A PROPHYLACTIC APPROACH TO COMPACT CONSTITUTIONALITY.

• Author: Crocker, Katherine Minis

INTRODUCTION 1186 I. THE CASELAW 1192 A. The Compart Question 1192 1. Virginia v. Tennessee 1193 2. U.S. Steel 1195 3. Northeast Bancorp 1198 B. The Consent Question 1200 II. THE CLAIM 1202 A. The Effect of Current Doctrine 1203 B. The Case for a New Approach 1205 1. The Compact Clause Text 1205 2. The Treaty Clause Context 1206 3. The Broader Constitutional Structure 1211 C. The Problem with Previous Alternatives 1215 1. Greve's Model 1215 2. Other Models 1218 III. THE PROPOSAL 1222 A. Core Details 1222 B. Supporting Considerations 1229 1. Regulatory Theory 1230 2. Judicial Precedent 1232 3. Political Precedent 1233 C. Regionalism Values 1238 1. Efficiency 1238 2. Democracy 1242 3. Community 1246 D. Potential Concerns 1249 CONCLUSION 1251 INTRODUCTION

In a classic 1925 Yale Law Journal article, future Justice Felix Frankfurter and James Landis wrote that "in the creation" of the U.S. Constitution "lurked the seeds of inevitable contest between the new Union and its constituent members." (1) As a solution, they trumpeted interstate compacts, (2) which subsequently became ubiquitous.

More than two hundred formal compacts--addressing topics as diverse as boundaries, natural resources, infrastructure, and criminal-law enforcement--exist today. (3) As one commentator puts it, "compacts are everywhere." (4) In fact, "[i]f you have ever flown to New York City, or taken a subway ride in Washington, D.C., you have experienced an interstate compact in action," for "those transit systems are both products of innovative compacts between neighboring states." (5)

Efforts to form interstate partnerships often spring from politically contested terrain. (6) Democrats responded to former President Donald Trump's abandoning the Paris Agreement on climate change by creating the United States Climate Alliance, through which two dozen states committed to advancing the original treaty's goals. (7) Republicans responded to President Barack Obama's immigration policies by attempting to enact a Border Security Interstate Compact and similar measures. (8) Democratic New Jersey Governor Phil Murphy floated a gun-control compact when federal reforms failed to materialize after the Parkland school shooting. (9) And in nine states, Republicans succeeded in passing the Health Care Compact, which upon congressional approval would allow state-specific alternatives to the Affordable Care Act. (10)

Enthusiasm for addressing hot-button issues through interstate compacts is increasing. Consider the National Popular Vote Interstate Compact, which aims to eliminate some states' disproportional impact on presidential campaigns. Adopted (so far) by fifteen states and Washington, D.C.," this effort illustrates the momentum that interstate coordination enjoys in the current political moment. The participants promise that upon acceptance by a critical mass of states, their Electoral College delegations will support the winner of the national popular vote regardless of whom their citizens back. (12) Indeed, one set of commentators contends that interstate agreements could embody a "Goldilocks" solution not only to the "ongoing effects" of the COVID-19 pandemic, but also to "political... and moral crises" as varied as "voting rights, racial justice, climate change, [and] gaping inequality." (13)

Interstate partnerships became especially pronounced during the early months of the COVID-19 pandemic. When groups of governors began agreeing to work together to lift lockdowns and reopen businesses, commentators inside and outside the legal academy formed a chorus of support for expanding such endeavors. Professor Aziz Huq wrote in the Washington Post that states "could go an important step further by establishing 'interstate compacts'" aimed at "[r]emedying testing shortages, solving the shortfalls of medical equipment and instituting measures to avoid the virus's resurgence." (14) Evan Schultz in State advocated a "ventilator compact" where states could "bid as a group, and then shuttle the lifesaving machines between the states to whatever coronavirus hot spots are exploding." (15) In fact, he said, states could use compacts to allocate "everything from face masks to medicine to, if necessary, even food." (16)

