Volume 2026, No. 4
Articles
Coordinated Sovereignty: Federal Tools for Resolving State-Tribe Conflict
Alexandra Fay
American federalism describes the constitutional relationships between three kinds of sovereign political bodies: the federal government, the fifty states, and 575 federally recognized Indian tribes. Yet federalism scholarship often elides the third sovereign, instead focusing exclusively on the relations between states and the federal sovereign. Previously, I argued that trilateral federalism should frame federal approaches to issues involving tribal governance. This Article continues that work with a structural examination of federal statutory interventions to resolve conflicts between America’s domestic sovereigns, the states, and tribes.
State-tribe conflict is a perennial feature of federal Indian law. This Article engages with examples across various substantive fields of law—including family law, criminal justice, gaming, taxation, and public health—to articulate four models of federal statutory intervention: (1) Federal Preemption, (2) Opt-In, (3) Guided Compacting, and (4) Noninterference. This Article considers their relative strengths, weaknesses, and appropriate contexts. Finally, this Article applies these models to the case study of traffic enforcement in Oklahoma Indian country, a major site of state-tribe conflict in the wake of the Supreme Court’s 2020 decision, in McGirt v. Oklahoma.
Environmental Rights Amendments as Constitutional (Not Environmental) Law
Amber Polk
On August 14, 2023, in a small state courtroom in Helena, Montana, sixteen youth plaintiffs took the stand in the nation’s first-ever youth climate trial in Held v. State of Montana. The Montana youths alleged that a state law violated their constitutional environmental right to a clean and healthy environment. Their legal victory at the end of trial was the striking down of this state law. On June 20, 2024, the Governor of Hawaii announced a historic settlement in the constitutional climate case, Navahine v. Hawaii Department of Transportation, between thirteen Hawaiian youths and the state’s Department of Transportation (HDOT). The theory of that case was premised on two alleged constitutional failures by HDOT—breaching obligations under the constitutional public trust and violating the youth plaintiffs’ constitutional environmental rights. These successes keep environmental rights amendments (ERAs) in the public limelight, intriguing scholars and perpetuating a kind of allure with ERAs that began in Pennsylvania in 2013. Given the era of regression in our federal administrative state, many environmental activists and scholars have begun looking to state constitutions, and ERAs in particular, to address our environmental problems.
This Article is the first to provide a comprehensive defense of ERAs as primarily constitutional rights, not substantive environmental rights, by examining the fast-growing body of ERA jurisprudence in Montana, Pennsylvania, Hawaii, and New York. To be primarily constitutional rights means that ERAs reflect legal relationships between the people and the government regarding matters of self-governance. They do not function to directly secure substantive environmental outcomes. To show this, I first discuss against whom ERAs are assertable. Successful ERA litigation asserts the ERA against the government. Second, I lay out a taxonomy of claims that have been asserted pursuant to an ERA. ERAs have been successful in litigation when they are asserted as negative rights (limits on government powers), as vehicles for the people to participate in self-governance, and as justifications for the exercise of government discretion against corporate interests. They have been unsuccessful in litigation when they are asserted as substantive environmental obligations guaranteeing a particular environmental outcome. Last, I discuss the interpretative strategies that the state courts have used in applying their ERAs. Notably, Montana and Pennsylvania pull from federal constitutional jurisprudence in developing their scrutiny analysis for applying their ERAs. Overall, the developing jurisprudence suggests that ERAs are primarily constitutional rights, not environmental rights.
Controlling Price Controls
Akesh Shah
How does the Constitution control price controls? The Court has developed two frameworks for adjudicating Takings Clause challenges to price controls. On the one hand, the regulatory takings framework prohibits price controls from going too far. It does so through a combination of per se rules and the Penn Central test. On the other hand, the ratemaking takings framework requires that price controls be just and reasonable. It does so through an independent reasonableness inquiry. Today, Takings Clause challenges to price controls trigger either regulatory takings or ratemaking takings.
The open question is the metaframework: When should courts apply which framework? Under long-dead Due Process Clause doctrine, the Court adopted a virtual monopoly metaframework: Price controls on virtual monopolies faced ratemaking takings, and price controls on non–virtual monopolies were automatically unconstitutional. But under current Takings Clause doctrine, it remains unclear when to apply which framework. The Court must choose a metaframework.
The best choice is a new virtual monopoly metaframework: Price controls on virtual monopolies face ratemaking takings, and price controls on non–virtual monopolies face regulatory takings. This is because ratemaking takings is compatible with noncompetitive markets, where its independent reasonableness inquiry is not distorted by inflated market prices, and regulatory takings is compatible with competitive markets, where the Penn Central test uses efficient market prices as a regulatory benchmark. In turn, the new virtual monopoly metaframework would clarify the constitutional status of myriad price controls. Thus, what is old must become new again.
