Cite as: 521 U. S. 898 (1997)
Stevens, J., dissenting
The majority's reinterpretation of Testa also contradicts our decision in FERC. In addition to the holding mentioned earlier, see supra, at 965-966, we also approved in that case provisions of federal law requiring a state utilities commission to "adjudicate disputes arising under [a federal] statute." FERC, 456 U. S., at 760. Because the state commission had "jurisdiction to entertain claims analogous to those" put before it under the federal statute, ibid., we held that Testa required it to adjudicate the federal claims. Although the commission was serving an adjudicative function, the commissioners were unquestionably not "judges" within the meaning of Art. VI, cl. 2. It is impossible to reconcile the Court's present view that Testa rested entirely on the specific reference to state judges in the Supremacy Clause with our extension of that early case in FERC.32
Even if the Court were correct in its suggestion that it was the reference to judges in the Supremacy Clause, rather than the central message of the entire Clause, that dictated the result in Testa, the Court's implied expressio unius argument that the Framers therefore did not intend to permit the enlistment of other state officials is implausible. Throughout our history judges, state as well as federal, have merited as much respect as executive agents. The notion that the Framers would have had no reluctance to "press
than it is today, did not rely upon that language lends considerable support to this reading.
32 The Court's suggestion that these officials ought to be treated as "judges" for constitutional purposes because that is, functionally, what they are, is divorced from the constitutional text upon which the majority relies, which refers quite explicitly to "Judges" and not administrative officials. In addition, it directly contradicts the majority's position that early statutes requiring state courts to perform executive functions are irrelevant to our assessment of the original understanding because "Judges" were at issue. In short, the majority's adoption of a proper functional analysis gives away important ground elsewhere without shoring up its argument here.
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