Wall Street Journal Editorializes in Favor of National HBPA Lawsuit
For the past two years, we’ve heard nonstop from the other side of the HISA debate that our lawsuit was frivolous, ill-intended, and a waste of time. At every turn, we have said our goal is simple: to ensure that the regulations that govern our industry are in line with the Constitution. Earlier this week, the Wall Street Journal, America’s number one newspaper, ran an editorial that should be a huge encouragement to all of us. The editorial board, which is dedicated to defending American principles and free enterprise, gave their view that the Supreme Court should hear our case. Here are some key excerpts:
- 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.
- 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.
- A “cardinal constitutional principle is that federal power can be wielded only by the federal government,” Fifth Circuit Judge Kyle Duncan wrote for the panel. “Private entities may do so only if they are subordinate to an agency.” Congress then tweaked the law with the amendment that the FTC could modify rules after HISA had created them. That’s still slim power for the FTC to wield within a far larger grant of power to the private authority.
- The Supreme Court has signaled its interest in hearing a private non-delegation case. Denying certiorari in 2022’s Texas v. Commissioner of Internal Revenue, Justice Samuel Alito (joined by Justices Clarence Thomas and Neil Gorsuch) wrote that there is a “fundamental question about the limits on the Federal Government’s authority to delegate its powers to private actors” and therefore a “need to clarify the private non-delegation doctrine in an appropriate future case.” Here it comes.
The National HBPA is grateful to our members and partners across the country who have stood with us in this fight. We look forward to continuing to advocate on your behalf and to our eventual vindication in this case.
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