9.16 Myths about Interstate Compacts and Congressional Consent

The U.S. Constitution authorizes states to enter into interstate compacts.

“No state shall, without the consent of Congress, … enter into any agreement or compact with another state or with a foreign power.”[420]

Interstate compacts predate the Constitution. One interstate compact approved at the time of the Articles of Confederation remained in force until 1958 (when it was replaced by an updated version).

The subject matter of existing interstate compacts varies widely and has included such topics as agriculture, boundaries, bridges, building construction and safety, child welfare, civil defense, conservation, corrections, crime control, cultural issues, education, emergency management, energy, facilities, flood control, gambling and lotteries, health, insurance, interstate school districts, low-level radioactive waste, metropolitan problems, motor vehicles, national guard, natural resources, navigation, parks and recreation, pest control, planning and development, ports, property, public safety, river basins, taxation, transportation, and water.

Examples of compacts include the:

• Colorado River Compact (allocating water among seven western states),
• Port Authority of New York and New Jersey (a two-state compact),
• Multistate Tax Compact (whose membership includes 23 states and the District of Columbia),
• Interstate Oil and Gas Compact,
• Interstate Corrections Compact,
• Mutual Aid Compact,
• Great Lakes Basin Compact (to which the Canadian province of Ontario is a party along with various states), and
• Multi-State Lottery Compact (which operates the Powerball lotto game in numerous states).

Compacts are often used on a nationwide basis. For example, the Interstate Compact on the Placement of Children and the Interstate Compact on Juveniles are examples of compacts adhered to by all 50 states and the District of Columbia.

Numerous other compacts are listed in appendix M and discussed in chapter 5.

Once a state enters into an interstate compact, the terms of the compact are legally enforceable against the participating states because the Impairments Clause of the U.S. Constitution provides:

“No State shall … pass any … Law impairing the Obligation of Contracts.”[421]

The Council of State Governments summarizes the nature of interstate compacts as follows:

“Compacts are agreements between two or more states that bind them to the compacts’ provisions, just as a contract binds two or more parties in a business deal. As such, compacts are subject to the substantive principles of contract law and are protected by the constitutional prohibition against laws that impair the obligations of contracts (U.S. Constitution, Article I, Section 10).

“That means that compacting states are bound to observe the terms of their agreements, even if those terms are inconsistent with other state laws. In short, compacts between states are somewhat like treaties between nations. Compacts have the force and effect of statutory law (whether enacted by statute or not) and they take precedence over conflicting state laws, regardless of when those laws are enacted.

“However, unlike treaties, compacts are not dependent solely upon the good will of the parties. Once enacted, compacts may not be unilaterally renounced by a member state, except as provided by the compacts themselves. Moreover, Congress and the courts can compel compliance with the terms of interstate compacts. That’s why compacts are considered the most effective means of ensuring interstate cooperation.”[422] [Emphasis added]

The National Popular Vote plan is an interstate compact—a type of state law that is explicitly authorized by the U.S. Constitution to enable otherwise sovereign states to enter into legally enforceable contractual obligations with one another.

Footnotes

The U.S. Constitution places no restriction on the subject matter of an interstate compact other than the implicit limitation that a compact’s subject matter must be among the powers that states are permitted to exercise. That implicit limitation does not apply to the subject matter of the National Popular Vote compact, because the U.S. Supreme Court has ruled that states possess exclusive power to choose the method of awarding their electoral votes.

The National Popular Vote compact concerns the method of appointment of a state’s presidential electors.

The U.S. Constitution gives each state the power to select the manner of appointing its presidential electors:

“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors….”[423]

The U.S. Supreme Court ruled in McPherson v. Blacker in 1892:

“In short, the appointment and mode of appointment of electors belong exclusively to the states under the constitution of the United States.… Congress is empowered to determine the time of choosing the electors and the day on which they are to give their votes, which is required to be the same day throughout the United States; but otherwise the power and jurisdiction of the state is exclusive, with the exception of the provisions as to the number of electors and the ineligibility of certain persons, so framed that congressional and federal influence might be excluded.”[424] [Emphasis added]

Thus, the subject matter of the National Popular Vote compact is a state power.

