Uncertainty has been abundant in horse racing over the weekend following Friday's Fifth Circuit U.S. Court of Appeals ruling that the Horseracing Integrity and Safety Authority is unconstitutional because HISA delegates government power to a private entity without sufficient federal agency supervision.
The Thoroughbred Daily News spoke with constitutional law expert Lucinda Finley, Frank Raichle Professor of Trial and Appellate Advocacy, and director of Appellate Advocacy at the University of Buffalo Law School, in an attempt to answer some of the most pressing questions.
According to Finley, the Fifth Circuit's decision is only legally binding in Louisiana, Texas, and Mississippi.
That said, the Fifth's ruling could influence the decision of the other 10 districts, including the Sixth, which is set to tackle a similar constitutional concern about HISA on Dec. 7. If the Sixth disagrees with the Fifth, the Supreme Court would be likely to hear the case to deliver one single national ruling.
However, Finley believes there is a strong chance that the Supreme Court would agree that HISA is unconstitutional.
“This current court has signaled that there are at least four, perhaps five, justices who would like to curtail the power of regulatory agencies, broadly,” said Finley. “This case could present a vehicle for them to do that, to cut back not only on the ability of agencies to use private bodies that have expertise to help them develop their rules, but potentially to cut back on the rule making authority of regulatory agencies, in general.
“There are all kinds of examples throughout our entire regulatory system where agencies rely on private expertise. If the Supreme Court takes the case, it would really be about much more than just HISA.”
Of course, one “fix” for HISA's legal issues would be for Congress to give the Federal Trade Commission “more authority to change, add to, delete, or reject the proposed rules that HISA develops.”
Were that to happen, Finley believes the FTC would be far less receptive to stakeholder concerns.
“So, be careful what you wish for,” said Finley.
Read more at the Thoroughbred Daily News.
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