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Katherine Mims Crocker: A Prophylactic Approach to Compact Constitutionality
Michael Ramsey

Katherine Mims Crocker (William & Mary Law School) has posted A Prophylactic Approach to Compact Constitutionality (98 Notre Dame Law Review 1185 (2023)) (68 pages) on SSRN.  Here is the abstract:

From COVID-19 to climate change, immigration to health insurance, firearms control to electoral reform: state politicians have sought to address all these hot-button issues by joining forces with other states. The U.S. Constitution, however, forbids states to “enter into any Agreement or Compact” with each other “without the Consent of Congress,” a requirement that proponents of much interstate action, especially around controversial topics, would hope to circumvent.

The Supreme Court lets them do just that. By interpreting “any Agreement or Compact” so narrowly that it is difficult to see what besides otherwise unlawful coordination qualifies, the Court has essentially read the Compact Clause out of existence. Scholars have offered substitute standards. But those efforts serve to corroborate the analytical point on which current caselaw rests: that the infinite variety of ways in which states can collaborate makes separating constitutionally suspect from safe agreements impossible.

This Article presents a prophylactic path forward focused not on what “any Agreement or Compact” means, but on how “the Consent of Congress” works. It argues that Congress should encourage possible-compact reporting by establishing a system where submission plus silence can equal consent. This approach is prophylactic because it avoids difficult constitutional questions by preventing debatable constitutional violations. And it does so while preserving much of the state-favoring functionality of the current system. The Article contends that this approach makes theoretical sense given situations supporting regulatory safe harbors and juridical and political sense given court and congressional precedent. It also argues that the proposed approach facilitates balancing the efficiency, democracy, and community values underlying regional-governance mechanisms better than the current system does.

This interesting article raises a number of questions I've thought about for a while without getting myself to a satisfactory answer.  The Compact Clause (Art. I, Sec. 10, para. 3) is a real puzzle.  It, taken with Art. I, Sec. 10, para 1, seems to envision two kinds of undertakings:  (a) Treaties, alliances or confederations, which states may not enter into; and (b) agreements or compacts (either with foreign countries or other states), which states can enter into with Congress' consent.  The Constitution doesn't provide much guidance on the difference between the two, although there's some background international law that's sort of helpful.  It may also be that there is a third category of informal understandings that don't rise to the level even of agreements of compacts, which states can undertake without Congress' consent.  Nonbinding agreements would seen likely candidates for this category.  And whatever the answer, it seems clear that it's not the one the Supreme Court ventured in U.S. Steel Corp. v. Multistate Tax Commission (1978), which would largely make the compact clause a nullity.

Then then there is the further question, which this article addresses, of how Congress can consent to an agreement or compact. I have doubts that (as the article suggests) Congress can reverse the presumption established in the Constitution from invalid-unless-Congress-consents to valid-unless-Congress-objects.  But one can't really escape the question of whether an arrangement is a treaty, a compact, or something else.  And, as the article notes, the issue is especially noteworthy because of the pending National Popular Vote Interstate Compact.