The states have used interstate compacts in increasingly creative ways since the 1920s. The judiciary has been repeatedly asked to consider the validity of various novel compacts; however, we are aware of no case in which the courts have invalidated any interstate compact.[425]

Although there is currently no interstate compact concerned with presidential elections, U.S. Supreme Court Justice Potter Stewart noted the possibility of compacts involving elections in his concurring and dissenting opinion in Oregon v. Mitchell in 1970. In that case, the U.S. Supreme Court examined the constitutionality of the Voting Rights Act Amendments of 1970 that removed state-imposed durational residency requirements on voters casting ballots in presidential elections. Justice Stewart concurred with the majority that Congress had the power to make durational residency requirements uniform in presidential elections, and observed:

“Congress could rationally conclude that the imposition of durational residency requirements unreasonably burdens and sanctions the privilege of taking up residence in another State. The objective of § 202 is clearly a legitimate one. Federal action is required if the privilege to change residence is not to be undercut by parochial local sanctions. No State could undertake to guarantee this privilege to its citizens. At most a single State could take steps to resolve that its own laws would not unreasonably discriminate against the newly arrived resident. Even this resolve might not remain firm in the face of discriminations perceived as unfair against those of its own citizens who moved to other States. Thus, the problem could not be wholly solved by a single State, or even by several States, since every State of new residence and every State of prior residence would have a necessary role to play. In the absence of a unanimous interstate compact, the problem could only be solved by Congress.”[426] [Emphasis added]

We are not aware of any case in which the courts have invalidated any interstate compact.[427] Given the recent tendencies of the courts to accord even greater deference to states’ rights and even wider and freer use of interstate compacts by the states, it is unlikely that the courts would invalidate the National Popular Vote compact. The National Popular Vote compact is an example of federalism in action and of states exercising their rightful powers.

The 10^th Amendment independently addresses the question of whether the states are prohibited from exercising a particular power when the Constitution contains no specific prohibition against it and, therefore, the question of whether there are unstated implicit restrictions on the allowable methods for appointing presidential electors.

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” [Emphasis added]

Section 1 of Article II contains only one restriction on state choices on the manner of appointing their presidential electors, namely that no state may appoint a member of Congress or federal appointees as presidential elector.[428]

The 10^th Amendment was ratified in 1791 (that is, after ratification of the original 1787 Constitution) and thus takes precedence over the original Constitution. Even if there were enforceable implicit restrictions in the original Constitution on state choices on the manner of appointing their presidential electors (perhaps in the form of penumbral emanations from section 1 of Article II), such implicit restrictions were extinguished in 1791 by the 10^th Amendment.

In conclusion, nothing in the U.S. Constitution prevents states from using an interstate compact to specify the manner in which they choose their presidential electors.

Footnotes

Congressional consent is not required prior to a state legislature’s consideration of an interstate compact. Moreover, advance congressional consent is not the norm.

If a particular compact requires congressional consent, Congress generally considers the matter only after the compact has been approved by the combination of states required to bring the compact into effect.[429]

As the U.S. Supreme Court ruled in the 1893 case of Virginia v. Tennessee:

“The constitution does not state when the consent of congress shall be given, whether it shall precede or may follow the compact made, or whether it shall be express or may be implied.”[430] [Emphasis added]

Footnotes

Most compacts do not specifically mention congressional consent, regardless of whether the states involved intend to seek it.

For example, the Port Authority of New York Compact is silent as to congressional consent. The two states involved did not intend to seek congressional consent at the time that they entered into the compact. Later, they decided to seek congressional consent (and received it).

Conversely, the states involved in the Multistate Tax Compact (also silent as to the role of Congress) originally sought congressional consent, but, after realizing that they could not obtain it, the states proceeded to implement the compact without congressional consent. The U.S. Supreme Court ruled in favor of the states (and upheld that sequence of events) in the 1978 case of U.S. Steel Corporation v. Multistate Tax Commission[431]—the leading recent case on the issue of congressional consent of interstate compacts (discussed in detail in section 9.16.5).

There is no need for an interstate compact to mention Congress, even if the states involved intend to seek congressional consent.

Footnotes

The U.S. Constitution provides:

“No state shall, without the consent of Congress,… enter into any agreement or compact with another state….”[432]

The U.S. Supreme Court has ruled, in 1893 and in 1978, that the Compacts Clause can “not be read literally” in deciding the question of whether congressional consent is necessary for a particular interstate compact.

