EMERGENCY FILE

The law at the center of the dispute passed with bipartisan support in 2020. (Katie Barlow)

The Supreme Court on Monday allowed a federal law aimed at standardizing anti-doping and safety rules in horse racing to remain in force pending a challenge to the law.

The conservative New Orleans-based 5th U.S. Circuit Court of Appeals ruled in July that key parts of the law were unconstitutional. This decision prompted the private non-profit association created to propose and enforce the rules. come to the Supreme Court in Septemberasking the justices to stay the 5th Circuit’s ruling. The nonprofit Horseracing Integrity and Safety Authority told the Supreme Court that if the 5th Circuit’s ruling were allowed to take effect nationwide, “more horses would die and more cheaters would thrive.”

The Biden administration and Senate Minority Leader Mitch McConnell, a Republican from Kentucky, supported the authority’s request. McConnell argued that under the law, horse racing in the United States “is safer, fairer and more transparent” than it was before the law was passed.

In a brief unsigned order More than a month after the horse racing authority filed its request, the justices agreed to put the 5th Circuit’s ruling on hold while they consider a petition for review of that ruling. Opponents of this case agree that the Supreme Court should intervene, making it more likely that the justices will do so.

In 2019, more than 400 thoroughbreds died in the United States from horse racing-related injuries – a mortality rate significantly higher than that of Europe or Asia. A year later, Congress passed the Horse Racing Integrity and Safety Act to improve safety in the horse racing industry. The law received broad bipartisan support, and President Donald Trump signed it in December 2020.

The law used a framework similar to that used in the securities industry. It gave the authority, operating under the supervision of the Federal Trade Commission, the power to propose rules regarding issues such as doping, drug control and racetrack safety.

The National Horsemen’s Benevolent & Protective Association, a professional group of thoroughbred racehorse owners and trainers, went to federal court in 2021 to challenge the law. The 5th Circuit initially ruled that provisions of the law giving the authority rule-making authority were unconstitutional under a theory known as the private nondelegation doctrine — the idea that the government cannot delegate its powers to private entities – because they gave the private group too much power.

In December 2022, Congress amended the law to give the FTC the power to change the authority’s rules. The professional group then returned to court to renew its challenge to the law.

The 5th Circuit this time found unconstitutional those parts of the law giving the authority the power to enforce the law – for example, the power to investigate, issue subpoenas, conduct searches, impose fines and seek injunctions. He reasoned that the law “is enforced by a private entity,” the authority, which “does not operate in a subordinate manner to the FTC when enforcing the HISA.” This is not permitted under the private non-delegation doctrine.

The authority addressed the Supreme Court in September, asking the justices to stay the 5th Circuit’s decision to give it time to file a petition to review that ruling (or, alternatively, move forward and grant review now to decide whether the implementing provisions violate the private non-delegation doctrine).

The authority stressed that the program established under the law is now “firmly entrenched in the thoroughbred industry and is already producing substantial benefits: racetrack conditions improving, equine mortality rates decreasing and betting by racing fans increases. If the 5th Circuit’s decision is not stayed, the authority insisted, it “will plunge the thoroughbred industry into regulatory chaos” with “potentially deadly” consequences.

The authority added that the FTC has the power to both stop enforcement actions taken by the authority and to review decisions once they are made. “This is the same framework,” the authority noted, “that has governed the relationship between the Financial Industry Regulatory Authority (FINRA) and the Securities and Exchange Commission (SEC) for 85 years.”

The Biden administration agreed that the Supreme Court should stay the 5th Circuit’s ruling, noting that the Supreme Court has “long applied a strong presumption in favor of allowing a contested law to remain in force pending judicial review.” This is especially true, he continues, as two other federal appeals courts have upheld the same enforcement provisions, making it even more likely that the Supreme Court will ultimately grant a review of the 5th Circuit’s decision.

On September 23, Justice Samuel Alito issued an order suspending the 5th Circuit’s decision while the Supreme Court considered the authority’s request.

The horsemen’s trade group countered that there was no need for the Supreme Court to stay the 5th Circuit’s decision because the law does not apply to horse racing in the states that make up that circuit.

The group also objected to the authority’s suggestion that upholding the 5th Circuit’s decision would lead to a “horse racing crisis.” The horse racing industry, the group writes, is in fact “deeply divided over” the law, while whether the law is effective “in protecting the health of horses is a matter of hot debate.”

The authority’s argument, according to the group, boils down to the assertion that if “a broad injunction is issued, it will not be able to continue operating as a private police department, private prosecutor’s office and court judge.” private administrative law. Of course, that’s precisely the problem: a private company should not be performing federal law enforcement functions in the first place.”

On the other hand, the class continued, its members would be harmed by an order suspending the 5th Circuit’s decision. “(I) Irreparable harm results when riders are subject to suspensions, stripings, and other orders prohibiting them from participating in races. It is impossible in the sporting context to make up for a race that has only been run once, or to provide financial compensation after the fact when there is no way of knowing where a horse would have placed s he had been cleared to run. »

Texas, which joined the lawsuit, agreed with the trade group that the Supreme Court should intervene but that a stay is not necessary. “The Fifth Circuit’s only error,” the State suggested, “was not to go further and conclude that more of the HISA is unconstitutional.” And the state questioned the actual effectiveness of the FTC’s oversight of the authority’s enforcement actions: “Since July 2022, the Authority has issued more than 2,000 enforcement decisions regarding racetrack security and took more than 375 enforcement actions regarding anti-doping and drug control rules. The FTC website, however, indicates that an ALJ has reviewed sanctions in only 13 cases under the HISA.”

In a one-paragraph order issued Monday, the justices granted the authority’s request to stay the 5th Circuit’s ruling. As is often the case with such orders, they provided no reasoning for their decision, nor did they indicate why it had taken them so long to respond to the authority’s appeal.

Judge Ketanji Brown Jackson wrote a brief dissent to the decision to temporarily block the 5th Circuit’s ruling. She said the authority has not demonstrated a real emergency warranting the court’s intervention at this stage – particularly when opponents agree that the court should reconsider the merits of the lower court’s decision.

This article was originally published by Howe on the Court.