In 2021, for the first time ever, Congress prioritized the health and safety of racehorses through its enactment of the Horseracing Integrity and Safety Act (“Act”), which standardized anti-doping and safety regulations for racehorses across the nation.[i] This Act launched the Anti-Doping Medication Control Program, which aims to establish a national system for drug testing and enforcement, including centralized testing and laboratory accreditation with uniform penalties if the program’s rules are violated.[ii] This is a drastic change from the outdated state-by-state method, as the new measures deem that horses can be tested for performance-enhancing substances at any time, and not just in the moments leading up to a race. These new measures create a safe and competitive environment for racehorses without jeopardizing their health.
Throughout sporting history, athletes such as Barry Bonds, Lance Armstrong, Ben Johnson, and many others have played a role in popularizing the age-old crux of the sports world—performance-enhancing drugs. While there existed a time when athletes could cover up their drug-induced competitive advantage, many sports organizations have utilized the U.S. Anti-Doping Agency to negate these advantages and ensure a level playing field. Since its inception, however, horse racing has not regulated its sport like other organizations. Until 2021, horse racing operated on a “patchwork system of standards in the 38 U.S. racing states” that varies by racetrack and location.[iii] These state-by-state standards were relatively lenient, allowing for a loosely regulated sport that put the health of racehorses at risk and significantly disadvantaged horses and trainers who competed fairly. With the Act now in place, racehorses will be protected from the loosely regulated patchwork system, as the sport will be closely regulated on a national scale, resulting in fewer horses being subject to long- and short-term health risks caused by performance-enhancing drugs and overworking.
However, the Act creates a Horseracing Integrity and Safety Authority (“Authority”) as a private self-regulatory organization that develops rules that regulate horse doping and horse safety, to be approved or disapproved by the Federal Trade Commission (“FTC”).[iv] Opponents of the new measures, such as the National Horsemen’s Benevolent and Protective Association, argue that the Act’s regulatory scheme facially violates the private nondelegation doctrine under Article I and the Due Process Clause of the Fifth Amendment to the United States Constitution.[v] This challenge is relevant as it would prevent the Act from being implemented to regulate racehorse safety and health in 2023, as the Act replaces state regulatory authorities with a private Authority.
This challenge is consistent with the nondelegation doctrine, which “stands for the principle that Congress cannot delegate its legislative powers or lawmaking ability to other entities,” such as administrative agencies and private organizations.[vi] However, it is consistent with the Constitution that power can be delegated to administrative agencies with “intelligible principles” to guide such agencies.[vii] Further, the Constitution allows private parties to contribute to regulation as long as they function “subordinately” to an administrative agency.[viii] Therefore, if the Act contains an intelligible principle guiding the Authority and the FTC, and the Authority functions subordinately to the FTC, then Congress has delegated its legislative power under Article I in a manner consistent with the Constitution.[ix]
The Act does offer intelligible principles to guide the FTC while the Authority functions as a subordinate to the FTC. The Act directs the FTC to authorize rules consistent with existing horseracing standards. This includes standards from the National Thoroughbred Racing Association Safety and Integrity Alliance Code of Standards and several other well-regarded references. Further, the Act directs the FTC to consider the national governing power of authorized rules and the ability of different regions to be able to implement and execute the offered rules. Together, these considerations serve as intelligible principles because they restrict the FTC’s discretion when authorizing proposed rules from the Authority.
Additionally, while the Authority may have the power to propose rules and standards that will govern horseracing on a national scale, these proposals have no effect unless the FTC authorizes them. The Authority’s reliance on the FTC approval of proposed laws deems them a subordinate to the FTC. The FTC’s authorization of proposed laws from its subordinate in accordance with Congress’s guiding intelligible principles creates a national horseracing regulatory scheme consistent with the Constitution.
While the Act continues to face other legal challenges, it is important to recognize its positive impact on the sport of racing. The Act will finally create a framework within the sport where horse health and safety will be prioritized on a national scale, with the goal of the Act being to catch the cheaters, be realistic about medication, and create awareness for environmental contaminants racehorses are exposed to.[x] Through the Act, Congress will promote horse health and safety in an environment where these concerns have not historically been protected. In a sport that has not experienced much change for horse health and safety in its history, the Act is a drastic turnaround, marking the end of its once loosely regulated framework.
[i] See Sara Amundson & Kitty Block, Breaking: New anti-doping program is good news for racehorses, Humane Soc’y Legislative Fund (Mar. 27, 2023), https://hslf.org/blog/2023/03/breaking-new-anti-doping-program-good-news-racehorses.
[ii] See Id.
[iii] Beth Harris, Horse racing poised for new antidoping, medication rules, AP News (May 4, 2023, 10:07 PM), https://apnews.com/article/kentucky-derby-new-antidoping-medication-rules-bc2be55ae9ad9b42b761611f79ee7744.
[iv] See Horseracing Integrity and Safety Act, 15 U.S.C. § 3051–3060.
[v] See Rachel Scharf, New Horse-Doping Regulator Defeats Constitutional Challenge, Law360 (April 1, 2022, 5:32 PM), https://www.law360.com/articles/1480018/new-horse-doping-regulator-defeats-constitutional-challenge.
[vi] Legal Information Institute, Constitution, Cornell U. Law School, https://www.law.cornell.edu/wex/nondelegation_doctrine (last visited Sept. 18, 2023); see also United States v. Andersen, 82 M.J. 543, 550 (A.F. Ct. Crim. App. 2022).
[vii] Nat’l Horsemen’s Benevolent & Protective Ass’n v. Black, 596 F. Supp. 3d 691, 711 (N.D. Tex. 2022).
[viii] Scharf, supra note v.
[ix] See Nat’l Horsemen’s Benevolent & Protective Ass’n, 596 F. Supp. 3d at 711.
[x] See Horse racing’s national anti-doping program launches out of the gate, Spectrum News 1 (Mar. 27, 2023, 8:00 AM), https://spectrumnews1.com/ky/louisville/news/2023/03/27/horseracing-integrity-safety-act-anti-doping-program-kentucky-derby.