The 1893 case of Virginia v. Tennessee involved an interstate compact that had not received congressional consent. The U.S. Supreme Court upheld the constitutionality of the compact, saying:

“Looking at the clause in which the terms ‘compact’ or ‘agreement’ appear, it is evident that the prohibition is 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.”[433] [Emphasis added]

The Court continued:

“the test is whether the Compact enhances state power quaod [with regard to] the National Government.”[434] [Emphasis added]

The 1978 case of U.S. Steel Corporation v. Multistate Tax Commission reinforced the Court’s 1893 decision as to the criteria for determining whether a particular interstate compact requires congressional consent.

The Multistate Tax Compact was formulated by state tax administrators to stave off federal encroachment on the power of the states to tax multi-state businesses.[435] The compact created a commission empowered to conduct audits of businesses operating in multiple states and gave multistate businesses a choice of formulas for calculating their state taxes.

The Multistate Tax Compact provided that it would come into force when any seven or more states enacted it. By 1967, the requisite number of states had approved the compact.

The Multistate Tax Compact was submitted to Congress for its consent. After encountering fierce political opposition in Congress aroused by various business interests concerned about the more stringent tax audits anticipated under the compact, the compacting states proceeded to implement the compact without congressional consent. U.S. Steel and other companies challenged the states’ action.

In upholding the constitutionality of the states’ implementation of the compact without congressional consent, the U.S. Supreme Court ruled in 1978 in U.S. Steel Corporation v. Multistate Tax Commission:

“Read literally, the Compact Clause would require the States to obtain congressional approval before entering into any agreement among themselves, irrespective of form, subject, duration, or interest to the United States.

“The difficulties with such an interpretation were identified by Mr. Justice Field in his opinion for the Court in [the 1893 case] Virginia v. Tennessee.[436] His conclusion [was] that the Clause could not be read literally [and the Supreme Court’s 1893 decision has been] approved in subsequent dicta, but this Court did not have occasion expressly to apply it in a holding until our recent [1976] decision in New Hampshire v. Maine,[437] supra.”

“Appellants urge us to abandon Virginia v. Tennessee and New Hampshire v. Maine, but provide no effective alternative other than a literal reading of the Compact Clause. At this late date, we are reluctant to accept this invitation to circumscribe modes of interstate cooperation that do not enhance state power to the detriment of federal supremacy.”[438] [Emphasis added]

State power over the manner of awarding electoral votes is specified in Article II, section 1, clause 2 of the U.S. Constitution:

“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors….”[439]

In the 1892 case of McPherson v. Blacker, the U.S. Supreme Court ruled:

“The appointment and mode of appointment of electors belong exclusively to the states under the constitution of the United States”[440] [Emphasis added]

The National Popular Vote compact would not be a “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” because the choice of manner of appointing presidential electors is “exclusively” a state—not federal—power.

The absence of federal power—much less federal supremacy—over the awarding of electoral votes is made especially clear by comparing the constitutional provision (section 1 of Article I) dealing with presidential elections with the constitutional provision (section 4 of Article II) dealing with congressional elections.

Section 4 of Article II states:

“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” [Emphasis added]

As can be seen, section 4 of Article I gives states primary—but not exclusive—control over congressional elections. In contrast, section 1 of Article II gives the states exclusive control over the manner of appointing presidential electors.

The National Popular Vote compact would not encroach on the “just supremacy of the United States,” because the states have the exclusive power to choose the method of appointing their presidential electors.

In upholding the constitutionality of the states’ implementation of the Multistate Tax Compact without congressional consent, the U.S. Supreme Court applied the interpretation of the Compact Clause from its 1893 holding in Virginia v. Tennessee, writing that:

“the test is whether the Compact enhances state power quaod [with regard to] the National Government.”[441] [Emphasis added]

The Court also noted that the compact did not

“authorize the member states to exercise any powers they could not exercise in its absence.”[442]

In discussing whether the National Popular Vote compact requires congressional consent, Tara Ross, an opponent of the National Popular Vote compact, has argued that the federal government has an “interest” in the compact.

