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Q and A With Lucinda Finley: A Lot Rests on Pending Fifth Circuit HISA Ruling

Earlier this month, the United States Court of Appeals for the Fifth Circuit in New Orleans heard oral arguments in a pivotal case—led by the National Horsemen's Benevolent and Protective Association (NHBPA)—seeking to overturn the Horseracing Integrity and Safety Act (HISA) on grounds that it is constitutionally flawed.

In short, the Fifth Circuit's pending ruling could have profound implications for the short and long-term future of the federal law.

Oral arguments in the Fifth Circuit follow a key decision earlier this year out of the United States Court of Appeals for the Sixth Circuit, finding the HISA statute indeed to be constitutional.

There is also a separate HISA-related case in the Eighth Circuit led by Bill Walmsley, Jon Moss, and the Horsemen's Benevolent and Protective Association (HBPA) for Iowa.

To get a handle on the various implications from the pending Fifth Circuit ruling, the TDN once again 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.

The following has been edited for brevity and clarity.

TDN: When is the Fifth Circuit likely to issue its ruling?

Lucinda Finley: It could be within a month. It could be up to several months. It's very hard to tell how long a court will take in ruling on an appeal. They don't have any deadline.

TDN: Can we glean any kind of meaning on how they might rule from the length of time it takes to deliver that ruling?

LF: In general in federal appellate cases, the length of time that it takes for a ruling to come out can vary by several factors. One is how many other opinions still to be issued are backlogged in the court. Another is whether there's disagreement within the panel of three judges. Is there going to be a dissent? Is there going to be a concurring opinion?

So, if there's going to be more than one unanimous majority opinion, it'll obviously take longer for the final result to be issued because multiple judges will be writing opinions and perhaps circulating their drafts amongst each other, trying to persuade someone to modify their position.

TDN: How do you think the Fifth Circuit will rule?

LF: I can't predict. I have no basis to make a prediction.

TDN: Are you able to look at any other of their rulings as a potential barometer?

LF: No. I mean, it's really going to come down to whether they agree with the Sixth Circuit that the changes congress made to give the [Federal Trade Commission] more rulemaking authority are sufficient to fix the constitutional problem that the Fifth Circuit previously identified.

TDN: What are the implications from the pending Fifth Circuit ruling for HISA?

LF: If the Fifth Circuit agrees with the Sixth Circuit and finds that the current amended version of HISA is constitutional, that makes it much less likely that the U.S. Supreme Court would take up the cases because there would not be a conflicting view between different U.S. circuit courts of appeals about the constitutionality of the federal statute.

Conversely, if the Fifth Circuit disagrees with the Sixth Circuit and finds that the amendments that Congress made are not sufficient to make the law constitutional, that makes it close to a hundred percent likely that the U.S. Supreme Court would take up the cases.

Having two different circuit courts in the country saying the same federal statute is and is not constitutional is not a situation that's tenable. The U.S. Supreme Court would have to resolve that one.

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TDN: Just yesterday, the former president of the National HBPA said that no matter how the Fifth Circuit rules, the nation's highest court will eventually have to be called upon to settle the matter. Sounds like it's not that simple.

LF: Let me back up.

You currently have the Sixth Circuit already having ruled that the HISA statute is constitutional. You have the Fifth Circuit having heard oral arguments. A decision will come within the next few months.

You also have the Eighth Circuit considering the constitutional question, the briefs of the challengers already having been filed and the briefs of the FTC and the defenders of HISA yet to be filed. So, you have three circuit courts being asked to consider the constitutionality of HISA.

If all three of them wind up agreeing that HISA as currently written is constitutional, I don't think it's likely that the Supreme Court would hear the case.

[But] if the circuit courts disagree about the constitutionality piece, as I said, I think that makes it close to a hundred percent likely that the Supreme Court would take the case.

TDN: What are the implications (either way) from the pending Fifth Circuit ruling for those jurisdictions currently operating outside of HISA's remit, like Louisiana and West Virginia?

LF: If the Fifth Circuit rules the same way that the Sixth Circuit did and finds that HISA as amended is now constitutional, that would mean that the lower court injunctions against the enforcement of HISA in certain states would most likely be dissolved and would go away.

If the Fifth Circuit rules that even the amendments to HISA are not sufficient to make it constitutional, that would mean the injunctions against enforcing HISA in certain states would remain in effect until the Supreme Court resolves the differences of opinions between the federal circuit courts.

TDN: Does this case hold other implications at the Supreme Court level for critics of the federal administrative state?

