The Fifth Circuit just ruled against HISA’s enforcement powers again. The only address that matters now is One First Street, N.E., Washington, D.C.
The Fifth Circuit did what the Fifth Circuit does.
For the third time since the Horseracing Integrity and Safety Act began operations, the U.S. Court of Appeals for the Fifth Circuit has ruled that HISA’s enforcement provisions are unconstitutional, an unlawful delegation of government power to a private corporation. Three swings. Three same outcomes. At some point the definition of insanity applies.
This latest ruling came on remand from the U.S. Supreme Court, which in June 2025 vacated the Fifth Circuit’s prior opinion and sent it back for reconsideration in light of the Court’s own ruling in FCC v. Consumers’ Research. The message from SCOTUS, reading between the lines, was: look at this again, carefully. The Fifth Circuit looked. And came back with the same answer.
The Fifth Circuit’s view hasn’t moved in four years. What moves next is the case itself — to Washington.
What The Ruling Actually Says
The court’s core argument has been consistent from day one. HISA empowers the Authority to investigate, issue subpoenas, conduct searches, levy fines, and seek injunctions, all, in the Fifth Circuit’s view, without the Federal Trade Commission’s meaningful oversight. A private entity wielding that kind of power, the court has said three times now, is constitutionally impermissible under the private nondelegation doctrine.
The Sixth and Eighth Circuits see it differently. Both have upheld HISA’s constitutionality, including on remand from the same SCOTUS order. The argument those courts find persuasive, that the FTC’s statutory role constitutes adequate supervision of the Authority the Fifth Circuit keeps rejecting.
That circuit split, persistent and now sharpened, is the whole ballgame. It’s what forces the Supreme Court’s hand.
HISA’s Response
HISA CEO Lisa Lazarus issued a statement that was both entirely expected and entirely accurate: “HISA remains the law of the land, and our rules and programs are fully in effect. While we await the Supreme Court’s ultimate word, we will continue to be focused on our mission of protecting the safety and integrity of Thoroughbred racing.”
She’s right on the facts. Today’s ruling doesn’t shut anything down. But it doesn’t fix anything either and the thing it doesn’t fix has been sitting there, unresolved, since the 2024 ruling. Texas and Louisiana are the only states within the Fifth Circuit’s jurisdiction, so the practical effect lands there. HISA’s rules remain the binding rules of racing in both states. What the Fifth Circuit keeps saying is that HISA can’t constitutionally enforce those rules. Rules on the books, no one with clear authority to enforce them, that’s been the gray zone in Texas and Louisiana for two years now, and today’s ruling leaves it exactly where it was.
Louisiana has its own separate complication on top of that, a procedural injunction predating the constitutional fight that has kept HISA enforcement out of the state on different grounds entirely. Two different roads, same destination: an enforcement vacuum.
But Lazarus is also acknowledging the obvious: the Fifth Circuit was never going to be the end of this. It was always headed to SCOTUS. Today just put another entry on the docket.
This isn’t the end of HISA out of the Fifth Circuit. It’s the beginning of the end of the Fifth Circuit as the relevant battlefield.
Where This Goes
The Supreme Court granted certiorari on the HISA cases last June in connection with the FCC v. Consumers’ Research GVR. The Fifth Circuit has now spoken on remand. The Sixth and Eighth have spoken on remand. All three opinions are back before SCOTUS, and they point in conflicting directions.
That leaves the Court with a genuine constitutional question it has to resolve, a clean circuit split on which to resolve it, and no more kicks of the can available. At some point, likely in the next term, the justices will have to answer the question they’ve been circling for four years: does HISA’s enforcement structure pass constitutional muster?
The smart read, based on the composition of the current Court and the 6-3 majority opinion in FCC v. Consumers’ Research, is that HISA survives. Justice Thomas, the most skeptical voice on private delegation authored that majority opinion and did not use it to blow up the entire framework of private entity enforcement. A tell?
But this is a Court that surprises people. And the HBPA’s counsel has been aggressive and precise in narrowing their argument specifically to the enforcement mechanism, not the rulemaking structure, which all three circuits including the Fifth have upheld. It’s a tighter target than it used to be.
The Honest Bottom Line
If you’re hearing chatter that today’s ruling is the end of HISA, that’s overstated. HISA isn’t going anywhere on the strength of this decision alone. What today does is close one chapter and open the final one.
The Fifth Circuit has said its piece, three times. The Sixth and Eighth have said theirs. The institution that actually decides is the one with nine seats and a marble building on Capitol Hill.
That’s where this ends. And that ending isn’t today. Maybe that is not where it ends either. A rather brilliant mind suggested to me today, this may get fixed by Congress.
