FTC and HISA Petition Supreme Court to Resolve Constitutional Challenge to Horseracing Law

On August 10, 2026, two separate petitions landed on the docket of the United States Supreme Court, both asking the justices to settle a five-year legal war over who controls American horse racing. The Federal Trade Commission (FTC) and the Horseracing Integrity and Safety Authority (HISA) formally requested the Court to review a June 2026 ruling by the Fifth Circuit Court of Appeals.[1][4]

That ruling struck down HISA's enforcement powers for the third time, creating a fractured regulatory landscape where the federal law applies in most of the country but is blocked in states like Texas and Louisiana. The petitions characterize the Fifth Circuit's decision as an "outlier judgment" that conflicts with rulings from the Sixth and Eighth Circuits, which have upheld the law.[1][4][6]

The dispute centers on the "private non-delegation doctrine," a constitutional principle that limits Congress's ability to hand executive governmental powers to private entities. When Congress passed the Horseracing Integrity and Safety Act in 2020, it created HISA as a private, nonprofit corporation tasked with drafting and enforcing national anti-doping, medication, and track safety standards.[3][6]

For over a century, horse racing was regulated exclusively by individual states, resulting in a patchwork of rules that critics blamed for a rise in equine fatalities and doping scandals. HISA was designed to replace that system with uniform, nationwide regulations. The Authority drafts rules and proposes them to the FTC, which serves as the ultimate implementing body.[6][7]

However, the mechanism by which those rules are enforced has drawn fierce opposition. Opponents, led by the National Horsemen's Benevolent and Protective Association (NHBPA) and the United States Trotting Association (USTA), argue that HISA wields sweeping government powers without meaningful oversight from an accountable government official.[3][5]

Under the law, HISA and its enforcement arm, the Horseracing Integrity & Welfare Unit (HIWU), have the authority to investigate potential violations, subpoena records, search private businesses, and levy civil penalties of up to $100,000. They can also ban individuals from the industry for life through in-house arbitration proceedings.[3]

The Fifth Circuit agreed with the horsemen's constitutional concerns. In its June 11 decision, the appellate court ruled that while HISA's rulemaking structure is constitutional, its enforcement provisions are not. The court concluded that the FTC lacks sufficient supervisory authority over HISA's day-to-day enforcement actions, meaning the private authority operates with unchecked power.[2][6]

Federal regulators and HISA supporters counter that Congress already fixed any constitutional defects. In late 2022, following an earlier Fifth Circuit defeat, Congress passed a one-sentence amendment giving the FTC the power to "abrogate, add to, and modify" HISA's rules. Supporters argue this amendment ensures HISA functions subordinately to the FTC.[1][4]

The HISA petition stresses that two presidential administrations and bipartisan majorities in Congress have backed the law. Regulators argue that invalidating the enforcement provisions would plunge the $3.6 billion industry back into a disjointed regulatory environment, undermining years of progress on equine welfare and track safety.[1][4]

The Supreme Court has already intervened in this saga once. In June 2025, the justices vacated the previous appellate rulings and remanded the cases back to the Fifth, Sixth, and Eighth Circuits. The Court directed the lower courts to reconsider HISA's constitutionality in light of FCC v. Consumers' Research, a 2025 decision that upheld the funding mechanism for a federal telecommunications program administered by a private company.[1][6][7]

On remand, the Sixth Circuit reaffirmed its stance that HISA is constitutional, finding that the Consumers' Research precedent supported the government's position on delegation. The Eighth Circuit has yet to issue its revised opinion, but the Fifth Circuit maintained that the new precedent did not alter its conclusion regarding HISA's enforcement powers.[5][6][7]

This entrenched circuit split makes Supreme Court review highly likely, as only the high court can provide an authoritative nationwide ruling. The USTA, which is petitioning the Supreme Court for review of its own legal challenge out of the Sixth Circuit, noted that the conflicting appellate decisions practically guarantee the justices will take up the case.[1][5]

In the meantime, the Fifth Circuit has stayed the mandate of its June ruling pending the Supreme Court appeal, preserving the legal status quo. For now, HISA continues to enforce its Racetrack Safety and Anti-Doping and Medication Control programs in participating states, while the injunction against enforcement remains in place in Louisiana and West Virginia.[6][7]

If the Supreme Court accepts the petitions, the resulting decision will have stakes far beyond the racetrack. A ruling against HISA could force Congress to rewrite the law entirely, potentially requiring a fully federal agency to take over enforcement, or it could lead to the abandonment of federal oversight of horse racing altogether.[2][3][6]

More broadly, the case could redefine the limits of how the federal government utilizes private entities and self-regulatory organizations. A strict interpretation of the private non-delegation doctrine could invite challenges to other regulatory frameworks that rely on industry experts and private corporations to enforce national standards, from financial markets to healthcare administration.[2][6]