Perhaps Congress should throw up its hands and move on to something more manageable than global climate change. Richard Lazarus asserts that the challenges of enacting effective national strategies for mitigating and adapting to changes in the Earth's climate are not just "wicked," but "super wicked," meaning they defy resolution. He enumerates seemingly insurmountable challenges, such as "the absence of an existing institutional framework of government with the ability to develop, implement, and maintain the laws necessary to address a problem of climate change's tremendous spatial and temporal scope." Imagine trying to design a house to last decades without studs, beams or columns.

Fortunately, our federal lawmakers are not as ill-equipped for the climate challenge as Lazarus' article might suggest. In fact, they already have at hand a sturdy, time-tested frame to support a good part of the United States' response to climate change. Congress engineered it 40 years ago in the form of the Clean Air Act (CAA or the Act). That landmark law and its subsequent amendments incorporate several of the "precommitment strategies" and other designs that Lazarus recommends for effective federal climate legislation.

Editor's Summary: In 2003, the U.S. Supreme Court issued its most recent pronouncement on the executive foreign affairs preemption doctrine in American Insurance Ass'n v. Garamendi. In this Article, Kimberly Breedon argues that lower courts are prone to overbroad applications of Garamendi because the Court assumed the presence of three elements when it developed the standard for executive foreign affairs preemption of state law: (1) formal source law; (2) nexus to a foreign entity; and (3) indication of intent by the executive to preempt the state law under challenge. She concludes that unless these three elements are present, courts need not even reach the question of whether a law is preempted under the Garamendi test.