The long-running legal fight over who polices American horse racing has kicked up another gear, with the Horseracing Integrity and Safety Authority and the Federal Trade Commission both asking the U.S. Supreme Court to resolve a split that leaves HISA's enforcement powers in limbo across key racing states.
In June, the U.S. Court of Appeals for the Fifth Circuit again held that while Congress validly created HISA's national rulemaking framework, the Act unconstitutionally delegates enforcement authority to a private body, striking down provisions that allow the Authority to investigate, subpoena, search, fine, and seek injunctions without what the court viewed as meaningful FTC supervision. That decision came in National Horsemen's Benevolent & Protective Association v. Horseracing Integrity and Safety Authority, a case spearheaded by the National HBPA and a dozen affiliates representing horsemen at tracks in Texas, Louisiana, and other Fifth Circuit jurisdictions. Legal analysis from FBT Gibbons notes that the panel found HISA's enforcement scheme facially invalid under the “private nondelegation” doctrine, even as two other circuits have upheld the statute.
This summer's ruling did not come in a vacuum. In 2025, after initial challenges out of the Fifth, Sixth, and Eighth Circuits, the Supreme Court issued summary orders sending all three HISA cases back to those appellate courts to be reconsidered in light of Federal Communications Commission v. Consumers' Research, a decision that rejected a similar nondelegation attack on the FCC's use of a private administrator for a universal service funding program. On remand, the Sixth Circuit—reviewing a suit led by Oklahoma, West Virginia, Louisiana and other plaintiffs—twice upheld HISA's constitutionality, concluding that Congress supplied sufficient standards and oversight through the FTC. The Eighth Circuit, meanwhile, has yet to issue a revised ruling in litigation brought by Arkansas and Iowa HBPA executives, who originally sought to halt HISA and its Anti-Doping and Medication Control program via a preliminary injunction that was denied by a district court in 2024.
Against that backdrop, HISA filed an Aug. 10 petition for certiorari urging the justices to take the Fifth Circuit case and address what the Authority calls an “intractable conflict” over the act's enforcement provisions. The filing stresses that two presidential administrations and bipartisan majorities in Congress have backed HISA, including a 2022 amendment designed to strengthen the FTC's supervisory role, and argues that all but one federal court to confront the amended statute have agreed that the enforcement setup passes constitutional muster. The petition characterizes the Fifth Circuit decision as an “outlier judgment” that relies on hypothetical applications of powers HISA has never used and cuts against the Supreme Court's own warnings about invalidating broad federal schemes on a facial basis.
The FTC, which formally oversees HISA, submitted a separate petition echoing the view that the Fifth Circuit misapplied the private nondelegation doctrine and failed to credit the Commission's authority to approve, reject, or modify HISA rules and enforcement policies. Academic commentary in venues such as Yale's Journal on Regulation has highlighted the Fifth Circuit's focus on HISA's investigative and sanctioning powers as a potentially far-reaching limit on Congress's ability to rely on expert private entities, an issue that resonates well beyond racing. At the same time, the states challenging HISA in the Sixth Circuit have already asked the Supreme Court to review that court's second pro-HISA opinion, setting up the prospect that multiple petitions could be consolidated if the justices decide the time has come for a definitive answer.
The constitutional fight might sound abstract, but trainers, owners, and bettors feel its effects in the entries box. In the Fifth Circuit's footprint—home to tracks like Lone Star Park, Sam Houston Race Park, and Fair Grounds Race Course—state commissions currently shoulder primary enforcement responsibility while the Authority's national anti-doping and safety rules operate under a cloud of uncertainty, shaping where barns choose to stable and which circuits they target for stakes campaigns. A July episode of the Midlantic Racing Today podcast underscored industry concern that divergent rules and enforcement standards between HISA-covered jurisdictions and those constrained by the Fifth Circuit ruling could complicate shipping decisions and raise questions about the comparability of form lines across regions.
Institutional players have voiced their own worries. The Jockey Club, in material promoting this month's Saratoga Round Table conference, pointed to the Fifth Circuit's June ruling as a fresh obstacle to its push for uniform safety and integrity standards and noted that two other circuits have already backed HISA, leaving the national framework unsettled until the Supreme Court weighs in. In commentary cited by FBT Gibbons, HISA's chief executive framed the latest Fifth Circuit loss as expected and indicated that the Authority would pursue Supreme Court review, a stance now reflected in the Aug. 10 filing. Horsemen's groups, led by the National HBPA and regional affiliates in Arkansas, Iowa and elsewhere, have continued to argue that HISA concentrates too much power in a private entity and imposes costly compliance burdens, even as many trainers say the uniform medication and safety rules have simplified shipping to major events.
For handicappers, the biggest practical question is whether the enforcement uncertainty will spill into race results in the form of uneven post-race testing, delayed adjudications, or differences in how suspensions and disqualifications are handled across circuits. While national stakes at premier venues like Saratoga, Del Mar, and Churchill Downs remain under a relatively stable HISA-FTC enforcement umbrella, horses coming out of Fifth Circuit tracks may be racing under regimes that could change again depending on how the Supreme Court rules, affecting confidence in form and the reliability of past performances when those runners ship. Until the justices either deny review or issue a merits opinion, trainers with horses aimed at fall and winter stakes will be gaming out contingencies: whether potential changes in enforcement could alter where certain runners prep, how aggressively stewards pursue medication violations, and what kind of risk profile owners are willing to accept when sending horses into jurisdictions with unsettled oversight.
The Supreme Court has several options once it considers the HISA and FTC petitions—it can decline to hear the case, leaving the Fifth Circuit's ruling in place and allowing other circuits' decisions to stand; it can take the case and resolve the private nondelegation question in a way that either solidifies HISA's enforcement powers or forces Congress back to the drawing board; or it can combine the Fifth and Sixth Circuit petitions to address the statute's constitutionality in one broader stroke. Whatever path the Court chooses, the next term is likely to decide whether racing's experiment with a centralized integrity and safety authority continues unchanged, is tweaked to satisfy constitutional demands, or gives way to a return to state-by-state enforcement—a result that would reverberate through stakes schedules, shipping patterns, and betting markets for years to come.
