The elusive foreign compact.

• Author: Hollis, Duncan B.

1. INTRODUCTION

   Missouri v. Holland marks one of the great rivalries of foreign affairs law, with Missouri and the federal government squaring off over states' rights limitations on the federal government's treaty-making power. (1) But the rivalry did not end with that case. Recently, Missouri and the federal government opened a new chapter in their feud over state and federal powers in foreign affairs. This time, however, the constitutional challenge involved an international agreement made by Missouri, not the federal government.

   On February 14, 2001, U.S. Senator Byron Dorgan from North Dakota wrote the U.S. State Department to complain about a Memorandum of Understanding ("MOU") that Missouri had signed with the Province of Manitoba on January 25, 2001. (2) In that MOU, Missouri and Manitoba agreed "to work cooperatively to the fullest extent possible consistent with law and existing treaties ... in their efforts to oppose water transfers" between the Missouri River and Hudson Bay watersheds. (3) Manitoba believed that U.S. water development projects linking the two watersheds risked the introduction of invasive species into Manitoba's waters--the Hudson Bay basin--with irreparable environmental and economic consequences. (4) Manitoba thus solicited Missouri (and other states) to join its fight against such transfers given those states' own interests in preserving the Missouri River for drinking and recreational purposes. (5) In contrast, Senator Dorgan (whose state would benefit from inter-basin transfers) characterized water transfers as a "national interest .... much broader than the interest of one American state or one Canadian province." (6) In Senator Dorgan's view, Missouri's MOU ran afoul of clear constitutional limits on the ability of U.S. states to enter into foreign agreements. (7)

   Article 1, Section 10 of the Constitution contains the Compact Clause: "No State shall, without the Consent of Congress ... enter into any Agreement or Compact with another State, or with a foreign Power." (8) The same section expressly prohibits U.S. states from entering into "any Treaty, Alliance or Confederation." (9) Read literally, the text supports Senator Dorgan's view. It suggests a bifurcation of (a) agreements that U.S. states can make if Congress consents--compacts and agreements; and (b) agreements that U.S. states cannot make at all--treaties, alliances and confederations. Even assuming then that the Missouri-Manitoba MOU did not trigger the absolute prohibition on treaties, Congress still needed to consent in order to overcome the conditional prohibition on any state agreement with a foreign power. (10) Since Congress had not considered--let alone consented to--the Missouri-Manitoba MOU, its constitutionality appears suspect.

   Senator Dorgan asked the State Department for an "analysis of this agreement and your determination of whether such an agreement is allowed" under the Constitution. (11) On November 20, 2001, the State Department's Legal Adviser, William H. Taft, IV, provided a lengthy memorandum in response to Senator Dorgan's request. (12) The State Department Memo declined, however, to determine the MOU's constitutionality, saying merely that it "potentially implicates several constitutional doctrines," including the Compact Clause. (13)

   But why did Senator Dorgan seek a decision from the State Department at all? The Compact Clause contains a Congressional power, not an Executive one. If Senator Dorgan believed that Missouri had violated its terms--and he did--why not look to his colleagues in Congress for relief? As the holder of the power, shouldn't Congress dictate when and how states conclude agreements with foreign governments?

   It turns out that Senator Dorgan had good reason to consult the State Department. Whatever the constitutional text suggests about Congress having plenary power over the states' foreign agreements, the reality has proved quite different. Congress has done remarkably little to define or execute its own Compact Clause power. In its stead, the other two branches--the Court and the Executive--have played much larger roles. In exercising its judicial function, the Court has done much of the definitional work, delineating when Congress must approve a state's agreement. Judicial decisions on interstate compacts have glossed over the distinction between treaties and compacts and implied a third category of state agreements--i.e., those that states have a power to make free from congressional oversight or approval. And, in terms of execution, the Executive has done much more than Congress to police state activities with foreign powers in light of these judicially-drawn lines. As Senator Dorgan's own letter suggests, the Executive, not Congress, plays the lead role today in dictating the appropriateness of state interactions with foreign governments. (14)

