Bill Walmsley loves horses. The 81-year-old retired Arkansas state senator and former court of appeals judge has been in the horseracing industry for many years. Today, he owns three thoroughbreds at his modest home in the Northern Arkansas Ozarks. A handful of times per year, Walmsley travels the two-and-a-half hours to a small track in Central Arkansas, where he lets the horses do what they love: run.
In Iowa, Jon Moss shares a similar passion for all things equine. He’s embedded in the industry and spends his days working with owners, jockeys, trainers, and veterinarians to improve horseracing around the country.
Both Bill and Jon know first-hand the hardship and struggle associated with the horse business. Competition is fierce. Rules are strict. Pay isn’t always great. And nothing ever comes easy. So they work to improve the system. Bill is the chairman of the Arkansas chapter of the Horsemen’s Benevolent & Protective Association, and Jon leads the Iowa chapter. The Association helps supply meals, housing, healthcare, and other benefits to workers in the industry—especially low-level employees who work behind the scenes. For Bill and Jon, they’re simply following a time-honored horseracing tradition: Horsemen take care of their own.
In 2020, Congress passed the Horse Integrity and Safety Act, establishing and tasking the Horseracing Integrity and Safety Authority (HISA) with setting uniform racetrack safety, medication, and anti-doping rules. The Authority is a private, nonprofit corporation run by private individuals who can issue binding rules, impose civil sanctions (up to $100,000), prosecute actions in federal court, seek permanent injunctions, establish racetrack safety standards, impose strict anti-doping rules, and ban anyone from the industry for life.
Indeed, the regulatory regime represents a stark change for horseracing. For more than 125 years, states have primarily regulated the industry. Now HISA’s rules preempt all state laws and regulate every nook and cranny of a longstanding American tradition with little guidance from Congress and only nominal oversight from the Federal Trade Commission (FTC).
Since 2020, the horseracing industry has been engulfed in confusion. Trainers, veterinarians, jockeys, and owners struggle to know what rules they’re supposed to follow. HISA itself must include members that are owners, breeders, trainers, jockeys, and veterinarians—that is, some industry players regulate their own competitors. And HISA’s funding mostly comes from the heavy fines it levies against those people it regulates.
Rampant, industry-wide confusion is bad enough. But the Authority itself is illegal. None of the nine board members is appointed by the president or any executive officers, as the Constitution requires. Nor can the president or his department heads remove any Authority member. HISA’s adjudicatory arm—the judge, jury, and executioner of binding civil penalties—handles most disputes, yet it was never appointed by, nor can be removed by, any government official.
Our constitutional structure does not permit unaccountable private actors to wield such power. The Constitution instead vests all government power in the legislative, executive, and judicial branches of government. Nor can the government deprive citizens who face crushing fines from their day in court and having a jury.
The Horse Act’s penalties and onerous testing and safety standards could very well force people like Bill and Jon, who are not among horseracing’s elite or wealthy, out of the sport altogether.
Now, they’re fighting back. Represented in federal court at no charge by Pacific Legal Foundation, the horsemen and the Iowa Horsemen’s Benevolent Protective Association are challenging the illegal regulatory scheme that outsources legislative, executive, and judicial powers to a private industry association.
In October 2024, they asked the Supreme Court to take up their case. Their case joins two other challenges to HISA that the Court is considering. In 2023, the Sixth Circuit upheld HISA. But in 2024, the Fifth Circuit declared that HISA’s delegation of enforcement power to the Authority violates the private nondelegation doctrine. This split among the federal courts creates uncertainty in the industry. By taking Bill and Jon’s case, the Supreme Court can settle whether Congress can give private organizations government power to make and enforce rules governing private citizens.
What’s At Stake?
- The Constitution vests governmental power in the three branches: legislative, executive, and judicial. Lawmakers cannot give a private nonprofit—stacked with industry insiders—the authority to make rules, impose penalties, and judge people in its own in-house tribunals.
- Officials appointed in violation of the Constitution’s Appointments Clause were never lawfully given their powers. So any actions they take have no legal effect and should be set aside. That includes the rules and penalties under the Horse Act.
