Federal court hears oral argument on whether HISA’s private enforcement regime is constitutional
Philip Serpe walked horses at the Meadowlands Sports Complex as a teenager without pay and spent his high school evenings volunteering at the track. He won his first Grade 1 race at 28, trained three Grade 1 horses, and built a reputation at some of the top tracks in the country.
Now he is serving a two-year suspension from his successful thoroughbred training career after a private enforcement agency accused him of a doping violation, which he disputes.
Last Tuesday, a federal judge heard oral argument on a motion that could determine whether the process that put Serpe’s career on hold was constitutional—and whether Congress can empower private organizations to enforce the law.
The charge
Philip Serpe built a meticulous medication program that kept his record clean for 39 years. But in August 2024, a routine test on one of his horses suggested trace amounts of a bronchodilator, clenbuterol. Serpe found himself facing a suspension and a fine from the Horseracing Integrity & Welfare Unit (HIWU)—a private anti-doping regulator.
Serpe disputed the charge but was forced to defend himself before HIWU’s in-house arbitrator—with no independent judge or jury.
The case is now moving on two tracks: an ongoing administrative appeal before the FTC and a separate federal lawsuit in the U.S. District Court for the Southern District of Florida, where he argues that the entire adjudicative structure is unconstitutional.
The history of HISA
When Congress passed the Horseracing Integrity and Safety Act in 2020, it created the Horseracing Integrity and Safety Authority (HISA)—a private, nonprofit corporation with sweeping government powers. HISA can write binding rules, impose civil penalties up to $100,000, seek injunctions in federal court, and ban individuals from the industry for life. It preempts state law in a field that states regulated for more than 125 years.
HISA contracted with HIWU to conduct anti-doping enforcement, which includes conducting searches, charging potential violators, and imposing penalties. Before a trainer can appeal any sanctions to a federal court, he or she must first exhaust appellate proceedings before the FTC.
At oral argument
On June 2, PLF attorney Josh Robbins argued Serpe’s motion for summary judgment before Judge David S. Leibowitz in the U.S. District Court for the Southern District of Florida. The hearing covered both of Serpe’s constitutional claims in depth.
The first—the private non-delegation claim—asks whether Congress can hand enforcement power—the authority to investigate, charge, and punish—to a private organization to make those decisions independent of the government.
The second asks whether the Seventh Amendment guaranteed Serpe the right to have his case decided by a jury with an independent judge in a federal court.
Judge Leibowitz acknowledged that Serpe is serving a suspension while these constitutional questions remain unresolved. Before the court rules, the judge asked the parties to submit additional briefs on what remedies Serpe would be entitled to if he wins. The court stated that it will not issue a decision until after the FTC issues its final ruling on Serpe’s administrative appeal.
“A private organization brought this charge, a private organization ran the tribunal, and a private organization imposed the suspension, all without government approval or the involvement of a federal court with a jury,” said Robbins after the argument. “That is not how the enforcement of federal law is supposed to work.”
The road ahead involves more briefing and more waiting. But the questions at the center of Serpe’s case—questions that will shape how HISA enforces anti-doping rules for thousands of trainers, owners, and jockeys—are finally squarely before a federal court.