LF: In the current term of the Supreme Court, they've just taken several cases that raise challenges to decades old, well-established administrative law precedents.

There seems to be a lot of interest in the current U.S. Supreme Court of turning administrative law on its head and reining in the authority of the federal regulatory agencies in various ways. The non-delegation doctrines that are at the heart of the challenges to HISA have not yet been the areas of administrative law that the Supreme Court seems focused on upending of changing.

But they might—if they completely change the areas of administrative law they've agreed to consider this year—maybe next year say, 'okay, we got rid of the Chevron deference doctrine, we got rid of certain other things. Now let's go after the non-delegation doctrine.'

It's a long way of saying the current U.S. Supreme Court is showing great interest in rethinking decades of rules about the authority of federal regulatory agencies.

TDN: Could this focus of the Supreme Court have any bearing on the way in which the Fifth Circuit rules?

LF: I don't think judges rule in a particular way on a case strategically in order just to get it to go to Supreme Court. I think judges rule on cases based on what they think the law is.

The Fifth Circuit is the most dominated right now of all the circuits by judges who were appointed by the Trump administration with the imprimatur of the Federalist Society, which has long had as its goal to get judges on the appellate federal courts that want to rein in the regulatory state.

The Fifth Circuit is known as the most conservative circuit in terms of what it might mean these days to be a conservative, in the legal sense. Being skeptical of giving broad discretionary authority to make rules to agencies as opposed to congress is one of the aim of being a legal conservative.

As I've told you in previous conversations, there were clearly lawyers strategizing by the opponents of HISA about what states and therefore what federal circuits they filed their challenges in.

They filed them in parts of the country that go to circuit courts that they considered tilting conservative. They didn't file them in areas of the country like New York or Chicago where they think the circuit courts are not considered to be tilted conservative.

TDN: What are the implications from the pending Fifth Circuit ruling for the other HISA-related suits?

LF: Well, neither the Sixth Circuit ruling nor the Fifth Circuit ruling would be binding precedent on the eighth circuit. They're just persuasive views.

If you're the eighth circuit and you've got two other circuits who agree on the constitutionality of the statute, then reading the tea leaves, that makes it more likely the eighth circuit would also agree.

If you're the eighth circuit and you've got two other federal circuits that have completely different views, you might just kind of sit on the case for a while and wait to see if the Supreme Court takes up the matter and let the Supreme Court decide on its constitutionality.

TDN: Which gets back to your earlier point—a lot rests on this Fifth Circuit ruling.

LF: Yes. Whether the Fifth Circuit will rule the same as the Sixth or differently from the Sixth is basically everything. What happens next is going to rest completely on that.

TDN: Do you see the pending Fifth Circuit ruling having any bearing on the relative success or failure of the proposed federal legislation to repeal HISA and replace it with a voluntary interstate compact to govern the nation's Thoroughbred, Standardbred, and Quarter Horse racing?

LF: That's an interesting question. Interesting, because right now we basically don't have a functioning congress. Who knows how long it will be before we have a functioning congress.

Right now, no federal legislation is going anywhere. But I guess my personal view is that there won't be any strong majority push in congress to come up with something different unless the U.S. Supreme Court says HISA is unconstitutional.

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Sixth Circuit: No Rehearing On HISA Constitutionality Decision

The United States Court of Appeals for the Sixth Circuit ruled Thursday that it will not grant a full-court rehearing to the losing plaintiffs who contested a three-judge panel's Mar. 3 decision to uphold the constitutionality of the Horse Racing Integrity and Safety Act (HISA).

The case is one of five anti-HISA constitutionality lawsuits currently active in the federal court system. Led by the states of Oklahoma, West Virginia and Louisiana, the plaintiffs collectively petitioned Apr. 17 for a rarely granted “en banc” procedure that asked for a rehearing before all 28 of the Sixth Circuit's judges instead of just the panel of three who had ruled that a change of language in the HISA law was sufficient to alleviate the plaintiffs' concerns over constitutionality.

“The court received a petition for rehearing en banc. The original panel has reviewed the petition for rehearing and concludes that the issues raised in the petition were fully considered upon the original submission and decision of the case. The petition then was circulated to the full court. No judge has requested a vote on the suggestion for rehearing en banc. Therefore, the petition is denied,” the May 18 order stated in its entirety.

A United States Court of Appeals explanatory page about how en banc requests work stated that the granting of that type of rehearing was “rare” at the federal level. The Sixth Circuit took on only seven en banc hearings between January 2018 and September 2021, according to the University of Cincinnati Law Review.

