Court returns Horseracing Integrity & Safety Act to the starting gate

(Beth Clifton collage)

Newly formed Horseracing Integrity & Safety Authority loses turf battle to state & industry agencies

            NEW ORLEANS,  Louisiana­­––Horse advocates and the horse racing industry across the U.S. are somewhat belatedly beginning to realize that a November 18,  2022 unanimous decision by the Fifth U.S. Circuit Court of Appeals has returned the Horseracing Integrity & Safety Act of 2020 to the starting gate,  and may have implications for enforcement of the Horse Protection Act of 1970 as well.

The outcomes of the Fifth U.S. Circuit Court of Appeals ruling may be bad for race horses,  but might be better for “Big Lick” show horses,  depending on whether a successful challenge to the present Horse Protection Act enforcement procedures can be based on the Fifth Circuit precedent––which might come under U.S. Supreme Court review before anything further evolves from it.

(Beth Clifton collage)

“Non-delegation doctrine”

The crux of the legal issue is that the U.S. Constitution prohibits Congress from delegating the lawmaking authority given to it by the Constitution to any other body.

This provision,  called the “Non-delegation doctrine,” ensures that any new federal rule or regulation having the force of law will have been reviewed and approved in principle,  if not necessarily in minute detail,  by elected representatives.

The extent to which Congress may delegate rule making and regulatory authority to administrative agencies was most recently clarified in the 1989 case Mistretta v. United States,  involving the authority by which a convicted cocaine dealer,  John Mistretta,  was sent to prison.

(Beth Clifton collage)

“Jurisprudence driven by practical understanding”

In that case,   the U.S. Supreme Court concluded,  as in previous challenges to what is called the “public non-delegation doctrine,”  that,  “Our jurisprudence has been driven by a practical understanding that in our increasingly complex society,  replete with ever changing and more technical problems,  Congress simply cannot do its job absent an ability to delegate power under broad general directives.

“Accordingly,  this Court has deemed it ‘constitutionally sufficient’ if Congress clearly delineates the general policy,  the public agency which is to apply it,  and the boundaries of this delegated authority.”

(Beth Clifton collage)

No delegation allowed to private parties

Thus,  for instance,  Congress in passing the Animal Welfare Act amendments of 1985 lawfully delegated developing the details of how laboratories should provide for the psychological needs of dogs and nonhuman primates to the USDA Animal & Plant Health Inspection Service.

Unwarranted delay in producing the enforcement regulations became the basis of a successful federal lawsuit brought by animal advocacy organizations,  but the authority by which the agency wrote the regulations remained intact.

While the “Non-delegation doctrine” allows for limited exceptions in the case of rule making and other regulatory actions by Congressionally designated governmental bodies,  there are no exceptions applicable to private parties,  incorporated or otherwise.

A nongovernmental entity may not either make law or make enforcement regulations,  period.

(Beth Clifton collage)

Horseracing Integrity & Safety Act of 2020 trips at the finish

This is where the major entities representing the horse racing industry and animal advocacy organizations tripped at the finish line in pushing the Horseracing Integrity & Safety Act of 2020 through to passage as a purported legislative compromise––and one of only two bills of note endorsed by most major animal advocacy groups to win passage during the Donald Trump administration.

Explained attorney Joseph Fawbush for FindLaw on December 02, 2022,  “Largely unnoticed in the huge COVID relief bill Congress passed in 2020 was a law intended to finally regulate horse racing in the U.S.

“The Horseracing Integrity and Safety Act of 2020 did not, however, create uniform rules governing horse racing.  Neither did it delegate the promulgation of those rules to a federal agency. Congress instead vested the power to create and enforce rules to a private entity,  the Horseracing Integrity & Safety Authority,  under the oversight of the Federal Trade Commission.

(Santa Anita Park photo)

Law responded to scandals

“Under the law,”  Fawbush observed,  “the Federal Trade Commission,”  which is an appointed rather than elected body,  “would have to sign off on all regulations,  but would not play a role in their creation.

“Horse racing has existed since before the U.S. federal government,”  Fawbush continued.  “But until 2020,  the industry was largely regulated by state and local governmental bodies.”

Public demands for uniform regulation,  Fawbush noted,  “came after the death of 30 racehorses at just one park in 2019 and numerous allegations of doping.

(See Santa Anita deaths just a fraction of the toll in horse racing.)

HSUS president Kitty Block,  who pushed the Horseracing Integrity & Safety Act of 2020 runs for the roses,  or high ground,  or whatever.  (Beth Clifton collage)

Bipartisan push

“In the wake of these scandals,  a bipartisan push sought to protect the integrity of horse racing and the health of the horses involved,”  Fawbush detailed.

“To accomplish this difficult task, Congress left it to industry insiders,  who make up Horseracing Integrity & Safety Authority,  provided the Federal Trade Commission signed off on all regulations.

“The problem,”  Fawbush explained further,  “is that a private entity cannot act with the powers of the federal government.  In 2021,  several horse racing industry organizations sued to declare the law an unconstitutional violation of this once-dormant doctrine.

“The district court sided with the government.  On appeal, however,  the Fifth Circuit in essence said that while nominally the Federal Trade Commission was in charge,  it was the Horseracing Integrity & Safety Authority who was truly ‘in the saddle’ and that this generous delegation of authority essentially left a private organization in charge instead of any actual government organization.”

