognizes a connection between its latest opinion and the legal arguments raised in the HBPA case. It also means that the Fifth Circuit's prior ruling-critical of the structure of HISA-may be rewritten in a manner that potentially negates further consideration by the Supreme Court.”
Peter Ecabert, an attorney for the NHBPA, said in the press release that “HISA is fundamentally different from and more flawed than the statute in the Consumers' Research case.”
Ecabert continued: “Under HISA, the FTC cannot appoint or remove Authority board members; plus the Authority was unlawfully granted sweeping enforcement powers that were not at issue in [the] Consumers' Research” case.
“I am confident the Fifth Circuit will find HISA unconstitutional a third time. Further, a beneficial development with this Supreme Court action is to permit any cases that have been held in abeyance awaiting Supreme Court guidance freedom to proceed,” Ecabert said.
Daniel Suhr, the lead lawyer for the NHBPA, said in the press release that the Supreme Court's actions are “an opportunity to put more legal points on the scoreboard and further clarify that HISA crosses constitutional boundaries. The Supreme Court's guidance ensures that lower courts will now reevaluate HISA in the context of how the Constitution limits federal power and protects against unchecked delegation to private entities.”
In the Eighth Circuit case, Frank Garrison, an attorney representing the HBPA plaintiffs from Arkansas and Iowa, told TDN in an emailed statement that the Supreme Court's decision was a positive one for those he represents.
“This is a win for our clients,” Garrison said. “The Supreme Court vacated the Eighth Circuit's decision upholding HISA as a constitutional delegation to a private entity. This signals the Court is still interested in addressing the issue. Congress cannot delegate to private parties governmental power assigned to the respective branches under our Constitution. That is what Congress is attempting to do in the HISA Act. We look forward to litigating this issue further and fighting on behalf of our client.”
Requests for comment from the states involved in the Sixth Circuit case did not yield replies prior to deadline for this story.
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