The Ninth permits everything that is not prohibited. The Tenth prohibits everything not otherwise permitted. The one governs the People; the other governs the Government. That's all there is. Now imagine standing on both feet behind a podium, in front of a luncheon crowd of about 100 think-tank types, and holding an audience spellbound for over an hour as you expound upon this noble topic. Sound daunting? Not to Daniel Fessler, president of the California Public Utilities Commission (CPUC).
He didn't trip over a single word. You had to be there.
Providing the occasion for Fessler's feat was the Cato Institute, a conservative think tank that put on a conference in Washington, DC, back in early March entitled, "New Horizons in Electric Power Deregulation." The Cato Institute describes itself as a public policy research organization bent on "expanding civil society and minimizing the role of political society." It promotes the "voluntary interaction of individuals and associations." The Wall Street Journal has described Cato as "one of the fastest growing think tanks in Washington." Lately, Cato has published such works as Eco-Scam: The False Prophets of Ecological Apocalypse, Telecommunications: Politics or Markets, Prosperity versus Planning: How Government Stifles Economic Growth, and Grassroots Tyranny: The Limits of Federalism.
Among those leading the Cato summit were Richard Bilas of the California Energy Commission and noted regulatory pundits Robert L. Bradley, Jr., market development specialist at Transwestern Pipeline Co., and Robert J. Michaels, professor of economics at Cal State Fullerton. Bradley serves as president of the Institute for Energy Research (IER), based in Houston. He has released a draft of the first part of a proposed two-part study of U.S. electric regulation entitled, The Rise and Coming Fall of Political Electricity, which weighs in at 115 pages and 367 footnotes. In it he explains such mysteries as why solar and wind energy is actually more scarce than competing depletable resources, and comments on which president (em Carter, Reagan, Bush, or Clinton (em has actually done the most to promote renewable energy.
Michaels distributed his new study, Restructuring California's Electric Industry: Lessons for the Other Forty-Nine States, published by and available from IER. This 117-page paperback features an introduction from Bradley and excerpts from testimony that Michaels presented last year at the CPUC's electric restructuring hearings. It answers such questions as "What is it that utilities actually sell?"
For example, Michaels debunks claims that utilities "sell not electricity but `electric services.'" He muses, "Grocers sell a commodity called food, which buyers convert into `dining services' by combining it with their time, seasoning, etc." Michaels then implies that demand-side management is ideal for supermarkets since, "[P]eople consistently eat the wrong foods [so that] imprudent food purchases burden landfills and allocate more land to farming than is needed."
Into this rarified atmosphere stepped Fessler, who, just eight days earlier, had seen the Federal Energy Regulatory Commission (FERC) strike down his (the CPUC's) latest 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 folks who assumed that Madison added the Tenth Amendment simply to end the Bill of Rights on an even number."
As for Fessler's theory of a fourth era in Constitutional science, I hesitate to comment too much, since Usery was handed down the year after I passed the bar exam. But I will mention that, according to my recollection, the U.S. Supreme Court ruled sometime during the past 12 months or so that satire is still protected by the First Amendment.
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