Horseracing group challenges HISA’s constitutionality, files cert petition with U.S. Supreme Court

Washington, DC; October 10, 2024: Today, Bill Walmsley, Jon Moss, and the Iowa Horsemen’s Benevolent & Protective Association petitioned for a writ of certiorari from the U.S. Supreme Court, challenging the illegally constituted Horseracing Integrity and Safety Authority.

In 2020, Congress empowered the private Authority to create racetrack safety, medication, and anti-doping rules for anyone remotely involved in the horseracing industry. The Authority also investigates potential violations of these rules—with no oversight—and enforces them in in-house proceedings that come with bans from the industry and potentially ruinous fines. In the process, Congress upended more than a century of state and local regulation of horseracing by transferring power to the Authority to create legally binding rules for the industry. Since then, trainers, veterinarians, jockeys, and owners have struggled under a legal regime that provides them little recourse to challenge the rules or resist intrusive investigations.

“By granting this case, the Supreme Court can address what has become a serious constitutional issue,” said Frank Garrison, an attorney at Pacific Legal Foundation. “Congress cannot outsource government’s power to create and enforce the laws to an unaccountable private organization.”

“By launching investigations, searching private businesses, and demanding private records, the Horseracing Integrity and Safety Authority is plainly exercising governmental power,” said Austin Raynor, special counsel for Supreme Court practice at Pacific Legal Foundation. “But it is not the government.”

The case challenges the unconstitutional delegation by Congress of government power to a private entity. The Supreme Court has described this as “delegation in its most obnoxious form,” for which there is no justification in the Constitution. Congress did this in two ways:

• The delegation of enforcement power. The private Authority is empowered to invade private businesses and seize their records—interference of the most intrusive kind—without any recourse for industry participants or an accountable government official reviewing those decisions.
• The delegation of legislative power. Congress passed off its exclusive authority to the private Authority to create legally binding obligations and expose horseracing participants to stiff consequences before any of our representatives in the federal government can review those decisions.

The questions presented before the Court are:

1. Whether the Act unlawfully delegates enforcement power to the private Authority.
2. Whether the Act unlawfully delegates rulemaking power to the private Authority.

The case is Bill Walmsley, et al. v. Federal Trade Commission. It joins two other challenges to the same statute before the Court: Oklahoma v. United States and National Horsemen’s Benevolent & Protective Association v. Black.