“The federal government has at least one important interest at stake. As Professor Judith Best has noted, the federal government has a vested interest in protecting its constitutional amendment process. If the NPV compact goes into effect, its proponents will have effectively changed the presidential election procedure described in the Constitution, without the bother of obtaining a constitutional amendment.”[443] [Emphasis added]

As discussed at length in section 9.1.1, section 9.1.2, section 9.1.3, section 9.1.4, and section 9.1.6, the National Popular Vote compact would not change “the presidential election procedure described in the Constitution.” Indeed, no state law or compact can do that. Instead, the National Popular Vote compact would change state winner-take-all statutes. None of these state winner-take-all statutes was originally adopted by means of a federal constitutional amendment. None of these state statutes has constitutional status. The winner-take-all rule was not debated by the Constitutional Convention or mentioned in the Federalist Papers. It was used by only three states in the nation’s first presidential election in 1789, and all three states (Maryland, New Hampshire, and Pennsylvania) abandoned it by 1800. It was not until the 11^th presidential election (1828) that the winner-take-all rule was used by a majority of the states. The winner-take-all rule did not come into widespread use until the Founders had been dead for decades. All of these state statutes may be changed in the same manner as they were adopted, namely by passage of a new state law changing the state’s method of appointing its own presidential electors. Thus, the National Popular Vote compact should not arouse federal “interest” in protecting the constitutional amendment process.

In any case, the question of whether the mere existence of a federal “interest” is sufficient to require that a compact obtain congressional consent was specifically addressed by the majority decision in U.S. Steel Corporation v. Multistate Tax Commission. The U.S. Supreme Court stated (in footnote 33):

“The dissent appears to confuse potential impact on ‘federal interests’ with threats to ‘federal supremacy.’ It dwells at some length on the unsuccessful efforts to obtain express congressional approval of this Compact, relying on the introduction of bills that never reached the floor of either House. This history of congressional inaction is viewed as ‘demonstrat[ing] … a federal interest in the rules for apportioning multistate and multinational income,’ and as showing ‘a potential impact on federal concerns.’ Post, at 488, 489. That there is a federal interest no one denies.

“The dissent’s focus on the existence of federal concerns misreads Virginia v. Tennessee and New Hampshire v. Maine. The relevant inquiry under those decisions is whether a compact tends to increase the political power of the States in a way that ‘may encroach upon or interfere with the just supremacy of the United States.’ Virginia v. Tennessee, 148 U.S., at 519. Absent a threat of encroachment or interference through enhanced state power, the existence of a federal interest is irrelevant. Indeed, every state cooperative action touching interstate or foreign commerce implicates some federal interest. Were that the test under the Compact Clause, virtually all interstate agreements and reciprocal legislation would require congressional approval.

“In this case, the Multistate Tax Compact is concerned with a number of state activities that affect interstate and foreign commerce. But as we have indicated at some length in this opinion, the terms of the Compact do not enhance the power of the member States to affect federal supremacy in those areas.

“The dissent appears to argue that the political influence of the member States is enhanced by this Compact, making it more difficult—in terms of the political process—to enact pre-emptive legislation. We may assume that there is strength in numbers and organization. But enhanced capacity to lobby within the federal legislative process falls far short of threatened ‘encroach[ment] upon or interfer[ence] with the just supremacy of the United States.’ Federal power in the relevant areas remains plenary; no action authorized by the Constitution is ‘foreclosed,’ see post, at 491, to the Federal Government acting through Congress or the treaty-making power.

“The dissent also offers several aspects of the Compact that are thought to confer ‘synergistic’ powers upon the member States. Post, at 491-493. We perceive no threat to federal supremacy in any of those provisions. See, e.g., Virginia v. Tennessee, supra, at 520.”[444] [Emphasis added]

An interstate compact may potentially affect non-member states.

In a dissenting opinion in U.S. Steel Corporation v. Multistate Tax Commission, U.S. Supreme Court Justices Byron White and Harry Blackmun suggested that courts could consider the possible adverse effects of a compact on non-compacting states in deciding whether congressional consent is necessary for a particular compact.

“A proper understanding of what would encroach upon federal authority, however, must also incorporate encroachments on the authority and power of non-Compact States.”[445]

The U.S. Supreme Court addressed this argument in U.S. Steel Corp. v. Multistate Tax Commission by saying:

“Appellants’ final Compact Clause argument charges that the Compact impairs the sovereign rights of nonmember States. Appellants declare, without explanation, that if the use of the unitary business and combination methods continues to spread among the Western States, unfairness in taxation—presumably the risks of multiple taxation—will be avoidable only through the efforts of some coordinating body. Appellants cite the belief of the Commission’s Executive Director that the Commission represents the only available vehicle for effective coordination, and conclude that the Compact exerts undue pressure to join upon nonmember States in violation of their ‘sovereign right’ to refuse.

