For Second Time in Two Years, Fifth Circuit Rules HISA Enforcement Provisions Are Unconstitutional

Nearly one year after being tasked by the Supreme Court of the United States to re-examine a 2024 ruling that the Horseracing and Safety Integrity Act (HISA) is partially unconstitutional, the U.S. Court of Appeals for the Fifth Circuit on Thursday issued a new opinion that essentially came to the same conclusion that the three-judge panel had reached two years ago: Even though HISA's rulemaking structure is constitutional, its enforcement provisions are not.

The case dates to a 2021 lawsuit spearheaded by the National Horsemen's Benevolent and Protective Association (NHBPA) and 12 of its affiliates against the HISA Authority and the Federal Trade Commission (FTC).

“In sum, we agree with the Horsemen that the FTC lacks adequate oversight and control over the Authority's enforcement power,” the Fifth Circuit's June 11, 2026, opinion stated. “HISA's explicit division of enforcement responsibility empowers the Authority with quintessential executive functions and gives the FTC scant oversight until enforcement has already occurred.

“Such back-end review by the FTC does not subordinate the Authority,” the opinion continued. “And the FTC's general rulemaking power provides no answer because executive rulemaking cannot amend the plain division of enforcement power laid out in HISA's text. Such a radical delegation [occurs because] the FTC lacks any tools to ensure that the law is properly enforced. HISA's enforcement provisions thus facially violate the private nondelegation doctrine.”

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, is central to each of the HISA-related cases.

“The Horsemen are not complaining about how the Authority exercises its enforcement power,” the Fifth Circuit opinion stated. “They are complaining about where the enforcement power is lodged: on its face, HISA empowers private entities to enforce it and permits agency oversight only after the enforcement process is over and done with (and then only with respect to fines, not injunctions).

“If the Horsemen were objecting only to overbroad subpoenas, unwarranted searches, or lack of free counsel, perhaps those complaints could be addressed through rulemaking or as-applied challenges,” the opinion stated. “But their complaint is different. They contend that HISA facially delegates unsupervised enforcement power to private actors. They are right.”

The Fifth Circuit case is one of three HISA-related federal lawsuits that have been simmering in the federal court system for at least five years.

The Fifth, Sixth and Eighth Circuit appeals courts have all agreed that HISA's rulemaking structure is constitutional. Only the Fifth Circuit has consistently disagreed, in part, by opining that HISA's enforcement provisions are unconstitutional.

Even though those splits exist among the three federal appeals courts, Eric Hamelback, the NHBPA's chief executive officer, indicated in an emailed statement that Thursday's ruling brought horsemen closer to an overall victory in his organization's quest to invalidate HISA.

“We have been fighting this battle for the constitutional rights of horsemen for over five years, and we continue to win,” Hamelback said. “It is just common sense that Congress cannot make a private corporation the judge, jury, and executioner of our industry.”

The HISA Authority's chief executive officer, Lisa Lazarus, said in a contrasting emailed statement that her organization was not surprised that the Fifth Circuit stuck with its earlier interpretations of the law.

“Although expected, we are still disappointed by the Fifth Circuit's ruling, particularly given the Sixth Circuit's strong affirmation of HISA's constitutionality after the Supreme Court sent the cases back to the lower courts last June,” Lazarus said. “HISA remains the law of the land, and our rules and programs are fully in effect.”

At this time last year, all of those cases had been appealed up to the Supreme Court level. But on June 30, 2025, the Supreme Court issued nearly identical “summary dispositions” for all three lawsuits involving the constitutionality of HISA, telling each respective appeals court that it wanted them to re-examine their previous rulings in light of a relevant decision the Supreme Court had just issued on June 27, 2025.

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

In that case, the Supreme Court justices, by a 6-3 vote, 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.

The Sixth Circuit was the first to act on the Supreme Court's remand in an anti-HISA case led by the states of Oklahoma, West Virginia and Louisiana. On Dec. 17, 2025, the Sixth Circuit upheld the constitutionality of HISA for a second time. During oral arguments prior to that ruling, Chief U.S. Circuit Judge Jeffrey Sutton signaled his court's eventual affirmation by stating, “It happens all the time that governments rely on private entities to do things.”

