Subject Matter of Compacts

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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.

As instruments based on the combined powers of Congress and the states, compacts have a broad base of authority that can be leveraged for many governmental endeavors.1 For many years after the Constitution was adopted, boundary disputes were the predominate subject of all compacts and agreements.2 After the turn of the twentieth century, states began to use interstate compacts more often as a tool for solving complex regional problems.3 States made compacts to apportion interstate water bodies, particularly rivers in the Western United States,4 and to manage interstate resources and properties, such as oil and gas,5 fisheries,6 and parks.7 States also began to use compacts for major public undertakings and infrastructure projects, such as the Port of New York and New Jersey.8

During this time, Congress began to pass legislation that provided advance consent to whole classes of compacts on some subjects. In one notable example, Congress passed legislation consenting to any interstate compact for the prevention of crime.9 This law led to several widely adopted compacts addressing probationers’ and parolees’ travel between states and other law enforcement matters.10

Interstate compact usage eventually evolved to address an even wider range of issues. Congress authorized compacts addressing subjects as varied as education,11 urban planning,12 tourism and historic preservation,13 tax,14 emergency aid,15

104-321

, 110 Stat. 3877 (1996). fire prevention,16 transportation,17 sewage disposal,18 and radioactive waste management.19

Some compacts create administrative bodies empowered to implement the compact’s requirements.20 For example, in West Virginia ex rel. Dyer v. Sims, the Supreme Court addressed the Ohio River Valley Sanitation Compact, which authorized an interstate commission to issue orders requiring compliance with sewage disposal restrictions in interstate waterbodies.21 A West Virginia state court deemed the compact invalid under the theory that it unlawfully delegated the state’s sovereign power to a body outside the state.22 The Supreme Court, however, reasoned that the “Framers left the [s]tates free to settle regional controversies in diverse ways[,]” including by delegating a state’s traditional sovereign authority to an interstate compact commission.23

Unlike interstate compacts, Congress has given consent to a much smaller set of agreements between states and foreign governments.24 The nature of states’ pacts with foreign governments can be “elusive,” as one Compact Clause scholar described it,25 because states often make international pacts without seeking congressional approval.26 Congress has approved state agreements with foreign governments on some distinct subjects, such as agreements for transnational highway infrastructure and bridges27 and compacts with Canadian providences and territories for cross-border fire prevention28 and emergency management.29

In a unique case, Congress authorized the Great Lakes Basin Compact—which included several states, Ontario, and Quebec—but declined to allow the Canadian provinces to join.30 Executive Branch officials believed Canadian participation would conflict with an existing treaty between the United States and Canada and interfere with the Federal Government’s powers over foreign affairs.31

