In The

Supreme Court of the United States




Decided June 1, 1982

Justice O’Connor, Concurring in part and dissenting in part

Topic: Federalism*Court vote: 5–4
Click any Justice for detail
Joining O'Connor opinion: Chief Justice BURGER Chief Justice BURGER Justice REHNQUIST Justice REHNQUIST
Citation: 456 U.S. 742 Docket: 80–1749Audio: Listen to this case's oral arguments at Oyez

* As categorized by the Washington University Law Supreme Court Database

Next opinion >< Previous opinion

DISCLAIMER: Only United States Reports are legally valid sources for Supreme Court opinions. The text below is provided for ease of access only. If you need to cite the exact text of this opinion or if you would like to view the opinions of the other Justices in this case, please view the original United States Report at the Library of Congress or Justia. The Sandra Day O'Connor Institute does not in any way represent, warrant, or guarantee that the text below is accurate."


JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE and JUSTICE REHNQUIST join, concurring in the judgment in part and dissenting in part.

I agree with the Court that the Commerce Clause supported Congress' enactment of the Public Utility Regulatory Policies Act of 1978, Pub.L. 95-617, 92 Stat. 3117 (PURPA). I disagree, however, with much of the Court's Tenth Amendment analysis. Titles I and III of PURPA conscript state utility commissions into the national bureaucratic army. This result is contrary to the principles of National League of Cities v. Usery, 426 U. S. 833 (1976), antithetical to the values of federalism, and inconsistent with our constitutional history. Accordingly, I dissent from Parts 456 U. S. S. 770|>IV-C of the Court's opinion. [ Footnote 3/1 ]


Titles I and III of PURPA require state regulatory agencies to decide whether to adopt a dozen federal standards governing gas and electric utilities. [ Footnote 3/2 ] The statute describes, in some detail, the procedures state authorities must follow when evaluating these standards, [ Footnote 3/3 ] but does not compel the States to adopt the suggested federal standards. 15 U.S.C. § 3203(a) (1976 ed., Supp. IV); 16 U.S.C. §§ 2621 (a), 2623(a), 2627(b) (1976 ed., Supp. IV). The latter, deceptively generous feature of PURPA persuades the Court that the statute does not intrude impermissibly into state sovereign functions. The Court's conclusion, however, rests upon a fundamental misunderstanding of the role that state governments play in our federalist system.

State legislative and administrative bodies are not field offices of the national bureaucracy. Nor are they think tanks to which Congress may assign problems for extended study. Instead, each State is sovereign within its own domain, governing its citizens and providing for their general welfare. While the Constitution and federal statutes define the boundaries of that domain, they do not harness state power for national purposes. The Constitution contemplates "an indestructible Union, composed of indestructible States," a system in which both the State and National Governments retain a "separate and independent existence." Texas v. White, 7 Wall. 700, 74 U. S. 725 (1869); Lane County v. Oregon, 7 Wall. 71, 74 U. S. 76 (1869).

Adhering to these principles, the Court has recognized that the Tenth Amendment restrains congressional action that would impair "a state's ability to function as a state." Transportation Union v. Long Island R. Co., 455 U. S. 678, 455 U. S. 686 (1982); National League of Cities v. Usery, 426 U.S. at 426 U. S. 842 -852; Fry v. United States, 421 U. S. 542, 421 U. S. 547, n. 7 (1975). See also Lafayette v. Louisiana Power & Light Co., 435 U. S. 389, 435 U. S. 423 -424 (1978) (BURGER, C.J., concurring in judgment). For example, in National League of Cities v. Usery, supra, the Court held that Congress could not prescribe the minimum wages and maximum hours of state employees engaged in "traditional governmental functions," id. at 426 U. S. 852, because the power to set those wages and hours is an "attribute of state sovereignty" that is " essential to [a] separate and independent existence.'" Id. at 426 U. S. 845 (quoting Lane County v. Oregon, supra, at 74 U. S. 76 ).

Just last Term, this Court identified three separate inquiries underlying the result in National League of Cities. A congressional enactment violates the Tenth Amendment, we observed, if it regulates the " states as States,'" addresses "matters that are indisputably `attribute[s] of state sovereignty,'" and "directly impair[s] [the States'] ability to `structure integral operations in areas of traditional governmental functions.'" Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264, 452 U. S. 287 -288 (1981) (quoting National League of Cities, supra, at 426 U. S. 854, 426 U. S. 845, 426 U. S. 852 ). See also Transportation Union, supra, at 455 U. S. 684. [ Footnote 3/4 ]

Application of these principles to the present case reveals the Tenth Amendment defects in Titles I and III. Plainly those Titles regulate the "States as States." While the statute's ultimate aim may be the regulation of private utility companies, PURPA addresses its commands solely to the States. Instead of requesting private utility companies to adopt lifeline rates, declining block rates, or the other PURPA standards, Congress directed state agencies to appraise the appropriateness of those standards. It is difficult to argue that a statute structuring the regulatory agenda of a state agency is not a regulation of the "State."

I find it equally clear that Titles I and III address "attribute[s] of state sovereignty." Even the Court recognizes that "the power to make decisions and to set policy is what gives the State its sovereign nature." Ante at 456 U. S. 761. The power to make decisions and set policy, however, embraces more than the ultimate authority to enact laws; it also includes the power to decide which proposals are most worthy of consideration, the order in which they should be taken up, and the precise form in which they should be debated. PURPA intrudes upon all of these functions. It chooses 12 proposals, forcing their consideration even if the state agency deems other ideas more worthy of immediate attention. In addition, PURPA hinders the agency's ability to schedule consideration of the federal standards. [ Footnote 3/5 ] Finally, PURPA specifies, with exacting detail, the content of the standards that will absorb the agency's time. [ Footnote 3/6 ]

If Congress routinely required the state legislatures to debate bills drafted by congressional committees, it could hardly be questioned that the practice would affect an attribute of state sovereignty. PURPA, which sets the agendas of agencies exercising delegated legislative power in a specific field, has a similarly intrusive effect.

