Supreme Court ruling may have application to Heath Taylor quarter horse deaths
WASHINGTON D.C.––The enforcement provisions of the 2020 Horseracing Integrity & Safety Act stand, at least for now, the U.S. Supreme Court ordered on October 28, 2024.
Placing on indefinite hold a July 5, 2024 ruling by the U.S. Fifth Circuit Court of Appeals, the U.S. Supreme Court pledged to revisit at a later time the underlying legal issues raised by the Fifth Circuit, but for the time being left the Horseracing Integrity & Safety Act in full effect.
The October 28, 2024 U.S. Supreme Court verdict may have prompt application as a multi-state investigation continues into why 23 quarter horses trained by Heath Taylor have been diagnosed with equine infectious anemia since September 20, 2024.
(Beth Clifton collage)
Horseracing Integrity & Safety Act applies to more than just thoroughbreds
While the language of the Horseracing Integrity & Safety Act specifically mentions only thoroughbred horses, it also stipulates that “The term ‘covered horse,’” used to define the scope of the act, “means any thoroughbred horse, or any other horse made subject to this chapter by election of the applicable State racing commission or the breed governing organization for such horse.”
In other words, quarter horses and horses used in standardbred harness racing are also covered where state-regulated.
Twenty-two of the infected Taylor-trained quarter horses have reportedly been euthanized at state-regulated tracks.
Equine infectious anemia
As of October 28, 2024, equine infectious anemia outbreaks have afflicted 12 Taylor-trained horses, but no others yet identified, at Los Alamitos, California; nine Taylor-trained horses, but no others yet identified, at Lone Star Park, near Dallas, Texas; and two Taylor-trained horses, but no others yet identified, at The Downs, near Albuquerque, New Mexico.
“All 23 equine infectious anemia-positive horses attended the same series of sanctioned races in New Mexico in August and September, according to the United States Department of Agriculture,” the horseracing news website The Paulick Report updated on October 28, 2024.
“Equine infectious anemia,” The Paulick Report explained, “is a bloodborne disease that can be transmitted via bites from contaminated deerflies and horseflies; from pregnant mares to their foals in utero or via milk; via breeding, from stallions to mares; through the use of infected blood and blood products; or through contaminated equipment like needles.”
Blood doping?
This is where the Horseracing Integrity & Safety Authority created by the Horseracing Integrity & Safety Act may become involved.
One possible explanation for why multiple Taylor-trained horses, but only Taylor-trained horses, have suffered equine infectious anemia at three different tracks in three different states, might be a tactic called “blood-doping,” allegedly used by, among others, the now disgraced former bicycle racer Lance Armstrong.
Veteran horse racing writer Ray Paulick, founder in 2008 of The Paulick Report, on April 14, 2015 exposed how this could be done in an article entitled “Tricks Of The Trade: How EPO Used For Blood-Doping A Horse.”
(See Did blood-doping kill 18 racing quarter horses in three states?)
“Bad actors may try to exploit a regulatory vacuum”
Held the majority U.S. Supreme Court opinion published on October 28, 2024, “The absence of a functioning enforcement regime would be intolerable for any sport. Thoroughbred horseracing is no exception.
“Bad actors may try to exploit the regulatory vacuum,” if the enforcement provisions of the Horseracing Integrity & Safety Act were to be suspended or struck down, the Supreme Court majority reasoned, “as an opportunity to cheat, or cut corners when it comes to safety, running on the harmful—and potentially deadly—idea that ‘nobody can enforce the rules, so go dope your horses to your heart’s content.’”
Further, the Supreme Court majority suggested, “regardless of the extent to which would-be cheaters are actually able to evade the rules, the risk of cheating and non-enforcement would damage the integrity of the competition for everyone involved, as it would leave rule-following participants uncertain about whether (and to what extent) their competitors are following the same rules.
No need for “regulatory chaos”
“As a practical matter, moreover,” the Supreme Court majority continued, “scrambling to replace the Horseracing Integrity & Safety Act’s enforcement provisions with some sort of makeshift enforcement regime during the pendency of these proceedings would create massive confusion for Thoroughbred industry participants.