1: See Felix Frankfurter & James M. Landis, The Compact Clause of the Constitution—A Study in Interstate Adjustments, 34 Yale L. J. 685, 688 (1925). The Supreme Court has stated in dicta that compacts may not be used to alter the Constitutional structure of government. See Pennsylvania v. Wheeling & Belmont Bridge Co., 59 U.S. 421, 433 (1855) (stating that Congress cannot not lose its power to regulate interstate commerce through a compact); Wilson v. Mason, 5 U.S. 45, 61, 2 L. Ed. 29 (1801) (declining to adopt a construction of an compact that would “annul the [C]onstitution” by depriving federal courts of constitutionally provided jurisdiction).
2: See, e.g., Frankfurter & Landis, supra note 1, at 735–48; Richard H. Leach, The Federal Government and Interstate Compacts, 29 Fordham L. Rev. 421, 421–22 (1961). The first compact approved under the Constitution was an agreement between Virginia and the delegates of the then-district of Kentucky to set boundaries between Virginia the newly formed State of Kentucky. See 1 Stat. 189 (1791). See also De Veau v. Braisted, 363 U.S. 144, 154 (1960) (discussing history of congressional approval of state compacts).
3: See Leach, supra note 2, at 421–22; Duncan B. Hollis, The Elusive Foreign Compact, 73 Mo. L. Rev. 1071, 1074–75 (2008). See also West Virginia ex rel. Dyer v. Sims, 341 U.S. 22, 27 (1951) ( “The growing interdependence of regional interests, calling for regional adjustments, has brought extensive use of interstate compacts.” ).
4: See, e.g., La Plata River Compact, Pub. L. No. 68-346, 43 Stat. 796 (1925); South Platte River Compact, Pub. L. No. 69-37, 44 Stat. 195 (1926); Colorado River Compact, Pub. L. No. 70-642, § 13, 45 Stat. 1057 (1928); Rio Grande Compact of 1938, Pub. L. No. 76-96, 53 Stat. 785 (1939); Republican River Compact, Pub. L. No. 78-60, 57 Stat. 86 (1943).
5: See, e.g., Interstate Compact to Preserve Oil and Gas, Pub. Res. No. 74-64, 49 Stat. 939 (1935).
6: See, e.g., Columbia River Compact, Pub. L. No. 65-123, 40 Stat. 515 (1918); Pacific Marine Fisheries Compact, Pub. L. No. 80-232, 61 Stat. 419 (1947).
7: See, e.g., Palisades Interstate Park Compact, Pub. Res. No. 75-65, 50 Stat. 719 (1937); Breaks Interstate Park Compact, Pub. L. No. 83-543, 68 Stat. 571 (1954).
8: See Joint Resolution Granting Consent of Congress to an Agreement or Compact for the Creation of the Port of New York District and the Establishment of the Port of New York Authority, Pub. Res. No. 67-17, 42 Stat. 174 (1921).
9: See An Act Granting Consent of Congress to Any Two or More States to Enter into Agreements or Compacts for Cooperative Effort and Mutual Assistance in the Prevention of Crime, Pub. L. No. 73-292, 48 Stat. 909 (1934) (codified at 4 U.S.C. § 112).
10: See, e.g., Interstate Compact for Juveniles, codified in Va. Code Ann. § 16.1-323; Interstate Corrections Compact, codified in Ky. Rev. Stat. Ann. § 196.610; Agreement on Detainers, codified in Ala. Code § 15-9-81; New England Corrections Compact, codified in Conn. Gen. Stat. Ann. § 18–102; New England Police Compact, codified in 42 R.I. Gen. Laws Ann. § 42-37-1; Western Corrections Compact, codified in Wyo. Stat. Ann. § 7-3-401.
11: See, e.g., Western Regional Education Compact, Pub. L. No. 83–226, 67 Stat. 490 (1953); New Hampshire-Vermont Interstate School Compact, Pub. L. No. 91-21, 83 Stat. 14 (1969).
12: See, e.g., Delaware Valley Urban Area Compact, codified in N.J. Stat. Ann. §§ 32:27-1–32:27-27 (advance congressional consent provided by the Housing Act of 1961, Pub. L. No. 87-70, § 310, 75 Stat. 170 (1961) (previously codified in 40 U.S.C. § 461, repealed by Pub. L. No. 97-35, § 313, 95 Stat. 398 (1981))).
13: See, e.g., Historic Chattahoochee Compact, Pub. L. No. 95-462, 92 Stat 1271 (1978); Cumbres and Toltec Scenic Railroad Compact, Pub. L. No. 93-467, 88 Stat. 1421 (1974).
14: See Compact on Taxation of Motor Fuels Consumed by Interstate Buses, Pub. L. No. 89-11, 79 Stat. 58 (1965).
15: See Interstate Compact for Mutual Military Aid in an Emergency, Pub. L. No. 82-434, 66 Stat. 315 (1952) (amended by Pub. L. No. 84-564, 70 Stat. 247 (1956); Emergency Management Assistance Compact; Pub. L. No.
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, 110 Stat. 3877 (1996).
16: See, e.g., South Central Forest Fire Protection Compact, Pub. L. No. 83-642, 68 Stat. 783 (1954); Middle Atlantic Interstate Forest Fire Protection Compact, Pub. L. No. 84-790, 70 Stat. 636 (1956); Northwest Fire Protection Agreement, Pub. L. No.
105-377
, 112 Stat. 33391 (1998).
17: See, e.g., Joint Resolution Granting the Consent of Congress to the Several States to Negotiate and Enter into Compacts for the Purpose of Promoting Highway Safety, Pub. L. No. 85-684, 72 Stat. 635 (1957).
18: See New Hampshire-Vermont Interstate Sewage Waste Disposal Facilities Compact, Pub. L. No. 94-403, 90 Stat. 1221 (1976).
19: See, e.g., 42 U.S.C. § 2021d; 42 U.S.C. § 2021d note.
20: See Ne. Bancorp, Inc. v. Bd. of Governors of Fed. Rsrv. Sys., 472 U.S. 159, 164 (1985) (describing the creation of a joint organization or body as one “classic indicia of a compact” ).
21: See 341 U.S. 22, 24–25 (1951).
22: See West Virginia ex rel. Dyer, 341 U.S. at 26–30.
23: See id. at 26–31.
24: See Hollis, supra note 3, at 1075.
25: See generally Hollis, supra note 3.
26: For discussion of the state’s increase use of pacts with foreign governments that do not receive congressional approval, see ArtI.S10.C3.3.5 Requirement of Congressional Consent to Compacts.
27: See Act to Authorize the Construction and Maintenance of a Bridge Across the Niagara River, 16 Stat. 173 (1870); Joint Resolution Granting Consent to New York to Enter into an Agreement or Compact with Canada for the Establishment of the Niagara Frontier Port Authority, Pub. L. No. 824, 70 Stat. 701 (1956), repealed by Pub. L. No. 85–145, 71 Stat. 367 (1957); 33 U.S.C. § 535a (granting consent to construction of international bridges to Canada and Mexico). In 1958, Congress authorized a compact between Minnesota and Manitoba, Canada for a highway construction project, but construction was never went forward. See Act of Sept. 2, 1958, Pub. L. No. 85–877, § 1, 72 Stat. 1701.
28: See Act Granting the Consent and Approval of Congress to an Interstate Forest Fire Protection Compact, 63 Stat. 271 (1949); Act Granting the Consent and Approval of Congress to the Participation of certain Provinces of the Dominion of Canada in the Northeastern Interstate Forest Fire Protection Compact, Pub. L. No. 340, § 1, 66 Stat. 71 (1952), repealed by Act of June 30, 1978, Pub. L. No. 95–307, § 8, 92 Stat. 353 (agreements formed under the repealed authorization remain in effect under 16 U.S.C. § 1647(b)); Act Granting Consent and Approval of Congress to an Interstate Forest Fire Protection Compact, Pub. L. No. 105–377, 112 Stat. 3391 (1998).
29: See International Emergency Management Assistance Memorandum of Understanding, Pub. L. No. 110–171, 121 Stat. 2467 (2007); Pacific Northwest Emergency Management Arrangement, Pub. L. No. 105–381, 112 Stat. 3402 (1998).
30: See Act Granting Consent of Congress to a Great Lakes Basin Compact, Pub. L. No. 90–419 § 2, 82 Stat. 414 (1968).
31: See The Great Lakes Basin: Hearings before the Subcomm. on the Great Lakes Basin, S. Comm. Foreign Relations, 84th Cong. 6–9 (1956) (written statements of Robert C. Hill, Assistant Sec’y of State, and William P. Rogers, Deputy Att’y Gen.).