Comments
The Federal Floodgate: Can the Great Lakes Compact Withstand Expansive Exercise of Executive Power?
M. Riley List
Data centers are rapidly reshaping the United States—and straining its water systems. As demand for water-intensive data centers increases, companies increasingly look to the largest source of freshwater in the United States: The Great Lakes. Simultaneously, the Trump Administration has claimed, and exercised, increasingly expansive presidential powers to advance policy priorities like AI dominance. This convergence raises a pressing legal question: Can the President circumvent or override the Great Lakes Compact to drive data center deployment?
This Comment argues that the answer is no. It contends that no President can exercise presidential powers to increase withdrawals, consumptive uses, or diversions to drive data center deployment in ways contrary to the Great Lakes Compact—an interstate agreement with the force of federal law. The Compact’s emergency exemption does not provide a plausible route, nor does the Defense Production Act supply the clear congressional authorization necessary to override the Compact’s carefully calibrated safeguards on withdrawals, consumptive uses, and diversions.
Ultimately, this Comment shows that even in an era of technological urgency and expansive executive ambition, the rule of law endures. The Great Lakes Compact remains a durable safeguard against potential executive efforts to unilaterally reallocate one of the nation’s most vital shared resources, reinforcing environmental stewardship and the constitutional balance of power.
Losing the Text: Catholic Charities Bureau, Inc. and the Future of Statutory Interpretation in Wisconsin
Ariel A. Leykin
Few state court decisions attract the attention of the United States Supreme Court; fewer still are reversed unanimously. Catholic Charities Bureau, Inc. v. Wisconsin Labor & Industry Review Commission is one of those cases. This Comment argues that the root cause of the reversal of Catholic Charities was interpretive. By recasting a straightforward statutory phrase into a judicially constructed test focused on an organization’s activities, the Wisconsin Supreme Court majority departed from the text-first framework established in State ex rel. Kalal v. Circuit Court for Dane County, producing a constitutional infirmity that required federal correction.
Kalal requires Wisconsin courts to give statutory language its common and ordinary meaning, read in context and as a coherent whole. The Catholic Charities majority abandoned that textual discipline. Wisconsin’s Unemployment Compensation Act exempts certain church-affiliated organizations “operated primarily for religious purposes.” Rather than asking what that statutory phrase means, the Court asked whether the organization’s day-to-day activities were overtly religious—a requirement that appears nowhere in the statute. That interpretive move privileged denominations that evangelize over those that express faith through charitable service, crossing into the theological line-drawing the Establishment Clause forbids.
This Comment situates Catholic Charities within a broader pattern of interpretive drift from the Wisconsin Supreme Court, arguing that consistent adherence to the Court’s own interpretive commitments is necessary to prevent future decisions from generating the same doctrinal instability.
Note
On Thin Ice: How Health Care Unions May Avert Third-Party Liability Post-Glacier Northwest
Taryn L. Hanson
The 2023 Glacier Northwest Supreme Court decision paved a new path for employers to sue labor unions for damages arising from strikes so long as the union did not take reasonable precautions to mitigate their strike’s harm. Glacier cut down Garmon preemption’s effectiveness—a preemption which jurisdictionally shifted any claims related to the National Labor Relations Act (NLRA) from a state’s hands and into the hands of the National Labor Relations Board (NLRB). With Glacier, unions now must take extra proactive steps to mitigate their strikes’ foreseeable harms if they wish to keep Garmon’s protections. While there has been extensive discourse regarding Glacier’s harm against unions and their ability to effectively strike, there has not been much discussion regarding how Glacier subjects unions to third-party liability, let alone in an industry-focused scope.
No labor industry is more susceptible to third-party liability than health care unions. Health care strikes can have devastating and sometimes lethal consequences for patients, leaving third parties injured and their families eager to cast legal blame. If such harms occurred during a strike, it is possible that under Glacier, the injured third parties may sue the striking health care union for damages. Glacier has left unions vulnerable to liability if they do not take reasonable precautions in their striking, and health care unions, like all unions, must now abide by Glacier’s requirements to avoid this vulnerability. They may best do so by providing their employer with advance notice of their strike beyond the NLRA’s required ten-day notice. Advance notice as a reasonable precaution provides employers with ample time to prepare for the strike while minimizing Glacier’s diminishing impact on a strike’s effectiveness, and ultimately protects patients from harm, thereby shielding unions from liability for that harm.