Can a private authority regulate horse-racing nationwide?

The following article written by The Editorial Board appeared May 17, 2023 on wsj.com.

The current Supreme Court is doing vital work policing the Constitution’s separation of powers. And it may soon get another chance in a case over whether a private horse-racing authority can deploy regulatory powers usually reserved for the federal government.

In 2020 Congress established the Horseracing Integrity and Safety Authority (HISA) to enforce anti-doping and medication controls in the racehorse industry and develop uniform racetrack safety. While most horse races look similar to spectators, they have historically been governed by different rules depending on which track they ran on.

States might differ in the shoes horses can wear or how jockeys can use their crops, and standards may differ from Kentucky’s Churchill Downs to New York’s Belmont Park or California’s Santa Anita—as well as less famous tracks in states like Louisiana or Arkansas. The industry has also been wrestling with guidance on medications such as Lasix, which is given to prevent pulmonary bleeding caused by the extreme exertion.

HISA was shepherded by Kentucky Sen. Mitch McConnell, and anyone who follows the racing industry knows the Minority Leader’s interest in creating national standards for safety and fairness. Most trainers are honest and reputable, but doping scandals and racehorse deaths have troubled the industry as trainers push animals to win high-stakes races.

The issue is the regulatory vehicle. When Congress created HISA, it delegated its authority to the private association to regulate the sport nationwide. The authority was ostensibly under the umbrella of the Federal Trade Commission, but in reality it was running the show. In November 2022, the Fifth Circuit Court of Appeals ruled the law unconstitutional because the association had final say on regulation.

Read the full article on wsj.com.