‘Unconstitutional’ Horse Racing Law Included in Omnibus Bill

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An updated version of a horse racing law, which was recently declared unconstitutional in federal court, has been tucked into the $1.7 trillion, 4,155-page omnibus spending bill that was released at 1:30 a.m. ET on Tuesday — a rule opponents say federalizes horse racing and disenfranchises those in the industry.

As Breitbart News previously reported, Senate Minority Leader Mitch McConnell (R-KY) was allegedly pushing for the spending bill to include a revised version of the Horseracing Integrity and Safety Act (HISA), an effort that appears to have come to fruition. The U.S. Court of Appeals for the Fifth Circuit struck down HISA in November, reasoning that the law was unconstitutional because it gave federal power to a private body, the Horseracing Integrity and Safety Authority, without ensuring that the private entity was beholden to the Federal Trade Commission (FTC).

The revised version of HISA, located on pages 1,930 and 1,931 on the spending bill, would amend the rule to give the FTC greater oversight of the Horseracing Integrity and Safety Authority and the ability to “abrogate, add to, and modify the rules of Authority…to ensure the fair administration of the Authority…,” the amendment reads.

“You can put lipstick on a pig, but it is still a pig,” Louisiana Attorney General Jeff Landry told Breitbart News on Tuesday.  “Congress’s failure to follow regular order and the lack of transparency and debate on a state sovereignty infringement is absurd. Shame on the Senate if they allow it to stay in!” 

Landry, who is involved in one of the lawsuits against HISA, has previously slammed HISA as an “attempt to federalize horse racing”  and  a “regulatory scheme that is, at best, half-baked and harmful to everyone in the industry it purports to exist to protect.” He was also one of nine state attorneys general to send a letter on December 8 to McConnell, asking the senator to back down on injecting revised HISA language into the spending bill. 

“HISA has already caused enormous upheaval in our States. A lame-duck session is not the time to slip new language into legislation amending HISA in response to Black. Indeed, language that attempts anything other than repealing this ill-advised legislation will only make a bad situation worse,” the letter reads in part.

The letter continues: 

This private agency, exercising federal regulatory powers without any meaningful restraint, oversight, or adequate time for notice and comment, rushed rules that displaced existing State laws governing horse racing and exposed jockeys and horses to unsafe conditions. Adding insult to injury, the Authority required all participants in the horse racing industry to pay assessments to cover the cost of enforcing HISA’s dangerous and poorly thought out private rules. As a final blow, the Authority attempted to cannibalize existing State personnel to implement and enforce the rules it enacted.

Make no mistake: pressing ahead with any amendments in the lame-duck session threatens a final blow to the horse racing industry that could cause many horsemen to abandon it entirely—an outcome detrimental not only to themselves, but to an entire industry in each State.

HISA was first introduced by U.S. Reps. Paul Tonko (D-NY) and Andy Barr (R-KY) in 2015. The bill stalled for five years until McConnell announced his support in 2020. HISA was passed with bipartisan support and signed by former President Donald Trump that December after “a spate of doping scandals and racetrack fatalities,” according to a court opinion, though horse racing had been regulated by states, localities, and private organizations for centuries. The purported purpose of HISA was to create a framework for enacting nationwide rules governing racetrack safety, anti-doping, and medication control.

According to Reuters, McConnell, who hails from the land of Churchill Downs, “played a key role in getting the law passed” in 2020 and planned to seek changes to enhance the Federal Trade Commission’s (FTC) oversight of HISA. McConnell’s office did not respond to Breitbart News’ request for comment by time of publication. 

The National Horseman’s Benevolent and Protective Association (HBPA), which was also involved in a lawsuit against HISA, released a statement about HISA’s inclusion in the spending bill and warned that the association is willing to “go all the way to the Supreme Court if we have to.” 

HBPA CEO Eric Hamelback and General Counsel Peter Ecabert released the following statement:

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.”

 Rep. Lance Gooden (R-TX), who has previously spoken out about HISA and even introduced a bill proposing to delay HISA’s implementation, called on the Senate to “abandon this overreach.” 

“This is just another example of big government trying to push an unconstitutional, one-size-fits-all approach onto the American people,” Gooden told Breitbart News. “Senate Republicans and Nancy Pelosi should abandon this overreach and let the people of Texas decide what works best in our state.”

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