The Wait Begins: Fifth Circuit Hears HISA Constitutionality Appeal

By T. D. Thornton

A 2 1/2-year-old legal fight led by the National Horsemen’s Benevolent and Protective Association (NHBPA) to try and overturn the Horseracing Integrity and Safety Act (HISA) based on alleged constitutional flaws got distilled into one hour of oral arguments on Wednesday in the case’s second go-round before the United States Court of Appeals for the Fifth Circuit in New Orleans.

As expected, lawyers for the two sides stuck to the finer points of constitutionality law, and there were only several passing references related to horse racing. The arguments centered on the non-delegation doctrine, which is a legal principle that holds that Congress cannot delegate the power to legislate to executive agencies or private entities.

The panel of three judges–the same trio that declared a previous version of HISA unconstitutional last November, leading to an amended version of HISA that became law in December–did not overtly tip their hands as to which arguments they might be favoring based on the questions they asked of the attorneys. Nor did the judges conclude the session by declaring any timetable for issuing their decision.


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