Veteran horsemen file lawsuit against unconstitutional regulation by private nonprofit

Little Rock, AR; April 7, 2023: Yesterday, Bill Walmsley, Jon Moss, and the Horsemen’s Benevolent and Protective Association for Iowa filed suit against the Federal Trade Commission to stop the illegally constituted Horseracing Integrity and Safety Authority (HISA).

“Congress cannot outsource regulatory authority to a private organization — unaccountable to the American people — that has the power to create rules, levy fines, and adjudicate disputes,” said John Kerkhoff, an attorney at Pacific Legal Foundation. “The Horseracing Integrity and Safety Authority plainly violates the separation of powers embodied in our Constitution.”

In 2020, Congress created HISA to set safety and anti-doping rules for anyone remotely involved in the industry. HISA enforces these rules in in-house proceedings that come with potentially ruinous fines. HISA’s creation upended more than a century of state regulation of horseracing. Since then, trainers, veterinarians, jockeys, and owners have struggled to know what rules they’re supposed to follow.

HISA is a private nonprofit organization. But the Constitution does not permit unaccountable, private actors to wield regulatory authority. Regulators must be accountable to the people, through their representatives in government. The Constitution ensures this by requiring that officers of the United States be appointed by the president or head of an executive department.

In fact, HISA violates the separation of powers in myriad ways:

1. It violates the principle of nondelegation. Congress cannot delegate its power to make the law — especially to a private organization that is not accountable to the president.
2. It violates the Appointments Clause. The Constitution requires that regulations be approved by officers of the United States, and that those officers be nominated by the president and confirmed by the Senate. The members of HISA are not officers of the United States; they are not nominated by the president, and they are not confirmed by the Senate.
3. It violates due process, by requiring that industry participants — owners, trainers, racetrack owners, and others — regulate and oversee their competitors. In practice, HISA is controlled by large industry players.
4. It violates Article III by assuming judicial powers to adjudicate disputes and impose fines. HISA doesn’t have to make its case in federal court. Instead, it only needs to convince its in-house tribunal, and appeals go to HISA itself. At no point do the accused have the benefit of meaningful judicial review.

The case is Bill Walmsley, et. al. v. Federal Trade Commission, filed in United States District Court for the Eastern District of Arkansas.