In a statement, HISA cheered the decision.

“We appreciate the Federal District Court’s re-affirmation of HISA’s constitutionality,” the Authority wrote. “The urgent need for nationwide, uniform rules to enhance the safety and integrity of Thoroughbred racing has never been clearer. We look forward to the resumption of HISA’s Anti-Doping and Medication Control program on May 22, as ordered by the Federal Trade Commission.”

Congress authorized HISA’s creation in 2020, with groups such as The Jockey Club, Breeders’ Cup Ltd., and others supporting it. Many rank-and-file horsemen, however, were opposed.

It created a privately run Authority tasked with overseeing medication control and anti-doping rules, along with a catch-all program of “racetrack safety,” which encompasses claiming rules, crop use regulation, and other matters. Advocates said it would at long last give the industry uniform national rules, while many horsemen feared what some perceive as a heavy-handed approach and others fretted about the impending end of raceday Lasix use.

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But while those were the issues that concerned most horsemen, they were not what caused HISA to run aground, constitutionally speaking. Instead, the Fifth Circuit ruled last November that the legislation violated the “non-delegation doctrine,” which prohibits the federal government from delegating quintessentially federal tasks to private entities unless robust guardrails and federal oversight are in place.

The initial legislation placed HISA under the Federal Trade Commission (FTC) but essentially forbade the FTC from having any input into whatever rules HISA might adopt.

“A cardinal constitutional principle is that federal power can be wielded only by the federal government,” judge Stuart Kyle Duncan wrote in the November Fifth Circuit opinion, adding, ““The FTC’s limited review of proposed rules falls short of the ‘pervasive surveillance and authority’ an agency must exercise over a private entity” to meet constitutional muster.

The December amendments Congress adopted resolve that problem, Hendrix said in his May 4 opinion. They permit the FTC to “abrogate, add to, and modify” any regulations HISA may adopt.

“[B]ecause Congress brought HISA within the Constitution’s limits as defined by the Fifth Circuit, the Court concludes that HISA does not violate the private non-delegation doctrine,” he wrote.

Other claims advanced by the plaintiffs also fall short, Hendrix wrote in his opinion.

Eric Hamelback, the CEO of the HBPA, claimed in a statement not to be deterred by the setback.

“We’ve been down this road before. After a loss in the district court, we secured a win in the Fifth Circuit Court of Appeals. We will win there again,” he said. “We will fight to protect horsemen and their constitutional rights all the way to the Supreme Court if needed.”

The racetrack safety program went into effect in mid-2022. The anti-doping and medication control program was beset by delays in its rollout and subsequently has been entangled in legal issues. If not stopped by another court, it is slated to take effect May 22.

The case is National Horsemen’s Benevolent and Protective Association v. Jerry Black, et. al.