In mid 2025, the United States Supreme Court agreed to accept “cert” or certiorari to hear three cases brought by various state and horsemen’s groups in the 5th, 6th, and 8th Federal District Court circuits challenging the Horseracing Integrity and Safety Authority’s (HISA) constitutionality primarily under the private non-delegation doctrine.  

The 5th Circuit includes Texas and Louisiana; the 6th Circuit includes Kentucky and Ohio; and, the 8th Circuit includes Arkansas and Iowa.  

Prior to June 2025, the 5th Circuit (National HBPA v. Black 23-10520) held HISA to be unconstitutional while the 6th (State of Oklahoma v. United States, No. 22-5487) and 8th Circuits (Walmsley v. FTC 23-2687) found HISA to be constitutional in light of some recent changes in rule making authority and oversight. The non-delegation doctrine essentially provides that Congress and its agencies cannot delegate its core constitutional powers to another branch or private group. 

In 1928, the Supreme Court ruled in J.W. Hampton, Jr. & Co. v. United States (1928) that Congress can delegate regulatory authority if it provides an "intelligible principle" to guide and limit the agency's actions. As government activity has expanded and become more complex, this ability to delegate some authority allows Congress to achieve its goals.  

Congress frequently writes broad laws that rely on executive agencies (like the EPA or FDA) to fill in the complex technical details. The doctrine is a subject of significant modern debate. In the case of HISA, Congress delegated certain powers to the FTC which authorized the creation of the Horse Racing Integrity and Safety Authority. Rarely does the Supreme Court rule against the delegation of powers to an agency.

In late June 2025, the United States Supreme Court vacated and remanded the decisions in all three of the relevant Federal Districts directing the lower courts to reconsider their positions in light of a case styled FCC v. Consumers’ Research decided by the Supreme Court on June 27, 2025. Since that time, the 6th Circuit and the 5th Circuit have issued new conflicting opinions with the 6th Circuit holding that HISA is a constitutional delegation of powers (December 17, 2025) and the 5th Circuit holding, for the third time, that HISA is unconstitutional based on HISA’s enforcement powers (issuance of subpoenas, search and seizure, suspensions and fines) (June 11, 2026).  While the 8th Circuit has yet to issue a new opinion based on further consideration of FCC v. Consumers’ Research, the Circuit split is already established. As a result, the cases seemed poised to head back to the US Supreme Court for an ultimate determination of the constitutionality of HISA.  

While the Supreme Court is not required to accept a petition for certiorari, it seems likely in this case where it has previously done so. The Supreme Court may wait on the 8th Circuit to issue its new opinion or may proceed given the already existing split in the Circuits. As such, HISA remains effective. In the 5th Circuit, the status quo remains with Texas (not a member of HISA) being unable to simulcast its signals while Louisiana continues to export its simulcast as a result of an injunction against enforcement by HISA that remains in place.