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.