   This Essay explores and questions the current operation of the Compact Clause vis-a-vis foreign compacts. First, I examine how small a role Congress plays in questions about state agreements with foreign governments, even in the face of substantial state practice. Second, I seek to explain why Congress's power over foreign compacts appears so dormant. I find congressional inaction to be a function of judicial and executive action. The Court's rulings have greatly limited when Congress must consent to an interstate compact, and Congress appears to accept similar limits for foreign compacts. At the same time, the states, foreign governments, and even Congress itself have turned to the Executive to assess what U.S. states can do with or without congressional consent. Third, focusing on this Executive role, I illustrate some of the informational, functional, and structural problems it produces. Ultimately, by highlighting the elusive nature of foreign compacts under current doctrine and Executive practice, I seek to establish the need for a more sustained inquiry of foreign compacts and Congress's role in this aspect of the states' foreign affairs. (15)

2. FOREIGN COMPACTS--A "DO NOTHING" CONGRESS?

   Since the Founding, Congress has approved some two hundred interstate compacts. (16) The vast majority of these approvals came after 1920, when U.S. states began to employ the interstate compact in new ways; shifting it from a boundary settlement device to one also capable of advisory, administrative and regulatory functions. (17) Today, these agreements among U.S. states operate bilaterally, regionally and nationally. They address a range of topics, including boundaries, child welfare, crime control, education, pollution control, regional economic assistance, resource-sharing, and transportation. (18)

   The foreign compact, in contrast, has proved a much more elusive creature. (19) Congress has consented to a mere handful of these agreements. (20) Virtually all of them have the same, limited function--coordinating activities by Border States in sharing information, resources or costs within a transboundary region. And Congress has not consented to every agreement fulfilling such functions. In fact, Congress has consented to foreign compacts in only four narrowly defined categories: (a) bridges; (b) fire fighting; (c) highways; and (d) emergency management.

   The first recorded case of congressional approval of a foreign compact came in 1870, when Congress approved New York and Canada's International Bridge Compact to construct a Niagara River bridge. (21) This marked the beginning of a nearly century-long process (public and private), culminating in Congress's 1957 approval of the Buffalo and Fort Erie Public Bridge Authority. (22) In 1972, Congress expanded on this concept, passing the International Bridge Act, authorizing U.S. state agreements with Canadian and Mexican counterparts on the construction, operation, and maintenance of transboundary bridges. (23)

   After a series of devastating fires in Maine, in 1952 Congress authorized Canadian participation in a Northeastern Interstate Fire Protection Compact. (24) No Canadian province actually belonged, however, until 1970 when New Brunswick and Quebec joined, following the conclusion of a U.S.-Canada agreement authorizing their participation. (25) More recently, in 1998, Congress approved a Northwest Wildland Fire Protection Agreement that now includes four U.S. states and four Canadian sub-national members (British Columbia, Alberta, the Yukon Territory, and the Northwest Territories). (26)

   In several instances, Congress's consent included foreign participation that never materialized. For example, in 1958 Congress authorized Minnesota to negotiate a compact with Manitoba to develop a highway to access the northwest part of Minnesota. (27) According to Congress, however, the parties needed additional congressional consent to give any such compact binding effect, which never happened. (28) Similarly, in 1951, Congress in authorizing Interstate Civil Defense and Disaster Compacts also approved "mutual aid pacts" on the same topic between U.S. states and neighboring countries, although none apparently ever came to fruition. (29)

   Congress most recently consented to a foreign compact on December 17, 2007, when it approved the International Emergency Management Assistance Memorandum of Understanding ("IEMA Compact"). (30) The IEMA Compact provides a framework for cooperation in planning for, and responding to, disasters and other emergencies among six northeastern U.S. states and five Canadian provinces. Congress approved a similar compact among northwestern U.S. States and Canadian provinces in 1998--the Pacific Northwest Emergency Management Arrangement ("PNEMA Compact"). (31) Both of these foreign compacts mirror an earlier interstate agreement--the Emergency Management Assistance Compact ("EMAC")--that Congress approved in 1996. (32)

   Taken together, this history demonstrates how remarkably few foreign compacts Congress has approved. One might infer from this some...