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<br />. <br /> <br />002582: <br /> <br />. <br /> <br />~ <br /> <br />that I know o~ proposes that there should be any <br />general body of Federal water lawt The fact is that <br />there are 17 bodies of State water law in the Reclama- <br />tion States. When Congress authorizes and directs a <br />Federal department or officer to construct and operate <br />a project or conduct a program within its own sphere of <br />delegated powers, the Constitution does not permit a con- <br />struction which subjects that direction to the choice of <br />consent or vote by any ~tate or State official. And <br />that has been the organic law since at least 1789. <br />Never has this been more succinctly st&ted than in th~ <br />1931 decision of Arizona v. California, in 283 U.S., ;0 <br />where the Court saia: - <br /> <br />"The United States may perform its <br /> <br />functions without conforming to the <br /> <br />police regulations of a State." <br /> <br />On any issue of control, whether it be water re- <br />sources development, or the construction and opera- <br />tion of a post office, or anything else within the <br />sphere of delegated powers, that is the law; and <br />a~ter 170 years we may just as well get used to it. <br />Because I don't think we are going to change it. <br />Else, we would go back to the Articles of Confeder- <br />ation in place of the Constitution. <br /> <br />"There has been some very loose talk about the <br />so-called "delegation" of the power of Congress to <br />State Legislatures. The argument seems to be based <br />on some kind of an agency theory - that Congress, as <br />principal, can give a sort of power of attorney to the <br />ctate legislature as its agents. Now this may well <br />be true, in a manner of speaking, as to the acquisition <br />of private, third party rights. And, in that sense, it <br />may be true of the Aots of 1866, 1870, and 1877.31 <br />But who ever heard of an agent telling his principal <br />whether or not he - the principal - could or could not <br />do thus and so - and get away with it." <br /> <br />Mr. Morton concludes by pointing out that many of our great <br /> <br />reclamation projects might never have been constructed if slav- <br /> <br />ish adherence to state water law had been enforced. <br /> <br />The battle will continue to rage. Two things give me hope <br />to believe that the middle ground I have suggested may result <br />in an uneasy equilibrium, someti1inv akin to the Cold War, which <br />-12- <br />