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United States District Court Northern District of Texas Lubbock Division Case 5:21-cv-00071-H Document 44-1 Filed 05/14/21 Page 1 of 21 PageID 635 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS LUBBOCK DIVISION NATIONAL HORSEMEN’S BENEVOLENT AND PROTECTIVE ASSOCIATION, et al., Plaintiffs, v. No. 5:21-cv-00071-H JERRY BLACK, et al., Defendants. BRIEF AMICI CURIAE OF SENATOR MITCH McCONNELL AND REPRESENTATIVES PAUL TONKO AND ANDY BARR IN SUPPORT OF DEFENDANTS’ MOTIONS TO DISMISS {00296502.DOCX} Case 5:21-cv-00071-H Document 44-1 Filed 05/14/21 Page 2 of 21 PageID 636 TABLE OF CONTENTS TABLE OF AUTHORITIES .......................................................................................................... ii INTERESTS OF AMICI CURIAE ..................................................................................................1 ARGUMENT ...................................................................................................................................2 I. HISA is vital legislation .......................................................................................................3 II. HISA is the result of extensive legislative deliberation .......................................................6 III. HISA is structurally constitutional.......................................................................................8 CONCLUSION ..............................................................................................................................14 {00296502.DOCX} i Case 5:21-cv-00071-H Document 44-1 Filed 05/14/21 Page 3 of 21 PageID 637 TABLE OF AUTHORITIES Cases Austin Municipal Securities Inc. v. National Ass’n of Securities Dealers, Inc., 757 F.2d 676 (5th Cir. 1985) .............................................................................................10 Big Time Vapes, Inc. v. FDA, 963 F.3d 436 (5th Cir. 2020) ...........................................................................................8–9 Boerschig v. Trans-Pecos Pipeline, L.L.C., 872 F.3d 701 (5th Cir. 2017)) ............................................................................................10 Brackeen v. Haaland, 994 F.3d 249 (5th Cir. 2021) .............................................................................................13 Carter v. Carter Coal Co., 298 U.S. 238 (1936) ...........................................................................................................11 City of Dallas v. FCC, 165 F.3d 341 (5th Cir. 1999) .............................................................................................12 Gundy v. United States, 139 S. Ct. 2116 (2019) .........................................................................................................9 INS v. Chadha, 462 U.S. 919 (1983) ...........................................................................................................13 Mistretta v. United States, 488 U.S. 361 (1989) .............................................................................................................9 Otto v. SEC, 253 F.3d 960 (7th Cir. 2001) .............................................................................................10 Sartain v. SEC, 601 F.2d 1366 (9th Cir. 1979) ...........................................................................................10 Sorrell v. SEC, 679 F.2d 1323 (9th Cir. 1982) ...........................................................................................10 Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381 (1940) .................................................................................................3, 11–12 Texas v. Rettig, 987 F.3d 518 (5th Cir. 2021) .............................................................................................13 Todd & Co., Inc. v. SEC, 557 F.2d 1008 (3d Cir. 1977).............................................................................................10 {00296502.DOCX} ii Case 5:21-cv-00071-H Document 44-1 Filed 05/14/21 Page 4 of 21 PageID 638 Statutes Maloney Act, 15 U.S.C. § 78o-3 ...................................................................................................10 Interstate Horseracing Act, 15 U.S.C. § 3004 ..................................................................................6 Horseracing Integrity and Safety Act of 2020, Pub. L. No. 116-260, Tit. XII, 134 Stat. 1182 § 1203.................................................................................................................................14 § 1204.............................................................................................................6, 9–10, 12–14 § 1205...................................................................................................................................9 § 1206...................................................................................................................5, 9, 12, 14 § 1207...................................................................................................................5, 9, 12, 14 § 1208.................................................................................................................................11 § 1209.......................................................................................................................9–11, 14 Unenacted Bills H.R. 2012, 113th Cong. (2013)........................................................................................................6 S. 973, 113th Cong. (2013) ..............................................................................................................6 H.R. 3084, 114th Cong. (2015)........................................................................................................1 H.R. 2651, 115th Cong. (2017)........................................................................................................1 H.R. 1754, 116th Cong. (2019)........................................................................................................1 S. 4547, 116th Cong. (2020) ........................................................................................................1, 7 {00296502.DOCX} iii Case 5:21-cv-00071-H Document 44-1 Filed 05/14/21 Page 5 of 21 PageID 639 Other Legislative Materials H.R. Rep. No. 116-554 (2020) .....................................................................................................3–4 Hearing on H.R. 2651, the Horseracing Integrity Act of 2017, Before the Subcommittee on Digital Commerce and Consumer Protection of the House Committee on Energy and Commerce, 115th Cong. (June 22, 2018).................................................................................................................4–5 Legislation to Promote the Health and Safety of Racehorses: Hearing on H.R. 1754, the Horseracing Integrity Act of 2019, Before the Subcommittee on Consumer Protection and Commerce of the House Committee on Energy and Commerce, 116th Cong. (Jan. 28, 2020) ..............................3–4 166 Cong. Rec. H4973–83 (daily ed. Sept. 29, 2020) .....................................................................8 {00296502.DOCX} iv Case 5:21-cv-00071-H Document 44-1 Filed 05/14/21 Page 6 of 21 PageID 640 INTERESTS OF AMICI CURIAE Republican Leader Mitch McConnell is the senior United States Senator from Kentucky. He was Majority Leader of the Senate when Congress enacted the Horseracing Integrity and Safety Act of 2020 (“HISA”). As Kentucky’s Senator for more than 36 years, he is acutely aware of all issues facing the horseracing industry. He has fought to preserve the integrity of the sport, and to protect both horses and jockeys. His strong interest in horseracing led him to introduce HISA in the Senate on September 9, 2020. See S. 4547, 116th Cong. Leader McConnell’s experience as a leading member of the Senate, together with his long-term interest in horseracing and his specific involvement with HISA, enable him to offer this Court an important perspective on this matter. Congressman Paul Tonko is a Democrat who represents New York’s Twentieth District in the U.S. House of Representatives. Horseracing is a key industry in both his district and his state. He therefore has a strong interest in maintaining the integrity and vitality of the sport. On the same day that Leader McConnell introduced HISA in the Senate, Congressman Tonko introduced the same bill in the House as an amendment during a committee debate. In addition to introducing an earlier bill that became HISA, see H.R. 1754, 116th Cong. (2019), he co-sponsored precursors to that legislation in 2015 and 2017. See H.R. 3084, 114th Cong. (2015) (first co-sponsor); H.R. 2651, 115th Cong. (2017) (first co-sponsor). Congressman Andy Barr represents Kentucky’s Sixth District in the House of Represent- atives. Horseracing is one of the signature industries of his district. He is therefore keenly aware of the many challenges that the industry faces. His years of experience on the House Financial Services Committee contributed significantly to HISA’s use of the FINRA model, as discussed more fully below. In addition to being a co-sponsor of HISA, see H.R. 1754, 116th Cong. (2019) (first co-sponsor), he introduced precursors to that legislation in 2015 and 2017. See H.R. 3084, 114th Cong. (2015) (sponsor); H.R. 2651, 115th Cong. (2017) (sponsor). {00296502.DOCX} 1 Case 5:21-cv-00071-H Document 44-1 Filed 05/14/21 Page 7 of 21 PageID 641 ARGUMENT The Horseracing Integrity and Safety Act of 2020 (“HISA”) is both vital and constitutional legislation. This Court should therefore grant Defendants’ motion to dismiss. Race
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