Government Spending Bill Includes Language Strengthening FTC Role In HISA Rulemaking - Horse Racing News | Paulick Report

Government Spending Bill Includes Language Strengthening FTC Role In HISA Rulemaking

United States Capitol in Washington, D.C.

In response to a Fifth Circuit Court of Appeals ruling that found the Horseracing Integrity and Safety Act unconstitutional, Congress has included an amendment in a $1.7 trillion government spending bill that gives the Federal Trade Commission a stronger oversight role of the private, non-governmental Authority the 2020 law created.

The omnibus bill, which exited the Senate and House Appropriations Committees early Tuesday morning, is designed to avert a federal government shutdown at midnight Friday.

The HISA clean-up language is intended to satisfy constitutional challenges stating the federal government may not delegate rule-making authority to a private entity. In the original language, the FTC could accept or reject proposed rules from the Authority, but not amend them.

The proposed amendment to Section 1204(e) of the Horseracing Integrity and Safety Act of 2020 (15 U.S.C. 30534(e) states that the Federal Trade Commission, “by rule in accordance with section 553 of title 5, United States Code, may abrogate, add to, and modify the rules of the Authority promulgated in accordance with this Act as the Commission finds necessary or appropriate to ensure the fair administration of the Authority, to conform the rules of the Authority to requirements of this Act and applicable rules approved by the Commission, or otherwise in furtherance of the purposes of this Act.”

Opponents of HISA have stated they will file additional lawsuits challenging the law in the event amendments are added to the 2020 law.

Senate Minority Leader Mitch McConnell (R-Ky) championed the original legislation, which was part of a 2020 government spending bill signed into law by then-President Donald Trump, and pushed for the amendment to be included in the 2022 omnibus bill. A number of other extenders, technical corrections, or proposals unrelated to government spending are in the bill. They include language as diverse as protecting lobster fishing in the North Atlantic,  banning the Chinese-owned TikTok app from government devices, and clarification of the vice president's role in counting electoral votes.

The bill's funding of the Department of Agriculture stipulates that the government will not fund inspection of horse meat facilities, essentially continuing the ban on horse slaughter in the U.S.

The National Horsemen's Benevolent and Protective Association, which sued to strike down HISA as unconstitutional, issued the following statement from its CEO, Eric J. Hamelback, and general counsel Peter Ecabert.

“By including in this spending bill a so-called 'fix' to HISA, Congressional leaders are admitting that the law they added into the 2020 spending bill was unconstitutional, as we told them it was and as the Fifth Circuit ruled. I am disheartened that, once again, legislation governing the horseracing industry was crafted in the dark of night with no public hearings and virtually no industry input. You cannot fix a fundamentally broken law with one sentence. This amendment does not address other substantive issues, nor does it address the funding disaster that remains in the flawed Act. It is clear from the issues raised in the various lawsuits contesting the legal validity of HISA that this one-sentence 'fix' does not alleviate the glaring constitutional infirmities this law has created. The constitutional defects still include a non-federal private entity granted the power to levy taxes in violation of Article I, Tenth Amendment violations for anti-commandeering of states powers, Fourth and Seventh Amendment violations for lack of due process, and violations of the Administrative Procedures Act.
“For all the reasons we state above, the Act itself remains unconstitutional by handing the regulation of an entire industry over to an unelected, unaccountable private corporation. This fight is not over, and the National HBPA will go all the way to the Supreme Court if we have to, in order to protect the interests of horsemen across the country.”
The National HBPA and various affiliates have been assisted in their litigation by the Liberty Justice Center, a non-profit, conservative litigation organization that focuses on constitutional issues and what it calls “government overreach.”
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