FCC

Last week, the U.S. Court of Appeals for the Fifth Circuit issued an opinion that reiterated a conclusion they had reached two years prior--that even though the Horseracing Integrity and Safety Act (HISA)'s rulemaking structure is constitutional, its enforcement provisions are not. It was nearly this time last year the United States Supreme Court punted the question of HISA's constitutionality back down the legal ladder, telling the Fifth, Sixth and Eighth Circuits of the U.S. Courts of Appeal to consider in their various HISA decisions a then-recent Supreme Court ruling...

For the second time in 2 1/2 years, the same panel of three judges on the Sixth Circuit of the U.S. Court of Appeals in Cincinnati has affirmed the constitutionality of the Horseracing and Safety Integrity Act (HISA) in a lawsuit spearheaded by the states of Oklahoma, West Virginia and Louisiana. The case had alleged that the HISA Act gave a private corporation--the HISA Authority, which operates under the auspices of the Federal Trade Commission (FTC)--far too broad regulatory authority. The plaintiffs claimed that was a violation of the non-delegation...

In the first oral argument since the United States Supreme Court remanded three lawsuits related to the constitutionality of the Horseracing and Safety Integrity Act (HISA) back to their originating appeals courts five months ago, a panel of three judges on the Sixth Circuit of the U.S. Court of Appeals in Cincinnati on Wednesday heard from lawyers on both sides in a case that alleges the HISA Act gives a "private corporation broad regulatory authority." This same Sixth Circuit panel, back on Mar. 3, 2023, already upheld a lower court's...

When the National Horsemen's Benevolent and Protective Association first started warning that the Horseracing Integrity and Safety Act would flunk constitutional due diligence as a violation of the private nondelegation doctrine, its arguments were laughed off. The smart set scoffed that the private nondelegation doctrine was dead, a defunct relic of pre-New Deal "Lochner era" jurisprudence. The NHBPA pressed ahead anyway with the simple yet powerful point that in our constitutional system, a private entity cannot wield public powers like making and enforcing law. The Fifth Circuit agreed--twice--and now the...