Recently, the U.S. Supreme Court recognized that the legalization of gambling “is a controversial subject” and “requires an important policy choice.” The Court also acknowledged that the decision belongs to the legislative, not the judicial branch.

That’s a revelation that Kentucky leaders must also come to grips with.

Unfortunately, in 2010, Gov. Beshear was frustrated that Kentucky’s legislature did not expand gambling during his eight-year tenure and asked the Horse Racing Commission to use the court system. His goal: expand gambling through the judiciary.

Though charged with regulating the horse racing industry, the Commission declared a “common interest” with the race tracks and bypassed the legislature by asking the Franklin Circuit Court to declare slot-like “historic racing” machines legal.

The Family Foundation intervened in the case in September of 2010.

It is, of course, not in the racing industry’s “interest” to be restricted to pari-mutuel wagering on horse races, as required by Kentucky law. There is far more money to be made in mechanized forms of gambling such as slot machines or, as in the case before the Franklin Circuit Court, “historic horse racing.”

As a result, the industry began installing the machines at several of its racing tracks. Because they were making money hand over fist, they slow-walked the court case.

Now, after almost eight years, the court’s decision is due any day now. But there is a new twist.

Once there were three different games in Kentucky. Today, the only two games being used in Kentucky are PariMAX and Exacta.

Three weeks ago, PariMAX filed an amended pleading against Exacta in Federal Court in Wyoming, claiming it was not pari-mutuel! In other words, one of the historic horse racing companies, whose machines are being used in Kentucky, agrees with The Family Foundation, which has put on proof in the Frankfort court case.

What will Kentucky’s judge do now? And more, what will the Commission do? It has approved both games and now the creators of one have exposed the other.

Instead of slapping down the industry, like any reasonable regulatory body would be expected to do, the Commission has joined the industry it regulates in its attempt to flaunt legal restrictions and bypass the legislature. The Commission has gone rogue.

The government regulator and the regulated now stand shoulder-to-shoulder, in legal tandem and in defiance of the law. Certain race tracks have even paid the Racing Commission’s consultant. In any other industry, that would constitute a scandal.

The Governor has applauded the U.S. Supreme Court decision. His next step, which would be to acknowledge that the decision belongs in the legislative branch, not the judicial, should be to tame the Commission in his own administration that is seeking to bypass the Kentucky legislature.

Martin Cothran is the senior policy analyst for The Family Foundation.