By T. D. Thornton

The July 5 opinion out of the United States Court of Appeals for the Fifth Circuit that declared that part of the Horseracing Integrity and Safety Act (HISA) is unconstitutional is generating legal filings from both sides in a related case awaiting a decision in the Eighth Circuit.

Both the plaintiffs/appellants in the Eighth Circuit case (led by Bill Walmsley, the president of the Arkansas HBPA, and Jon Moss, the executive director of the Iowa HBPA) and the defendants/appellees (executives with the HISA Authority and the Federal Trade Commission [FTC]), filed documents this week alerting the Eighth Circuit to the Fifth Circuit’s decision, with each side attempting to get the court to see its side of the argument now that the Fifth Circuit’s constitutionality opinion on HISA is in conflict with a 2023 opinion out of the Sixth Circuit.

The year-old case in the Eighth Circuit involves those two HBPA chapters seeking to reverse a lower court’s denial of a preliminary injunction that sought to halt HISA and its Anti-Doping and Medication Control (ADMC) program.

Attorneys representing the FTC defendants pointed out in a July 9 letter that the Fifth Circuit’s opinion concurred with the Sixth Circuit’s with regard to a Congressional amendment solving nondelegation problems with the Authority’s rulemaking power, HISA not violating the Due Process Clause, and the Authority not qualifying as a government entity subject to the Appointments Clause.

The FTC’s legal team did note that the Fifth Circuit’s opinion departed from the Sixth Circuit’s on the subject of “enforcement provisions,” but the FTC lawyers underscored that the Sixth Circuit’s analysis is the “correct” version that the Eighth Circuit judges should consider when ruling on the related case.

“The construction adopted by the Fifth Circuit serves to create, rather than avoid, constitutional concerns,” the FTC’s letter stated. “This Court should conclude, as did the Sixth Circuit, that plaintiffs have failed to establish a likelihood of success on their facial claim to the extent they challenge the Act’s enforcement provisions. In all events, plaintiffs are not entitled to a preliminary injunction with respect to the enforcement provisions because they have not provided any reason to suggest an enforcement action against them is forthcoming.”

One day later, on July 10, an attorney for the HBPA appellants countered with a response letter to the Eighth Circuit that stated just the opposite, that the Fifth Circuit, and not the Sixth, got the HISA constitutionality question right.

“The Fifth Circuit correctly held, as Appellants have argued, the HISA Act, as amended, facially violates the private nondelegation doctrine because the statute allows a private entity–the Authority–to wield the executive power of the United States,” the HBPA attorney’s letter stated.

The HBPA’s letter continued: “Appellants remain subject to a facially unconstitutional regime and thereby suffer ongoing irreparable harm. The alternative Hobson’s choice is to ‘bet the farm’ and risk being subject to unconstitutional enforcement actions that come with potentially severe sanctions–including a permanent industry ban. It is neither equitable nor in the public interest to allow Appellees to continue enforcing an unconstitutional statute.”

The case was argued before the Eighth Circuit June 12.