In 2020, Congress passed, and President Trump signed, the Horseracing Integrity and Safety Act (HISA) which empowers a private entity — the Horseracing Integrity and Safety Authority (Authority) — to formulate regulations applicable to the horseracing industry. On November 18, 2022, a panel of the U.S. Court of Appeals for the Fifth Circuit invalidated HISA as an unconstitutional delegation of authority “vesting government power in a private entity not accountable to the people.” Nat’l Horsemen’s Benevolent Ass’n v. Black, No. 22-10387, slip op. at 4 (5th Cir. Nov. 18, 2022).
HISA established the Authority, which is a nonprofit corporation with a nine-member board, five of whom are to be independent and selected from outside the equine industry. HISA conferred upon the Authority broad authority to formulate regulations for the horseracing industry governing racetrack safety, anti-doping and medication control. The Authority formulates proposed rules which are subject to review by the Federal Trade Commission (FTC). If the FTC determines that the Authority’s proposed rules are consistent with HISA, it must publish them for public comment. If the FTC disagrees with the Authority’s proposals, the FTC can recommend, but cannot mandate, revisions. In limited, emergency circumstances,