Trump-appointed judges stall Horse Racing Safety & Integrity Act rules

Ruling may send the 2020 law back to the U.S. Supreme Court,  which already declined once to review it

NEW ORLEANS––If there is one thing that all factions in the socially and politically conservative horse racing industry agree upon,  along with every animal advocacy group holding a stake in the race,  it is that two judges appointed to the U.S. Fifth Circuit Court of Appeals by former president Donald Trump on July 5,  2024 joined with one of the oldest judges on the federal bench to indefinitely delay full enforcement of the Horseracing Safety & Integrity Act,  and perhaps derail it entirely,  depending on the outcome of an appeal to the U.S. Supreme Court.

The majority view expressed by the Trump appointees,  Stuart Kyle Duncan,  51,  and Kurt D. Engelhardt,  64,  was endorsed as well by Carolyn Dineen King,  86,  appointed to the appellate bench by former president Jimmy Carter in 1979.

Fifth Circuit contradicted 2023 ruling by the Sixth Circuit

The U.S. Fifth Circuit Court of Appeals on the one hand affirmed the constitutionality of most of the Horseracing Safety & Integrity Act,  and on the other hand threw out the enforcement rules and procedures,  meaning that at least within the Fifth Circuit jurisdiction,  which includes the states of Texas,  Louisiana,  and Mississippi,  alleged violations cannot be prosecuted.

The unexpected Fifth Circuit Court of Appeals verdict came after the U.S. Supreme Court declined to review a March 2023 ruling by the U.S. Sixth Circuit Court of Appeals decision in a case called Oklahoma v. United States,  which found the Horseracing Safety & Integrity Act constitutional.

The Horseracing Integrity & Safety Authority

The Horseracing Integrity & Safety Act,  signed into law in 2020,  created a federal government agency called the Horseracing Integrity & Safety Authority,  with a mandate to regulate drug use and racing conditions at horse tracks.

(See Trump signs anti-race horse doping bill & $60 million gift to horse industry.)

Fully implementing the Horseracing Integrity & Safety Act has repeatedly been delayed by ongoing horse industry opposition to the existence and regulatory scope of the Horseracing Integrity & Safety Authority.

(See Court returns Horseracing Integrity & Safety Act to the starting gate.)

“Nondelegation doctrine”

The July 5,  2024 decision by the Fifth Circuit Court of Appeals held,  summarized Bloodhorse news editor Byron King,  “that the Horseracing Integrity and Safety Authority’s enforcement policies violate the private non-delegation doctrine,”  meaning that law enforcement authority cannot be delegated to a private agency.

This sounds clear and simple enough,  except that many levels of law enforcement are delegated to contracted private agencies,  including building code and fire code enforcement. These contractual arrangements have been repeatedly upheld by every level of the judiciary.

Show horse regulatory enforcement was always delegated,  until this year

Enforcement of the Horse Protection Act of 1970 regulations against soring show horses was delegated to the show horse industry until earlier in 2024.

A U.S. Department of Agriculture rule change meant to end that practice was introduced in 2016,  but Donald Trump personally blocked the rule from taking effect by freezing all federal rulemaking,  forcing a restart of the whole multi-year rule-making procedure after the Joe Biden administration took office.

            (See New Horse Protection Act regs: 270 days & election from enforcement.)

Horseracing industry group claims victory

            “The National Horsemen’s Benevolent & Protective Association,”  a horseracing industry group opposed to federal regulation,  “claimed victory in a press release,”  recounted King.

“In November 2022,”  King recalled,  “the same three-judge panel unanimously ruled the Horseracing Safety & Protection Act [HISA] facially unconstitutional because Horseracing Integrity & Safety Authority rulemaking was not subordinate to the Federal Trade Commission.

“Later,  the law underwent a ‘legislative fix’ in response to the decision,  giving the Federal Trade Commission power to abrogate,  add to,  or modify HISA rules.”

Back to the Supreme Court

Picked up Thoroughbred Daily News correspondent T. D. Thornton,  “Even though the three-judge panel agreed with ‘nearly all’ of a lower court’s ruling that other contested aspects of Horseracing Safety & Protection Act constitutionality were fixed by a Congressional amendment to the law in 2022,  the panel’s one unconstitutional finding has to do with the Horseracing Integrity & Safety Authority’s broad powers to investigate and operate.

“The gravity of that unconstitutionality opinion could be enough to send the case [back] to the U.S. Supreme Court to clear up what are now conflicting opinions between the Fifth Circuit’s ruling of July 5,  2023 and the one that the Sixth Circuit Court of Appeals issued in 2023.”

“Radical delegation”

Exulted the National Horsemen’s Benevolent and Protective Association media release,  “The United States Fifth Circuit Court of Appeals ruled unanimously that Congress unlawfully gave executive governmental power to regulate the horseracing industry over to a private corporation, called the Horseracing Integrity & Safety Authority.  It called the Horseracing Integrity & Safety Authority a ‘radical delegation’ of governmental enforcement powers to a private corporation.”

Agreed American Farriers editor Jeff Cota,  “The case could be headed to the Supreme Court.”