Finally, PURPA directly impairs the States' ability to "structure integral operations in areas of traditional governmental functions." Utility regulation is a traditional function of state government, [ Footnote 3/7 ] and the regulatory commission is the most integral part of that function. By taxing the limited resources of these commissions, and decreasing their ability to address local regulatory ills, PURPA directly impairs the power of state utility commissions to discharge their traditional functions efficiently and effectively. [ Footnote 3/8 ]

The Court sidesteps this analysis, suggesting that the States may escape PURPA simply by ceasing regulation of public utilities. Even the Court recognizes that this choice "may be a difficult one," ante at 456 U. S. 766, and that "it may be unlikely that the States will or easily can abandon regulation of public utilities to avoid PURPA's requirements." Ante at 456 U. S. 767. In fact, the Court's "choice" is an absurdity, for if its analysis is sound, the Constitution no longer limits federal regulation of state governments. Under the Court's analysis, for example, National League of Cities v. Usery, 426 U.S. 833 (1976), would have been wrongly decided, because the States could have avoided the Fair Labor Standards Act by "choosing" to fire all employees subject to that Act and to close those branches of state government. [ Footnote 3/9 ] Similarly, Congress could dictate the agendas and meeting places of state legislatures, because unwilling States would remain free to abolish their legislative bodies. [ Footnote 3/10 ] I do not agree that this dismemberment of state government is the correct solution to a Tenth Amendment challenge.

The choice put to the States by the Surface Mining Control and Reclamation Act of 1977, 91 Stat. 447, 30 U.S.C. § 1201 et seq. (1976 ed., Supp. IV), the federal statute upheld in Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264 (1981), and discussed by the Court, ante at 456 U. S. 764 -765, 456 U. S. 768, n. 30, is quite different from the decision PURPA mandates. The Surface Mining Act invites the States to submit proposed surface mining regulations to the Secretary of the Interior. 30 U.S.C. § 1253 (1976 ed., Supp. IV). If the Secretary approves a state regulatory program, then the State enforces that program. If a State chooses not to submit a program, the Secretary develops and implements a program for that State. § 1254. Even States in the latter category, however, may supplement the Secretary's program with consistent state laws. [ Footnote 3/11 ] The Surface Mining Act does not force States to choose between performing tasks set by Congress and abandoning all mining or land use regulation. That statute is "a program of cooperative federalism," Hodel, supra, at 452 U. S. 289, because it allows the States to choose either to work with Congress in pursuit of federal surface mining goals or to devote their legislative resources to other mining and land use problems. By contrast, there is nothing "cooperative" about a federal program that compels state agencies either to function as bureaucratic puppets of the Federal Government or to abandon regulation of an entire field traditionally reserved to state authority. [ Footnote 3/12 ] Yet this is the "choice" the Court today forces upon the States.

The Court defends its novel decision to permit federal conscription of state legislative power by citing three cases upholding statutes that, "in effect, directed state decisionmakers to take or to refrain from taking certain actions." Ante at 456 U. S. 762. Testa v. Katt, 330 U. S. 386 (1947), is the most suggestive of these decisions. [ Footnote 3/13 ] In Testa, the Court held that state trial courts may not refuse to hear a federal claim if "th[e] same type of claim arising under [state] law would be enforced by that State's courts." Id. at 330 U. S. 394. A facile reading of Testa might suggest that state legislatures must also entertain congressionally sponsored business, as long as the federal duties are similar to existing state obligations. Application of Testa to legislative power, however, vastly expands the scope of that decision. Because trial courts of general jurisdiction do not choose the cases that they hear, the requirement that they evenhandedly adjudicate state and federal claims falling within their jurisdiction does not infringe any sovereign authority to set an agenda. [ Footnote 3/14 ] As explained above, however, the power to choose subjects for legislation is a fundamental attribute of legislative power, and interference with this power unavoidably undermines state sovereignty. Accordingly, the existence of a congressional authority to "enlist... the [state] judiciary... to further federal ends," ante at 456 U. S. 762, does not imply an equivalent power to impress state legislative bodies into federal service:

The Court, finally, reasons that, because Congress could have preempted the entire field of intrastate utility regulation, the Constitution should not forbid PURPA's "less intrusive scheme." Ante at 456 U. S. 765, and n. 29. [ Footnote 3/15 ] The Court's evaluation of intrusiveness, however, is simply irrelevant to the constitutional inquiry. The Constitution permits Congress to govern only through certain channels. If the Tenth Amendment principles articulated in National League of Cities v. Usery, 426 U. S. 833 (1976), and Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264 (1981), foreclose PURPA's approach, it is no answer to argue that Congress could have reached the same destination by a different route. This Court's task is to enforce constitutional limits on congressional power, not to decide whether alternative courses would better serve state and federal interests. [ Footnote 3/16 ] I do not believe, moreover, that Titles I and III of PURPA are less intrusive than preemption. [ Footnote 3/17 ] When Congress preempts a field, it precludes only state legislation that conflicts with the national approach. The States usually retain the power to complement congressional legislation, either by regulating details unsupervised by Congress or by imposing requirements that go beyond the national threshold. [ Footnote 3/18 ] Most importantly, after Congress preempts a field, the States may simply devote their resources elsewhere. This country does not lack for problems demanding legislative attention. PURPA, however, drains the inventive energy of state governmental bodies by requiring them to weigh its detailed standards, enter written findings, and defend their determinations in state court. While engaged in these congressionally mandated tasks, state utility commissions are less able to pursue local proposals for conserving gas and electric power. The States might well prefer that Congress simply impose the standards described in PURPA; this, at least, would leave them free to exercise their power in other areas.

