Anti-HISA Lawsuit By Three States Asks For Yet Another Go Before Supreme Court

The states of Oklahoma, West Virginia and Louisiana-which for the past five years have been unable to prove their allegations that the Horseracing and Safety Integrity Act (HISA) is unconstitutional at either the United States district court, federal appeals court, or the Supreme Court levels-are now petitioning the Supreme Court for a yet another chance to make their case that the law purportedly gives a private corporation too-broad powers to regulate Thoroughbred racing.

This latest petition for a “writ of certiorari” (the formal term for asking the Supreme Court to take up a case), dated May 15, was officially stamped as “filed” on the Supreme Court's docket June 2, 2026.

The request to rehear the case by the three states (and a handful of other plaintiffs who first signed on to the original lawsuit back in 2021) comes six months after a panel of three judges on the Sixth Circuit of the U.S. Court of Appeals in Cincinnati-for the second time in 2 ½ years-affirmed HISA's constitutionality.

The Sixth Circuit's Dec. 17, 2025, opinion and order referenced that the court had already once issued a judgment on the same legal issue, back on Mar. 3, 2023.

That Sixth Circuit opinion from 2025 also noted that panels of judges in two other HISA constitutionality cases-in the Fifth and Eighth Circuit appeals courts-have also previously agreed that HISA's rulemaking structure is constitutional (although the Fifth Circuit has disagreed, in part, by opining that HISA's enforcement provisions are unconstitutional).

“[In the 2023 opinion] we upheld the Act against a facial non-delegation challenge and an anti-commandeering challenge,” the Sixth Circuit opinion from half a year ago stated. “The Eighth Circuit took the same view. The Fifth Circuit agreed with both courts with respect to the rulemaking power created by the Act.”

After the parties that lost cases in 2023 and 2024 at the Fifth, Sixth and Eighth appeals court levels all filed petitions for writs of certiorari, the Supreme Court, on June 30, 2025, remanded all those lawsuits back to the federal appeals courts for reconsideration in light of a precedent case that hadn't been decided when those lawsuits were initially litigated.

The new precedent that the Supreme Court wanted the Fifth, Sixth and Eighth Circuits courts to consider involves a case titled Federal Communications Commission (FCC) vs. Consumers' Research.

In that case, the Supreme Court justices, by a 6-3 vote June 27, 2025, rejected arguments that the funding mechanism for a service that provides subsidized telecommunications services for low-income customers, rural hospitals, schools, and libraries violated the non-delegation doctrine.

In that opinion, the Supreme Court also shot down an allegation that the FCC delegated too much authority to a private company to administer the program.

As of this writing-11 months after the Supreme Court's remand order for the three HISA cases-the Fifth and Eighth Circuit appeals courts have yet to even hear arguments, let alone issue opinions on those cases.

The Sixth Circuit, by contrast, handled its remand from the Supreme Court fairly quickly last year. It heard oral arguments in November and issued an opinion just one month later.

“That brings us to our second look at the Act,” the Sixth Circuit wrote in December 2025. “In view of the guidance provided by the Supreme Court in Consumers' Research and other recent decisions, we reject this facial challenge because the Act, as amended, gives the Federal Trade Commission (FTC), not the HISA Authority, the final say over the Act's key rulemaking and enforcement provisions,” the opinion stated.

“The HISA Authority is subordinate to the agency. The Authority yields to FTC supervision and lacks the final say over rulemaking and enforcement of the law, all tried and true hallmarks of an inferior body,” the Sixth Circuit opinion from six months ago stated.

Now the parties on the losing side of that Sixth Circuit order want the Supreme Court to consider their case again.

The petitioners are seeking to have the Supreme Court renew focus on the non-delegation doctrine, which bans Congress from delegating legislative power to federal agencies without an “intelligible principle” to guide the exercise of agency discretion.

The writ of certiorari is alleging that the Sixth Circuit “erroneously” analyzed the application of the private non-delegation doctrine to the Act.

“This case is an ideal vehicle for the [Supreme] Court to resolve the question whether the Act's delegation of rulemaking and law-enforcement power to the Authority violates the private non-delegation doctrine,” the states argued.

“Because the Sixth Circuit once again upheld the Act's unprecedented delegation of federal law-enforcement and rulemaking power to the private Authority, the [Supreme] Court should grant certiorari and reverse,” the writ stated.

The defendants in this ongoing lawsuit are the United States of America, the HISA Authority, and six individuals acting in their official capacities for the FTC.

On Tuesday, TDN requested comment from the HISA Authority regarding the potential Supreme Court rehearing. No reply was received prior to deadline for this story.