5th Circuit strikes down Horse Racing Integrity Act

[BarchCapper]

Originally Posted by ubercapper

Another issue is the ruling by the 5th is likely only binding in three states (Texas, Louisiana and ?Mississippi). This is not a national ruling and HISA is still in place in the rest of the country even after the lower court in Texas issues a ruling in line with what the three judge panel of the 5th instructed.

I'm seeing one of the key outcomes of this regionality and timing of "next step" is that those of us outside of Texas should now be able to play horseplayer friendly Sam Houston through the duration of their meet, no?

[dilanesp]

Originally Posted by ubercapper

There's still a chance HISA survives, or the Supreme Court Intervenes.

This is because there are arguments scheduled next month in the 6th circuit on an appeal of Judge Hood's previous ruling that HISA was constitutional. This could turn out the opposite of the ruling by the three judge panel in the 5th circuit, then there would be a split and the Supreme Court would have to settle the dispute.

Another issue is the ruling by the 5th is likely only binding in three states (Texas, Louisiana and ?Mississippi). This is not a national ruling and HISA is still in place in the rest of the country even after the lower court in Texas issues a ruling in line with what the three judge panel of the 5th instructed.

There was a similar case the 5th (Jarkesy) ruled on in May regarding a government agency (SEC) being subservient to a private entity. The government asked for a full "en banc" hearing by the 16 (17?) judges in the 5th and were denied, but it took FIVE MONTHS.

In this case the lower court judge has to rule as the appellate court directed, then HISA can ask for the "en banc" hearing, and if that denial (or approval) takes five months, HISA is well in effect, except perhaps in the states the 5th has purview over.

Unless one of the parties asks for, and is granted, a stay of the ruling.

I am open to being corrected by Dilan or any other attorney on PA if anything I have written may be inaccurate.

HISA could very much survive. There is possible en banc review in the 5th Circuit, and absent a reversal en banc, there is likely to be a conflict of the circuits because the 6th Circuit and perhaps others will hold the statute constitutional. And that could set up Supreme Court review.

Having said that, if HISA went to the Supreme Court, the determinant of whether HISA survives would depend on whether the Justices can distinguish it from FINRA. They aren't holding FINRA unconstitutional. But they like holding federal statutes they see as low stakes to be beyond Congress' power, a practice the legal scholar Orin Kerr calls "symbolic federalism". They might want to do that here.

EDIT: and it is also possible, remember, for Congress to amend the statute. If they give the FTC the power to modify HISA rulings, that obviates the 5th Circuit's constitutional issue. Again, this isn't high stakes or partisan in Washington DC- Congress might do that.

[BarchCapper]

Originally Posted by BarchCapper

I'm seeing one of the key outcomes of this regionality and timing of "next step" is that those of us outside of Texas should now be able to play horseplayer friendly Sam Houston through the duration of their meet, no?

NO. Looks like no Sam Houston (outside of Texas). Appears that only Louisiana and West Virginia - the plaintiffs in the suit in question acted on by the 5th Circuit - are not subject to HISA rules.

https://twitter.com/BloodHorse/statu...egpJyKKqGy5cUA

[VeryOldMan]

Originally Posted by dilanesp

and it is also possible, remember, for Congress to amend the statute. If they give the FTC the power to modify HISA rulings, that obviates the 5th Circuit's constitutional issue. Again, this isn't high stakes or partisan in Washington DC- Congress might do that.

Bumping this part of dilanesp's comment rather than starting a new thread, because it is indeed what is starting to take place.

https://www.reuters.com/lifestyle/sp...aw-2022-12-04/

I've practiced FTC matters since the 1980's and know the agency has zero expertise to assess horse racing issues. It is utterly not within the agency's antitrust or consumer protection expertise. Allowing the FTC to "modify" HISA regulations is a band-aid unless they are allowed to hire staff who know the industry to actually enforce HISA. And maybe they will. Not knocking that outcome at all. I still wonder about the underlying use of the FTC's jurisdiction in the first place, but that's another issue.

