The always insightful Simon Lester observes that the latest sin case that the WTO may take up (we’ve already told you about Antiguan internet gaming) is the incipient American ban on clove cigarettes. Indonesia, where such cigarettes are both a staple, and, apparently, an export, thinks that banning cloves but not methols would constitute trade discrimination against foreign exporters.

And, in a recent decision that the Fifth Circuit called, ahem, “high stakes,” that court threw out the Secretary of the Interior’s effort to save the Indian gaming regulatory scheme held to be unconstitutional in the Seminole Tribe case. The Indian Gaming Regulatory Act required states to negotiate casino deals with Indian tribes under the management of a judge which, the Supreme Court held, violated the states' 11^th amendment immunity from suit, in Seminole Tribe. The secretary then replaced the judicially managed negotiation with a negotiation process managed by Interior. But the 5^th Circuit just concluded that the Act did not authorize the agency to substitute itself for a court: “Congress plainly left little remedial authority for the Secretary to exercise.  … The Secretary may not decide the state's good faith; may not require or name a mediator; and may not pull out of thin air the compact provisions that he is empowered to enforce. To infer from this limited authority that the Secretary was implicitly delegated the ability to promulgate a wholesale substitute for the judicial process amounts to logical alchemy.” I generally don’t bother predicting cert grants, but I could see the government trying to obtain one here, and if it did, law clerks might find a follow up to Seminole Tribe – and an effort by the government to get around the impact of that decision without going to Congress for more legislative authority – to be quite exciting.

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