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.

Related Posts (on one page):

  1. More Signs of a Non-Delegation Doctrinal Revival?
  2. Judge Brown's Non-Delegation Doctrinal Revival:
Cornellian (mail):
I suspect all 9 justices probably think the non-delegation doctrine is valid in theory, but they're probably a lot less enthusiastic about actually having to wade into the quagmire of drawing a constitutional line in the absence of any textual guidance in the Constitution.
7.9.2008 2:07pm
vassil petrov (mail):
The nondelegation doctrine is known in Continental Europe too. The Austrian Federal Constitutional Court declared unconstitutional certain number of statutes as violating the Legalitatsprinzip. The French Conseil Constitutionnel did the same thing. Bulgarian Constitutional Court also. There is currently a great debate in academic circles here in Bulgaria about a provision in the Labor Code giving the Council of Ministers the power basically to impose different legal regime for "empolyees with jobs of peculiar character or roganization of labor". Pretty everibody agrees that this is unconstitutional delegation of lawmaking power.
7.9.2008 2:51pm
vassil petrov (mail):
The problem is to convince the govenmental officials or bodies that have tha power to attack laws before the Constitutional Court - 1/5 of the M.P.s, the Council of Ministers, the two Supreme Courts, the Prosecutor General, the Ombudsman, the President.
7.9.2008 2:57pm
A bit more evidence -- In the criminal law, the rule of lenity (and the affiliated void-for-vagueness doctrine) can be conceived of as a non-delegation doctrine. See Kahan, Lenity and Federal Common Law Crimes.

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?
7.9.2008 3:04pm
Jacob Berlove:

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).
7.9.2008 3:13pm
Jacob Berlove:
Does Roberts' past petition for certiorari on the issue mean that he will be likely to recuse himself should the DC case be appealed to the Supreme Court?
7.9.2008 3:15pm
vassil petrov (mail):
I think not.
7.9.2008 3:31pm
Prosecutorial Indiscretion:
Does Roberts' past petition for certiorari on the issue mean that he will be likely to recuse himself should the DC case be appealed to the Supreme Court?

I don't see why he should. Did Justice Marshall recuse himself from civil rights cases based on his prior advocacy?
7.9.2008 4:47pm
Jacob Berlove:
Prosecutorial Indiscretion,

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.
7.9.2008 4:58pm
Cornellian (mail):
Does Roberts' past petition for certiorari on the issue mean that he will be likely to recuse himself should the DC case be appealed to the Supreme Court?

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.
7.9.2008 11:32pm
Al Maviva:
Vassil, the fact that an Austrian court struck down a statute based on the non-delegation doctrine is very interesting. At the least, it means that Anthony Kennedy stands a pretty good chance of recognizing the doctrine if the question comes up before the Court.

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.
7.10.2008 5:32am
J. Michael:
The Sierra Club and Defenders of Wildlife recently filed a fairly prominent cert petition challenging the Secretary of Homeland Security's authority to waive laws standing in the way of his fence-construction project along the U.S. Mexico border based largely on a nondelegation argument. The petition got a decent amount of press (probably less because it was making a nondelegation argument and more because of the politics of the issue) but was rejected by the court maybe a week or two ago. The argument suggested that some form of substantive judicial review of agency action for compliance with the law's 'intelligible principle' was a necessary precursor to the doctrine. Didn't get four votes from this court (although again given the politics of the issue it's hard to read the tea leaves and figure out just how receptive these folks truly might be to such arguments).

SCOTUSBlog has the petition available here.
7.10.2008 10:24am