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Title Headnotes
Authority to Transfer Forfeited Property to the General Services Administration for Potential Sale to a Municipality

The Attorney General has authority under 21 U.S.C. § 881(e)(3) to transfer to the General Services Administration real property forfeited to the United States Pursuant to the drug laws. Under 40 U.S.C. § 484(k)(2), if GSA determines that the property is needed to carry out neither its own responsibilities nor the responsibilities of any other federal agency, it may assign the property to the Secretary of the Interior upon the Secretary’s recommendation that the property be used as a public park. This statute also allows the Secretary to sell the land for public park or recreational purposes to a municipality. If warranted by the public benefit that would accrue from use o f the land as a park or recreation area, the sales price might be so heavily discounted as to be normal.

Constitutionality of a Judicial Review Provision Providing for Automatic Affirmance of Agency Decisions

The Northeast Interstate Low-Level Radioactive Waste Management Compact would establish a Commission whose final administrative decisions would be subject to review in the United States Court of Appeals for the District of Columbia Circuit. A proposed amendment to a bill granting the consent of Congress to the Compact provides that if review is sought of the Commission’s decision relative to the designation of a “host state” for a regional radioactive waste disposal facility and the court of appeals does not rule within ninety days after the petition for review has been filed, the Commission’s decision “shall be deemed to be affirmed.”

This provision raises serious constitutional problems that implicate the doctrine of separation of powers. Although Congress has broad authority to prescribe rules concerning judicial practice, procedure, jurisdiction, and remedies and to establish the substantive law that governs judicial decisions, the proposed amendment exceeds this authority by effectively exercising the core judicial function of deciding particular cases.

Taxability of Indian Treaty Fishing Income

Various treaties between the United States and Indian tribes secure to the Indian signatories the “right of taking fish at all usual and accustomed grounds and stations.” In determining whether income derived from the exercise of these fishing rights is subject to federal tax, the relevant analysis is that employed by the Supreme Court in Squire v. Capoeman, 351 U.S. 1 (1956). Squire held that Indians are subject to the payment of income taxes as are other citizens unless a tax exemption is “clearly expressed” in an applicable treaty or statute. Squire also held that in analyzing a particular treaty or statute applicable to Indians, ambiguous language should be construed in the Indians’ favor. The Tax Court has properly resolved the inherent tension between these two canons of construction by concluding that income earned by Indians from the exercise of treaty fishing rights is subject to the federal income tax.

Ability of the Environmental Protection Agency to Sue Another Government Agency

Before a lawsuit is justiciable under Article III of the Constitution, there must be a genuine controversy appropriate for judicial resolution. There must be a concrete adversity of interest between the opposing parties, because an Article III court may not decide a collusive suit or render an advisory opinion. Accordingly, courts must insist that the real party in interest challenging the Executive Branch’s position not itself be an agency of the Executive Branch. In this way, courts will avoid hearing potentially collusive lawsuits and performing functions committed by the Constitution to the President.

There are no cases in which disputes between two agencies, both of whose heads serve at the pleasure of the President, have been found to be justiciable. In two recent Superfund enforcement actions initiated by the Environmental Protection Agency, the defendants attempted to join other federal agencies as co-defendants. In both cases, the courts rebuffed the attempts on the ground that the United States may not sue itself. Accordingly, a suit brought by the EPA against the Department of Energy, or any other Executive Branch agency whose head serves as the pleasure of the President, would be nonjusticiable.

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