Federal preemption is less intrusive than PURPA's approach for a second reason. Local citizens hold their utility commissions accountable for the choices they make. Citizens, moreover, understand that legislative authority usually includes the power to decide which ideas to debate, as well as which policies to adopt. Congressional compulsion of state agencies, unlike preemption, blurs the lines of political accountability, and leaves citizens feeling that their representatives are no longer responsive to local needs. [ Footnote 3/19 ]

The foregoing remarks suggest that, far from approving a minimally intrusive form of federal regulation, the Court's decision undermines the most valuable aspects of our federalism. Courts and commentators frequently have recognized that the 50 States serve as laboratories for the development of new social, economic, and political ideas. [ Footnote 3/20 ] This state innovation is no judicial myth. When Wyoming became a State in 1890, it was the only State permitting women to vote. [ Footnote 3/21 ] That novel idea did not bear national fruit for another 30 years. [ Footnote 3/22 ] Wisconsin pioneered unemployment insurance, [ Footnote 3/23 ] while Massachusetts initiated minimum wage laws for women and minors. [ Footnote 3/24 ] After decades of academic debate, state experimentation finally provided an opportunity to observe no-fault automobile insurance in operation. [ Footnote 3/25 ] Even in the field of environmental protection, an area subject to heavy federal regulation, the States have supplemented national standards with innovative and far-reaching statutes. [ Footnote 3/26 ] Utility regulation itself is a field marked by valuable state invention. [ Footnote 3/27 ] PURPA, which commands state agencies to spend their time evaluating federally proposed standards and defending their decisions to adopt or reject those standards, will retard this creative experimentation.

In addition to promoting experimentation, federalism enhances the opportunity of all citizens to participate in representative government. Alexis de Tocqueville understood well that participation in local government is a cornerstone of American democracy:

It is incontestably true that the love and the habits of republican government in the United States were engendered in the townships and in the provincial assemblies. [I]t is this same republican spirit, it is these manners and customs of a free people, which are engendered and nurtured in the different States, to be afterwards applied to the country at large.

1 A. de Tocqueville, Democracy in America 181 (H. Reeve trans.1961). [ Footnote 3/28 ] Citizens, however, cannot learn the lessons of self-government if their local efforts are devoted to reviewing proposals formulated by a faraway national legislature. If we want to preserve the ability of citizens to learn democratic processes through participation in local government, citizens must retain the power to govern, not merely administer, their local problems.

Finally, our federal system provides a salutary check on governmental power. As Justice Harlan once explained, our ancestors "were suspicious of every form of all-powerful central authority." Harlan, supra, n. 16, at 944. To curb this evil, they both allocated governmental power between state and national authorities and divided the national power among three branches of government. Unless we zealously protect these distinctions, we risk upsetting the balance of power that buttresses our basic liberties. In analyzing this brake on governmental power, Justice Harlan noted that

[t]he diffusion of power between federal and state authority... takes on added significance as the size of the federal bureaucracy continues to grow.

Ibid. [ Footnote 3/29 ] Today, the Court disregards this warning and permits Congress to kidnap state utility commissions into the national regulatory family. Whatever the merits of our national energy legislation, I am not ready to surrender this state legislative power to the Federal Energy Regulatory Commission.


As explained above, the Court's decision to uphold Titles I and III violates the principles of National League of Cities v. Usery, 426 U. S. 833 (1976), and threatens the values promoted by our federal system. The Court's result, moreover, is at odds with our constitutional history, which demonstrates that the Framers consciously rejected a system in which the National Legislature would employ state legislative power to achieve national ends.

The principal defect of the Articles of Confederation, 18th-century writers agreed, was that the new National Government lacked the power to compel individual action. Instead, the central government had to rely upon the cooperation of state legislatures to achieve national goals. Thus, Alexander Hamilton explained that

[t]he great and radical vice in the construction of the existing Confederation is in the principle of legislation for states or governments, in their corporate or collective capacities and as contradistinguished from the individuals of whom they consist.

The Federalist No. 15, p. 93 (J. Cooke ed.1961) (emphasis omitted). He pointed out, for example, that the National Government had "an indefinite discretion to make requisitions for men and money," but "no authority to raise either by regulations extending to the individual citizens of America." Ibid.

The Constitution cured this defect by permitting direct contact between the National Government and the individual citizen, a change repeatedly acknowledged by the delegates assembled in Philadelphia. George Mason, for example, declared:

Under the existing Confederacy, Congress represent[s] the States, not the people of the States: their acts operate on the States, not on the individuals. The case will be changed in the new plan of Government.

The speeches and writings of the Framers suggest why they adopted this means of strengthening the National Government. Mason, for example, told the Convention that, because "punishment could not [in the nature of things be executed on] the States collectively," he advocated a National Government that would "directly operate on individuals." 1 Farrand 34. Hamilton predicted that a National Government forced to work through the States would "degenerate into a military despotism" because it would have to maintain a "large army, continually on foot" to enforce its will against the States. The Federalist No. 16, p. 101 (J. Cooke ed.1961). See also id. at 102; The Federalist No. 15, supra, at 95-96.

Thus, the Framers concluded that government by one sovereign through the agency of a second cannot be satisfactory. At one extreme, as under the Articles of Confederation, such a system is simply ineffective. At the other, it requires a degree of military force incompatible with stable government and civil liberty. [ Footnote 3/30 ] For this reason, the Framers concluded that "the execution of the laws of the national government... should not require the intervention of the State Legislatures," The Federalist No. 16, supra, at 103, and abandoned the Articles of Confederation in favor of direct national legislation.

