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 doctrine, which bans Congress from delegating legislative power to federal agencies without an “intelligible principle” to guide the exercise of agency discretion.
This same Sixth Circuit panel, back on Mar. 3, 2023, had already upheld a lower court's dismissal of the states' lawsuit, ruling that Congressional changes to the law that were made in 2022 rendered the HISA Act completely constitutional.
But the case was back before the Sixth Circuit yet again, because on June 30, 2025, the U.S. Supreme Court tasked the Fifth, Sixth and Eighth Circuit appeals courts with revisiting their older decisions about HISA in light of a newer Supreme Court ruling in a similar case involving the non-delegation doctrine. (That precedent didn't exist when any of those courts issued their original opinions as far back as three years ago.)
The Fifth, Sixth and Eighth Circuit appeals courts have all previously agreed that HISA's rulemaking structure is constitutional. Only the Fifth Circuit has disagreed, in part, by opining that HISA's enforcement provisions are unconstitutional.
The two cases that the Supreme Court remanded back to the Fifth and Eighth Circuit appeals courts have yet to reach the oral argument stage.
On Thursday, a spokesperson for the HISA Authority issued the following statement (not attributed to any executive within the Authority) on the Sixth Circuit decision:
“HISA is pleased with the decision rendered by the Sixth Circuit once again affirming HISA's constitutionality and finding that the private nondelegation challenge against the HISA Act has no merit.
“[The Authority] has remained singularly focused on its mission to promote the health and safety of the human and equine athletes at the heart of Thoroughbred racing and has implemented the first-ever uniform national set of rules applicable to every Thoroughbred racing participant and racetrack facility. These reforms are delivering transformative results, including meaningful decreases in equine fatalities, consistent standards at racetracks, a fairer and more balanced medication and drug-testing framework and an increased focus on jockey welfare. The data is clear that Thoroughbred racing is safer under HISA than ever before.”
TDN has reached out to the plaintiffs, requesting their comments on the Sixth Circuit opinion. This story will be updated to include any responses.
Regardless of which side won the case, it was always expected that the losing side would appeal the Sixth Circuit decision back to the Supreme Court.
But as of deadline for this article, no one on the plaintiffs' side had officially stated that would happen.
Going back to the Supreme Court again would likely add yet another year or two to the timetable for resolving the three highest-profile HISA constitutionality lawsuits, two of which were initiated as far back as 2021.
The Sixth Circuit's Dec. 17, 2025, opinion was issued relatively quickly after the three-judge panel heard oral arguments from both sides Nov. 12.
During those oral arguments, Chief U.S. Circuit Judge Jeffrey Sutton was the only member of the panel to question the attorneys as they made their arguments.
Five weeks ago, Sutton seemed to signal where his thoughts were going on the non-delegation issue when he stated, at one point during the arguments, that, “It happens all the time that governments rely on private entities to do things.”
On Dec. 17, Sutton put those thoughts in writing as the author of the panel's opinion.
“Sometimes government works. And sometimes it works best after a dialogue between and within the various branches,” Sutton wrote.
“In 2020, Congress enacted the HISA Act to establish a nationwide framework for regulating Thoroughbred horseracing. That led to several nondelegation and anti-commandeering challenges to the validity of the Act throughout the country,” the opinion stated.
“The lead challenge–the facial non-delegation challenge–focused on the reality that the Act replaced several state regulatory authorities with a private corporation, the HISA Authority, which became the Act's primary rulemaker and which was not subordinate to the relevant public agency, the FTC, in critical ways,” the opinion stated.
“The first circuit to assess the validity of the law, the Fifth Circuit, declared the Act facially unconstitutional because it gave 'a private entity the last word' on federal law,” the opinion stated.
“In response to the Fifth Circuit's decision and after oral argument in a similar case in our circuit, Congress amended the Act to give the FTC discretion to 'abrogate, add to, and modify' any rules that bind the industry,” the opinion stated.
“While the Constitution does not require constructive exchanges between Congress and the federal courts, it does not discourage them either, and good government sometimes benefits from them,” the opinion stated.
Supreme Court | Getty
“A productive dialogue occurred in this instance, and, from our perspective, it ameliorated the concerns underlying the non-delegation challenge,” the opinion stated.
[In the 2023 opinion] “we upheld the Act against a facial non-delegation challenge and an anti-commandeering challenge. The Eighth Circuit took the same view. The Fifth Circuit agreed with both courts with respect to the rulemaking power created by the Act. But it facially invalidated the law on the ground that the Act afforded the HISA Authority the power to enforce federal law 'without the FTC's say-so,'” the opinion stated.
“The losing parties all filed petitions for writs of certiorari in the Supreme Court. The Supreme Court held the various petitions while it considered a separate nondelegation challenge to another federal law that used a private entity in implementing the law,´” the opinion stated.
“In FCC v. Consumers' Research, the Court considered an as-applied challenge to the Federal Communications Commission's Universal Service Fund, premised on the reality that the FCC relied on a private administrator's policy recommendations in administering the program. The Court ruled that the program did not impermissibly delegate government authority to a private entity because the FCC retained final 'decision-making authority.'” the opinion stated.
“After its decision, the Court [remanded] the three certiorari petitions raising non-delegation challenges to the HISA Act. That is to say, the Court granted each petition, vacated the lower court judgments, and remanded the cases for reconsideration in light of Consumers' Research,” the opinion stated.
“That brings us to our second look at the Act. In view of the guidance provided by the Supreme Court in Consumers' Research and other recent decisions, we reject this facial challenge because the Act, as amended, gives the FTC, not the HISA Authority, the final say over the Act's key rulemaking and enforcement provisions,” the opinion stated.
“The HISA Authority is subordinate to the agency. The Authority yields to FTC supervision and lacks the final say over rulemaking and enforcement of the law, all tried and true hallmarks of an inferior body,” the opinion stated.
With regard to plaintiffs' challenges to rulemaking, Sutton wrote this:
“The HISA Act gives the FTC supervision over the rules that govern the horseracing industry. The Act permits the HISA Authority to draft proposed rules on racetrack safety and anti-doping matters. But they are just that: proposals. No such proposal becomes a binding rule until the FTC approves it, and the Act permits the agency only to approve proposed rules if they are 'consistent' with the Act,” the opinion stated.
“In addition, the Act gives the FTC authority, as it 'finds necessary or appropriate,' to 'abrogate, add to, and modify the rules.' The FTC's power to review proposed rules, to abrogate existing rules, and to add new rules makes clear who is in charge and who has the final say,” the opinion stated.
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