Quote:
Originally Posted by Laife Fulk
Congress absolutely has the ability to enact new legislation to create new, superseding federal law.
|
Not if Congress lacks that power because the right is an inherent limit on all sovereigns, a limit that is "pre-Constitutional" in its origins. See "Underpinnings of the Public Trust Doctrine: Lessons from Illinois Central Railroad," 33
Ariz. St. L.J. 849 (2001); Michael C. Blumm and Lynn S. Schaffer, “The Federal Public Trust Doctrine: Misinterpreting Justice Kennedy and
Illinois Central Railroad,” 45
Environmental Law No. 2, Symposium: Public Trust Doctrine (Spring 2015), pp. 399-430; and
Richard Hurlburt, "The Public Trust Doctrine - A Twenty-First Century Concept," 16 Hastings West Northwest J. of Envtl. L. & Pol'y 105 (2018).
As Justice Field wrote in
Illinois Central: The State can no more abdicate its trust over property in which the whole people are interested, like navigable waters and soils under them, so as to leave them entirely under the use and control of private parties .... than it can abdicate its police powers in the administration of government and the preservation of the peace.
Obviously, if a state is powerless to abdicate its trust, it cannot convey that [lack of] power to the Congress.
Notyrview, you may have some difficulty with your Civil Procedure exam, given your misunderstanding of fundamental rights. They are not subject to balancing tests. I regret that I can't recommend you as a source of civics lessons.