Fifth Circuit Again Strikes Down HISA Enforcement, Defying Supreme Court Guidance
On June 11, 2026, the Fifth Circuit ruled that the enforcement provisions of the Horseracing Integrity and Safety Act (HISA) violate the private non-delegation doctrine, while upholding nearly all other aspects of the law. This is the third time the court has struck down HISA’s enforcement mechanism, despite the Supreme Court vacating a prior ruling and remanding for reconsideration — a pattern of resistance that undermines judicial hierarchy and regulatory stability.
The Fifth Circuit’s latest decision in National Horsemen’s Benevolent and Protective Association v. Black is not a wholesale invalidation of federal horse racing regulation. The court explicitly found that “nearly all” contested aspects of HISA are constitutional. What it struck down — again — is the specific enforcement structure, which vests certain powers in a private authority not directly subordinate to the Federal Trade Commission. This is the third such ruling from the Fifth Circuit on HISA, and the second time the Supreme Court has had to intervene.
What makes this ruling particularly troubling is the procedural defiance it represents. In 2024, the Supreme Court vacated the Fifth Circuit’s earlier HISA ruling and sent the case back for reconsideration in light of a separate case on the private non-delegation doctrine. Rather than realigning with the Court’s direction, the Fifth Circuit reached the same conclusion on the enforcement issue. This is not a court humbly applying Supreme Court precedent — it is a court actively testing how far it can push its own ideological interpretation before being checked again.
The practical consequence is regulatory whiplash. Interstate horse racing — an industry with documented issues of doping, horse fatalities, and worker safety — now faces years of legal uncertainty over how and by whom enforcement actions can be taken. Meanwhile, the Justice Department and Congress must decide whether to seek rehearing en banc or to amend the statute to explicitly vest enforcement in a federal agency, stripping the private-delegation issue entirely. The deeper democratic harm is the erosion of vertical stare decisis: when a circuit court treats Supreme Court guidance as optional, it weakens the rule-of-law foundation that prevents the judiciary from becoming a political battleground.
The humanitarian alternative
A better approach would be for Congress to reauthorize the Horseracing Integrity and Safety Act with explicit findings under the Commerce Clause, tying each regulatory provision to specific interstate economic activity (breeding, betting, shipping across state lines). Simultaneously, Congress could establish a federal administrative agency—rather than a private corporation—to enforce the rules, eliminating the delegation objection entirely. This would preserve regulatory oversight while respecting separation-of-powers concerns, protecting horses, jockeys, and the public from unsafe practices without triggering predictable judicial obstruction.
Falsifiable predictions
What this entry claims will happen, and what data would prove it wrong. The Reckoner revisits these against current reality.
- The Supreme Court will reverse the Fifth Circuit's horse racing decision within the next 12 months, likely by a 6-3 or 7-2 vote.
- At least two more Fifth Circuit rulings will be reversed by the Supreme Court in the October 2026 term, continuing the trend documented in 2024-2025.
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Original source — excerpted
news Our Most MAGA Court Created Another Mess for SCOTUS to Clean Up"The nation’s most conservative appeals court keeps getting beaten up at the Supreme Court, but its judges adamantly refuse to take the hint. On Thursday, the ..."