At the same time that the members of the Constitutional Convention fashioned this principle, they rejected two proposals that would have given the National Legislature power to supervise directly state governments. The first proposal would have authorized Congress "to call forth the force of the Union against any member of the Union failing to fulfill its duty under the articles thereof." 1 Farrand 21. The delegates never even voted on this suggestion. James Madison moved to postpone it, stating that,

the more he reflected on the use of force, the more he doubted the practicability, the justice and the efficacy of it when applied to people collectively, and not individually.

Id. at 54. Several other delegates echoed his concerns, [ Footnote 3/31 ] and Madison ultimately reported that "[t]he practicability of making laws, with coercive sanctions, for the States as political bodies [has] been exploded on all hands." 2 id. at 9.

The second proposal received more favorable consideration. Virginia's Governor Randolph suggested that Congress should have the power "to negative all laws passed by the several States, contravening in the opinion of the National Legislature the articles of Union." 1 id. at 21. On May 31, 1787, the Committee of the Whole approved this proposal without debate. Id. at 61. A week later, Pinckney moved to extend the congressional negative to all state laws "which [Congress] should judge to be improper." Id. at 164. Numerous delegates criticized this attempt to give Congress unbounded control over state lawmaking. Hugh Williamson, for example, thought "the State Legislatures ought to possess independent powers in cases purely local," id. at 171, while Elbridge Gerry thought Pinckney's idea might "enslave the States." Id. at 165. After much debate, the Convention rejected Pinckney's suggestion.

Late in July, the delegates reversed their approval of even Randolph's more moderate congressional veto. Several delegates now concluded that the negative would be "terrible to the States," "unnecessary," and "improper." 2 id. at 27. [ Footnote 3/32 ] Omission of the negative, however, left the new system without an effective means of adjusting conflicting state and national laws. To remedy this defect, the delegates adopted the Supremacy Clause, providing that the Federal Constitution, laws, and treaties are "the supreme Law of the Land," and that "the Judges in every State shall be bound thereby." Art. VI, cl. 2. Thus, the Framers substituted judicial review of state laws for congressional control of state legislatures.

While this history demonstrates the Framers' commitment to a strong central government, the means that they adopted to achieve that end are as instructive as the end itself. [ Footnote 3/33 ] Under the Articles of Confederation, the National Legislature operated through the States. The Framers could have fortified the central government, while still maintaining the same system, if they had increased Congress' power to demand obedience from state legislatures. In time, this scheme might have relegated the States to mere departments of the National Government, a status the Court appears to endorse today. The Framers, however, eschewed this course, choosing instead to allow Congress to pass laws directly affecting individuals, and rejecting proposals that would have given Congress military or legislative power over state governments. In this way, the Framers established independent state and national sovereigns. The National Government received the power to enact its own laws and to enforce those laws over conflicting state legislation. The States retained the power to govern as sovereigns in fields that Congress cannot or will not preempt. [ Footnote 3/34 ] This product of the Constitutional Convention, I believe, is fundamentally inconsistent with a system in which either Congress or a state legislature harnesses the legislative powers of the other sovereign. [ Footnote 3/35 ]


During his last Term of service on this Court, Justice Black eloquently explained that our notions of federalism subordinate neither national nor state interests:

The concept does not mean blind deference to 'states' Rights' any more than it means centralization of control over every important issue in our National Government and its courts. The Framers rejected both these courses. What the concept does represent is a system in which there is sensitivity to the legitimate interests of both State and National Governments, and in which the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States.

Younger v. Harris, 401 U. S. 37, 401 U. S. 44 (1971). In this case, I firmly believe that a proper "sensitivity to the legitimate interests of both State and National Governments" requires invalidation of Titles I and III of PURPA insofar as they apply to state regulatory authorities. Accordingly, I respectfully dissent from the Court's decision to uphold those portions of the statute.


1 The Records of the Federal Convention of 1787, p. 133 (M. Farrand ed.1911) (hereinafter Farrand) (abbreviations expanded in this and subsequent quotations). Hamilton subsequently explained to the people of New York that the Constitution marked the "difference between a league and a government," because it "extend[ed] the authority of the union to the persons of the citizens, -the only proper objects of government." The Federalist No. 15, supra, at 95. Similarly, Charles Pinckney told the South Carolina House of Representatives that

the necessity of having a government which should at once operate upon the people, and not upon the states, was conceived to be indispensable by every delegation present;... however they may have differed with respect to the quantum of power, no objection was made to the system itself.

4 Elliot's Debates on the Federal Convention 256 (2d ed. 1863).

[ Footnote 3/1 ]

I concur in the Court's decision to uphold Title II, § 210, of PURPA against appellees' facial attack. As the Court explains, part of that section permits the Federal Energy Regulatory Commission (FERC) to exempt cogeneration and small power production facilities from otherwise applicable state and federal laws. 16 U.S.C. § 824a-3(e) (1976 ed., Supp. IV). This exemption authority does not violate the Tenth Amendment, for it merely preempts state control of private conduct, rather than regulating the "States as States." See Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264, 452 U. S. 287 -293 (1981).

