September 2024 Issue

EAST COAST EQUESTRIAN September 2024 Page 9 By Suzanne Bush The Horseracing Integrity and Safety Act (HISA) lum- bered across the finish line in late December 2020. On its back it carried the hopes of racing industry leaders, as well as many stakeholder groups. They bet on the premise that the precipitous decline in the popularity and revenue of horseracing could be reversed by the law, which aimed to develop and implement safety regulations for racetracks and an anti-doping and medication control program. The law had been lingering in the purgatory of Washington’s bureaucracy for several years. Despite the support of prominent groups like The Jockey Club, there was no sense of urgency to change things. Until 2020. A series of catastrophic injuries and deaths of horses at racetracks in 2019 and 2020 increased pres- sure for somebody to do some- thing. There were protests at racetracks demanding an end to horseracing. There were arrests and prosecutions of trainers and veterinarians accused of manu- facturing, mislabeling and treat- ing horses with performance-en- hancing drugs. The headlines were damning. Celebrations Dimmed The celebratory bottles of champagne had barely been opened before the first lawsuit challenging HISA hit the courts. The United States Trotting As- sociation (USTA), the National Horsemen’s Benevolent and Protective Association (NHB- PA), along with several states and racetracks filed lawsuits claiming HISA is unconstitu- tional. In November 2022 the Fifth Circuit Court of Appeals ruled that HISA violated the Constitution by delegating gov- ernment power to a private enti- ty, the Horseracing Integrity and Safety Authority (the organiza- tion shares the acronym of the law it is intended to enforce). Congress subsequently passed an amendment in the Omnibus Spending Bill that corrected the language in HISA, and that amendment rendered the Fifth Circuit’s decision moot. In March 2023 the Sixth Cir- cuit Court of Appeals affirmed the constitutionality of HISA in a case brought by the states of West Virginia and Oklahoma, along with the racing commis- sions from those states and other entities. The Sixth Circuit includes parts of Michigan, Ken- Enforcement of Law to Reduce Racing Injuries Stymied by Courts tucky, Ohio and Tennessee. West Virginia and Oklahoma joined with Louisiana in an appeal to the United States Supreme Court, hoping to overturn the Sixth Circuit’s decision. The Supreme Court, in June, denied their petition to appeal. The Fifth Circuit includes three states, Texas, Louisiana and Mississippi, where many of the lawsuits against HISA originated, and where antipathy toward the law abounds. In July the Fifth Circuit once again declared that HISA violates the Constitution, this time because HISA “em- powers the Authority to investi- gate, issue subpoenas, conduct searches, levy fines, and seek injunctions—all without the Fed- eral Trade Commission’s (FTC) say-so.” With that, they declared HISA’s power to enforce the law unconstitutional. It seems as if there are a lot of hairs getting split in order to stall full enforcement of HISA. HISA has thoughts on this. “As with other litigation making similar claims, we will vigorously defend our ability to implement HISA’s safety and integrity rules,” explains Mandy Minger Thomas, the organiza- tion’s Director of Communica- tions. Be Careful What You Wish For While the Fifth Circuit struck down HISA’s power to enforce the law, they left intact the actual law. Thus the states most fervent- ly opposed to HISA—among them Texas and Louisiana—are still bound by HISA. What’s unclear is how will the law be en- forced, and who will enforce it? According to Constitutional Law expert Lucinda Finley, the Fifth Circuit’s decision created an enforcement vacuum. In an interview with Thoroughbred Daily News, Finley expressed surprise at the implications of the court’s decision. “Well, my main takeaway is sort of be- wilderment about the practical impact of this decision and the huge—I guess you would say loophole—it might practically lead to.” Finley explains that the Fifth Circuit affirmed the prior ruling by the Sixth Circuit that the law itself is constitutional. “This means that now in the Fifth Circuit states—Texas and Louisiana being the ones with racing—that the HISA rules that the FTC has approved are the law. The statute itself says that when the HISA and FTC rules are officially promulgated [publicly declared, formally pro- claimed or put into effect], they become binding Federal law, and they supersede any state rules about medication and safety.” She goes on to explain that despite the individual states’ animus toward HISA, they remain obligated to enforce it. “I suppose the state racing commissions are now either going to enforce the HISA rules or contract with HIWU (the agency that conducts testing, training, etc.), the agency that enforces the rules everyplace else,” she says. “Or they’re go- ing to have to say, ‘it’s the Wild West in Texas and Louisiana, now nobody can enforce the rules, so go dope your horses to your heart’s content.’ That would be tragic if that’s what happens. And untenable.” Meanwhile, the racing in- dustry is left in limbo as various racing entities and states con- tinue to press for the death or dismemberment of HISA. Lost in all this is the origin of the law: both jockeys and horses suffering catastrophic injuries and deaths, declining revenues for horserac- ing, protests against horseracing, the proliferation of drugs that fur- ther injure horses. In a previous interview about HISA, Minger eloquently stated what should be obvious: “Nobody can stomach even one horse going down. We have to take the responsibility very seriously because it’s the right and moral thing to do. But the fans are important too. We have to be fair and kind to the animals.” Like what you see? Subscribe!