MichGo’s attorney asserts a plan to file a cert petition (see below the fold for the news article), and even boasts that he has three votes for cert already — Scalia and Thomas because they dissented in the South Dakota case in 1996, and Roberts because he represented a party making a nondelegation claim to 25 U.S.C. sec. 465 in 1999/2000.
This is spurious, given very recent events.
The Department of Interior just issued nearly-final IGRA Section 20 [25 U.S.C. 2719] regulations. These were the regulations I was talking about in my ICT editorial (not knowing they were about to be finalized). The very existence of these regulations severely blunts Judge Brown’s dissent in the D.C. Circuit case. Here, the Secretary is finally agreeing to formalize restrictions on his discretion contained in section 5 of the IRA [25 U.S.C. 465] in the context of Section 20 trust acquisitions.
One could make a plausible claim that, to the extent the SCT would be persuaded by a solitary dissent in a very minor case (nationally), it is now all but a dead letter.
What the D.C. Circuit should do is amend its decision to reflect the existence of the new regs, adding another nail to the coffin of the Section 5 nondelegation argument.
Finally, as MichGO’s attorney should know, one solitary dissent does not a circuit split make.
From the Allegan News:
MichGO has effectively delayed the project’s construction by challenging the constitutionality of the government’s decision to place the land in trust.
Utilizing their next option, the Grand Rapids-based anti-gambling organization has petitioned the D.C. Circuit Court for re-hearing en banc.
MichGO lawyer John Bursch said, “It asks that all 12 of the active judges on the D.C. Circuit consider our constitutional issue. It’s pretty common that en banc petitions are turned down, but we are going to give the full bench a chance to correct the mistake the (three-judge) panel made.”
Bursch has said the group is considering the action based on the dissenting opinion of federal appeals Judge Janice Brown in the recent decision.
Bursch explained that Brown’s 13-page dissent points out that the court is interpreting the law in a way that allows the federal government to take land away from states.
“This is incredibly important,” Bursch said. “This isn’t just an issue facing this area; it affects cases nationwide.”
The judges may take as long as they need to decide whether or not to re-hear the case, according to Bursch, although decisions typically are made within one or two months.
“If they decline,” Bursch said, “We’ll have 90 days within which to file our petition with the U.S. Supreme Court.”
While Bursch acknowledged that the vast majority of petitions are not accepted to the Supreme Court, he and the group were very optimistic.
“We only need four of nine Supreme Court justices to agree to hear our case,” he said. “Two of them, Justice Antonin Scalia and Justice Clarence Thomas, have already expressed their interest in hearing this exact issue in 1996.”
He also adds that current Chief Justice John Roberts, when still in private practice, filed a petition urging the high court to take on this exact issue, one Bursch says Roberts “described as one of national importance.”
“We already have three of the four we need,” Bursch said. “We’re confident we can get one more, based on all of the reasons in Brown’s dissent. We read it as an invitation for the Supreme Court to hear the issue.”
Turtle Talk 
Isn’t there some similarity in MichGo’s non-delegation argument and the IGRA/CFR provision that allows a State Governor to essentially veto gaming fee-to-trust actions? In fact it seems to me that the latter delegation has two marks against it: 1) not exactly clear parameters of the Governor’s delegated power (see the Wisconsin press’ consternation at the uncertainty in Governor Walker’s actions); and 2) that this is a delegation not to another federal branch but to a non-federal entity — the State/Governor. If I’m remembering correctly, Scalia posed a similar inquiry in Lara (if the Duro-fix had been deemed a grant from Congress to the Tribes, since Tribes and tribal leaders are not appointed nor removable by the President and leaving aside a few unfortunate instances aside in which this has in fact been the case….) Governors too are neither appointed nor removable by the President, and given Congress’ plenary authority over the States to deal with Indian Tribes, such things are constitutionally appropriately left to the President, not to a State or its Governor. Indeed, perhaps Pub. L. 83-280 should be deemed an unconstitutional delegation of federal authority to a State….