“We find no support for this conclusion. It has not been shown that any unfair taxation of multistate business resulting from the disparate use of combination and other methods will redound to the benefit of any particular group of States or to the harm of others. Even if the existence of such a situation were demonstrated, it could not be ascribed to the existence of the Compact. Each member State is free to adopt the auditing procedures it thinks best, just as it could if the Compact did not exist. Risks of unfairness and double taxation, then, are independent of the Compact.

“Moreover, it is not explained how any economic pressure that does exist is an affront to the sovereignty of nonmember States. Any time a State adopts a fiscal or administrative policy that affects the programs of a sister State, pressure to modify those programs may result. Unless that pressure transgresses the bounds of the Commerce Clause or the Privileges and Immunities Clause of Art. IV, 2, see, e.g., Austin v. New Hampshire, 420 U.S. 656 (1975), it is not clear how our federal structure is implicated. Appellants do not argue that an individual State’s decision to apportion nonbusiness income—or to define business income broadly, as the regulations of the Commission actually do—touches upon constitutional strictures. This being so, we are not persuaded that the same decision becomes a threat to the sovereignty of other States if a member State makes this decision upon the Commission’s recommendation.”[446] [Emphasis added]

In the 1985 case of Northeast Bancorp, Inc. v. Board of Governors of the Federal Reserve System, the U.S. Supreme Court again considered (and again rejected) arguments that an interstate compact impaired the sovereign rights of non-member states or enhanced the political power of the member states at the expense of other states. The Court wrote that it:

“do[es] not see how the statutes in question … enhance the political power of the New England states at the expense of other States….”[447]

Tara Ross has taken note of the dissenting opinion in U.S. Steel Corporation v. Multistate Tax Commission and has argued that

“non-compacting states have … important interests.”[448]

In particular, Ross has identified three potential “interests” of non-compacting states in the National Popular Vote compact.

“NPV deprives these states of their opportunity, under the Constitution’s amendment process, to participate in any decision made about changing the nation’s presidential election system.

“They are also deprived of the protections provided by the supermajority requirements of Article V.…

“The voting power of states relative to other states is changed. NPV is the first to bemoan the fact that ‘every vote is not equal’ in the presidential election and that the weight of a voters’ ballot depends on the state in which he lives. In equalizing voting power, NPV is by definition increasing the political power of some states and decreasing the political power of other states.”[449] [Emphasis added]

Concerning Ross’ first point, the National Popular Vote bill has been introduced into all 50 state legislatures and the Council of the District of Columbia, thus providing all states with the “opportunity … to participate.”

Concerning Ross’ second point, Article V is the part of the U.S. Constitution that deals with constitutional amendments. The National Popular Vote compact would not change the Constitution. It is an exercise of an exclusive power already granted to the states under section 1 of Article II of the Constitution, namely the power of each state to appoint its own presidential electors in the manner it chooses. The compact would change state winner-take-all statutes that came into widespread use more than four decades after the Constitution was ratified. None of these state winner-take-all statutes was originally adopted by means of a federal constitutional amendment, and none has constitutional status. All of these state statutes may be changed in the same manner as they were adopted, namely by passage of a new state law changing the state’s method of appointing its own presidential electors. See section 9.1.1, section 9.1.2, section 9.1.3, section 9.1.4, and section 9.1.6.

Ross’ third point concerns the potential effect on the political value of a vote cast by voters in some non-compacting states.

The National Popular Vote compact would treat votes cast in all 50 states and the District of Columbia equally. A vote cast in a compacting state would be, in every way, equal to a vote cast in a non-compacting state. The National Popular Vote compact would not confer any advantage on states belonging to the compact as compared to non-compacting states.

Ross is, in effect, arguing that certain battleground states might have a constitutional right to maintain the excess political value of votes cast in their states, but that disadvantaged or altruistic states have no right or ability to create equality in the political value of everyone’s votes by exercising their independent constitutional power over the method of awarding their own electoral votes.

Of course, it has always been the case that one state’s choice of the manner of appointing its presidential electors has affected the political value of a vote cast in other states. For example, the use of the winner-take-all rule by a closely divided battleground state plainly diminishes the political value of the votes cast by citizens in the non-battleground states.

It is inherent in the grant by the U.S. Constitution, to each state, of the power to choose the method of appointing its presidential electors that one state’s decision can enhance the political value of its vote and thereby impact (diminish) the political value of the vote in other states. This is a direct consequence of federalism and the fact that the Constitution gave each individual state the power to decide the method of appointing its own presidential electors.

