Policy Belongs to the Legislature
The expansion of gambling has been a hot-button public policy question in Kentucky for 25 years and the Kentucky General Assembly has repeatedly turned back those efforts.
In an attempted end-run around the General Assembly, on July 20, 2010, the Kentucky Horse Racing Commission adopted new regulations purporting to authorize a new form of electronic slot gaming, known as historical horse racing.
Such an effort by the Executive Branch to "amend, alter, enlarge, or limit the terms of legislative enactment" by regulation is not allowed. See Appalachian Racing v. The Family Foundation (Ky. 2014).
This is because "[t]he difference between the departments undoubtedly is that the legislat[ure] makes, the executive executes, and the judiciary construes, the law." It is well established that "one branch of Kentucky's tripartite government may not encroach upon the inherent powers granted to it by any other branch." See Commonwealth of Kentucky, ex rel. Andy Beshear, Attorney General, v. Matthew G. Bevin, Governor, et al. (Ky, June 13, 2019).
Yet, that is exactly what the Commission has done through application of its regulatory definition to historical horse racing.
The Kentucky Supreme Court should not approve of the Executive Branch invasion of the policymaking duties of the Legislative Branch by defering to the Kentucky Horse Racing Commission's application of the the regulation.
As the U.S. Supreme Court emphasized in June of 2019, there are limits to deference because of "the critical role courts retain in interpreting rules" because "of the far-reaching influence of agencies and the opportunities such power carries for abuse." See Kisor v. Wilkie (2019).
The Commission's filing of an "agreed case" seeking the courts' determination of legality and reliance upon the opinion of an out-of-state consultant show the lack of expertise deserving of deference by the Court.
The Court already recognized the Commission had a "common interest" with the racetracks, thus acknowledging the Commission's bias in the matter.
Worthy of emphasis is Kisor's concurring opinion recognizing that public agencies are often biased advocates rather than impartial interpreters of the law:
[E]xecutive officials are not, nor are they supposed to be, “wholly impartial.” They have their own interests, their own constituencies, and their own policy goals—and when interpreting a regulation, they may choose to “press the case for the side [they] represen[t]” instead of adopting the fairest and best reading. Auer thus means that, far from being “kept distinct,” the powers of making, enforcing, and interpreting laws are united in the same hands—and in the process a cornerstone of the rule of law is compromised…. When we defer to an agency interpretation that differs from what we believe to be the best interpretation of the law, we compromise our judicial independence and deny the people who come before us the impartial judgment that the Constitution guarantees them. And we mislead those whom we serve by placing a judicial imprimatur on what is, in fact, no more than an exercise of raw political executive power.
Kisor, pp. 25-27 (Gorsuch, J. concurring, joined by Thomas, J., Alito, J., Kavanaugh, J.)
Instead of being a regulatory agency, the Commission here is an advocate. Instead of seeking an objective consultant, the Commission relied on the gambling consultant paid for by interested vendors and certain racetracks. Kisor recognized the practice for what it was and the role of the courts to keep it in check.
If the Commission's application of the regulation is not reversed, the Court will have presided over the largest expansion of gaming in Kentucky's history... while placing a judicial stamp of approval on an exercise of raw political executive power.