Beyond the above-mentioned states, the plaintiffs include the racing commissions from Oklahoma and West Virginia, plus three Oklahoma tracks (Remington Park, Will Rogers Downs and Fair Meadows), the Oklahoma Quarter Horse Association, the U.S. Trotting Association, and Hanover Shoe Farms, a Pennsylvania Standardbred breeding entity.

The defendants are the United States of America, the HISA Authority, and six individuals acting in their official capacities for the Federal Trade Commission (FTC).

The underlying lawsuit dates to Apr. 26, 2021, when the plaintiffs sued, alleging that “HISA gives a private corporation broad regulatory authority.”

On June 2, 2022, that claim was dismissed by a judge in U.S. District Court, Eastern District of Kentucky (Lexington) for failure to state a claim of action. The plaintiffs then appealed to the U.S. Sixth Circuit.

In between the filing of that appeal and the Sixth Circuit's decision on it, an updated version of HISA was passed into law Dec. 29, 2022, with the aim of fixing constitutional flaws that a separate Fifth Circuit appeal had identified.

The Mar. 3 order by the Sixth Circuit affirmed the constitutionality of the amended HISA law. On remand from the Fifth Circuit, a United States District Court judge in Texas did the same thing May 4.

In its Apr. 17 rehearing petition, the plaintiffs had stated that parts of the panel's decision were “erroneous, and this Court should rehear the case en banc in order to resolve those questions of exceptional importance.”

Thursday's ruling by the Sixth Circuit disagreed.

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Lucinda Finley Q&A: HISA Critics Throwing `Everything” Until Something “Sticks’

After a series of false starts, the Horseracing Integrity and Safety Act's (HISA) signature anti-doping and medication control (ADMC) program is now set to go into effect on May 22.

Continuing to play out against this latest development are a handful of lawsuits seeking to derail the law—a complex legal landscape evolving at seemingly vertigo-inducing speed.

In a ruling delivered last week, judge James Hendrix of the Lubbock Division of the Northern District of Texas found the version of the act amended by Congress at the end of last year to pass constitutional muster. A separate lawsuit filed in the Amarillo Division of the Northern District of Texas had been rolled into this case.

The plaintiffs immediately announced they would appeal the decision, which means the case will go back up to the U.S. Fifth Circuit Court of Appeals.

In a case led by the states of Oklahoma, West Virginia and Louisiana, the U.S. Sixth Circuit Court of Appeals earlier this year also found the version of HISA Congress amended at the end of 2022 to be constitutional. The plaintiffs subsequently petitioned for a rare en banc rehearing of the case. If granted, the hearing would go before all judges within that Court of Appeals.

Another case led by the State of Louisiana is currently before the Lafayette Division of the Western District of Louisiana.

Two new HISA-related lawsuits have also recently been filed, one in the Eighth Circuit led by Bill Walmsley, Jon Moss, and the Horsemen's Benevolent and Protective Association (HBPA) for Iowa.

The other is led by officers of the Thoroughbred Racing Association of Oklahoma, in a suit filed in the Tenth Circuit.

To discuss what these various lawsuits mean for HISA's future both in the near and long term, TDN spoke once again with constitutional and appellate law expert Lucinda Finley, Frank Raichle Professor of Trial and Appellate Advocacy, and director of Appellate Advocacy at the University of Buffalo Law School.

The following has been edited for brevity and for clarity from two separate conversations.

TDN: Judge James Hendrix recently issued a ruling finding the version of HISA amended by Congress at the end of last year to be constitutional. What is the significance of this ruling?

LF: First, it's important to point out that this is the same district judge [Hendrix] who had ruled the previous version of the statute to be constitutional. The Fifth Circuit disagreed, so he was revisiting that in light of the Fifth Circuit decision. He came to the same conclusion as the Sixth Circuit U.S. Court of Appeals that Congress fixed the constitutional problem.

So, the significance of the ruling is that we now have the only two federal courts to thus far consider the constitutionality of the HISA statute after Congress amended it have come to the same conclusion. We've had the three judges of the Sixth Circuit U.S. Court of Appeals and judge Hendrix unanimously agree that Congress cured the constitutional problem when it amended the HISA statute last December. So that's very significant.

Ultimately, it will be up to the U.S. Court of Appeals for the Fifth Circuit to see if they agree.

TDN: You're referring to the plaintiff's immediate response to appeal.

