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.

Once Congress consents to a compact, the compact “transforms” from a contract between governments into a law of the United States.1 As federal law, a congressionally approved compact preempts inconsistent state law,2 and no court may order relief inconsistent with its terms.3 The Supreme Court has held that boundaries established by congressionally approved interstate compacts bind the states’ citizens and are conclusive as to their rights.4 The Court also has held that compacts that equitably apportion interstate waterbodies can affect private property rights.5

The Supreme Court has final authority to decide a compact’s meaning and validity.6 The Court need not defer to state courts’ views on whether a compact complies with the law of the states that joined it. Thus, in West Virginia ex rel. Dyer, the Supreme Court declined to adopt the highest state court in West Virginia’s interpretation of whether an interstate compact complied with the West Virginia state constitution7 even though the Court ordinarily defers to state courts’ interpretation of their own state law.8

The Supreme Court often hears interstate compact cases through the Constitution’s grant of original jurisdiction to hear disputes between states.9 This means that interstate compact cases with only states as parties go directly to the Supreme Court without proceedings in lower courts. The Supreme Court views its role in these cases as different from its more standard disputes on appellate jurisdiction.10 It approaches original jurisdiction cases in an “untechnical spirit” that allows the Court to mold the process in a way that best promotes the ends of justice.11

When private litigants are parties to cases involving compacts, the suits do not fall under the Supreme Court’s original jurisdiction, but they can still be heard in federal courts because they require interpretation of compacts in their status as federal law.12 A compact that permits a state entity to “sue and be sued” waives the state’s sovereign immunity provided under the Eleventh Amendment and can permit a private party to sue a state entity.13

Along with being federal law, compacts are contracts between states or between states and foreign governments.14 As a result, the Supreme Court has, at times, used contract law remedies and principles in compact cases.15 In Green v. Biddle, the Court held that interstate compacts fall under the protection of the Contract Clause,16 which prohibits states from passing laws that impair contract rights.17 At the same time, there are limits on how far the Supreme Court will treat compacts as ordinary contracts. In Alabama v. North Carolina, the Court declined to read an implied duty of good faith and fair dealing into an interstate compact even though the Court acknowledged every contract imposes that duty.18

Footnotes

1

See Cuyler v. Adams, 449 U.S. 433, 440 (1981). See also Texas v. New Mexico, No. 141, Orig., slip op. at 4 (U.S. Mar. 5, 2018); Kansas v. Nebraska, 574 U.S. 445, 456 n.5 (2015); Tarrant Reg’l Water Dist. v. Herrmann, 569 U.S. 614, 628 n.8 (2013); Alabama v. North Carolina, 560 U.S. 330, 351 (2010); Texas v. New Mexico, 482 U.S. 124, 128 (1987); Wedding v. Meyler, 192 U.S. 573, 582 (1904); Pennsylvania v. Wheeling & Belmont Bridge Co., 54 U.S. 518, 566 (1851).

2

See, e.g., Tarrant Reg’l Water Dist., 569 U.S. at 627–28 (analyzing whether the Red River Compact preempted Oklahoma state water allocation statutes).

3

See, e.g., New Jersey v. New York, 523 U.S. 767, 811 (1999); Culyer, 449 U.S. at 438; Arizona v. California, 373 U.S. 546, 565–66 (1963); Washington v. Oregon, 211 U.S. 127, 135 (1908).

4

See, e.g., Virginia v. Tennessee, 148 U.S. 503, 525 (1893); Rhode Island v. Massachusetts, 37 U.S. 657, 725 (1838); Poole v. Fleeger, 36 U.S. 185, 209–10 (1837).

5

See Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92, 104–06 (1938).

6

See, e.g., Nebraska v. Iowa, 406 U.S. 117, 118 n.1 (1972); Petty v. Tenn.-Mo. Bridge Comm’n, 359 U.S. 275, 278 (1959); West Virginia ex rel. Dyer v. Sims, 341 U.S. 22, 28 (1951).

7

See West Virginia ex rel. Dyer, 341 U.S. at 28–32.

8

See, e.g., Cunningham v. California, 549 U.S. 270, 306 n.8 (2007); Mullaney v. Wilbur, 421 U.S. 684, 691 (1975).

9

See U.S. Const. art. III, § 2, cl. 2. For background on the Supreme Court’s original jurisdiction and authority to hear suits between states, see ArtIII.S2.C2.2 Supreme Court Original Jurisdiction.

10

See, e.g., Florida v. Georgia, No. 142, Orig., slip op. at 10 (U.S. Apr. 1, 2018); Kansas v. Nebraska, No. 126, Orig., slip op. at 6 (U.S. Feb. 24, 2015); Kentucky v. Dennison, 65 U.S. (24 How.) 66, 98 (1861).

11

Florida, No. 142, Orig., slip op. at 10 (quoting Virginia v. West Virginia, 220 U.S. 1, 27 (1911)).

12

See, e.g., Cuyler v. Adams, 449 U.S. 433, 439 (1981).

13

See Petty v. Tenn.-Mo. Bridge Comm’n, 359 U.S. 275, 278–82 (1959). For discussion of the state sovereign immunity and the Eleventh Amendment, see Amdt11.5.1 General Scope of State Sovereign Immunity.

14

See, e.g., Texas v. New Mexico, 482 U.S. 124, 128 (1987).

15

See, e.g., Tarrant Reg’l Water Dist. v. Herrmann, 569 U.S. 614, 628 (2013); Texas v. New Mexico, 482 U.S. at 128; Kentucky v. Indiana, 281 U.S. 163, 177–78 (1930) (discussing the Court’s ability to order specific performance in interstate compact cases between states).

16

U.S. Const. art. I, § 10, cl. 1 ( “No State shall . . . pass any . . . Law impairing the Obligation of Contracts . . . .).” See also supra ArtI.S10.C1.6.1 Overview of Contract Clause.

17

See Green v. Biddle, 21 U.S. 1, 92 (1823) ( “[A] State has no more power to impair an obligation into which she herself has entered, than she can the contracts of individuals.” ). See also Olin v. Kitzmiller, 259 U.S. 260, 262–63 (1922) (analyzing whether an Oregon fishing license law violated the Contract Clause by impairing the Columbia River Compact).

18

See Alabama v. North Carolina, 560 U.S. 330, 351–52 (2010).