OCR Text |
Show COLOi^Ci* RttiSfe 4*Ti&ATION 595 find nothing.34 Under the Court's construction of the Act, in other words, Congress has made a gift to the Secretary of almost 1,500,000 acre-feet of water a year, to allocate virtually as he pleases in the event of any shortage preventing the fulfillment of all of his delivery commitments. The delegation of such unrestrained authority to an executive offi- cial raises, to say the least, the gravest constitutional doubts. See Schechter Poultry Corp. v. United States, 295 U.S. 495; Panama Re- fining Co.v. Ryan, 293 U.S. 388; cf. Toungstown Sheet <$s Tube Go. v. Sawyer, 343 U.S. 579, 587-589. The principle that authority granted by the legislature must be limited by adequate standards serves two primary functions vital to preserving the separation of powers re- quired by the Constitution.35 First, it insures that the fundamental policy decisions in our society will be made not by an appointed official but by the body immediately responsible to the people. Second, it pre- vents judicial review from becoming merely an exercise at large by providing the courts with some measure against which to judge the official action that has been challenged. The absence of standards under the Court's construction is an in- structive illustration of these points. The unrestrained power to de- termine the burden of shortages is the power to make a political deci- sion of the highest order. Indeed, the political pressures that will doubtless be brought to bear on the Secretary as a result of this deci- sion are disturbing to contemplate. Furthermore, whatever the Secre- tary decides to do? this Court will surely be unable effectively to re- view his actions, since it will not know what guides were intended by Congress to govern those actions. These substantial constitutional doubts do not, of course, lead to the conclusion that the Project Act must be held invalid. Rather, they buttress the conviction, already firmly grounded in the Act and its history, that no such authority was vested in the Secretary by Con- gress. Its purpose instead was to leave these matters to state law, and developed principles of equitable apportionment, subject only to the explicit exceptions provided in the Act. For these reasons I respectfully dissent from the construction which the Court puts upon this aspect of the Act. Mr. Justice Douglas, dissenting. I. This case, I think, has been haunted by several irrelevancies. First, is the fact that the only points from which California can take the water of the Colorado River System are on the mainstream above Laguna Dam, there being no tributaries in that State. This fact, I think, leads the Court to the inference that the tributaries which come in below Laguna Dam contain waters to which California has no rights. The controversy does concern the waters of the lower tributaries, but only indirectly. California does not seek those waters. She merely seeks 84 Nor, I submit, does the Court suggest any standards. Certainly, there is nothing in the enumeration of purposes in § 6 which will be of any assistance in helping the Secre- tary allocate the burden of shortages among competing irrigation and domestic uses within and among the Lower Basin States. 85 See the discussion in Comment, 14 Stan. L. Rev. 372. |