Straight Talk on Where We Stand with Our HISA Lawsuit

Letter to horsemen, horsewomen from National HBPA CEO Eric Hamelback

Dear Horsemen and Horsewomen:

I am writing to let you know how the National HBPA continues to fight for horsemen and horsewomen in the courts. In 2021, we filed a lawsuit with twelve state affiliates charging that the Horseracing Integrity and Safety Act (HISA) was unconstitutional because the rules governing our industry were being written and decided by a private corporation, the Authority. In 2022, that lawsuit in the Fifth Circuit Court of Appeals declared HISA unconstitutional. Even though we were told by the bill’s supporters that the bill was constitutionally sound, Congress was forced step back in. They passed a one-sentence amendment to HISA, so our lawsuit returned to the Fifth Circuit.

This summer, we won our lawsuit again. This opinion and the earlier one were issued by a bipartisan, three-judge panel of the court who unanimously ruled that it was unconstitutional for a private corporation to enforce governmental rules by showing up at barns, searching for evidence, launching investigations, levying fines, and issuing suspensions. The court compared that to a private police force and called it a “radical delegation” of governmental power to a private corporation. The Authority then asked the entire 17 members of the Fifth Circuit to rehear the case, but last month, the court denied that request. Not one judge questioned or requested to revisit the decision. Finally, the Authority requested that the decision be delayed from becoming final while they petitioned the Supreme Court for relief. Once again, the Fifth Circuit denied the request and ruled in favor of horsemen.

In the long term, it is likely that the Supreme Court will agree with the Fifth Circuit decisions that HISA is unconstitutional. Six of the Court’s nine Justices have written that the Court should look more carefully at laws where Congress has delegated governmental power to another entity, like HISA. And even the Authority’s own lawyer, Pratik Shah, recently acknowledged in an article from his law firm that the Supreme Court is currently overhauling administrative law by striking down questionable arrangements like HISA in which Congress is giving away too much regulatory power to unaccountable entities. Next the National HBPA agreed with the Authority’s request that the Supreme Court take the case, resolve split decisions among circuit courts, and decide the issue nationwide by next June.

In the meantime, the decision of Fifth Circuit Court of Appeals should mean the National HBPA is entitled to ask for an injunction to stop the unconstitutional law from being enforced. But before we even asked for this injunction from the district court, the Authority petitioned the U.S. Supreme Court to short-circuit our victory by taking the case and stopping us from asking for the injunction. That is the subject of the latest round of court filings last week that you may have heard about. In their court filings, the Authority claims that granting horsemen their constitutional rights while the Supreme Court considers the case would cause chaos and confusion in the industry. We strongly believe that is not the case.

The National HBPA prevailed in the Fifth Circuit, and it deserves to get relief. One possible but unlikely way to avoid confusion would be for the district court to issue a nationwide injunction, banning HISA from being enforced anywhere in America against any horseman. This would also likely prevent the future litigation that is sure to come challenging the Authority for enforcing unconstitutional rules on an as-applied basis. The bare minimum that any organization can ask for after winning a lawsuit is that an unconstitutional law not be applied to its members. There is ample legal precedent for this outcome from courts across America.

Another potential option would be that HISA rules could not be enforced within HBPA jurisdictions. If granted, this outcome would only be a temporary situation that would last less than a year, and state racing commissions would resume control under the ARCI model rules. We are confident that state racing commissions will enforce the rules in a uniform manner for all horsemen, as they were doing before HISA—and as they have been doing post-HISA in Colorado, Louisiana, Nebraska, Texas, West Virginia, and Wyoming.

If HISA is determined to be unconstitutional the National HBPA, along with the U.S. Trotting Association and the North American Association of Racetrack Veterinarians, has proposed a long-term nationwide solution: the Racehorse Health and Safety Act (RHSA). The RHSA would create uniform safety and medication rules through a federal interstate compact in a way that is rooted in veterinary science, low in cost, fair to horsemen, transparent, accountable, and—most of all—constitutional. we hope you will urge your members of Congress to cosponsor H.R. 5693.

In the meantime, we hope you will appreciate, and share with others, the benefits of membership in your local HBPA affiliate. If our injunction is granted, for the next several months, it would relieve HBPA member affiliate jurisdictions from having to live under the unconstitutional enforcement of HISA rules by the Authority and HIWU.

Hopefully horsemen and women understand that, as long as I am CEO, efforts by the National HBPA will stay respectful and deliberate. We will continue to take the high road while we earnestly pursue what is best for the industry and for equine health. Whether it be through the courts or on the track, we willalways fight to protect our horses, our members, and our industry.

OUR POWER COMES FROM YOUR NUMBERS

Please share this email with your colleagues and clients who might not be on our email list. They can sign up to get our updates and other important information through this link. Want to take a more active role in our advocacy? Email racing@hbpa.org.