Tag: Supreme Court

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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Oral Arguments In Sixth Circuit HISA Case Heard Wednesday

CINCINNATI, OHIO — The latest challenge to the Horseracing Integrity and Safety Act (HISA) was the first case before the three judges selected to weigh in on the law's constitutionality Wednesday in the United States Court of Appeals for the Sixth Circuit, in Cincinnati.

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

Whether the brisk winter gloom that cloaked the austere courthouse in Downtown Cincinnati Wednesday morning was a good omen for the federal law, or a portent of further legal trouble ahead, is undecided for now, the three-judge panel offering no obvious tip of the hat as to which way it will rule as a body, though with some important clues as to their individual preferences.

The two conservative judges on the panel–Jeffrey Sutton and Richard Griffin–were the most vocal in grilling lawyers from both sides, who each were originally given 15 minutes to argue their cases, with the clock running well over time.

Judge Ransey Guy Cole, the most liberal judge on the panel, remained the quietest, largely staying away from hard constitutional questions.

Sutton–an expert on state constitutionality–was the most vociferous of the three judges, repeatedly drilling down on both sides into whether the FTC has sufficient rule making power over the Horseracing Integrity and Safety Authority, the private entity charged with developing rules related to medication control and racetrack safety, and otherwise just known as the Authority.

The key issues surrounded the FTC's interim rule making power, and whether that was enough of an independent mechanism to keep it from being subordinate to the Authority– key problem, in the eyes of the conservative judges.

In other words, the Authority appears to wield a lot of “discretion” in the rule-making process “not reviewable” by the FTC, said Sutton. “And that's a worry,” he added.

Towards the end of the oral arguments in the Sixth Circuit–which has legal jurisdiction over the states of Kentucky, Michigan, Ohio and Tennessee–Griffin's mind appeared firmly set against the constitutionality of the law, as written.

“The Authority has so much broad power that is not subject to review by the FTC” other than in its ability to review a proposed rule's consistency with the statutes, said Griffin.

Sutton, however, appeared somewhat swayed by the earlier arguments of attorney Pratik Shah, representing the FTC.

In pre-hearing court filings, lawyers representing the plaintiffs cite the recent ruling in the Fifth Circuit Court of Appeals, which reversed an earlier Northern District of Texas's decision that had found HISA constitutional.

The plaintiffs point out that the Fifth Circuit found HISA fundamentally different from another important relationship between a governmental agency and a private entity–that between the Securities and Exchange Commission (SEC) and the Financial Industry Regulatory Authority (FINRA)–because the SEC has the power to “abrogate, add to, and delete from FINRA rules as the SEC deems necessary or appropriate.'”

In contrast, “HISA unambiguously and 'explicitly limits agency review to 'consistency,'” wrote the plaintiffs, adding that, “In sum, that court explained that 'the Constitution vests federal power only in the three branches of the federal government,' but HISA 'defies this basic safeguard by vesting government power in a private entity not accountable to the people,'” wrote the plaintiffs.

On Wednesday, Shah argued that the makeup of the rule-making relationship between the FTC and the Authority indeed mirrored that between the SEC and FINRA.

In being limited to reviewing the consistency of the Authority's proposed rules, the FTC was very similar to “a lot of law” in the relationship between the SEC and FINRA, Shah said.

Furthermore, Shah argued that the FTC's ability to write and promulgate interim final rules, many of which would go into permanent effect, is indeed enough of an independent mechanism–in the vein of the SEC–to counter concerns that the FTC has no ability to modify rules proposed by the Authority.

Attorney Matthew McGill, representing the plaintiffs, challenged that notion, arguing that the Authority has broad discretion to write its own rules, “and the FTC is utterly powerless to modify that.”

Griffin appeared sympathetic towards that argument, noting unfavorably that the FTC still remains “much more limited” in its scope to write interim final rules than the Authority's rule-making discretion.

In wrapping up his arguments, Shah referenced the defendants' own court documents–in the process, sign-posting a possible endpoint for the case.

In court documents, the defendants claim that the Fifth Circuit's ruling from last month “contradicts (without addressing) the FTC's interpretation of its independent rulemaking authority under section 3053(e), FTC Br. 32-35, and turns constitutional avoidance on its head.

“The panel's holding also overlooks that the Coal Commission in Sunshine Anthracite Coal Company v. Adkins could modify proposed minimum prices only 'to conform to the requirements' of the statute, not at its freewheeling discretion, Authority Br. 37-38–yet that scheme was 'unquestionably valid,'” the defendants write.