Section 210's requirement that the States "implement" rules promulgated by the Secretary of Energy, 16 U.S.C. § 824a-3(f) (1976 ed., Supp. IV), is more disturbing. Appellants, however, have interpreted this statutory obligation to include "an undertaking to resolve disputes between qualifying facilities and electric utilities arising under [§ 210], or any other action reasonably designed to implement [that section]." 18 CFR § 292.401(a) (1981). It appears, therefore, that state regulatory authorities may satisfy § 210's implementation requirement simply by adjudicating private disputes arising under that section. As the Court points out, ante at 456 U. S. 760 -761, the Mississippi Public Service Commission has jurisdiction over similar state disputes, and it is settled that a State may not exercise its judicial power in a manner that discriminates between analogous federal and state causes of action. See Testa v. Katt, 330 U. S. 386 (1947). Under these circumstances, but without foreclosing the possibility that particular applications of § 210's implementation provision might uncover hidden constitutional defects, I would not sustain appellees' facial attack on the provision.

Section 210 also authorizes FERC, electric utilities, cogenerators, and small power producers to "enforce" the above implementation provision against state utility commissions. 16 U.S.C. § 824a-3(h)(2) (1976 ed., Supp. IV). As applied, it is conceivable that this enforcement provision would raise troubling federalism issues. Once again, however, I decline to accept appellees' facial challenge to the provision, preferring to consider the constitutionality of this provision in the setting of a concrete controversy.

[ Footnote 3/2 ]

The statute imposes the same requirements upon nonregulated utilities. In this respect, it regulates purely private conduct, and does not violate the Tenth Amendment. Throughout this dissent, I consider only the constitutionality of Titles I and III as applied to state regulatory authorities. I would allow the District Court, on remand, to decide whether the constitutionally defective aspects of Titles I and III are severable from the unobjectionable portions.

[ Footnote 3/3 ]

See ante at 456 U. S. 748 -749. The Court overlooks several of PURPA's procedural mandates. For example, with respect to six of the standards, the state agency must publish a written determination, including findings, even if it decides to adopt the federal standard. 16 U.S.C. § 2621(b) (1976 ed., Supp. IV). In addition, PURPA guarantees certain rights to discover information, § 2631(b); requires the State to provide transcripts, at the cost of reproduction, to parties to ratemaking proceedings or other "regulatory proceeding[s] relating to [electric utility] rates or rate design," § 2632(c); and, under some circumstances, mandates compensation for reasonable attorney's fees, expert witness fees, and other costs to consumers who contribute substantially to the adoption of a Title I standard, §§ 2632 (a), (b). These requirements, as well as the ones described by the Court, may impose special burdens on state administrative agencies. I do not weigh the constitutionality of these individual procedural requirements, however, because I would invalidate the entire regimen that Titles I and III impose on state regulatory authorities.

[ Footnote 3/4 ]

In both Hodel and United Transportation Union, we further noted that, even when these three requirements are met, "the nature of the federal interest advanced may be such that it justifies state submission." Hodel, 452 U.S. at 452 U. S. 288, n. 29; Transportation Union, 455 U.S. at 455 U. S. 684, n. 9. Neither of those cases involved such an exception to National League of Cities, and the Court has not yet explored the circumstances that might justify such an exception.

[ Footnote 3/5 ]

As the Court recognizes, ante at 456 U. S. 748, PURPA permits "[a]ny person" to bring an action in state court to enforce the agency's obligation to consider the federal standards. 15 U.S.C. § 3207(b)(1) (1976 ed., Supp. IV); 16 U.S.C. § 2633(c)(1) (1976 ed., Supp. IV). The Secretary of Energy, moreover, may intervene in any ongoing ratemaking proceeding to require consideration of PURPA's standards. 15 U.S.C. § 3205(a) (1976 ed., Supp. IV); 16 U.S.C. §§ 2631(a), 2622(a) (1976 ed., Supp. IV). Title I grants affected utilities and consumers the same right of intervention. 16 U.S.C. § 2631(a) (1976 ed., Supp. IV). Because of these rights of intervention and enforcement, state agencies lack even the power to schedule their consideration of PURPA's standards.

[ Footnote 3/6 ]

For example, the proposed standards governing advertising provide that

[n]o electric [or gas] utility may recover from any person other than the shareholders (or other owners) of such utility any direct or indirect expenditure by such utility for promotional or political advertising as [further] defined in... this title.

16 U.S.C. § 2623(b)(5) (1976 ed., Supp. IV); 15 U.S.C. § 3203(b)(2) (1976 ed., Supp. IV). PURPA then defines the terms "advertising," "political advertising," and "promotional advertising":

(1) For purposes of this section and section 2623(b)(5) of this title -

(A) The term 'advertising' means the commercial use, by an electric utility, of any media, including newspaper, printed matter, radio, and television, in order to transmit a message to a substantial number of members of the public or to such utility's electric consumers.

(B) The term 'political advertising' means any advertising for the purpose of influencing public opinion with respect to legislative, administrative, or electoral matters, or with respect to any controversial issue of public importance.

(C) The term 'promotional advertising' means any advertising for the purpose of encouraging any person to select or use the service or additional service of an electric utility or the selection or installation of any appliance or equipment designed to use such utility's service.

(2) For purposes of this subsection and section 2623(b)(5) of this title, the terms 'political advertising' and 'promotional advertising' do not include -

(A) advertising which informs electric consumers how they can conserve energy or can reduce peak demand for electric energy,

(B) advertising required by law or regulation, including advertising required under part 1 of title II of the National Energy Conservation Policy Act....

(C) advertising regarding service interruptions, safety measures, or emergency conditions,

(D) advertising concerning employment opportunities with such utility,

(E) advertising which promotes the use of energy efficient appliances, equipment or services, or

(F) any explanation or justification of existing or proposed rate schedules, or notifications of hearings thereon.

16 U.S.C. § 2625(h) (1976 ed., Supp. IV). See also 15 U.S.C. § 3204(b) (1976 ed., Supp. IV) (containing similar provisions for gas utilities).

