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Keeping Pace: The Supreme Court May Soon Take A HISA Case
U.S. Supreme Court Justice Samuel Alito issued a brief order on Monday calling for an “administrative stay” in the Fifth U.S. Circuit Court of Appeals case over the constitutionality of the Horseracing Integrity and Safety Act. An “administrative stay” merely gives the court a few extra days to sort out how they want to dispose of a particular case. It does not necessarily predict how the court is ultimately going to rule. In this instance, Justice Alito granted himself and his colleagues a little extra time to decide whether they want to accept for substantive review the Fifth Circuit’s mixed ruling on HISA issued a few months ago.
The “stay” means that the Fifth Circuit ruling striking down the enforcement provision of HISA cannot go into effect as scheduled. That’s a victory for federal racing regulators but we don’t yet know whether it’s a permanent reprieve for the law in racing states like Louisiana and Texas. Justice Alito wants the horsemen’s groups challenging the law to file a brief supporting their position by next Monday. By the way, that’s also the date when the justices may again discuss the fate of another pending challenge to HISA, the so-far unsuccessful challenge that came before the Sixth U.S. Circuit Court of Appeals.
Got all that? Clear as mud, right? Don’t worry. You don’t need to follow every twist and turn over the next few weeks. I will do that for you. The bottom line is that the federal government in its many forms wants the justices to uphold HISA as a valid exercise of Congress’ power, whether the justices end up doing so in the Fifth Circuit case or the Sixth Circuit case. In the end, the justices may join the two cases anyway and, even if they do not, they surely will absorb and respond to the analysis offered by the lower federal court judges in those two cases (see below for my prediction on how that plays out).
Here’s how federal racing regulators framed the question last week for the justices: “Three federal courts (including the Sixth Circuit) have now resolved materially identical challenges to the amended Act and reached the same conclusion: HISA is constitutional. But the Fifth Circuit recently contradicted that consensus, holding that HISA’s enforcement provisions facially violate the private-nondelegation doctrine. That decision is wrong in two key respects: (i) it disregards this Court’s caution against wiping out broad swaths of federal legislation on a facial basis; and (ii) it overlooks the many ways Congress purposefully subordinated the Authority’s enforcement of HISA rules to the FTC’s approval, control, and independent power.
In their brief earlier this month, the U.S. Solicitor General made three points in support of HISA’s effort to block the Fifth Circuit ruling from taking effect. “First, this Court has long applied a strong presumption in favor of allowing a challenged federal statute to remain in effect pending the completion of judicial review. Second, a stay is particularly warranted here because the Fifth Circuit invalidated important provisions of the challenged statute on their face. Third, a stay is also particularly warranted here because two other courts of appeals, the Sixth and Eighth Circuits, have rejected similar facial challenges to the same provisions and the Fifth Circuit’s ruling will nevertheless prevent the Act’s implementation in those circuits and elsewhere.”
Those challenging the federal racing integrity law now have less than a week to respond to these arguments. Those defending the Fifth Circuit’s ruling will be defending what amounts to shoddy legal analysis based on a rudimentary misunderstanding of the way HISA works. How bad was the Fifth Circuit’s ruling? It repeatedly cited the U.S. Anti-Doping Agency as the enforcement arm of HISA, even though USADA has never been that enforcement arm. That basic mistake, which a law clerk should have spotted, represents the sort of judicial clown show that likely won’t impress the justices in Washington.
Don’t sleep on the importance of what happened last week
Meanwhile, The Eighth U.S. Circuit Court of Appeals, one of the most conservative in the U.S., refused on Friday to block enforcement of HISA. In so doing, the appellate judges upheld a decision by a trial judge who also rejected an attempt to block the law while it is litigated in the federal courts. The decision, a victory for HISA, was 2-1. The decision came in a lawsuit filed by the Iowa Horsemen’s Benevolent and Protective Association, Bill Walmsley, and Jon Moss. The Eighth Circuit covers Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota.
You can read the ruling here. Notice that the majority opinion was written by Steve Colloton, the chief judge of the Eighth Circuit. Colloton is a nominee of President George W. Bush. You will recall that the Sixth Circuit ruling upholding HISA in its entirety was written by Jeffrey Sutton, the chief judge of his court and also a nominee of President George W. Bush. These two conservative jurists are very well respected by the justices of the U.S. Supreme Court, especially with the three Republican nominees most likely to be sympathetic to the federal position: Justices Brett Kavanaugh and Amy Coney Barrett and Chief Justice John Roberts.
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That could make the difference when the constitutional challenges to HISA make their way to the nation’s highest court. The appeals judges who have looked into the issue have cleaved into two groups. The first, led by Judges Colloton and Sutton, say HISA is constitutional. The second, led by the judges of the Fifth Circuit, have concluded that HISA’s enforcement provisions are flawed. You will never get rich betting on the outcomes of Supreme Court rulings. But I think it’s much more likely than not that at least five justices will side with Sutton and Colloton and not the rogues at the Fifth Circuit. That would be excellent news for HISA supporters.