“There is absolutely no need for the Fifth Circuit’s outlier decision to plunge the thoroughbred industry into regulatory chaos before this Court has had a full opportunity to review,” the Supreme Court majority found.
The Horseracing Integrity & Safety Act “reflects a widely supported, bipartisan effort to bring desperately needed uniformity and transparency to Thoroughbred horseracing in this country,” the Supreme Court majority concluded, “and Congress has taken great care to ensure that the regulatory scheme is constitutionally sound.
“The Court should accordingly stay the Fifth Circuit’s mandate and preserve the status quo.”
What the Fifth Circuit Court of Appeals did
On July 5, 2024, two judges appointed to the U.S. Fifth Circuit Court of Appeals by former president Donald Trump joined with one of the oldest judges on the federal bench to indefinitely delay full enforcement of the Horseracing Safety & Integrity Act.
The Fifth Circuit Court of Appeals majority view was expressed in a written decision co-authored by the two Trump appointees, Stuart Kyle Duncan, 51, and Kurt D. Engelhardt, 64.
Their view was endorsed as well by Carolyn Dineen King, 86, appointed to the appellate bench by former president Jimmy Carter in 1979.
Duncan, Engelhardt, and King affirmed the constitutionality of most of the Horseracing Safety & Integrity Act, but 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 temporarily could be not be prosecuted.
The unexpected Fifth Circuit Court of Appeals verdict, leading to the October 28, 2024 U.S. Supreme Court decision, came after the 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 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 may proceed now, after having been repeatedly delayed by ongoing horse industry opposition.
(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 in January 2017 newly elected U.S. president Donald Trump personally blocked the rule from taking effect by freezing all federal rulemaking.
This forced 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.)
Second attack on the law by the same three judges
The July 5, 2024 Fifth Circuit Court of Appeals decision was the second attempt by the same three judges to strike down the Horseracing Integrity & Safety Act.
“In November 2022,” Byron King of Bloodhorse 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.”
Supreme Court expected to address delegation in 2025
While the October 28, 2024 U.S. Supreme Court order overturning the July 5, 2024 Fifth Circuit Court of Appeals verdict “was limited to the horse racing industry,” CNN reporters John Fritze and Ben Church observed, “a decision from the Supreme Court down the line on the merits [of the underlying legal argument] could have much wider impact if it answers a question about when federal agencies may delegate powers to private entities.
“There are already several appeals on that issue pending at the Supreme Court,” Fritze and Church recounted, “including one in the horse case and another from the Biden administration involving the Universal Service Fund, a multibillion-dollar pool of money that Americans fund through fees on phone bills. The issue [in that case] is whether the Federal Communications Commission can ‘delegate’ levying that fee to the private entity that administers the fund.
“Both parties agree the court should take up that case,” Fritze and Church said, “which makes it a likely candidate for consideration – as soon as early next year.”
Supreme Court could “significantly weaken federal agencies”
“If the Supreme Court does take up the Universal Service Fund case,” Fritze and Church explained, “it will be the latest instance of the Supreme Court weighing into administrative law in a way that could significantly weaken federal agencies. Just a few months ago the court overturned a precedent that required lower courts give deference to federal agencies when interpreting vague laws – an outcome that has already inspired a flood of challenges to other federal regulations.”
Among those challenges are several involving enforcement of the federal Animal Welfare Act, Endangered Species Act, and Marine Mammal Protection Act.
Supreme Court Justice Ketanji Brown Jackson dissented from the October 28, 2024 majority decision, “for technical reasons,” summarized Fritze and Church, “asserting that there was no need for the Supreme Court” to address the Fifth Circuit Court of Appeals ruling on the Horseracing Integrity & Safety Act, “since the same questions are pending on the merits docket,” for instance in the Universal Service Fund case.
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From Australia, on the public holiday for the Melbourne Cup, ‘the race that stops the nation’ for the rich to party on champagne, while each year racehorses get injured and killed. And retired racehorses having won millions, are still sent to be slaughtered for dogmeat. Nup to the Cup.