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.
Except for the single limitation that the consent of Congress must be obtained, the original inherent sovereign rights of the states to make compacts with each other was not surrendered under the Constitution.1 “The Compact,” as the Supreme Court has put it, “adapts to our Union of sovereign States the age-old treaty-making power of independent sovereign nations.” 2 In American history, the compact technique can be traced back to the numerous controversies that arose over the ill-defined boundaries of the original colonies. These disputes were usually resolved by negotiation, with the resulting agreement subject to approval by the Crown.3 When the political ties with Britain were broken, the Articles of Confederation provided for appeal to Congress in all disputes between two or more states over boundaries or “any cause whatever” 4 and required the approval of Congress for any “treaty confederation or alliance” to which a state should be a party.5
The Framers of the Constitution went further. By the first clause of this section they laid down an unqualified prohibition against “any treaty, alliance or confederation,” and by the third clause they required the consent of Congress for “any agreement or compact.” The significance of this distinction was pointed out by Chief Justice Taney in Holmes v. Jennison:6 “[A]s these words ['agreement' and 'compact'] could not have been idly or superfluously used by the framers of the constitution, they cannot be construed to mean the same thing with the word treaty. They evidently mean something more, and were designed to make the prohibition more comprehensive. . . . The word 'agreement,' does not necessarily import any direct and express stipulation; nor is it necessary that it should be in writing. If there is a verbal understanding, to which both parties have assented, and upon which both are acting, it is an 'agreement.' And the use of all of these terms, 'treaty,' 'agreement,' 'compact,' show that it was the intention of the framers of the constitution to use the broadest and most comprehensive terms; and that they anxiously desired to cut off all connection or communication between a state and a foreign power; and we shall fail to execute that evident intention, unless we give to the word 'agreement' its most extended signification; and so apply it as to prohibit every agreement, written or verbal, formal or informal[,] positive or implied, by the mutual understanding of the parties.” 7 But, in Virginia v. Tennessee,8 decided more than a half century later, the Court shifted position, holding that the unqualified prohibition of compacts and agreements between states without the consent of Congress did not apply to agreements concerning such minor matters as adjustments of boundaries, which have no tendency to increase the political powers of the contracting states or to encroach upon the just supremacy of the United States. Accordingly, congressional approval of a compact is needed when the agreement “might affect injuriously” the interests of other states or when the compact would infringe on the “rights of the national government.” 9 Adhering to this later understanding of the clause, the Court found no enhancement of state power in relation to the Federal Government through entry into the Multistate Tax Compact, and thus sustained the agreement among participating states without congressional consent.10
Subject Matter of Interstate Compacts
For many years after the Constitution was adopted, boundary disputes continued to predominate as the subject matter of agreements among the states. Since the turn of the twentieth century, however, the interstate compact has been used to an increasing extent as an instrument for state cooperation in carrying out affirmative programs for solving common problems.11 The execution of vast public undertakings, such as the development of the Port of New York by the Port Authority created by compact between New York and New Jersey, flood control, the prevention of pollution, and the conservation and allocation of water supplied by interstate streams, are among the objectives accomplished by this means. Another important use of this device was recognized by Congress in the act of June 6, 1934,12 whereby it consented in advance to agreements for the control of crime. The first response to this stimulus was the Crime Compact of 1934, providing for the supervision of parolees and probationers, to which most of the states have given adherence.13 Subsequently, Congress has authorized, on varying conditions, compacts touching the production of tobacco, the conservation of natural gas, the regulation of fishing in inland waters, the furtherance of flood and pollution control, and other matters. Moreover, many states have set up permanent commissions for interstate cooperation, which have led to the formation of a Council of State Governments, the creation of special commissions for the study of the crime problem, the problem of highway safety, the trailer problem, problems created by social security legislation, and the framing of uniform state legislation for dealing with some of these.14
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.15 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.16 The required consent is not necessarily an expressed consent; it may be inferred from circumstances.17 It is sufficiently indicated, when not necessary to be made in advance, by the approval of proceedings taken under it.18 The consent of Congress may be granted conditionally “upon terms appropriate to the subject and transgressing no constitutional limitations.” 19 Congress does not, by giving its consent to a compact, relinquish or restrict its own powers, as for example, its power to regulate interstate commerce.20
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 that 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.21
Legal Effect of Interstate Compacts
Once Congress gives its consent to an interstate compact, the compact, “like any other federal statute,” becomes the law of the land.22 Boundaries established by such compacts become binding upon all citizens of the signatory states and are conclusive as to their rights.23 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.24 Valid interstate compacts are within the protection of the Contract Clause,25 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.26 The Supreme Court in the exercise of its original jurisdiction may enforce interstate compacts following principles of general contract law.27 Congress also has authority to compel compliance with such compacts.28 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.29
- Poole v. Fleeger, 36 U.S. (11 Pet.) 185, 209 (1837).
- Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92, 104 (1938).
- Frankfurter and Landis, The Compact Clause of the Constitution: A Study in Interstate Adjustments, 34 Yale L.J. 685, 691 (1925).
- Article IX.
- Article VI.
- 39 U.S. (14 Pet.) 540 (1840).
- 39 U.S. at 571, 572.
- 148 U.S. 503, 518 (1893). See also Stearns v. Minnesota, 179 U.S. 223, 244 (1900).
- See Texas v. New Mexico, 583 U.S. ___, No. 141, Orig., slip op. at 4 (2018).
- United States Steel Corp. v. Multistate Tax Comm'n, 434 U.S. 452 (1978). See also New Hampshire v. Maine, 426 U.S. 363 (1976).
- Frankfurter and Landis, The Compact Clause of the Constitution: A Study in Interstate Adjustments, 34 Yale L.J. 685 (1925); F. Zimmerman and M. Wendell, Interstate Compacts Since 1925 (1951); F. Zimmerman and M. Wendell, The Law and Use of Interstate Compacts (1961).
- 48 Stat. 909 (1934).
- F. Zimmerman and M. Wendell, Interstate Compacts Since 1925 91 (1951).
- 7 U.S.C. § 515; 15 U.S.C. § 717j; 16 U.S.C. § 552; 33 U.S.C. §§ 11, 567-567b.
- Green v. Biddle, 21 U.S. (8 Wheat.) 1, 85 (1823).
- Virginia v. Tennessee, 148 U.S. 503 (1893).
- Virginia v. West Virginia, 78 U.S. (11 Wall.) 39 (1871).
- Wharton v. Wise, 153 U.S. 155, 173 (1894).
- 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. DeVeau v. Braisted, 363 U.S. 144, 145 (1960).
- Pennsylvania v. Wheeling & Belmont Bridge Co., 59 U.S. (18 How.) 421, 433 (1856).
- St. Louis & S.F. Ry. v. James, 161 U.S. 545, 562 (1896).
- See Texas v. New Mexico, 583 U.S. ___, No. 141, Orig., slip op. at 4 (2018).
- Poole v. Fleeger, 36 U.S. (11 Pet.) 185, 209 (1837); Rhode Island v. Massachusetts, 37 U.S. (12 Pet.) 657, 725 (1838).
- Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92, 104, 106 (1938).
- Green v. Biddle, 21 U.S. (8 Wheat.) 1, 13 (1823); Virginia v. West Virginia, 246 U.S. 565 (1918). See also Pennsylvania v. Wheeling & Belmont Bridge Co., 54 U.S. (13 How.) 518, 566 (1852); Olin v. Kitzmiller, 259 U.S. 260 (1922).
- Petty v. Tennessee-Missouri Bridge Comm'n, 359 U.S. 275 (1959).
- Texas v. New Mexico, 482 U.S. 124, 128 (1987). In so doing, the Court has noted that “our role in resolving disputes between sovereign States under our original jurisdiction 'significantly differs from the one the Court undertakes in suits between private parties.' 'In this singular sphere,' we have observed, 'the court may regulate and mould the process it uses in such a manner as in its judgment will best promote the purposes of justice.'” Florida v. Georgia, 585 U.S. ___, No. 142, Orig., slip op. at 10 (2018) (quoting Kansas v. Nebraska, 574 U.S. ___, No. 126, Orig., slip op. at 6 (2015); Kentucky v. Dennison, 65 U.S. (24 How.) 66, 98 (1861)). Thus, the Court clarified that it “must approach interstate disputes 'in the untechnical spirit proper for dealing with a quasi-international controversy, remembering that there is no municipal code governing the matter, and that this court may be called on to adjust differences that cannot be dealt with by Congress or disposed of by the legislature of either State alone.'” Id. (quoting Virginia v. West Virginia, 220 U.S. 1, 27 (1911) (Holmes, J.)); see also Texas v. New Mexico, 583 U.S. ___, No. 141, Orig., slip op. at 5 (2018) (using the Court's “unique authority to mold original actions” to allow the United States to intervene in a dispute).
- Virginia v. West Virginia, 246 U.S. 565, 601 (1918).
- Dyer v. Sims, 341 U.S. 22 (1951).
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