Notes and Case Comments

Executive Review and the Youngstown Categories: Vulnerability of Environmental Regulations to Unbounded Executive Review

Lee C. Rarrick – [C]omprehensive and undefined presidential powers hold both practical advantages and grave dangers for the country . . . . -Justice Jackson The power of executive review remains imperfectly limited and defined—it therefore holds such potential dangers and advantages.  By executive review I mean the power of the President to interpret the law and determine for himself whether a given law or provision is constitutional.  Most commentators agree that this power exists legitimately in one form or another.  But some argue that it is virtually unbounded, save for the president’s own sense of deference to the other branches and his self-interest to remain in office.  Such a comprehensive power surely is as dangerous as that of which Justice Jackson warns in his concurrence in Youngstown Sheet & Tube Co. v. Sawyer, if not more so.  Moreover, if fully utilized, executive review would leave the judiciary with no […]

Federal Indian Reserved Water Rights and the No Harm Rule

Christian Termyn – Most American Indian rights to water trace their origins to 19th century treaty negotiations with the United States.  The 1908 Supreme Court case Winters v. United States established that the federal statutes and treaties setting aside land for Indian reservations also impliedly reserved sufficient water to fulfill the purpose of those reservations.  In the century since Winters, the development of a legal doctrine around reserved water rights has centered largely on defining and quantifying the amount of water to which tribes are entitled.  With an increasing number of tribes holding quantified water rights, a more recent project (and the broad focus of this Note) seeks to integrate tribal water use within the dominant system of western water law: state prior appropriation doctrine. Where water is scarce, even a slight change in practice by one water user may affect the availability of water to other users of a […]