Supreme Court Lets Anti-Doping Horse Racing Law Remain in Effect

U.S. Supreme Court Associate Justice Samuel Alito in Washington on Oct. 7, 2022. Alex Wong/Getty Images

The nation’s top court on Sept. 23 paused an appeals court ruling that could have led to the nationwide block of a law aimed at preventing doping in horse racing.

U.S. Supreme Court Justice Samuel Alito agreed to stay a ruling from the U.S. Court of Appeals from the Fifth Circuit that found part of the law violative of the U.S. Constitution. The stay is in place until a further order is entered by Alito or the Supreme Court.

The Fifth Circuit earlier this year said the latest version of the law is largely constitutional but one key part, which gives a nonprofit the ability to investigate and levy fines, is not. The appeals court’s ruling was set to take effect on Sept. 25, and challengers of the law have said they wanted to have the ruling expanded nationwide.

If that happened, “it would plunge horseracing back into a confusing web of varying enforcement protocols, disrupt the entrenched expectations of a national industry that has adjusted to the federal reforms over two-plus years, and imperil the human and equine athletes who have been protected by the successful programs Congress directed,” attorneys for the Horseracing Integrity and Safety Authority, the nonprofit, told Alito in a recent application for a stay. “The data are clear: more horses would die and more cheaters would prosper.”

The law in question, the Horseracing Integrity and Safety Act, was passed by Congress and signed into law by President Donald Trump in 2020. The law enables the nonprofit Horseracing Integrity and Safety Authority to create anti-doping and racetrack safety programs.

After courts found the law was unconstitutional, Congress amended it in 2022 to give the Federal Trade Commission the power to repeal, add to, or otherwise modify rules promulgated by the nonprofit.

The National Horsemen’s Benevolent and Protective Association and other groups sued. They said the regulatory scheme was still unconstitutional.

U.S. District Judge James Wesley Hendrix disagreed, finding that because the authority is now subordinate to the Federal Trade Commission, the structure passes muster.

The U.S. Court of Appeals for the Fifth Circuit, after considering an appeal, said most of the structure is constitutional but the portion that lets the nonprofit investigate possible violations and levy fines, without oversight from the commission, is forbidden by the Constitution.

Requests from the Horseracing Integrity and Safety Authority for the appeals court to reconsider the case and to stay the ruling until the Supreme Court weighed in, were rejected.

That prompted the authority to ask Alito to intervene.

In the brief order on Monday, Alito stayed the Fifth Circuit’s mandate and ordered the government to reply to the application by Sept. 30.

U.S. lawyers said in their reply, which was filed later Monday, that they support staying the Fifth Circuit’s ruling.

Government lawyers said among the reasons to pause the decision is that two other federal appeals court, the U.S. Court of Appeals for the Sixth Circuit and the U.S. Court of Appeals for the Eighth Circuit, have turned away challenges to the same law.

The split between circuits makes it more likely the Supreme Court will take up the case, the lawyers said.

“Because the court of appeals held important aspects of a federal statute facially unconstitutional and created a circuit conflict, there is a reasonable probability that this Court will grant certiorari,” they wrote.

Applications for stays are submitted to individual justices, depending on the appeals court from which the cases come. Alito oversees the Fifth Circuit.

The justice who receives an application can act on the filing or refer it to the full court for consideration. Granting an application is only done if the justice or justices decide the applicant has met four criteria, including establishing a reasonable probability that four justices will agree to review the case.