Supreme Court Justice Samuel Alito agreed to put on hold an appeals court decision that found the enforcement provisions of a federal anti-doping horse racing law unconstitutional.

If the US Court of Appeals for the Fifth Circuit’s decision is allowed to take effect nationwide, “more horses would die and more cheaters would prosper,” the Horseracing Integrity and Safety Authority Inc. said in its request for a stay Monday.

The private organization is empowered by the federal Horseracing Integrity and Safety Act (HISA) to set and enforce rules for the industry. The Fifth Circuit has twice found the law’s enforcement provisions violate the private nondelegation doctrine and are facially unconstitutional. Under the legal principle a private entity may wield government power only if it functions subordinately to an agency with authority and surveillance over it, the court reasoned.

The law “empowers the Authority to investigate, issue subpoenas, conduct searches, levy fines, and seek injunctions–all without the FTC ’s say-so,” the Fifth Circuit said in its July 5 ruling. “That is forbidden by the Constitution.”

Alito ordered an administrative stay pending a further order from him or the full court.

The case stems from a challenge the national horsemen’s association and several of its state chapters brought against the law. A collection of Texas-based racetracks, the state of Texas, and its racing commission also joined the litigation. Under Alito’s order, they must respond to the stay request by 4 p.m. on Sept. 30.

HISA was signed into law by former President Donald Trump in 2020 after a series of tragedies on the track to ensure horses run under safe conditions. Congress amended the law in 2022 after the Fifth Circuit first ruled its enforcement provisions were facially unconstitutional. The change gave the Federal Trade Commission the power to abrogate, add to, or modify the authority’s rules, but that change wasn’t enough to satisfy the Fifth Circuit.

The appeals court said the FTC still doesn’t “retain the discretion to approve, disapprove, or modify” the authority’s enforcement actions.

In its emergency request to the Supreme Court, the authority said it will be asking the court to hear its appeal in this case and said the court may wish to construe it’s application as that request.

On behalf of the FTC, US Solicitor General Elizabeth Prelogar told the court in a later filing Monday that the government agrees the Fifth Circuit’s decision should be stayed. She accused the horse association, racetracks and Texas of forum shopping, explaining “the Authority’s rules do not currently govern horseracing activities in any jurisdiction within the Fifth Circuit.”

“Yet the plaintiffs brought this suit in the Fifth Circuit in order to prevent the Act’s implementation in other parts of the country, including in the Sixth and Eighth Circuits,” she said.

The court has already been asked to hear an appeal in a similar dispute in which the Sixth Circuit upheld the amended law.

The case is Horseracing Integrity and Safety Auth., Inc. v, Nat’l Horsemen’s Benevolent Protective Ass’n, U.S., No. 24A287, 9/23/24