The constitutionality of the Horseracing Integrity and Safety ACT (HISA) became less certain March 3 when the U.S. Court of Appeals for the 6th Circuit ruled the 2022 legislative amendment to HISA cured its unconstitutional defect. In contract to the 5th U.S. Circuit Court of Appeals decision on November 18, 2022, that held HISA unconstitutional on its face due to its violation of the non delegation doctrine, the 6th Circuit held that HISA is constitutional, finding no violation of either the non delegation doctrine or the anti-commandeering doctrine.
With the addition of HISA, the Association of Racing Commissioners International/Racing Medication and Testing Consortium rule making process results in not one but two private, unregulated entities engaging in medication rule making. Arguably this is a double non delegation doctrine violation. The lack of transparency, scientific data and industry input is also of serious concern to horsemen.
Assuming the “legislative fix” proves convincing on appeal to the nine justices of the U.S. Supreme Court, the covered person alleged to have violated an Anti-Doping and Medication Control rule under HISA remains entitled to due process.
It is unclear how that covered person will receive substantive due process when they are prohibited from obtaining or presenting evidence of the laboratory data package, the scientific basis for the alleged violation, the minimal level of detection or other criteria. Also unclear is how the covered person will be afforded the right of due process when they are not guaranteed a right of review by the Federal Trade Commission and absent such a review, face a direct appeal to the U.S. Court of Appeals. The estimated cost of appealing a matter to the U.S. Court of Appeals is approximately $30,000 to $50,000. That is pricy due process to say the least.