(Beth Clifton photo)

“Facially unconstitutional”

The Fifth Circuit U.S. Court of Appeals ruled on behalf of the National Horsemen’s Benevolent & Protective Association, et al, v. Jerry Black,  president of the board of trustees of the American Horse Council,  concluding that “The Horseracing Integrity & Safety Authority is facially unconstitutional.”

The nine-member Texas Racing Commission regulates and supervises pari-mutuel racing within the state of Texas.

The Texas Racing Commission on March 31,  2022 lost the U.S. District Court ruling endorsing the purview of the Horseracing Integrity & Safety Authority that the Fifth U.S. Circuit Court of Appeals overturned on November 18,  2022.

(Beth Clifton collage)

Texas claims “state’s rights”

Despite that loss,  and despite the loss of a second federal district court decision in Kentucky in June 2022,  which also upheld the jurisdiction of the Horseracing Integrity & Safety Authority,  the Texas Racing Commission continued to insist that the creation of the private agency improperly usurped state rights.

“Now that the Horseracing Integrity & Safety Authority has been declared unconstitutional,”  the Texas Racing Commission exulted,  “Texas expects Congress will need to modify the statute for it to be enforced.”

Citizens Campaign Against Big Lick Animal Cruelty founder Clant Seay adopted Glimmer, a former Big Lick Tennessee walking horse industry victim.

Applicability to the “Big Lick”?

This is where the Fifth Circuit verdict might have application to the Horse Protection Act of 1970,  which prohibits soring horses’ legs and feet to induce the “Big Lick” goosestep favored by many walking horse judges and exhibitors,  and governs horse inspection procedures meant to detect soring.

As enacted by Congress,  the Horse Protection Act was to be enforced by the USDA Animal & Plant Health Inspection Service.  The USDA,  however,  failed to enforce the Act,  claiming it lacked adequate staff and funding to do the job.

Congress responded in 1976 by creating the Designated Qualified Person program,  which allowed horse industry organizations to appoint and train their own inspectors,  supervised only by USDA spot-checking.

(Beth Clifton collage)

Reforms stalled

After decades of complaints that the Designated Qualified Person program not only did not rigorously enforce the Horse Protection Act,  but also imposed much lighter penalties for violations than were provided by law,  the USDA in June 2012 published a new rule requiring that all violations found by Designated Qualified Persons be punished at least as severely as penalties imposed by federal government inspectors.

Further reinforcements to the Horse Protection Act enforcement rules were issued by the USDA in 2016,  but were not yet published in the Congressional Record when Donald Trump took office as U.S. president and immediately froze all federal rule making.

The Humane Society of the U.S. on July 22,  2022 won a ruling from a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit that the 2016 rule should have taken effect,  and should therefore have had the force of law sixty days after the verdict.

Tom Vilsack, U.S. Secretary of Agriculture.
(Beth Clifton collage)

Vilsack appealed

U.S. agriculture secretary Tom Vilsack,  however,  appealed the verdict,  putting enforcement of the 2016 regulations on hold pending a further ruling from the full U.S. Court of Appeals for the District of Columbia Circuit,  and perhaps then an appeal to the U.S. Supreme Court.

The Horse Protection Act of 1970 enforcement regulations have repeatedly been challenged unsuccessfully on constitutional grounds,  particularly claiming violations of due process and equal protection.

However,  there appears to have been no challenge as yet contending that the Designated Qualified Person program is a violation of the “Non-delegation doctrine,”  since it might be interpreted as in effect allowing horse industry representatives to decide what is legal and illegal,  and if illegal,  what the penalty level should be.

All of this might be moot if the 2016 rule finally does take effect,  or if the Prevent All Soring Tactics {PAST Act] ever clears the U.S. Senate,  after having cleared the House of Representatives for the second time on November 14,  2022.

“Racetrack Safety” & “Anti-Doping” rules on indefinite hold

Meanwhile,  enforcement of the Horseracing Integrity & Safety Act of 2020 is indefinitely stalled,  pending either restructuring by Congress or a U.S. Supreme Court decision reversing the Fifth Circuit U.S. Court of Appeals verdict,  considered highly unlikely.

This includes enforcement of the draft Racetrack Safety regulations that were to have been in effect after July 1, 2022, and Anti-Doping & Medication Control draft rules.

U.S. President Donald Trump on December 27,  2020 endorsed the Horseracing Integrity & Safety Act of 2020 into law as a rider to H.R. 133,  a consolidated appropriations bill providing $900 billion in coronavirus emergency response and relief.

Practically every advocacy group addressing horse issues,  both on the humane and racing industry sides of the fence,  claimed victory when the Horseracing Integrity & Safety Act became law,  but ANIMALS 24-7 predicted that the national standards to have been prescribed by the Horseracing Integrity & Safety Authority were ”likely to become subjects of intensive lobbying and litigation in coming years,”  as they were introduced “to replace a hodgepodge of standards set at the state level” by 38 separate state racing commissions.

(Beth Clifton collage)

The dangling carrot

“The other component of H.R. 133 of particular importance to the horse industry,  especially the horse racing industry in New York state,”  ANIMALS 24-7 pointed out,  “was an amendment to the rules pertaining to the use of funds from the federal Paycheck Protection Program.

“This appears to have been the dangling carrot that won horse industry support for ratification of H.R. 133 in final form.

Beth & Merritt Clifton

At least 43 horse-related businesses qualified for $150,000 or more in Paycheck Protection Program money,  for a cumulative maximum of more than $60 million that was expected to keep 4,033 people on racing industry payrolls,  according to data published on July 15,  2020 by Bill Shanklin of Horse Racing Business.

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