It turns out that Judge Janice Rogers Brown is far from the only one concerned provisions of the Indian Reorganization Act violates the non-delegation doctrine. As noted by an astute reader and this commenter to my prior post, over a dozen states have been actively pushing non-delegation challenges to the IRA, and it appears they may have lined up some significant support. Consider the following:
First, in 1995 a panel of the U.S. Court of Appeals for the Eighth Circuit held that the IRA constituted an unconstitutional delegation of legislative authority in Department of the Interior v. South Dakota. The Supreme Court granted certiorari, vacated and remanded the case back to the Secretary of the Interior in response to a change in the federal government's interpretation of the statute. Justices Scalia, Thomas and O'Connor dissented, however, arguing that the Court should have heard the merits of the non-delegation challenge.
Non-delegation challenges to federal land acquisition under the IRA have continued since, but the Supreme Court has yet to show any interest in resolving the issue. In 2000, for instance, the Supreme Court denied certiorari in Roberts v. United States. Interestingly enough, the petition for certiorari advancing the non-delegation arguments was written by none other by Chief Justice John Roberts, who was then in private practice.
Even more recently, several states have pressed non-delegation challenges to the IRA. Utah's petition for certiorari in Utah v. Shivwits Band of Paiute Indians, for instance, was supported by seventeen state amici. A similar number of states supported certiorari in Carcieri v. Kempthorne, another case which raised the non-delegation issue. The Court has accepted this case for next term, but declined to grant cert on the non-delegation issue.
All of this suggests that there may yet be a live non-delegation challenge to the Indian Reorganization Act out there, and that Judge Brown's dissent in the MichGo case may not be quite as much of an outlier as it may at first appear.
Related Posts (on one page):
- More Signs of a Non-Delegation Doctrinal Revival?
- Judge Brown's Non-Delegation Doctrinal Revival:
Over the last few decades, it seemed that the rule of lenity was declining, or even dying. But it has its adherents -- most notably, Justice Scalia. The addition of Roberts and Alito may have helped to strengthen the doctrine. In the recent money laundering cases (Santos and Cuellar), that wing relied pretty heavily on lenity.
So maybe that's being revived too?
I don't know of one scintilla of evidence that Roberts or Alito take a broad view of the rule of lenity akin to Justice Scalia, and the two justices dissent in Santos leads me to conclude that they actually take a rather narrow view of the doctrine, in line with their Rehnquist like pragmatist conservative jurisprudence, which is totally at odds with the formalist conservative jurisprudence of Scalia (which sometimes attracts Justice Thomas as well).
I don't see why he should. Did Justice Marshall recuse himself from civil rights cases based on his prior advocacy?
My question is narrowly tailored to the circumstance at issue. I want to know whether recusal by a justice is expected when the supreme court is asked to rule on the constitutionality of an act of congress, in cases where the given justice asked the supreme court in a cert petition to rule on the same question on the very same statute. Unless you know of a case in which Justice Marshall participated, having asked the Supreme Court back in his years as an advocate to rule on the very same question, I don't think your point is helpful in this case.
Even if, hypothetically, he had written an opinion on the same issue in an unrelated case as a lower court judge, that wouldn't be grounds for recusal, so if anything, filing a cert petition as a paid advocate should be even less ground for recusal.
Personally, I'm incredibly surprised that the legal left isn't running around hollering that the sky is falling, since the notion that the legislative power is sui generis and properly confined to Congress' hands is the sort of an equal and opposite corrolary to the UNITARY EXECUTIVE THEORY OF THE LOST CONSTITUTIONALISTS!!!! BWAH HA HA HA!!!
Sorry about the caps and sinister laughter and excessive punctuation. I like to do that whenever I'm trotting out imaginary bogeymen.
SCOTUSBlog has the petition available here.