Fifth Circuit strikes down HISA – again
Contradicts Sixth Circuit ruling, possibly setting up Supreme Court fight
The Biz
June 12, 2026
The Fifth Circuit Court of Appeals on Friday ruled that the Horseracing Integrity and Safety Act (HISA) is unconstitutional, siding with the National Horsemen’s Benevolent and Protective Association (HBPA) and 12 of its state affiliates in an ongoing legal challenge to the federal law.
In a unanimous decision, the court concluded that HISA improperly delegates enforcement authority to the private, nonprofit Horseracing Integrity and Safety Authority. The opinion stated that the plaintiffs “contend that HISA facially delegates unsupervised enforcement power to private actors. They are right.”
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According to the ruling, the Authority exercises executive functions that are not sufficiently supervised by the Federal Trade Commission (FTC). The court found that the law violates the constitutional principle known as the private nondelegation doctrine because the Authority “is enforced by private entities that are not subordinate to the FTC.”
The opinion noted that the Authority has the power to “investigate, issue subpoenas, conduct searches, levy fines, and seek injunctions,” while concluding that the FTC’s oversight occurs only after enforcement actions have already taken place. The court described the arrangement as “a radical delegation.”
The decision marks the third time the Fifth Circuit has found HISA unconstitutional. In 2022, the court ruled that the law improperly delegated legislative authority to a private entity. After Congress amended the statute, the case returned to the court, which in 2024 held that the revised law still improperly delegated executive authority.
The latest ruling follows the U.S. Supreme Court’s decision in FCC v. Consumers’ Research, which sent the HISA case back to the Fifth Circuit for further review. In Friday’s opinion, the court said that the Supreme Court’s decision “does not change our analysis.”
The National HBPA welcomed the ruling. Chief Executive Officer Eric Hamelback said the organization has been challenging HISA “for the constitutional rights of horsemen for over five years” and argued that Congress cannot give a private corporation broad regulatory authority over the industry.
“Congress cannot make a private corporation the judge, jury, and executioner of our industry,” Hamelback said.
Daniel Suhr, president of the Center for American Rights and lead counsel for the HBPA, said the decision reinforces the principle that government powers should be exercised by public officials who are accountable to voters.
HBPA General Counsel Peter Ecabert said the organization is prepared to continue the litigation to the U.S. Supreme Court if necessary and expressed confidence that the ruling will ultimately be upheld.
HISA has also faced legal challenges from several states. Texas was a party to the Fifth Circuit case, while Oklahoma, West Virginia, and Louisiana have asked the U.S. Supreme Court to review a separate Sixth Circuit decision that upheld the law. Another challenge remains pending before the Eighth Circuit Court of Appeals.
Because the Fifth Circuit’s decision conflicts with the Sixth Circuit’s ruling, creating what is known as a circuit split, and because it concerns the validity of a federal statute, the issue could ultimately be resolved by the U.S. Supreme Court.
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