Judge Brown's Non-Delegation Doctrinal Revival:

It is not very often that the non-delegation doctrine is raised in federal appellate litigation, and perhaps for good reason. The Supreme Court has not looked favorably upon a non-delegation challenge to federal agency action in decades. Yet in a recent case before the U.S. Court of Appeals for the D.C. Circuit, Michigan Gambling Opposition v. Kempthorne, the appellants pressed a non-delegation challenge to aspects of the Indian Reorganization Act (IRA), and actually managed to secure one judge’s vote.

Michigan Gambling Opposition (MichGO) challenged the Bureau of Indian Affairs (BIA) decision to take approximately 150 acres of land in Michigan and place it in trust for use by an Indian tribe for the construction and operation of a casino. According to MichGo, the provisions of the IRA upon which the BIA relied constituted an unconstitutional delegation of legislative authority to the agency. Specifically, MichGO argued, Section 5 of the Act’s authorization for the BIA to acquire land “for the purpose of providing land for Indians” lacks an “intelligible principle” to guide the agency’s implementation of the Act’s delegation of authority.

Two judges on the panel, Douglas Ginsburg and Judith Rogers, found this argument wholly unconvincing. Their per curiam opinion noted that an “intelligible principle” may be derived not only from the statutory text, but also its purpose, “factual background” and “statutory context.” Further, they noted, the Supreme Court has been quite permissive in its enforcement of the nondelegation doctrine, and has upheld far broader delegations than that contained in the IRA. (Indeed, some commentators suggest that the doctrine is all but a dead letter.) The opinion also noted that the First, Eighth, and Tenth Circuits had also rejected nondelegation challenges to the IRA within the past ten years.

Judge Janice Rogers Brown was convinced by MichGo’s arguments, however. As she explained in her dissent:

Like other courts that have rejected nondelegation challenges to § 5 [citations omitted], the majority nominally performs a nondelegation analysis but actually strips the doctrine of any meaning. It conjures standards and limits from thin air to construct a supposed intelligible principle for the § 5 delegation. Although I agree the nondelegation principle is extremely accommodating, the majority’s willingness to imagine bounds on delegated authority goes so far as to render the principle nugatory. Analyzing the statute using ordinary tools of statutory construction, as the Supreme Court has always done in nondelegation cases, I am forced to conclude § 5 is unconstitutional.

And she concludes:

Section 5 gives the Secretary unguided authority to transfer areas of land from the jurisdiction of state and local government to that of various bands of Indians. None of the foregoing implies BIA has exercised its authority wantonly. But the question is not what it has done, but what it has authority to do. The authority was Congress’s to give, and the boundaries were for Congress to provide as well. Since it has failed to do so, I am forced to conclude § 5 of the IRA is an unconstitutional delegation.

One might expect such an argument from an academic – indeed there are several academics who have written quite powerfully on the need to reinvigorate the nondelegation doctrine in administrative and constitutional law. Yet given the Supreme Court’s reluctance to endorse even the most tepid nondelegation principles, it is somewhat surprising to see these arguments aired by a federal appellate judge. Will Judge Brown's opinion be a lonely and singular dissent? Or could it be a herald of a doctrinal revival?

More Signs of a Non-Delegation Doctrinal Revival?

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.