Updated: Dec 27, 2022
IMPORTANT UPDATE as of December 23, 2022: HISA Amendment Included In Omnibus Bill Passed By Congress; Industry Leaders Reaffirm Support
IMPORTANT UPDATE as of December 20, 2022: Government Spending Bill Includes Language Strengthening FTC Role In HISA Rulemaking - Horse Racing News | Paulick Report
IMPORTANT UPDATE as of December 12, 2022: Legal Uncertainty Leads FTC To Disapprove HISA Medication Rules - Horse Racing News | Paulick Report
On Friday, 11/18/22, the 5th Circuit Court of Appeals ruled that the Horseracing Integrity and Safety Act was an unconstitutional delegation of governmental power to a private entity. Congress passed HISA in 2020 to create uniform nationwide rules governing racetrack safety, anti-doping, and medication control in horseracing. Since passage, HISA has been making its way through the courts, facing multiple legal challenges while the governing body that the law created has been simultaneously implementing the law, with the first portions of the law going into effect earlier this year.
This Fifth Circuit decision deals a big blow to HISA, and it is not yet clear what HISA's governing body will do next. For one thing, the ruling is not a binding precedent nationwide, although there is another similar case pending in the Sixth Circuit.
The Q&A in this article interviewing a constitutional and appellate law scholar provides a good rundown of the legal aspects of the case and the strategic considerations the Authority faces in its next steps. As she opines:
"I expect that the legally prudent thing for HISA to do right now is to suspend their investigations and enforcement of their rules until the constitutionality of the statute is sorted out, perhaps in the Supreme Court, or until they convince Congress to amend the statute to fix the problems that the Fifth Circuit found."
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