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.
[Important Note to Helpful Readers: If we have confusing typos and especially ugly formatting errors, such as an unclosed underline or bold tag, we'd love to hear from you about them -- but please e-mail the author about this, rather than leaving a comment. We often won't read the comments for a while after the post, and if there's a glaring formatting error, we'd see it quickly when we revisit the post, even without the comment; and in any event the comment likely isn't going to be that helpful to your fellow comment readers. So please e-mail us directly about glitches like this. Thanks!]
Comment Policy: We'd like the posts to be civil, of course (no profanity, personal insults, and the like), but we're also hoping that people try to be as calm, reasoned, and substantive as possible. So please, also avoid rants, invective, substantial and repeated exaggeration, and radical departures from the topic of the thread. Sticking with substance -- and staying on-topic -- will make the comments more helpful to other readers, and more pleasant.
As editors, we reserve the right to delete posts, and even to kick out posters, though we hope that both of these will be exceptional events. (We also reserve the right to be busy with other things, and therefore (1) not remove all the posts that might merit removal, and (2) ignore demands such as "You should remove A's posts, because they're just as bad as B's!")
Here's a tip: Reread your post, and think of what people would think if you said this over dinner. If you think people would view you as a crank, a blowhard, or as someone who vastly overdoes it on the hyperbole, rewrite your post before hitting enter.
And if you think this is the other people's fault -- you're one of the few who sees the world clearly, but fools wrongly view you as a crank, a blowhard, or as someone who overdoes it on the hyperbole -- then you should still rewrite your post before hitting enter. After all, if you're one of the few who sees the world clearly, then surely it's especially important that you frame your arguments in a way that is persuasive and as unalienating as possible, even to fools.
Our goal is to provide an interesting and pleasant environment that can help inform readers. To do that, we'll occasionally have to exercise our editorial discretion. Think of this as an in-person discussion group, where having different voices is critical to a great conversation -- but where sometimes the leader has to deal with cranks who sour the conversation more than they enliven it.
Naturally, there's always a risk that this discretion will be used erroneously, no matter how well-intentioned the editor. But discussion groups (especially on the Internet, but also off it) generally need an editor who'll occasionally make such judgments.
And, remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.