In response, Congress quickly amended the law in 2022. No longer was the FTC required to simply rubber-stamp and promulgate HISA’s rules; instead, it could now “abrogate, add to, and modify” any regulations proposed by the group. A coalition of states, racetracks, and other horse racing–related groups filed a new lawsuit to challenge the revised law, but the Sixth Circuit Court of Appeals rejected their challenge in a ruling last March.
“Sometimes government works,” Judge Jeffrey Sutton wrote for the panel. He noted that the revised law was the product of a successful dialogue of sorts between Congress and the courts over the scope of the law’s power. “The Horseracing Authority is subordinate to the agency,” he concluded, noting the changes. “The Authority wields materially different power from the FTC, yields to FTC supervision, and lacks the final say over the content and enforcement of the law—all tried and true hallmarks of an inferior body.”
That did not satisfy the state of Oklahoma and its allies, however. They asked the Supreme Court to intervene in November, claiming that HISA’s structure still left too much governmental power in the hands of private actors. Though the FTC now has strengthened powers to review HISA’s rules and regulations, it can still only review them to determine if they are “consistent” with the statute that created the agency. Oklahoma and the other plaintiffs argue that this means HISA can impose policy preferences on the government even if the FTC disagrees.