[ Footnote 3/7 ]

The Court has not explored fully the extent of "traditional" state functions. Utility regulation, however, should fall within any definition of that term. See generally W. Jones, Cases and Materials on Regulated Industries 254 (2d ed.1976) (tracing history of state regulation of utilities).

[ Footnote 3/8 ]

PURPA thus offends each of the criteria named in Hodel. I do not believe, moreover, that this is a case in which "the nature of the federal interest advanced may be such that it justifies state submission." See n. 4, supra. Whatever the ultimate content of that standard, it must refer not only to the weight of the asserted federal interest, but also to the necessity of vindicating that interest in a manner that intrudes upon state sovereignty. In this case, the Government argues that PURPA furthers vital national interests in energy conservation. Although the congressional goal is a noble one, appellants have not shown that Congress needed to commandeer state utility commissions to achieve its aim. Consistent with the Tenth Amendment, Congress could have assigned PURPA's tasks to national officials. Alternatively, it could have requested state commissions to comply with Titles I and III and directed the Secretary to shoulder the burden of any State choosing not to comply.

[ Footnote 3/9 ]

The Court attempts to distinguish National League of Cities, suggesting that it involved

the State's ability 'to structure employer-employee relationships,'... while providing 'those governmental services which [its] citizens require.'

Ante at 456 U. S. 770, n. 32 (quoting National League of Cities, 426 U.S. at 426 U. S. 851, 847). This case, the Court declares, "hold[s] only that Congress may impose conditions on the State's regulation of private conduct in a preemptible area." Ante at 456 U. S. 769 -770, n. 32. The Court, however, does not explain why our National League of Cities opinion did not consider compliance with the Fair Labor Standards Act in fields such as

licensing of occupations and businesses,... preservation of environmental quality,... [and] protection of the public against fraud and sharp practice,

App. in National League of Cities v. Usery, O.T. 1975, No. 74-878, p. 16 (reprinting complaint), a "conditio[n] on the State's regulation of private conduct in a preemptible area." In that case, Congress had required the States to pay their employees specified amounts if they wished to continue regulating a variety of preemptible fields. Here, it has required the States to burden their officials with evaluation of a dozen legislative proposals if they wish to continue regulating private utilities. To me, the parallel is obvious, not "overstated." Ante at 456 U. S. 769, n. 32.

I am nevertheless confident that, as the Court itself stresses, ibid., today's decision is not intended to overrule National League of Cities. Instead, the novelty of PURPA's scheme, see ante at 456 U. S. 758 -759, merely seems to have obscured the relevance of National League of Cities to this case.

[ Footnote 3/10 ]

But cf. Coyle v. Oklahoma, 221 U. S. 569, 221 U. S. 565 (1911) ("The power to locate its own seat of government and to determine when and how it shall be changed from one place to another... are essentially and peculiarly state powers. That one of the... States could now be shorn of such powers by an act of Congress would not be for a moment entertained").

[ Footnote 3/11 ]

Title 30 U.S.C. § 1254(g) (1976 ed., Supp. IV) only preempts state laws "insofar as they interfere with the achievement of the purposes and the requirements of this chapter and the Federal program." Similarly, § 1255(a) provides that no state law or regulation

shall be superseded by any provision of this chapter or any regulation issued pursuant thereto, except insofar as such State law or regulation is inconsistent with the provisions of this chapter.

Section 1255(b) explains that neither state laws that are more stringent than the federal standards nor state laws governing operations "for which no provision is contained in this chapter" are "inconsistent" with the congressional Act.

[ Footnote 3/12 ]

As one scholar has written:

A federal system implies a partnership, all members of which are effective players on the team and all of whom retain the capacity for independent action. It does not imply a system of collaboration in which one of the collaborators is annihilated by the other.

L. White, The States and the Nation 3 (1953).

[ Footnote 3/13 ]

The other two decisions, Fry v. United States, 421 U. S. 542 (1975), and Washington v. Washington State Commercial Passenger Fishing Vessel Assn., 443 U. S. 658 (1979), are readily distinguishable. Fry upheld a temporary wage freeze as applied to state and local governmental employees. As we subsequently observed, this emergency restraint

displaced no state choices as to how governmental operations should be structured, nor did it force the States to remake such choices themselves. Instead, it merely required that the wage scales and employment relationships which the States themselves had chosen be maintained during [a] period of... emergency.

National League of Cities v. Usery, supra, at 426 U. S. 853. In Washington State Fishing Vessel Assn., state agencies were defendants to a suit charging violations of federal treaties, and we upheld the lower court's power to enforce its judgment by ordering the defendants to comply with federal law. The power of a court to enjoin adjudicated violations of federal law, however, is far different from the power of Congress to demand state legislative action in the absence of any showing that the State has violated existing federal duties. See Hart, The Relations Between State and Federal Law, 54 Colum.L.Rev. 489, 515-516 (1954); Salmon, The Federalist Principle: The Interaction of the Commerce Clause and the Tenth Amendment in the Clean Air Act, 2 Colum.J.Envtl.L. 290, 334-337 (1976).

[ Footnote 3/14 ]

The Court suggests, ante at 456 U. S. 762 -763, n. 27, that the requirement that state courts adjudicate federal claims may, as a practical matter, undermine the capacity of those courts to decide state controversies. Whatever the force of that observation, it does not demonstrate Testa's relevance to this case. State legislative bodies possess at least one attribute of sovereignty, the power to set an agenda, that trial courts lack. This difference alone persuades me not to embrace the Court's expansion of Testa.

