This is an extract of our Constitutional And Canonical Limits On Federal Power document, which we sell as part of our Federal Indian Law Outlines collection written by the top tier of U.C. Berkeley School Of Law (Boalt Hall) students.
The following is a more accessble plain text extract of the PDF sample above, taken from our Federal Indian Law Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Constitutional and Canonical Limits on Federal Power I. Federal Power in Indian Affairs a. Has been described as plenary and exclusive i. but less clear what that means b. No obvious source of power i. previously rooted in sovereignty and Indian Trust - now in the Indian Commerce Clause c. Are there any limits to that power?
i. Originally not really, modernly its reviewable under rational review (Mancari)
1. a hazy issue ii. Constitutional Limits
1. Const. limits not often used bc the court has not been clear about them and its not clear what would limit Congressional power a. fluctuates over time - two main doctrines - may be at odds with one another: i. trust obligation
1. federal government incl. courts must enforce ii. plenary powers
1. ill defined
2. seems to act as a limit on judicial review of Congressional action
2. Standard Constitutional challenges a. beyond legislative authority b. run afoul of limitations such as the bill of rights
3. Non justicability a. most Indian affairs decisions are political questions like foreign affairs iii. Theoretical arguments
1. Cohen framework places limits that Constitution doesn't
2. international norms may act to place some limits on federal power
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