CRS Annotated Constitution

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Consent of Congress.—The Constitution makes no provision with regard to the time when the consent of Congress shall be given or the mode or form by which it shall be signified.2051 While the consent will usually precede the compact or agreement, it may be given subsequently where the agreement relates to a matter which could not be well considered until its nature is fully developed.2052 The required consent is not necessarily an expressed consent; it may be inferred from circumstances.2053 It is sufficiently indicated, when not necessary to be made in advance, by the approval of proceedings taken under it.2054 The consent of Congress may be granted conditionally “upon terms appropriate to the subject and transgressing no constitutional limitations.”2055 Congress[p.406]does not, by giving its consent to a compact, relinquish or restrict its own powers, as for example, its power to regulate interstate commerce.2056

Grants of Franchise to Corporations by Two States.—It is competent for a railroad corporation organized under the laws of one State, when authorized so to do by the consent of the State which created it, to accept authority from another State to extend its railroad into such State and to receive a grant of powers to own and control, by lease or purchase, railroads therein and to subject itself to such rules and regulations as may be prescribed by the second State. Such legislation on the part of two or more States is not, in the absence of inhibitory legislation by Congress, regarded as within the constitutional prohibition of agreements or compacts between States.2057

Legal Effect of Interstate Compacts.—Whenever, by the agreement of the States concerned and the consent of Congress, an interstate compact comes into operation, it has the same effect as a treaty between sovereign powers. Boundaries established by such compacts become binding upon all citizens of the signatory States and are conclusive as to their rights.2058 Private rights may be affected by agreements for the equitable apportionment of the water of an interstate stream, without a judicial determination of existing rights.2059 Valid interstate compacts are within the protection of the obligation of contracts clause,2060 and a “sue and be sued” provision therein operates as a waiver of immunity from suit in federal courts otherwise afforded by the Eleventh Amendment.2061 The Supreme Court in the exercise of its original jurisdiction may enforce interstate compacts following principles of general contract law.2062 Congress also has authority to compel compliance with[p.407]such compacts.2063 Nor may a State read herself out of a compact which she has ratified and to which Congress has consented by pleading that under the State’s constitution as interpreted by the highest state court she had lacked power to enter into such an agreement and was without power to meet certain obligations thereunder. The final construction of the state constitution in such a case rests with the Supreme Court.2064


2051 Green v. Biddle, 8 Wheat. (21 U.S.) 1, 85 (1823).
2052 Virginia v. Tennessee, 148 U.S. 503 (1893).
2053 Virginia v. West Virginia, 11 Wall. (78 U.S.) 39 (1871).
2054 Wharton v. Wise, 153 U.S. 155, 173 (1894).
2055 James v. Dravo Contracting Co., 302 U.S. 134 (1937). See also Arizona v. California, 292 U.S. 341, 345 (1934). When it approved the New York–New Jersey Waterfront Compact, 67 Stat. 541 , Congress, for the first time, expressly gave its consent to the subsequent adoption of implementing legislation by the participating States. De Veau v. Braisted, 363 U.S. 144, 145 (1960).
2056 Pennsylvania v. Wheeling & Belmont Bridge Co., 18 How. (59 U.S.) 421, 433 (1856).
2057 St. Louis & San Francisco Railway v. James, 161 U.S. 545, 562 (1896).
2058 Poole v. Fleeger, 11 Pet. (36 U.S.) 185, 209 (1837); Rhode Island v. Massachusetts, 12 Pet. (37 U.S.) 657, 725 (1838).
2059 Hinderlider v. La Plata Co., 304 U.S. 92, 104, 106 (1938).
2060 Green v. Biddle, 8 Wheat. (21 U.S.) 1, 13 (1823); Virginia v. West Virginia, 246 U.S. 565 (1918). See also Pennsylvania v. Wheeling & Belmont Bridge Co., 13 How. (54 U.S.) 518, 566 (1852); Olin v. Kitzmiller, 259 U.S. 260 (1922).
2061 Petty v. Tennessee–Missouri Comm., 359 U.S. 275 (1959).
2062 Texas v. New Mexico, 482 U.S. 124 (1987). If the compact makes no provision for resolving impasse, then the Court may exercise its jurisdiction to apportion waters of interstate streams. In doing so, however, the Court will not rewrite the compact by ordering appointment of a third voting commissioner to serve as a tie–breaker; rather, the Court will attempt to apply the compact to the extent that its provisions govern the controversy. Texas v. New Mexico, 462 U.S. 554 (1983).
2063 Virginia v. West Virginia, 246 U.S. 565, 601 (1918).
2064 Dyer v. Sims, 341 U.S. 22 (1951).
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