The Horsemen’s Challenge: Nondelegation and the Future of HISA

This 2026 ruling from the Fifth Circuit Court of Appeals evaluates the constitutionality of the Horseracing Integrity and Safety Act (HISA) following a previous remand from the Supreme Court. The court concludes that while recent legislative amendments successfully cured nondelegation issues regarding the Authority’s rulemaking by granting the FTC final policy oversight, the statute's enforcement provisions remain unconstitutional. Specifically, the court finds that the private Authority wields executive powers—such as conducting investigations and issuing subpoenas—without sufficient agency supervision. Additionally, the opinion rejects challenges involving the Appointments Clause, Due Process, and the Tenth Amendment, determining the Authority functions as a private entity rather than a government body. Ultimately, the court declares HISA’s enforcement framework facially unconstitutional because it empowers private actors to perform quintessentially executive functions without being subordinate to a federal agency.