[ Footnote 3/15 ]

The Court's suggestion is somewhat disingenuous, because Congress concluded that federal preemption of the matters governed by Titles I and III would be inappropriate. The administration's original proposal, as well as the version of PURPA approved by the House, would have preempted state law by establishing minimum federal ratemaking standards. See generally H.R.Conf.Rep. No. 95-1750, pp. 63-65 (1978); S. Conf Rep. No. 95-1292, pp. 63-65 (1978). The Senate Committee on Energy and Natural Resources, however, rejected this approach because

the committee felt that setting minimum federal standards for utility rates, or mandating the use of certain costing methods for ratesetting, would be an unnecessary intrusion into an area which has traditionally been regulated by the States. It was apparent to the committee that many State utility commissions are currently involved in innovative ratemaking, and are working toward the goal of conservation of energy through rate reform. At present, the State regulatory agencies, rather than the Federal Government, possess the expertise to conduct the detailed costing and demand studies required to implement rate structure revision. Moreover, the committee recognized that rate structures must reflect the individual needs and local peculiarities of each utilities' service area.... Finally, the committee felt that the potential uncertainty and delays accompanying Federal regulation threatened to have an adverse impact on the financial health of the utility industry which outweighed the projected savings in capital expenditures claimed by supporters of the administration's proposal.

S.Rep. No. 95-442, p. 9 (1977). See also 123 Cong.Rec. 32392-32393 (1977) (remarks of Sen. Johnston); id. at 32394 (remarks of Sen. Domenici). The Senate version of PURPA, accordingly, eschewed the preemption route. See H.R.Conf.Rep. No. 95-1750, supra,, at 65-66; S.Conf.Rep. No. 95-1292, supra, at 65-66. While the Conferees produced a compromise bill, they too stopped short of preemption. Today's decision, therefore, permits Congress to set state legislative agendas in a field that Congress might have occupied, but expressly found unsuited to preemption.

[ Footnote 3/16 ]

Justice Harlan once commented that times of "international unrest and domestic uncertainty" are

bound to produce temptations and pressures to depart from or temporize with traditional constitutional precepts or even to short-cut the processes of change which the Constitution establishes.

Harlan, Thoughts at a Dedication: Keeping the Judicial Function in Balance, 49 A.B.A.J. 943 (1963). Justice Harlan then cautioned that it "[i]s... the special responsibility of lawyers, whether on or off the bench, to see to it that such things do not happen." Ibid.

[ Footnote 3/17 ]

In 1975, then Attorney General Edward H. Levi responded to a similar argument that the "greater" power of preemption includes the "lesser" power of demanding affirmative action from state governments. Attorney General Levi remarked that

it is an insidious point to say that there is more federalism by compelling a State instrumentality to work for the Federal Government.

Hearings on S. 354 before the Senate Committee on Commerce, 94th Cong., 1st Sess., 503 (1975). In a similar vein, he warned against "lov[ing] the States to their demise." Id. at 507.

[ Footnote 3/18 ]

In rare instances, Congress so occupies a field that any state regulation is inconsistent with national goals. The Court, however, is reluctant to infer such expansive preemption "in the absence of persuasive reasons." Florida Lime & Avocado Growers, Inc. v. Paul, 373 U. S. 132, 373 U. S. 142 (1963).

[ Footnote 3/19 ]

See generally Stewart, Pyramids of Sacrifice? Problems of Federalism in Mandating State Implementation of National Environmental Policy, 86 Yale L.J. 1196, 1239-1247 (1977); Comment, Redefining the National League of Cities State Sovereignty Doctrine, 129 U.Pa.L.Rev. 1460, 1477-1478 (1981).

Daniel Elazar, testifying before the Advisory Commission on Intergovernmental Relations in March, 1980, commented upon this problem of garbled political responsibility. He suggested that national officials tend to force state governments to administer unpopular programs, thus transferring political liability for those programs to the States. Advisory Commission on Intergovernmental Relations, The Federal Role in the Federal System: The Dynamics of Growth, Hearings on the Federal Role 32 (Oct.1980). As an example, he cited the President's attempt in 1979 to force state Governors to establish and enforce unpopular gas rationing mechanisms. Id. at 85 (formal statement of Professor Elazar).

[ Footnote 3/20 ]

See, e.g., Chandler v. Florida, 449 U. S. 560, 449 U. S. 579 (1981); Reeves, Inc. v. Stake, 447 U. S. 429, 447 U. S. 441 (1980); Whalen v. Roe, 429 U. S. 589, 429 U. S. 597, and n. 20 (1977); New State Ice Co. v. Liebmann, 285 U. S. 262, 285 U. S. 311 (1932) (Brandeis, J., dissenting); Hart, supra, n. 13, at 540, 542; A. Macmahon, The Problems of Federalism: A Survey, in Federalism: Mature and Emergent 3, 10-11 (A. Macmahon ed., 1955); N. Rockefeller, The Future of Federalism 8-9 (1962); Stewart, supra, n.19, at 1210; White, supra, n. 12, at 46-47.

[ Footnote 3/21 ]

Wyoming's policy followed a practice it had adopted as a Territory. Compare Act of Jan. 21, 1891, ch. 100, § 4, 1890-1891 Wyo.Sess.Laws 394, with Act of Mar. 14, 1890, ch. 80, § 7, 1890 Wyo.Terr.Sess.Laws 158. See generally C. Beard & M. Beard, The Rise of American Civilization 563 (rev. ed.1937).

[ Footnote 3/22 ]

The Nineteenth Amendment, ratified in 1920, prohibits abridgment of the right to vote "on account of sex."

[ Footnote 3/23 ]

See Act of Jan. 28, 1932, ch. 20, 1931-1932 Wis.Laws 57; Act of June 1, 1933, ch. 186, 1933 Wis.Laws 448; Act of June 2, 1933, ch.194, 1933 Wis.Laws 491; W. Leuchtenburg, Franklin D. Roosevelt and the New Deal, 1932-1940, p. 130 (1963); Rockefeller, supra, n. 20, at 16.

