Article I, Section 10, Clause 3:

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

The Constitution does not dictate the timing or manner in which Congress must consent to a compact. The Supreme Court has interpreted the Constitution’s silence to mean that Congress may use its wisdom and discretion to choose how and when it gives consent.1 In an 1893 case, the Supreme Court stated that Congress ordinarily should provide authorization before the states join and carry out a compact, but Congress may consent later if the compact addresses an issue that is best considered after its “nature is fully developed[.]” 2 The Court has further explained that Congress can consent to a compact either in advance or by giving approval after the states already negotiated and joined the compact.3

As the number of compacts has increased over time, Congress has developed different ways of providing consent. Congress frequently approves specific compacts,4 but it also has given approval in advance to broad classes of compacts.5 Congress has, at times, given consent for an indefinite period;6 other times it has put an end date on its authorization.7 When approving a compact, Congress can consent to the participating states’ later adoption of legislation that implements the compact.8 Congress also can impose conditions on its consent, provided the conditions are “appropriate to the subject” and do not exceed a constitutional limitation.9

Congress’s consent to a compact can be inferred from the circumstances and need not be expressly stated.10 For example, when a compact sets up a formal procedure for resolving an interstate problem, such as arbitration, the Supreme Court has held that consent can be inferred if Congress expressed approval of the proceedings’ results.11

Footnotes

1

See Green v. Biddle, 21 U.S. 1, 85–83 (1823) ( “[T]he constitution makes no provision respecting the mode or form in which the consent of Congress is to be signified, very properly leaving that matter to the wisdom of that body . . . .” ).

2

Virginia v. Tennessee, 148 U.S. 503, 521 (1893).

3

Cuyler v. Adams, 449 U.S. 433, 440–41 (1981). Although not required under the Constitution, Congress often presents compacts which it has authorized to the President for approval. See Duncan B. Hollis, The Elusive Foreign Compact, 73 Mo. L. Rev. 1071, 1103 n.30 (2008).

4

See e.g., Columbia River Compact, Pub. L. No. 65–123, 40 Stat. 515 (1918).

5

See, e.g., 4 U.S.C. § 112; 42 U.S.C. § 2021d(2); 33 U.S.C. § 567a.

6

See supra note 5.

7

See, e.g., 7 U.S.C. § 7256(3).

8

See De Veau v. Braisted, 363 U.S. 144, 150–51 (1960).

9

James v. Dravo Contracting Co., 302 U.S. 134, 148 (1937). See also, e.g., Arizona v. California, 292 U.S. 341, 351–52 (1934) (discussing conditions on the Colorado River Compact imposed by the Boulder Canyon Project Act of 1928); 7 U.S.C. § 7256(2) (limiting the Northeast Interstate Diary Compact).

10

See, e.g., Virginia v. Tennessee, 148 U.S. at 522; Virginia v. West Virginia, 78 U.S. 39, 60 (1870).

11

See, e.g., Wharton v. Wise, 153 U.S. 155, 172–73 (1894); Virginia v. Tennessee, 148 U.S. at 537; Green v. Biddle, 21 U.S. 1, 86–87 (1823).