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Fortnightly Magazine - April 1 1995

renewable energy auction, judging that it violated the Public Utility Regulatory Policies Act (PURPA). To some, PURPA is a federal law of dubious constitutional stature imposed upon the states during the heyday of President Carter's sweater diplomacy on energy, and deserving of greater scrutiny under the Ninth and Tenth Amendments. Fessler, of course, was not at liberty to comment directly on PURPA, the FERC, or the CPUC's Biennial Resource Plan Update, which some say exhibits too high a preference for renewable energy. But law and policy ought to be fair game. And so, in a style worthy of Henry Fielding or Jonathan Swift, Fessler held his audience for more than an hour with tales of constitutional betrayal and judicial intrigue (em from James Madison to Sandra Day O'Connor.

Fessler called his talk "Federalism in the Second Republic's Third Century." In it, he identified three distinct eras of Constitutional law, and a fourth era just starting, marked by National League of Cities v. Usery, 426 U.S. 833 (1976). According to Fessler, Usery laid the groundwork for the current revival of interest in grassroots democracy by reintroducing into the political debate "the concept of dual sovereignty and the inviolate nature of essential state and local functions." Fessler laments, however, that Justice Harry Blackmun, who voted with the majority in Usery, soon grew disenchanted with the new idea: "By 1982, Blackmun's disenchantment with Usery was strongly suggested in his opinion for a divided court in FERC v. Mississippi, 456 U.S. 742." In that case, Fessler reminded his audience, the U.S. Supreme Court reversed the federal district judge who struck down PURPA as an unconstitutional infringement

on states' rights. And with that reference Fessler closed the circle, neatly hanging the FERC on a

rope braided from the Ninth, Tenth, and First Amendments.Out of Touch

Yes. In case you've forgotten, PURPA was once ruled unconstitutional. If you search your memory, I'm sure you will recall that case: "The sovereign state of Mississippi is not a robot, or lackey . . . . [T]he United States does not have the power or authority to impose its three standards under PURPA upon the state of Mississippi." Mississippi v. FERC, Civil Action No. J79-0212(C), Feb. 19, 1981, 38 PUR4th 284 (S.D.Miss.).

The high court eventually upheld PURPA as constitutional. Writing for the court, Justice Blackmun acknowledged state sovereignty, but viewed PURPA as a special case. "In PURPA," Blackmun wrote, "the federal government attempts to use state regulatory machinery to advance federal goals."

Then Blackmun threw down the gauntlet: "Whatever all this may forebode for the future, or for the scope of federal authority in the event of a crisis of national proportions, it plainly is not necessary for the court in this case to make a definitive choice."

Several days after his talk, I asked Fessler how he knew that a Washington audience would enjoy a lunch-hour talk on constitutional law. Fessler replied, "I had suspected that folks inside the Beltway had grown a bit out of touch." Then he added: "But it was a bit much to actually meet