Otherwise it sets a bad precedent re the "non delegation" doctrine of outsourcing government action to private actors. Tweak at the margins and let the private actors go - seems like a bad idea to me, even as much as I like the idea of uniform rules and trying to clean up the sport.

[dilanesp]

The FTC disapproved the HISA rules without prejudice based on the 5th Circuit ruling:

https://www.ftc.gov/system/files/ftc...rejudice_0.pdf

This means the rules will not go into effect anywhere in the country, for now. But if the 5th Circuit either gets reversed or Congress passes a fix to the statute, the FTC will probably reinstate the rules.

[PalaceOfFortLarned]

Interesting

Twitter

[dilanesp]

Originally Posted by PalaceOfFortLarned

Interesting

https://twitter.com/raypaulick/statu...79365859291136

That would moot the 5th Circuit case if passed.

[rastajenk]

McConnell doing the bidding of WHOA and other deep-pocketed interests at the expense of lower level participants, many of whom will be driven out sooner rather than later. It's a big price to pay for the mere perception of safety and integrity.

[ubercapper]

Originally Posted by dilanesp

That would moot the 5th Circuit case if passed.

I'm glad to see you write this, as I did in a tweet the other day. It was also brought up in a Bill Finley column on TDN.

There's also a case I was previously unaware of in Arizona with (apparently) a very conservative Judge. I believe that's in the ninth circuit so yet another circuit may have a decision.

Then again, the once sentence fix authored by McConnell in the Omnibus bill has a good chance of passage, except for the fact Senators Grassley and Manchin put in their own amendment to strip McConnell's amendment and now the HBPA is asking all their members to write or call their senators and support the Grassley amendment.



What a mess!

[Tom]

So now we just wait until the babies play their games.

[biggestal99]

Originally Posted by rastajenk

McConnell doing the bidding of WHOA and other deep-pocketed interests at the expense of lower level participants, many of whom will be driven out sooner rather than later. It's a big price to pay for the mere perception of safety and integrity.

i am a WHOA member, it not just a perception.

less drugs in the sport make it safer for all participants.

good job for placing it in must pass legislation.

Allan

[DanBoals]

Originally Posted by Tom

There are always gray areas, that's why we have courts.

Racing involves the health and welfare of 10's of thousands of horses, the financial concerns of millions? of people. and crosses state lines.

Federal regulation seems to me a no-brainer.

This seems very logical.


Unless the horses are confined to running only in one state, under that state's rules, how can they be moved from jurisdiction to jurisdiction with different reporting requirements? A horse that can legally be juiced or whatever in lets say California, then goes to race in somewhere like Kentucky for instance, that has different set of rules creates a problem. The connections can argue what they did in California is fine since it was under California laws and Kentucky has no right to know what they did. What if they inject a horse with a substance in Cali, then fly the horse to Keeneland and race the next day, is that legal?


Seems like a massive can of worms unless all the tracks operate under one body with one set of reporting criteria and one set of rules.

[AndyC]

Originally Posted by DanBoals

This seems very logical.


Unless the horses are confined to running only in one state, under that state's rules, how can they be moved from jurisdiction to jurisdiction with different reporting requirements? A horse that can legally be juiced or whatever in lets say California, then goes to race in somewhere like Kentucky for instance, that has different set of rules creates a problem. The connections can argue what they did in California is fine since it was under California laws and Kentucky has no right to know what they did. What if they inject a horse with a substance in Cali, then fly the horse to Keeneland and race the next day, is that legal?


Seems like a massive can of worms unless all the tracks operate under one body with one set of reporting criteria and one set of rules.

I drive my car in California and then sometimes will drive to Arizona. They have different speed limits that I must abide by. Should I just ignore the AZ laws because I am from California?


Horse owners/trainers should know the racing rules in every jurisdiction where they want to run there horses. Either a horse qualifies to run in a state or it doesn't. The rules of one state should not override the rules of another state.