A Requiem for the Horsemen

Abstract

This article argues that the Supreme Court should find that the Horse Racing Integrity and Safety Authority (HISA) is unconstitutional because it violates the nondelegation doctrine. Specifically, the Court should find that, as the Fifth Circuit found, Congress incorrectly delegated federal power to a private group. The Supreme Court should agree with the Fifth Circuit and tell Congress to amend HISA in order to curb the power that was given to the Authority. In Part I, the article explores the HISA law and its function. It then discusses the decisions regarding HISA by the Fifth and Sixth Circuits that have caused the circuit split. Part II argues that the regulation violates the nondelegation doctrine because of the Authority’s relationship with the Federal Trade Commission. Part III explains the reasons that the Supreme Court should side with the Horsemen in its decision. “Horse racing ‘faces another formidable foe: itself,’ following a year that saw seven horses die during the week of the sport’s showpiece event—two of them in races in the hours leading up to the Kentucky Derby…A colt trained by the sport’s most recognized and controversial trainer, Bob Baffert, died at Pimlico Racecourse hours before Baffert saddled the winner of the Preakness Stakes. Two more horses…died in races surrounding the Belmont Stakes… .Now, for the third straight year, the Derby will be run without a horse trained by Baffert. In 2021, his colt Medina Spirit won the Derby but ‘subsequently was disqualified after testing positive for betamethasone’.” This will be the first Derby to fall under the Horseracing Integrity and Safety Authority’s antidoping and medication control program, which went into effect last May.” ¹