LF: Yes. Of course, whenever any side loses a case in court, they always say they're going to appeal. But the plaintiffs have already won once before the Fifth Circuit and are, I think, strategically correct in trying again.

Let's see what the Fifth Circuit thinks about whether the congressional changes fix the problem the Fifth Circuit previously identified.

TDN: Do you think they've got strong legal legs in this appeal?

LF: No, I do not. I think the Sixth Circuit decision is very thorough and well-reasoned.

The Fifth Circuit had found the primary problem to be that the pre-amendment version of the HISA statute did not give the [Federal Trade Commission] FTC the ability to reject or modify proposed rules by the authority. But the newly amended statute clearly says that the FTC can completely abrogate or modify any proposed rule by the authority.

Congress tailored their amendment directly to what the Fifth Circuit said was the problem. So, I think it's unlikely that the Fifth Circuit would say, 'well, we really meant more than what we've said before.'

TDN: Does this ruling have any bearing on the separate case before the Lafayette Division of the Western District of Louisiana, pertaining to the states of Louisiana and West Virginia currently operating outside of HISA's jurisdiction?

LF: Not officially. The opinion of the Texas federal district court is not binding on the Louisiana District Court. But it is an influential precedent, just like the Sixth Circuit decision is an influential president.

Ultimately, the appeal of this new ruling by Judge Hendrix from the Lubbock Division of the Texas Federal District Court to the Fifth Circuit—the Fifth Circuit's decision whether the amended version of HISA is constitutional or not—will be the ruling that affects the injunction against enforcing HISA in West Virginia and Louisiana that the federal district court in Louisiana issued. I know it gets very complicated. 'This court said this. This court said that.'

TDN: Just to be clear, when the Fifth Circuit Court of Appeals rules on the appeal from the Lubbock case, that decision will essentially guide whether the current injunction preventing HISA from being enforced in West Virginia and in Louisiana stays or goes?

LF: Yes. I think legally it would. There would be a couple of little steps officially. They would remand that case and the district court would have decide how the Fifth Circuit ruling affected the previous ruling.

What I'm saying is that what the Fifth Circuit decides about whether the congressional amendments to the HISA statute last December—whether they cured the constitutional problem or not—will be the really significant legal decision here for Texas, West Virginia, Louisiana, Arkansas, Arizona and the states that were involved in the case that Judge Hendrix just ruled on, as well as the case before the Louisiana Federal District Court.

TDN: Texas is still taking the stance that state law bars them from allowing federal jurisdiction of races run in their state. Where does this decision leave Texas?

LF: It leaves them with the same choice they're currently facing. Texas can continue to insist that it will not adopt federal rules and as a consequence lose the right to interstate simulcast wagering, or it can choose to adopt the federal rules and rejoin interstate wagering, which is financially essential to the continuation of horse racing in Texas.

You would surmise that perhaps the Texas Racing Commission's insistence that it couldn't agree to follow HISA's regulations was being taken in a strategic hope that federal courts would ultimately find it unconstitutional, and it could continue to be the sole regulator for racing in Texas. But every court ruling now after the Congressional amendments to HISA is cutting the legs out from under that strategy.

It is looking increasingly less likely that a federal court will find the amended version of HISA to be unconstitutional. So, if the Fifth Circuit agrees that the Congressional amendments cured the constitutional problem, the Texas Racing Commission essentially will be faced with an existential choice.

Do they want to fall on their sword, continue to allow the state authority to determine the rules for racing in Texas without any federal uniform rules? If they fall on that sword, they are basically dooming the economic future of racing in Texas as we've seen with the dramatic decreases in betting handle [because of] Texas tracks being barred from participating in interstate simulcasting wagering.

TDN: More generally, the industry is gearing up for the ADMC program to once again go into effect on May 22. From here on in and given the latest lawsuits filed, how realistic do you think it is that HISA's flagship drug and medication enforcement program could be halted through legal intervention?

LF: We clearly have a strategy by the groups that are opposed to HISA to file as many different court cases as they can in different federal courts around the U.S. in different appellate circuits in the hope that one of them might result in a judge issuing a nationwide injunction to halt HISA and its rules.

In a way, it's 'throw everything you can at a lot of different walls in the hope that something will stick somewhere.'

What would potentially put the medication program in jeopardy is if in one of these newly filed or still pending federal cases, a judge issued a nationwide injunction against HISA which would [apply] not just in the state where the case was filed, and not just for the parties that brought the case, but throughout the entire country. It would say that HISA is unconstitutional and cannot enforce its rules.

