In the first oral argument since the United States Supreme Court remanded three lawsuits related to the constitutionality of the Horseracing and Safety Integrity Act (HISA) back to their originating appeals courts five months ago, a panel of three judges on the Sixth Circuit of the U.S. Court of Appeals in Cincinnati on Wednesday heard from lawyers on both sides in a case that alleges the HISA Act gives a “private corporation broad regulatory authority.”
This same Sixth Circuit panel, back on Mar. 3, 2023, already upheld a lower court's dismissal of that lawsuit, ruling that Congressional changes to the law made in 2022 made the HISA Act completely constitutional.
But now the case, led by the states of Oklahoma, West Virginia and Louisiana against defendants that include the HISA Authority and individuals acting in their official capacities for the Federal Trade Commission (FTC), is back before them again.
That's because on June 30, 2025, the Supreme Court tasked the Fifth, Sixth and Eighth Circuit appeals courts with revisiting their older decisions in light of a newer Supreme Court ruling in a similar case involving the non-delegation doctrine, a precedent that didn't exist when any of those courts issued their original opinions as far back as three years ago.
On Nov. 12, Chief U.S. Circuit Judge Jeffrey Sutton told attorneys on both sides that the Sixth Circuit lawsuit has been a “challenging case at every iteration.”
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, is central to all three HISA-related cases that the Supreme Court remanded.
Attorney Lochlan Shelfer, appearing Wednesday on behalf of the states, told the Sixth Circuit panel that he wanted to start his argument with the “starkest example, which is the Authority's exclusive power to bring enforcement actions in federal court, over which the FTC has zero oversight.”
Shelfer said precedent cases “have explained that the power to enforce federal law is the core provenance of the federal government [and] all of the myriad litigation choices that go into enforcement litigation are the sole provenance of the executive branch. So what the Act does is it flips that on its head, and it deprives the federal government of the power to enforce federal law and puts that entirely in the hands of the private Authority.”
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Attorney Pratik Shah, representing the HISA Authority, tried to re-center the argument back to the legislation that Congress enacted three years ago to cure an alleged constitutional defect that had been identified in a different anti-HISA lawsuit (the Nov. 18, 2022, Fifth Circuit Appeals Court opinion).
“After the [December 2022] amendment, we know Congress has given the FTC all the power it could hope to subordinate the Authority in every which way to Sunday,” Shah said.
Although many parts of Wednesday's proceedings were dense with legalese (as federal-level oral arguments often are), Judge Sutton frequently stopped the lawyers mid-sentence to try and drill down their arguments to common-sense language.
“One feature of case [that] I'm struggling with a little bit is just what 'private' means in this setting. I quite understand non-delegation principles. That's not that hard to get my head around,” Sutton said.
Then the judge made the analogy that Shelfer himself is a private lawyer, “and here you are, standing on behalf of the state of Oklahoma. [In essence], you're Oklahoma right now….You're making decisions as we speak about the position of the state of Oklahoma, and as soon as this argument's done, you're back in your capacity as a private citizen.”
Judge Sutton then asked rhetorically why this same line of reasoning about the way a state employs private lawyers shouldn't apply to how the HISA Authority operates under the auspices of the FTC.
“I don't quite understand why [with] the Horseracing Authority, why you can't essentially say the same thing,” Sutton said.
Judge Sutton continued: “I know there's a process to put people on the [HISA] board. They're not just regular old citizens when they hold meetings. They're not just regular old citizens when they decide to enforce or propose rules. They're trying to carry out this law. This is, of course, historically, the way most criminal law enforcement worked: You deputized private citizens, you gave them the badge, and they went and they had all these authorities….
“It happens all the time that governments rely on private entities to do things,” Sutton said.
“So I'm trying to figure out just what is so bad about this when there's a process for appointing [the HISA board]. You're not making an appointment-clause challenge here, so presumably these people are all appointed correctly. And I assume they have obligations to act for the government and not their private interests. So just help me realize why this is so bad,” Sutton said.
Shelfer started to respond by explaining that in the instance of an attorney like him acting on behalf of the states, the government is instructing a private party to carry out a specific task as an agent.
But the judge interjected before the lawyer could finish his point.
“There is always discretion,” Judge Sutton said. “Everybody knows there has to be discretion, ultimately. You're exercising discretion every second [by arguing a court case right now on behalf of the states]. This is the nature of delegations. There's going to be some discretion.”
Sutton, a George W. Bush appointee, was the only judge of three that asked questions during Wednesday's arguments. The other two on the panel are U.S. Circuit Judge Richard Griffin (also appointed by Bush) and Senior U.S. Circuit Judge Guy Cole Jr. (appointed by Bill Clinton).
The Fifth, Sixth and Eighth Circuit appeals courts have all 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.
The case in the Fifth Circuit involves an anti-HISA lawsuit spearheaded by the National Horsemen's Benevolent and Protective Association (NHBPA).
A Fifth Circuit appeals court panel opined July 5, 2024, that even though HISA's rulemaking structure is constitutional, HISA's enforcement provisions are unconstitutional.
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In the Eighth Circuit, the plaintiffs, led by Bill Walmsley, the president of the Arkansas HBPA, and Jon Moss, the executive director of the Iowa HBPA, are challenging a ruling out of a lower federal court in Arkansas denying a preliminary injunction the horsemen had sought to halt HISA and its Anti-Doping and Medication Control program.
The new precedent that the Supreme Court now wants the Fifth, Sixth and Eighth Circuits of the U.S. Court of Appeals to consider involves a case titled Federal Communications Commission (FCC) vs. Consumers' Research.
In that case, the Supreme Court justices, by a 6-3 vote June 27, 2025, rejected arguments that the funding mechanism for a service that provides subsidized telecommunications services for low-income customers, rural hospitals, schools, and libraries violated the non-delegation doctrine.
In that opinion, the Supreme Court also shot down an allegation that the FCC delegated too much authority to a private company to administer the program.
Once the appeals courts issue updated decisions in their respective HISA cases, if the losing parties don't agree with them, they can petition the Supreme Court anew.
Going back to the Supreme Court again would likely add yet another year or two to the timetable for resolving the underlying HISA constitutionality lawsuits, two of which were initiated as far back as 2021.
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