No sooner had the virtual ink dried on suggestions like these than states began taking them up. Most prominently, then-New York Governor Andrew Cuomo announced a "joint multi-state agreement" to create a "regional state purchasing consortium" for obtaining personal protective equipment, testing materials, and other medical supplies. (17) The consortium members vowed, among other things, to "work together" to "aggregate demand" and "reduce costs." (18) The official announcement stated that beyond improving public health, one goal was to "promote regional economic development," with the media reporting that the participating governors wanted to locate suppliers nearby. (19)

Often overlooked in the scramble for meaningful solutions to difficult problems is a constitutional provision subjecting interstate partnerships to special scrutiny. In the so-called Compact Clause, Article I, Section 10 says that "[n]o State shall, without the Consent of Congress... enter into any Agreement or Compact with another State, or with a foreign Power." (20) The Supreme Court, however, has never held that an interstate arrangement violates this command. In fact, scholars have located only a single case in the entire sweep of American history declaring an instance of interstate cooperation unconstitutional under the Compact Clause. (21) Even then, the case did not look like a typical Compact Clause challenge (22)--and the merits never went beyond a Missouri trial court because the case was dismissed on appeal as moot. (23)

As it turns out, the Court has essentially read the Compact Clause out of existence. (24) In the 1978 case U.S. Steel Corp. v. Multistate Tax Commission, the Court affirmed that "application of the Compact Clause is limited to agreements that are 'directed to the formation of any combination tending to the increase of political power in the States, which may encroach upon or interfere with the just supremacy of the United States.'" (25) As Professor Michael Creve explains, because compacts that inhibit the just supremacy of the United States "are bound to be void in any case under a conventional constitutional or preemption analysis," this standard makes it "difficult to imagine a state agreement on which the Compact Clause would operate as a distinct constitutional requirement and obstacle." (26)

This anything-goes approach is far from ideal. By sidelining the Compact Clause, current doctrine more or less excises text from the Constitution; makes a hash of the broader constitutional context; and distorts the structural balance of power between the federal government and states, among states themselves, and vis-a-vis individual rights. (27) In particular, the growth in interstate coordination reflecting "state-based resistance" to federal-government policymaking process calls for a meaningful congressional say in compact implementation, just as the Constitution contemplates. (28)

Interpreting the Compact Clause gives rise to two fundamental issues: first, the meaning of "any Agreement or Compact," which we can call the "compact question"; and second, the meaning of "the Consent of Congress," which we can call the "consent question." (2)' (1) Scholarly efforts to restore content to the Clause have largely focused on the compact question, attempting to delineate what kinds of interstate partnerships should require congressional support to proceed.

This Article contends that scholarly alternatives to current doctrine arc unworkable in significant part because of the legal and factual complexity surrounding the myriad and evolving ways states can collaborate. In both caselaw and commentary, the compact question has proved impossible to answer in any practically satisfactory manner. (30) This Article thus advocates shifting attention to the consent question by reimagining how congressional approval--as distinct from compact identification--works. In particular, the Article proposes that Congress should adopt a so-called report-and-wait mechanism where silence in the face of possible-compact submission can qualify as consent, thereby providing a safe harbor of sorts for states to pursue productive partnerships while honoring constitutional commitments. (31)

A couple clarifications may be helpful up front. First, this Article's proposal would act as a supplement to, not a substitute for, judicial review construing the Compact Clause. The proposal represents a partial political solution to both the legal problem inherent in the Court's emptying the Clause of meaning and the practical problem inherent in attempts to separate constitutional from unconstitutional interstate actions. Interpretive concerns inform the proposal, but the core contention is that Congress should assert greater policy control over interstate compacting, not that courts should apply the constitutional text in any particular way. Second, the proposal envisions an optional, not obligatory, intervention. States would not be required to report anything to Congress to interact as they wish. Instead, the proposal includes incentives for them to do so--and leaves room for the possibility of third-party submission as well.

The Article unfolds in three parts. Part I offers an overview of caselaw, first on the compact question and then on the consent question. Along the way, this Part outlines different incarnations of interstate agreements and different connections to American federalism.

Part II contends that stakeholders across the legal system could benefit from a prophylactic approach to implementing the Compact Clause--meaning an approach aimed at avoiding difficult constitutional questions by preventing debatable constitutional violations. This Part begins by explaining how...