Law has cut horse deaths almost in half

Observed  Wayne Pacelle,  president of Animal Wellness Action and the Center for a Humane Economy,  “The Horseracing Integrity & Safety Act has been in effect for more than a year at most thoroughbred tracks and has played a role in dramatically reducing catastrophic deaths.”

The Horseracing Integrity & Safety Authority in the first quarter of 2024,  Pacelle said,  “identified a 38% decrease in racing-related fatalities year-over-year.

“Race tracks operating under Horseracing Integrity & Safety Authority’s rules and running races in the first quarter reported 0.84 racing-related equine fatalities per 1,000 starts,  compared to 1.35 racing-related equine fatalities per 1,000 starts in the first quarter of 2023.

West Virginia tracks also balking

The Fifth Circuit Court of Appeals ruling,  Pacelle said,  “leaves horses in Louisiana, Mississippi and Texas still unprotected and subject to unnecessary track-related deaths.”

Pacelle pointed out that horse racing tracks in West Virginia have also “refused to participate in the Horseracing Integrity & Safety Act horse safety program.”

There too,  Pacelle said,  “deaths continue to occur with greater frequency compared to Horseracing Integrity & Safety Authority-regulated tracks.”

The Paulick Report says…

The most scathing and detailed critique of the Fifth Circuit Court of Appeals ruling came from Andrew Cohen of the Paulick Report.

Published by Ray Paulick,  a horsewriting writer since 1980,  the Paulick Report is widely considered the most authoritative voice in the field.

“The ruling in National Horsemen’s Benevolent and Protective Association v. Black starts off by listing the ways in which the federal racing integrity law is constitutionally sound – a conclusion reached by the Sixth U.S. Circuit Court in 2023 and then tacitly endorsed weeks ago by the U.S. Supreme Court,”  Cohen began.

“Law does not violate due process rights”

“The law does not violate anyone’s due process rights,  for example,  by ‘putting financially interested private individuals in charge of competitors.’  Nor is the rulemaking part of the Horseracing Integrity & Safety Act void.

“But then the Fifth Circuit pivots to its central point.  The Horseracing Integrity & Safety Act,  the court said,   “empowers the Horseracing Integrity & Safety Authority to investigate, issue subpoenas,  conduct searches,  levy fines,  and seek injunctions – all without the Federal Trade Commission’s say-so,”

This,  the Fifth Circuit appellate judges contend,  “is forbidden by the Constitution.”

Fifth Circuit ruling is in itself a radical reparture from precedent

Observed Cohen,  “The Fifth Circuit reached its conclusion by drawing a distinction between the Horseracing Integrity & Safety Authority’s rulemaking power and its enforcement power,  a distinction no other court has ever been able or willing to recognize.

“Three judges have created another year or two of legal uncertainty over thoroughbred horse racing in the U.S.”  Cohen summarized,  giving “aid and comfort to cheating trainers and owners and to horsemen’s groups desperately trying to keep things the way they used to be.

“For example,”  fumed Cohen,  “the Fifth Circuit repeatedly refers to the law as requiring Horseracing Integrity & Safety Authority officials to contract with the U.S. Anti-Doping Agency, USADA,  to enforce the federal racing integrity law.

“Profound factual error”

“That’s a profound factual error in this ruling.  That the Fifth Circuit panel would still be including references to USADA in a 2024 ruling about the Horseracing Safety & Integrity Authority casts rightful doubt on the entirety of the legal argument these judges have just shared with the world. If you don’t know that USADA is out of the picture,  and has been for years,  what else don’t you understand about the federal law you have just struck down?

“The anti-HISA ruling,”  continued Cohen,  “was written by a Trump-nominated federal judge, Stuart Kyle Duncan,  a darling of The Federalist Society,  who is best known for his opposition to voting rights,  same-sex marriage,  and reproductive rights for women.

“The ruling striking down the federal racing law was also backed by another Trump-nominated judge,  Kurt Engelhardt,  who is best known for his view that the Constitution’s Commerce Clause does not cover the workplace.  That odious argument was used more than a century ago to strike down federal child labor laws.

Supreme Court may not rule until 2026

“Barring something unexpected,”  Cohen assessed,  “the U.S. Supreme Court will have to resolve the circuit split that now exists over the Horseracing Integrity & Safety Authority.

“But that’s not going to happen in 2024 and it might not happen in 2025,  either.  That means that thoroughbred racing will be cleaved in two for the foreseeable future.

“My boss,  Ray Paulick, has probably forgotten more than I know about horse racing,”  Cohen acknowledged.  “So when he weighs in on the Horseracing Integrity & Safety Authority,  I listen.  You should,  too.

What Ray Paulick himself says

Wrote Paulick,  “What’s important about making these rules apply across the board to all thoroughbred racetracks covered by the Horseracing Integrity & Safety Authority is that the laggards on safety and welfare are being forced to do the right thing.  It shouldn’t be that way,  but feckless state racing commissions and tight-fisted racetrack operators (many of them owned by casino companies) have dragged the rest of the industry down.

“If you believe, like I do, that the industry is only as strong as its weakest link, those weak links have to be addressed.”

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