In the Eighth Circuit anti-HISA case, the plaintiffs are executives with the Arkansas and Iowa HBPA chapters. They asked the Supreme Court to review an opinion that had affirmed a ruling out of a lower federal court in Arkansas denying a preliminary injunction the horsemen had sought to halt HISA and its Anti-Doping and Medication Control program. The Eighth Circuit has not yet issued a ruling on its Supreme Court remand.

The Fifth Circuit's opinion-on-remand that came out Thursday was issued based solely on briefs filed by the opposing sides. There were no oral arguments before the three-judge panel, which consisted of judges Stuart Kyle Duncan and Kurt D. Engelhardt (both nominated to their positions by President Donald Trump in 2018) and Carolyn Dineen King (nominated by President Jimmy Carter in 1979).

Duncan wrote the opinion, which explained the panel's reasoning.

“Last year, the Supreme Court vacated our decision in [this case],” the opinion stated. “We conclude Consumers' Research does not affect our prior decision [and] Consumers' Research did not alter the doctrine, whose touchstone remains the same it has always been–namely, whether the private organization is 'subordinate' to a superintending agency.

“After the Supreme Court's remand, we still disagree with the district court in one important respect,” the opinion stated. “HISA's enforcement provisions violate the private nondelegation doctrine. The statute empowers the Authority to investigate, issue subpoenas, conduct searches, levy fines, and seek injunctions–all without the FTC's say-so. That is forbidden by the Constitution. We therefore DECLARE that HISA's enforcement provisions are facially unconstitutional on that ground. In doing so, we part ways with our esteemed colleagues on the Sixth Circuit.”

At a different point in the opinion, Duncan wrote that it could be countered that “the FTC at least partially supervises the Authority because it can review sanctions at the back end,” after an administrative law judge (ALJ) review.

“That is true,” the opinion stated, “and it is the Authority's best argument for why its enforcement power is subordinate to the FTC.”

But, the opinion explained, that argument “nonetheless fails.”

Duncan then offered the following rhetorical question to prove his point:

“Suppose the Authority sanctions a horse owner for a doping violation, but the sanction is later reversed by the FTC. Does that make the Authority's enforcement power subordinate to the agency? No, it does not. Consider everything the Authority was permitted to do up to that point: launch an investigation into the owner, subpoena his records, search his facilities, charge him with a violation, adjudicate it, and fine him. Each and every one of those actions is 'enforcement' of HISA.”

The opinion continued: “Each can occur under HISA without any supervision by the FTC. Moreover, penalties imposed by the Authority are not automatically stayed pending appeal. So, any penalty goes into effect as soon as the Authority makes its decision, unless the ALJ or FTC exercises its discretion to implement a stay pending appeal.

“It is no answer to say that the FTC can come in at the tail-end of this adversarial process and review the sanction. As far as enforcement goes, the horse was already out of the barn,” Duncan wrote. He parenthetically included a touch of humor in reference to his equine pun by adding, “(You knew that was coming.)”

Then the opinion continued, more seriously.

“Besides, what if the sanctioned owner, instead of fighting the process, opts to settle for a lower fine? In that case, according to the Authority's logic, no one has enforced HISA. That is obviously not true. To the contrary, the settlement scenario–which will likely happen often–only underscores that it is the private entity that acts as HISA's enforcer in any meaningful sense.”

Now that the Fifth and Sixth Circuits have stood by their previous rulings, the cases are likely headed back to the Supreme Court, although probably not until the Eighth Circuit also weighs in on the remand.

In fact, the losing side in the Sixth Circuit case has already petitioned for a “writ of certiorari,” which is the formal term for asking the Supreme Court to take up a case.

“While we await the Supreme Court's ultimate word, we will continue to be focused on our mission of protecting the safety and integrity of Thoroughbred racing,” Lazarus said, indicating that the Authority is likely to follow with its own writ of certiorari.

Peter Ecabert, the NHBPA's general counsel, was in agreement with Lazarus on the point that the case appears destined–once again–for the nation's highest court.

“If [Thursday's] victory is upheld by the Supreme Court, as we expect, it will mean that horsemen will no longer be controlled by a small number of industry elite,” Ecabert said in an emailed statement.

According to the American Bar Association Journal, the last time the Supreme Court cited the non-delegation doctrine to strike down any federal law was in 1935.