HBPA Confident That 5th Circuit Will Rule HISA Unconstitutional a Third Time

The U.S. Supreme Court today issued a decision to grant, vacate, and remand (GVR) Nat’l Horsemen’s Benevolent & Protective Ass’n, et al. v. Horseracing Integrity and Safety Auth., Inc., et al. back to the Fifth Circuit Court of Appeals, directing the lower court to reconsider the challenge to the Horseracing Integrity and Safety Act (HISA) in light of the Court’s recent ruling in Federal Communications Commission v. Consumers’ Research.

This action represents 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 Fifth Circuit Court of Appeals 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.

“We are confident that the Fifth Circuit, once again, will declare HISA to be unconstitutional.” said Eric Hamelback, CEO of the National HBPA. “Our well-founded arguments regarding HISA remain unchanged—it is a deeply flawed, unconstitutionally delegates governmental authority to a private corporation and places unfair burdens on horsemen.”

The GVR action 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.

“The Supreme Court’s action should not change the prior opinion of the Fifth Circuit holding HISA to be unconstitutional” said Peter Ecabert, General Counsel of the NHBPA. “HISA is fundamentally different from and more flawed than the statute in the Consumers Research case. 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 Consumers Research. 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.”

“This is an opportunity to put more legal points on the scoreboard and further clarify that HISA crosses constitutional boundaries,” said Daniel Suhr, lead counsel for the HBPA and president of the Center for American Rights. “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.”

At the same time, the HBPA continues to champion a viable and constitutional alternative: the Racehorse Health and Safety Act (RHSA). The RHSA, introduced by Senator Tom Cotton (R-AR) and Representative Clay Higgins (R-LA-03), will create an interstate compact of participating states to develop and enforce uniform, science-based rules on medication and racetrack safety—without unconstitutional federal overreach.

“RHSA is a common-sense solution—rooted in state cooperation, science, and fairness,” added Hamelback. “We can protect the integrity of the sport without trampling the rights of horsemen. 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.”

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