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.

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