[ Footnote 3/24 ]

See Act of June 4, 1912, ch. 706, 1912 Mass. Acts 780; R. Morris, Encyclopedia of American History 768 (bicentennial ed.1976).

[ Footnote 3/25 ]

See C. Morris & C. Morris, Jr., Morris on Torts 244-245 (2d ed.1980); Friendly, Federalism: A Foreword, 86 Yale L.J. 1019, 1034 (1977).

[ Footnote 3/26 ]

Florida, for example, has enacted particularly strict legislation against oil spills. Fla.Stat. §§ 376.011-376.21 (1974 and Supp.1982). This Court upheld that legislation in Askew v. American Waterway Operators, Inc., 411 U. S. 325 (1973).

[ Footnote 3/27 ]

See FPC v. East Ohio Gas Co., 338 U. S. 464, 338 U. S. 489 (1950) (Jackson, J., dissenting) ("Long before the Federal Government could be stirred to regulate utilities, courageous states took the initiative, and almost the whole body of utility practice has resulted from their experiences").

[ Footnote 3/28 ]

See also I. Silone, The School for Dictators 119 (W. Weaver trans.1963) ("A regime of freedom should receive its lifeblood from the self-government of local institutions. When democracy, driven by some of its baser tendencies, suppresses such autonomies, it is only devouring itself. If, in the factory, the master's word is law, if bureaucracy takes over the trade union, if the central government's representative runs the city and the province,... then you can no longer speak of democracy").

[ Footnote 3/29 ]

See also Stewart, supra, n.19, at 1241-1244 (discussing "political safeguards of federalism"); Rockefeller, supra, n. 20, at 10.

[ Footnote 3/30 ]

Henry M. Hart, Jr., agreed that the Framers were well aware

of the delicacy, and the difficulties of enforcement, of affirmative mandates from a federal government to the governments of the member states.

Hart, supra, n. 13, at 515. Until the second half of this century, Congress apparently heeded this wisdom. "Federal law," Hart observed in 1954,

often says to the states, 'Don't do any of these things,' leaving outside the scope of its prohibition a wide range of alternative courses of action. But it is illuminating to observe how rarely it says, 'Do this thing,' leaving no choice but to go ahead and do it.


[ Footnote 3/31 ]

Governor Randolph of Virginia, for example, opposed a similar proposal for national coercion on the grounds that it was "impracticable, expensive, [and] cruel to individuals." Instead, he advocated "resort... to a national Legislation over individuals." 1 Farrand 256 (emphasis deleted). Mason eloquently argued that

[t]he most jarring elements of nature, fire & water, themselves are not more incompatible that [ sic ] such a mixture of civil liberty and military execution.

Id. at 339.

[ Footnote 3/32 ]

Thomas Jefferson disapproved of the congressional veto as soon as he heard of it. Writing to Madison from Paris, he declared:

The negative proposed to be given [the national legislators] on all the acts of the several Legislatures is now for the first time suggested to my mind. Prima facie, I do not like it.

C. Warren, The Making of the Constitution 168 (1937). Notably, Jefferson suggested that

an appeal from the State Judicatures to a Federal Court, in all cases where the Act of Confederation controuled the question, [would] be as effectual a remedy.

Id. at 168-169.

[ Footnote 3/33 ]

Experience under the Articles of Confederation taught the Framers that multiple state legislatures, unchecked by any central power, "threat[en] danger not to the harmony only, but to the tranquillity, of the Union." Id. at 166 (quoting Madison). My analysis of the Framers' intent does not detract from the proper role of federal power in a federalist system, but merely requires the exercise of that power in a manner that does not destroy state independence.

[ Footnote 3/34 ]

This Court quickly recognized that Congress' strength derives from its own enumerated powers, not from the ability to direct state legislatures. In McCulloch v. Maryland, 4 Wheat. 316 (1819), the historic decision affirming Congress' power to establish a national bank, Chief Justice Marshall declared:

No trace is to be found in the constitution of an intention to create a dependence of the government of the Union on those of the states, for the execution of the great powers assigned to it. Its means are adequate to its ends; and on those means alone was it expected to rely for the accomplishment of its ends.

Id. at 17 U. S. 424 (emphasis added). See also S. Davis, The Federal Principle 114 (1978) (after examining history of Constitutional Convention, "only the principle of duality articulated in a single constitutional system of two distinct governments, national and state, each acting in its own right, each acting directly on individuals, and each qualified master of a limited domain of action, stands out as the clearest fact"); Salmon, supra, n. 13, at 359 (discussing history of Constitutional Convention and concluding that substitution of Supremacy Clause for negative on state laws "evidenced the clear distinction in [the Framers'] minds between the supremacy of the nation, which they approved, and the power of the nation to control the functioning of the states, which they rejected").

[ Footnote 3/35 ]

After the Convention, several thinkers suggested that the National Government might rely upon state officers to perform some of its tasks. Madison, for example, thought that Congress might rely upon state Officials to collect national revenue. The Federalist No. 45, pp. 312-313 (J. Cooke ed.1961). None of these suggestions, however, went so far as to propose congressional control of state legislative power. The suggestions, moreover, seemed to assume that the States would consent to national use of their officials. See also W. Anderson, The Nation and the States, Rivals or Partners? 86-87 (1957) (noting that First Congress rejected proposals to rely upon state officials to enforce federal law and suggesting that this decision to leave "the states free to work out, and to concentrate their attention and resources upon, their own functions" has become part of our constitutional understanding).

Supreme Court icon marking end of opinion

Header photo: United States Supreme Court. Credit: Patrick McKay / Flickr - CC.