After a stay was granted by the Supreme Court, the fifth circuit court of appeals cannot mandate against enforcement by the Horseracing Integrity and Safety Authority, despite its July 5 ruling that HISA’s enforcement provision is unconstitutional. The stay remains in effect until the Supreme Court decides whether to consider the constitutionality of the enforcement provision.

The comes in response to a motion made by HISA on Sept. 19, which was followed by a petition for certiorari on Oct. 15. A petition for certiorari is the standard way to request that the Supreme Court consider a case. The stay was previously reported by T.D. Thornton of Thoroughbred Daily News.

HISA enforcement appears likely for Supreme Court review because there is a clear split in how the fifth and sixth circuits view its constitutionality. The fifth circuit ruling that the
enforcement provision of HISA is unconstitutional under the private
nondelegation doctrine and instead puts law enforcement power in the
hands of a private entity opened a split in the circuits over HISA’s
constitutionality. The sixth circuit court of appeals ruled in 2023 that
a revision to HISA explicitly putting it under the oversight of the
Federal Trade Commission solved the private nondelegation issue.

According to Monday’s opinion from the Supreme Court, the stay remains in effect at least until the court acts upon the petition for writ of certiorari. If the court grants the writ and thus decides to hear the case, the stay remains in effect until the court rules on the case. If the court declines to hear the case, the stay terminates.

The stay was approved by an 8-1 margin. Only justice Ketanji Brown Jackson dissented from the grant of the stay. In her dissent, she said “their application fails to demonstrate any exigency that would warrant such emergency relief” that was granted by the stay. Justice Jackson would instead deny the applciation for a stay and “promptly proceed to consider the pending petition for certiorari.”