If that were to happen, then the legal response of the federal government would be to seek a stay of that injunction first in the circuit court, and then potentially in the U.S. Supreme Court, while the overall litigation and appeals processes are played out.

It's similar to what just happened with Judge [Matthew] Kacsmaryk and his ruling against the abortion pill, mifepristone. He said the FDA approval was ineffective everywhere. When the Fifth Circuit only partially stayed that ruling, the government went immediately to the U.S. Supreme Court to say, 'please put a stay or suspension on the ruling while the appellate process goes into play.' And the Supreme Court did that. A similar strategy would play out with HISA.

It's a very long way of coming around to your question. I think that the longer the medication program goes on in effect, the more it takes hold and the more states and tracks are operating under it, the stronger the government's argument would be to put a stay or suspension on the effectiveness of any court ruling against HISA by saying, 'it is upsetting a regulatory status quo that people are already relying on.'

TDN: What can you tell us about the two new lawsuits filed in the Eighth and Tenth Circuits?

LF: They essentially raise the same arguments that have been raised in other cases.

They argue that even with the changes to the statute, it still delegates too much rulemaking authority to the private authority—an argument that the Sixth Circuit rejected. They argue that it violates the appointment process for federal officials. But that one is kind of subsumed by the delegation of authority argument. They argue that the enforcement mechanism [is unconstitutional] because people who are not federal judges get to adjudicate disputes. But that's an argument that basically challenges the entire regulatory system.

TDN: What do you make of the plaintiff's request for an “en banc” hearing in the Sixth Circuit case led by the states of Oklahoma, West Virginia and Louisiana?

LF: I assume they assessed the likelihood of the Supreme Court taking the case and said, 'no, there really isn't a conflict with the Fifth Circuit. So why not try to get the entire Sixth Circuit to reconsider the case? And if they do, fine.' You've got a lot more judges to convince. If they don't, then your clock for appealing to the Supreme Court runs afresh. But I don't think it's very likely that the Sixth Circuit will agree to take the case 'en banc.'

TDN: What are the chances one of these cases will still make it to the Supreme Court?

LF: I think the chances are entirely determined by whether the Fifth Circuit disagrees with the Sixth Circuit.

If the Fifth Circuit overruled Judge Hendrix's ruling and says, 'no, we don't think Congress cured the problem,' then you would have a direct conflict with the Sixth Circuit about the constitutional validity of a federal statute. In that situation, I think the Supreme Court would have to take the case.

But if the Fifth Circuit affirms Judge Hendrix's new ruling, you'll have no conflict in the circuit, and I do not think the Supreme Court would intervene and take the case.

TDN: If the Fifth Circuit affirms the constitutionality of HISA, you're saying it's significantly less likely that the Eighth and Tenth Circuits will find it unconstitutional?

LF: That's correct. I guess what I'm saying is that if the Fifth Circuit affirms Judge Hendrix's new ruling and holds that the congressional amendment fixed the constitutional problem, the legal game is very close to being over for the opponents of HISA.

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`Sometimes, Government Works’: Sixth Circuit Rules HISA Constitutional

“Sometimes, government works.” With those words, the United States Court of Appeals for the Sixth Circuit has upheld the constitutionality of the Horse Racing Integrity and Safety Act (HISA), setting up a potential court battle in the U.S. Supreme Court.

In short, the Sixth Circuit has ruled that the language added to the bill at the end of 2022 to address concerns of unconstitutionality were sufficient to alleviate those concerns.

The plaintiffs in the Sixth Circuit case were comprised of the state of Louisiana; Oklahoma and its racing commission, plus West Virginia and its racing commission. Three Oklahoma tracks–Remington Park, Will Rogers Downs, and Fair Meadows–are also plaintiffs, as are the Oklahoma Quarter Horse Association, the U.S. Trotting Association, and Hanover Shoe Farms, a Pennsylvania Standardbred breeding entity. On the other side of the aisle were the United States of America, the HISA Authority, and six individuals acting in their official capacities for the Federal Trade Commission (FTC).

The key issues surrounded the FTC's rule-making power, and whether the Act gave them enough power to keep it from being subordinate to the the Horseracing Authority.

After the United States Court of Appeals for the Fifth Circuit ruled that HISA was unconstitutional because it “delegates unsupervised government power to a private entity,” and thus “violates the private non-delegation doctrine” back in November, lawmakers added language to the bill to address those concerns.

The three judges on the Sixth Circuit panel–Jeffrey Sutton, Richard Allen Griffin and R. Guy Col Jr.–delivered a unanimous opinion, written by Chief Judge Sutton.