“For both reasons, the Fifth Circuit panel's decision is wrong–and stands at odds with not only the two other federal courts that have upheld HISA, but also 80 years of precedent from the Supreme Court (Adkins) and the courts of appeals (uniformly upholding the SEC-FINRA model). Accordingly, this Court should reject the Fifth Circuit's wayward decision,” the defendants wrote.

On Wednesday, Shah called the Adkins case “the most factually analogous” to the one before the Sixth Circuit, saying that it's “up to the Supreme Court to overturn Adkins.”

Mention of the Supreme Court raises the possibility that the highest court in the land potentially hears this case, or the one before the Fifth Circuit. For that to happen, a number of dominoes must first fall, however.

Constitutional law experts say that the Supreme Court would be more inclined to hear a HISA-related case in the event of conflicting rulings between the different appeals courts–in other words, if the Sixth Circuit finds that HISA is indeed constitutional as written.

In the interim, HISA's proponents are apparently seeking a congressional re-write of the rules, to cede the FTC greater input on the rule making process.

Last week, it was reported that Kentucky Senator Mitch McConnell–who was so instrumental in pushing HISA through in 2020–is seeking that fix to be included in the full-year omnibus spending bill, which could pass later this month.

Whether or not that happens, HISA's anti-doping and medication control program is scheduled to go into effect on Jan. 1 in the vast majority of states that conduct pari-mutuel wagering.

If a congressional fix isn't sought soon, however, and if the defendants fail to get a stay in the Fifth Circuit decision, HISA will no longer be legally binding in the states of Louisiana, Texas and Mississippi come Jan. 10 next year.

Rarely if ever has the industry been in such flux–cold comfort for the thousands of trainers, jockeys, grooms, hotwalkers, exercise riders, breeders, farriers and assortment of other industry stakeholders that rely on it for their living.

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Conservative Judges in Sixth Circuit Appeals Court “Does Not Bode Well” for HISA

The conservative bent of two of the three judges on the U.S. Court of Appeals for the Sixth Circuit scheduled to hear another case about the constitutionality of the Horseracing Integrity and Safety Act (HISA) “does not bode well” for the near-term future of the act, said appellate law expert Lucinda Finley.

Oral arguments are set for Dec. 7 in the Sixth Circuit Court of Appeals for an appeal of an earlier ruling in U.S. District Court for the Eastern District of Kentucky.

That district court found that HISA was indeed constitutional, and that the Federal Trade Commission (FTC)—the governmental agency charged with ultimately signing off on the law's rules—wields adequate authority over the private entity charged with implementing the law.

If the Sixth Circuit reverses that district court ruling, it would mirror a decision delivered in the United States Court of Appeals for the Fifth Circuit last week, which ruled HISA unconstitutional because it cedes too much governmental authority to a private entity, and too little rule-making input to the FTC.

An overview of the various legal implications from the Fifth Circuit ruling can be read here.

The three-person panel hearing the case in the Sixth Circuit includes in judges Jeffrey Sutton and Richard Griffin “two of the most conservative judges” on the entire circuit court, said Finley—individuals who could perhaps be expected to take a more “skeptical” attitude towards the constitutionality of the law in its current form, she added.

More pointedly, Chief Judge Sutton is an expert on state constitutions, explained Finley. “Given his strong commitment to letting states handle matters themselves, I would not expect him to come at this new federal regulatory scheme openly sympathetic.”

Judge Ransey Guy Cole, the third judge on the panel, is an appointee from the Clinton administration considered moderate to liberal, explained Finley, and could therefore prove more amenable to the arguments from HISA's attorneys.

“This 2-1 slant of extremely conservative judges—and the conservative position these days seems to be against broad federal regulatory schemes—does not bode well for the fate of HISA before the Sixth Circuit,” said Finley.

Finley explained that it was difficult to prognosticate when a ruling on the case—which was brought by various entities such as the States of Oklahoma, West Virginia, and those states' racing commissions—will be issued.

If the panel of judges fails to rule unanimously, “that always takes longer for the decision to come out,” warned Finley.

That said, “The lawyers might say, as part of their oral argument, that this has caused great uncertainty and tumult, and it would be good to have a decision as soon as possible,” said Finley. “But it also depends on something none of us can know, which is for each of the judges on this particular panel, what other cases in the pipeline are they still working on?”

