A Prophylactic Approach to Compact Constitutionality

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