The Fifth Circuit United States Court of Appeals denied a motion by the Horseracing Integrity and Safety Act (HISA) Authority for that court to vacate its recent opinion that HISA is unconstitutional.

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NEW ORLEANS, LA–FEBRUARY 1, 2023–The Fifth Circuit Court of Appeals denied a request on Thursday (JAN 31) by the Horseracing Integrity and Safety Authority and the Federal Trade Commission to vacate the appellate court's ruling that HISA is facially unconstitutional.

The ruling rejects a HISA motion asking the court to reconsider its previous ruling on the basis of a one-paragraph federal amendment to HISA’s 2020 enabling legislation that passed late last year as part of an omnibus spending package.

HISA was hoping for a re-hearing in the Fifth Circuit that would amendment its November ruling that HISA’s enabling legislation was "facially unconstitutional" because of violations to the non-delegation clause.

The court remanded the case to the Northern District of Texas, which had earlier dismissed the constitutional challenges to the suit.  That court will now consider the case again in light of the amendment that was passed late last year.

Supporters of the amendment believe that it ironed out the constitutional problems outlined in the Fifth Circuit ruling, but plaintiffs in the suit said that the amendment did not address all the constitutional problems the ruling identified.

In its ruling, the Fifth Circuit said that "any further appeal will be to this panel."

Last week the Federal Trade Commission, the overseer of HISA, posted the rules for HISA’s anti-doping and medication programs on its website.  This posting triggers a 14-day public comment period and a 60-day approval period for the rules.

HISA hoped the FTC could go forward with the approval process due to the amendment, but the Tuesday ruling will likely establish another legal hurdle.

HISA’s first set of rules governing the anti-doping programs were declined by the FTC who cited "legal uncertainty" was created by the November Fifth Circuit opinion calling HISA’s enabling legislation unconstitutional.

HISA said in a press release on Tuesday night that they "will continue enforcing the Racetrack Safety Program and preparing for the implementation of its Anti-Doping and Medication Control Program on March 27, subject to the Federal Trade Commission’s approval of the rules."

The Racetrack Safety Program was implemented last summer after FTC approval. The Safety Program is separate from the anti-doping and medication control program.

The plaintiffs in the case include the National Horsemen’s Benevolent and Protective Association, along with a number of its affiliates.

Eric Hamelback, chief executive of the National HBPA, praised the decision by the Fifth Circuit to reject HISA’s motion for a re-hearing of the case In a statement released Tuesday night.

"We view this as additional strong evidence as to the valid concerns we have been raising all along and this should remind everyone that constitutionality isn’t optional," Hamelback said. "We have made it very clear that the one-sentence so-called fix tucked into Congress’ must-pass year-end spending bill did not address all the legal questions created in the HISA corporation’s enabling legislation."

A similar case challenging the constitutionality of HISA is before the U.S. Sixth Circuit Court of Appeals, which in January asked the parties in the suit to file briefs examining the legal impact of the passage of the amendment. The Sixth Circuit has yet to rule on the appeal. The case had earlier been dismissed by a lower court in Kentucky in 2022.