The messy regulatory roadmap for the start of next year, when HISA's Anti-Doping and Medication Control program is scheduled to go into effect, is already looking fraught with potential hazards, especially for trainers and other industry stakeholders with operations in multiple states.

If HISA fails to get a stay granted on the Fifth Circuit decision—something several legal eagles think is a likely scenario—then the ruling goes into effect on Jan. 10, and will apply to those states under the circuit court's decision, namely Texas, Louisiana and Mississippi, said Finley.

Since Friday's Fifth Circuit decision came out, the same circuit court has also lifted an “administrative stay” on a HISA-related ruling allowing an injunction against the plaintiffs to go into effect. As Finley explains, the injunction essentially prevents HISA from “enforcing its rules” in Louisiana and West Virginia.

Other states beyond the Fifth and Sixth Circuits, therefore, must weigh the decision whether or not to continue abiding by HISA's rules against a backdrop of legal uncertainty surrounding the law's constitutionality.

On Monday, Ed Martin, president of the Association of Racing Commissioners International (ARCI) said that some states, like California, will honor a written agreement they have executed with HISA to enforce its racetrack safety rules.

“Other States, upon the advice of counsel or Attorney General, will revert to state rules that remain on the books, not wanting to jeopardize the outcome of a court challenge to any enforcement action,” Martin added.

A reversal in the Sixth Circuit of the earlier district court decision would only muddy the waters even more. At the same time, said Finley, consistent rulings between the Fifth and Sixth Circuits would make it “significantly less likely” the Supreme Court would eventually take up the case—what is one of the potential legal options open to HISA.

“But I think if the Sixth Circuit disagrees with the Fifth Circuit, then I think it makes it significantly more likely that the Supreme Court takes the case,” said Finley.

The TDN repeatedly pressed HISA for comment on a series of questions about the pathway forward. HISA responded with a statement by Charles Scheeler, chair of HISA's board of directors, which was first issued last week:

“While HISA is disappointed by the Fifth Circuit's decision, we remain confident in HISA's constitutionality and will be seeking further review of this case. If today's ruling were to stand, it would not go into effect until January 10, 2023 at the earliest. We are focused on continuing our critical work to protect the safety and integrity of Thoroughbred racing, including the launch of HISA's Anti-Doping and Medication Control Program on January 1, 2023.”

Finley also emphasized a previously made comment—that arguably the “most successful” route for HISA to legally undergird the act could be to seek a congressional re-write of the rules to cede greater rule-making authority to the FTC.

When asked if greater FTC oversight of the rule-making process would satisfy the Horsemen's Benevolent and Protective Association (HBPA)—the national organization that has spearheaded the legal push against HISA—the organization's general counsel, Peter Ecabert, demurred, citing other problems with the act as written, such as a lack of transparency in meetings unavailable to the public and in the budgetary process.

“One of the things that Congress could do that would be a blessing for the industry would be to fund this,” Ecabert said.

“We all want uniformity,” he added. “But do this in the brightness of the light and not behind closed doors.”

Far from uniformity, however, come the start of 2023 the regulatory playing field could be as fractured, puzzling and complicated as it has ever been for industry participants.

When asked what he would tell the likes of Steve Asmussen and Todd Pletcher—trainers with large sprawling multi-state barns—about operating in this highly confusing environment, Ecabert recommended reaching out to individual state racing commissions.

“Hopefully the racing commissions will give some guidance, or the attorney general for the jurisdiction will say how they're going to treat HISA,” Ecabert said. “It's now a state-specific issue until HISA's ruled to be unconstitutional and unenforceable nationwide.”

Ecabert also pointed to legislation introduced into the U.S. House of Representatives in October of last year seeking to delay the full implementation of HISA until the start of 2024.

HBPA CEO, Eric Hamelback, wrote in a text that the bill currently only has 3 co-sponsors, but that there has been verbal support for the bill among other congressional members, and he expects support to build for it in after Friday's Fifth Circuit decision.

Another plan still in its infancy, Ecabert added, is to introduce into congress a separate and national “medication compact” similar in its framing to the now defunct National Uniform Medication Program (NUMP), but which would mandate “uniformity among the states.”

NUMP ultimately failed, Ecabert conceded. “But we're in a different atmosphere today than we were years ago,” he added. “People now, trainers and owners, have seen how disruptive HISA has been and they're more likely to jump on board.”

