Texas Proposes Joint Efforts With HISA

Texas is asking the Horse Racing Integrity and Safety Authority to rethink its approach to regulation of the sport by partnering with state racing commissions to create uniform national standards.

A Texas Racing Commission spokesperson confirmed that a formal invitation to hold talks was made to HISA chief executive officer Lisa Lazarus.

"Our executive director, Amy Cook has reached out to Lisa Lazarus and extended an invitation for her to visit Texas and meet with the Texas team to hear our perspectives. We are awaiting an answer from Ms. Lazarus," a spokesperson messaged BloodHorse Feb. 20.

HISA provided BloodHorse with the following statement Feb. 22: "Texas Racing Commission officials were among the hundreds of stakeholders with whom HISA engaged this fall as we sought feedback on the draft proposed rules before submitting them to the FTC. As we work towards implementation, we will continue to engage with stakeholders and experts within the confines of the law that was written and passed by Congress."

Lazarus became CEO of HISA just a week ago. She is an attorney with experience in anti-doping enforcement issues during 10 years as labor relations counsel for the NFL's 32-member clubs. She later served as general counsel and chief of business development and strategy at the Federation Equestre Internationale, the international governing body for equestrian sports.

In a Jan. 11 press release announcing her retention, HISA's board of directors said Lazarus will "work with stakeholders across the U.S." to evaluate and improve HISA's racetrack safety and anti-doping and medication control programs.

The first public indication of Texas' overture appeared on Twitter last Thursday at about the same time as Texas Attorney General Ken Paxton gave notice that the state will proceed with its motion to intervene in litigation filed by the National HBPA and affiliates seeking to have the formation of HISA declared unconstitutional.

A day later, the Texas Racing Commission posted a pair of tweets saying HISA should reconsider its approach to creating national racing regulations and partner with experts in the racing commissions. 

"Our hope is that the federal government (will) change its thinking and partner with us to create uniform standards for horse racing, not decide what Texans need without consulting us!" one of the tweets concluded.

The peace offering comes before final draft anti-doping and medication rules are filed with the Federal Trade Commission, HISA's umbrella agency. A Dec. 6 HISA press release said the FTC had been notified of HISA's intent to file those rules before the end of the month. Days later, it was announced talks broke down between HISA and the U.S. Anti-Doping Agency which, according to HISA's Dec. 6 release, was leading the process of authoring the rules. Proposed racetrack safety regulations have been submitted to the FTC.

Texas has also navigated official channels with the FTC, filing on Jan. 19 comments proposing a federal cooperative agreement grant program to achieve national standards. In a release accompanying its tweets last Thursday, Texas said the best solutions are achieved through collaborative, not adversarial approaches.

The intervening complaint in the HBPA case asserts, among other things, that HISA violates the federal anti-commandeering doctrine by requiring states to help it carry out a federal regulatory program, specifically:

—Congress requires in HISA that the states either use their mechanisms to fund HISA's operations or lose the ability to collect certain taxes and fees for themselves; and

—The legislation commands "state law enforcement" to "cooperate and share information" with HISA when a person's conduct is thought to violate both state law and HISA regulatory rules.

The anti-commandeering doctrine is defined in five landmark decisions of the U.S. Supreme Court ranging from 1842 to 2018. It prohibits the federal government from "commandeering" state personnel or resources for federal purposes. For example, In Printz v. United States (1997) the U.S. Supreme Court held, "The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program."

The doctrine is grounded in the language of the 10th Amendment, which limits federal power. It says, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

The gist of the argument is that Congress cannot lawfully establish a regulatory scheme and then force the states to help carry it out.

HISA and other defendants in the Texas case are not yet required to respond to the anti-commandeering argument. Litigation of the matter won't proceed until resolution of issues raised by the HBPAs, per previous direction from  U.S. District Court Judge James Wesley Hendrix, to which Texas agreed.

In the meantime, the HBPA case to have HISA's enabling legislation declared unconstitutional is under submission following oral arguments before Hendrix Feb. 16.