“In response,” reads Friday's opinion from the Sixth Circuit, “Congress amended the Act to give the Federal Trade Commission discretion to `abrogate, add to, and modify' any rules that bind the industry. The Constitution anticipates, though it does not require, constructive exchanges between Congress and the federal courts. A productive dialogue occurred in this instance, and it ameliorated the concerns underlying the non-delegation challenge. As amended, the Horseracing Act gives the FTC the final say over implementation of the Act relative to the Horseracing Authority, allowing us to uphold the Act as constitutional in the face of this non-delegation challenge as well as the anti-commandeering challenge.”

The ruling continues, “After the Fifth Circuit issued its decision and after we heard oral argument in our case, Congress enacted, and the President signed into law, an amendment to the Act that increased the FTC's oversight role. The amendment eliminated the FTC's interim-rule authority and instead gave sweeping power to the FTC to create rules that `abrogate, add to, and modify the rules of the Authority.'”

The ruling cites prior cases which, “taken together, draw a line between impermissible delegation of unchecked lawmaking power to private entities and permissible participation by private entities in developing government standards and rules.”

In its ruling, the court said that the central question was whether or not the Authority was inferior to the FTC. “The Horseracing Authority is subordinate to the agency,” they write. “The Authority wields materially different power from the FTC, yields to FTC supervision, and lacks the final say over the content and enforcement of the law—all tried and true hallmarks of an inferior body.”

The opinion goes on to say why HISA is subordinate to the FTC in two specific instances:

Rulemaking. As amended, the Horseracing Act gives the FTC supervision over the rules that govern the horseracing industry. At the outset, the Horseracing Authority drafts rules on racetrack safety and anti-doping matters, and the FTC must approve those proposals if they are consistent with the Act. But, critically, as the FTC “deems necessary or appropriate,” it “may abrogate, add to, and modify the rules.” The FTC's power to abrogate and change the Authority's rules creates “a clear hierarchy.”
Enforcement. A similar conclusion applies to enforcement of the Act. The Horseracing Authority's enforcement duties are extensive, granted. The Authority implements the Act, investigates potential rule violations, and enforces the rules through internal adjudications and external civil lawsuits. Even so, the FTC's rulemaking and rule revision power gives it “pervasive” oversight and control of the Authority's enforcement activities, just as it does in the rulemaking context.

In its arguments before the court, the State of Oklahoma objected that the amendments to the language, “does not change one feature of the Act—that the FTC has power only to review proposed rules by the Authority for `consistency' with the Act, a standard of review that, it says, does not pick up policy disagreements.”

The judges disagreed. “Maybe so,” they write. “But even if that is the case, the FTC's later authority to modify any rules for any reason at all, including policy disagreements, ensures that the FTC retains ultimately authority over the implementation of the Horseracing Act.”

HISA issued a statement that said, “HISA is grateful to the Sixth Circuit for recognizing and affirming HISA's constitutionality. We remain focused on preparing for the launch of HISA's Anti-Doping and Medication Control (ADMC) Program on March 27 pending final approval by the FTC. Once launched, the combined ADMC and Racetrack Safety programs will, for the first time in racing's history, see national, uniform integrity and safety rules applied consistently to every Thoroughbred horse, racing participant and racetrack in the country.”

The National HBPA, one of the plaintiffs in the Fifth Circuit case, issued a statement as well. “Today, we stand firmly on our victory in the Fifth Circuit, however we are disappointed in the Sixth Circuit ruling. We have stated from the onset that there are multiple aspects of unconstitutionality plaguing HISA. The Fifth Circuit ruled on the arguments presented to them, and the Sixth Circuit ruled on the arguments they were presented. With that, we remain confident in our arguments and committed to our case. As seen now, the shifting legal uncertainty only upholds more confusion ahead for the industry and should lead everyone to agree we need a new bill to correct this uncertainty. We will keep fighting all the way to the Supreme Court if necessary to protect our industry and make sure our rules and regulations are built on a legal foundation.”

Statement from NTRA President and CEO Tom Rooney

“The decision today by the Sixth Circuit Court affirming the constitutionality of HISA is not only the right decision, but the critical step we needed to move forward in the sport of Thoroughbred Racing. Later this month, HISA will begin the implementation of the Anti-Doping and Medication Control Program and will be fully functional. Now is a time for unity within the industry. HISA is the law of the land, and we must all come together to support its initiatives so that HISA can continue its mission to improve the sport with uniform standards of safety and fairness across the country.”

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