Via TD Thornton
As the Fifth Circuit of the United States Court of Appeals weighed the Horse Racing Integrity and Safety Act (HISA) petition against its recent comments that HISA is unconstitutional, a group of plaintiffs led by the National Horsemanship Protection and Benevolence Association (NHBPA) on Friday urged the court not to do so, arguing that the newly passed federal law two weeks ago to revise HISA’s operating language “did not correct” three alleged constitutional issues.
“This Court opinion identified three obvious problems with HISA: ‘An agency without oversight makes sense if it doesn’t write down the rules, can’t change them, and guess their contents’,” NHBPA and co-plaintiffs wrote in a Jan. 13 response.
“Congress’s recent adjustment to HISA does not fix the second issue and does not address the first or third issue,” the filing continued.
“Under the revised HISA, the Federal Trade Commission (FTC) is still unable to initiate new rules and still cannot second-guess their content beyond ‘consistency review’. And while it may now amend already enacted rules, the Agency’s rules will govern for some time even if the FTC eventually changes them,” the response stated.
In addition, the amendment reduces FTC oversight by removing the commission’s authority to issue interim final rules. [and] ultimately, the overall purpose of HISA remains to delegate legislative power to a private consortium to ‘develop and implement’ programs aimed at regulating the horse racing industry,” the filing states.
“The previous one [Fifth Circuit] Opinion is an accurate statement of the law and facts at the time it was enacted, and the Agency has not burdened itself significantly to demonstrate ‘special remedy’ of vacatur is fair in this case,” the response stated.
The basic lawsuit initiated by NHBPA and 12 branches of NHBPA against employees of the HISA Regulatory Authority and the FTC on March 15, 2021, makes unconstitutional claims under the private non-authorization doctrine, public non-authorization doctrine, Appointment Clause, and Process Clause.
On March 31, 2022, a US District Court judge dismissed that case, ordering that “despite its novelty, [HISA] as constructed remains within the applicable constitutional limits set forth by the Supreme Court and the Fifth Circuit.”
HBPA plaintiffs appealed that decision, leading to the Fifth Round reversed on November 18.
But by amending HISA and passing it into law as part of a much larger year-end spending bill, the HISA Authority argued on January 3, 2023, “suggest to vacate” that Congress and The President has done his part to resolve any lingering constitutional ambiguity, and now the Fifth Round is obligated to fulfill its duty to “say what the law is” regarding HISA rewritten.
Also on January 13, the state of Texas and the state racing commission (both authorized to join the plaintiffs as “interferors” in relation to the results), filed a separate response to HISA’s request for revocation.
“This court should deny the Agency’s motion,” the Texas plaintiffs stated. “Because the Competent Authority clearly does Not asserts that the Congressional amendment contests this case…immediate vacancy is not guaranteed. Instead, since this Court adjourned the case to proceed with further proceedings in the district court, this Court is likely to follow common practice, granting the mandate and allowing the district court to consider the impact of the HISA amendment on the merits of this case in first instance.”