 

 

 

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Court Decision On HISA Creates Chaos

By Bill Finley & Dan Ross

The bombshell decision Friday out of the United States Court of Appeals for the Fifth Circuit that ruled that the Horse Racing Integrity and Safety Act (HISA) was unconstitutional has opened up a pandora's box of problems and had legal experts scrambling to make sense of the opinion and figure out what is the best path forward for HISA after a resounding setback in court.

“We have a chaotic situation right now,” said attorney Alan Foreman, an expert in equine law and the Chairman/CEO of the Thoroughbred Horsemen's Association. “That's probably the easiest way to describe it. HISA is still in effect, the anti-doping program is anticipated to go into effect on Jan. 1 and now we have a court ruling that declares HISA unconstitutional. And there are still legal maneuvers that can take place. It would have happened regardless of who prevailed at this level because it is clear that the HBPA, its affiliates and those who joined in the lawsuit would have taken it further if there was an adverse ruling. Now it is HISA that has to take it to the next step.”

According to Frank Becker, a private Kentucky-based attorney, the next step for HISA will be to either petition the Supreme Court to take the case or to seek an “en banc” hearing before the Fifth Circuit. Friday's ruling was handed down by a panel of judges, while an en banc hearing would require the case to be heard by the full circuit court.

The Supreme Court hears oral arguments in fewer than 100 cases a year, but Becker thought the court might take this case.

“They might take this one because it's so unusual,” he said.

Foreman agreed.

“When you have different circuits issuing different rulings as has been the case with this those cases often ultimately end up in the Supreme Court,” he said. “I think this case will ultimately wind up with the Supreme Court and a lot of people feel that way. I think they will take the case. It's got to get there first and there has to be a reason for them to take the case, but what has happened so far has set the stage for them to take it.”

Attorney Bennett Liebman, a Government Lawyer in Residence at Albany Law School, said it was a tossup as to whether or not the Supreme Court would take the case, but said that if it does there are far from any guarantees that the court will rule in favor of HISA.

“This has never been a case from the HISA standpoint that you want to end up in the Supreme Court because the court is obviously very conservative and you just don't know how they are going to rule on this,” he said.

In the meantime, Foreman said, HISA will have to get a stay. Otherwise, it will have to disband on Jan. 10 when Friday's ruling goes into effect.

“Unless there is a stay HISA has to stop in its tracks,” Foreman said.

Foreman said he didn't see a problem getting a stay. Becker disagreed and said he is skeptical HISA will succeed in getting a stay on the ruling in the interim.

Liebman added that there is another way for HISA to prevail. The Fifth Circuit ruling was based on its findings that HISA is ultimately in charge and not the Federal Trade Commission (FTC). “But the Authority is not subordinate to the FTC,” the ruling read. “The reverse is true. The Authority, rather than the FTC, has been given final say over HISA's programs.”

Liebman suggested that HISA could go back to drawing board and ask Congress to rewrite the legislation so that the FTC is clearly put in charge.

“The obvious solution is to try to get Congress to remedy what the Fifth Circuit thought was the problem, that the FTC does not have enough power,” Liebman said. “You could make sure that the FTC had significant power over the rules of the Authority. They could in effect make the rules. They could take recommendations from Authority, but still but make the rules. That is the way to go, but can we achieve that? The way the government works these days, I don't know.”

Becker didn't see that happening.

“Have you seen Congress at work lately?” he said. “Congress is going to be in chaos for the next year or so.”

All three attorneys agreed that the plaintiffs picked the right court when deciding to take their case to the Fifth Circuit.

“It's the Fifth Circuit, which is an extremely conservative circuit, even more conservative as a general rule than the Supreme Court,” Liebman said. “In that sense, this decision is not surprising coming out of the Fifth Circuit. The judge (Circuit Judge Stuart Kyle Duncan) who wrote the decision is ultra conservative.”

Said Foreman: “The experts thought it was constitutional and now it has been declared unconstitutional. I suspect that has something to do with the Supreme Court and this whole focus on the federal government versus states rights. The one circuit that would have reversed the decision and declared it unconstitutional is this circuit. That's why they went there.  They were the ones most likely to declare it unconstitutional. The plaintiffs brought this case to the Fifth Circuit for a reason. They know this partuclar court has been very, very anti-government and very anti-regulation.”

In the days and weeks ahead, the industry will no doubt hear more from HISA and its plan of attack. But Friday was not a good day for the Authority. Can it survive and what will it take to do so? Amid the chaos, that appears to be anyone's guess.

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