A present-day battleground state could, of course, eliminate the political effect of its winner-take-all rule on other states by changing its method of appointing its presidential electors. For example, if a battleground state were to change its winner-take-all statute to a proportional method for awarding electoral votes, presidential candidates would pay less attention to that state because only one electoral vote would probably be at stake in the state. However, we are not aware of anyone who currently argues that any present-day battleground state has a constitutional obligation to make such a change in order to reduce its impact on the political value of a vote in the non-battleground states.

If the Constitution gives a closely divided battleground state the power to choose a method of awarding its electoral votes that increases the political value of votes cast in its state, it also gives the power to non-battleground states to choose a method for awarding their electoral votes to counter-balance the political effect of the decision made by the battleground state (and, arguably, create a better overall system in the process).

In any case, the electoral votes of the non-compacting states would continue to be cast in the manner specified by the laws of those states. The electoral votes of the non-compacting states would continue to be counted in the Electoral College in the manner provided by the Constitution. In practical terms, that means that the non-compacting states would continue to cast their votes for the winner of the statewide popular vote (or district-wide popular vote in Maine and Nebraska) after the National Popular Vote compact is implemented. No non-compacting state would be compelled to cast its electoral votes for the winner of the national popular vote.

The political impact of the winner-take-all rule on other states has long been recognized as a political reality. It is not California’s winner-take-all rule or Wyoming’s winner-take-all rule that makes a vote in California and a vote Wyoming politically irrelevant in presidential elections. Indeed, a vote in California and a vote in Wyoming are equal as a result of the widespread use of the state-by-state winner-take-all rule, and both are equally worthless. Instead, it is the use of the winner-take-all rule in closely divided battleground states that diminishes the political value of the votes cast in California and Wyoming.

The Founding Fathers intended, as part of the political compromise that led to the Constitution, to confer a certain amount of extra influence on the less populous states by giving every state a bonus of two electoral votes corresponding to its two U.S. Senators. The Founders also intended that the Constitution’s formula for allocating electoral votes would give the bigger states a larger amount of influence in presidential elections. Their goals with respect to both small states and big states were never achieved because of the emergence of political parties in the 1796 presidential election and the subsequent widespread adoption by the states of the winner-take-all rule (mostly in the 1820s and 1830s). The winner-take-all rule drastically altered the political value of votes cast in both small and big states throughout the country.

Interstate comparisons of the political value of a vote are not, according to past judicial rulings, a legal basis for contesting any state’s decision to adopt a certain method of appointing its own presidential electors under Article II, section 1, clause 2 of the Constitution.

In 1966, the U.S. Supreme Court declined to act in response to a complaint concerning the political impact of one state’s choice of the manner of appointing its presidential electors on another state. In State of Delaware v. State of New York, Delaware led a group of 12 predominantly small states (including North Dakota, South Dakota, Wyoming, Utah, Arkansas, Kansas, Oklahoma, Iowa, Kentucky, Florida, and Pennsylvania) in suing New York in the U.S. Supreme Court. At the time of this lawsuit, New York was not only a closely divided battleground but also the state possessing the largest number of electoral votes (43). Delaware argued that New York’s decision to use the winner-take-all rule effectively disenfranchised voters in the 12 plaintiff states. New York’s (defendant) brief is especially pertinent.[450] Despite the fact that the case was brought under the Court’s original jurisdiction, the U.S. Supreme Court declined to hear the case (presumably because of the well-established constitutional provision that the manner of awarding electoral votes is exclusively a state decision).[451]

In 1968, the constitutionality of the winner-take-all rule was challenged in Williams v. Virginia State Board of Elections.[452] A federal court in Virginia upheld the winner-take-all rule. The full opinion can be found in appendix FF. The U.S. Supreme Court affirmed this decision in a per curiam decision in 1969.[453] See section 9.1.18.

Section 9.11.3 discusses the specific claim of Professor Norman Williams of Willamette University that compacts that do not receive congressional consent are “toothless.”

There is an additional independent argument that the potential political impact on non-compacting states should not be a consideration in evaluating a compact concerned with how states choose to appoint their presidential electors.

Article II, section 1, clause 2 of the U.S. Constitution provides:

“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors….”[454] [Emphasis added]

Article I, section 4, clause 1 provides

“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” [Emphasis added]

Article I confers on “each state” the power to choose the manner of electing its members of Congress; however, it subjects those state decisions to being overridden at the national level. Congress has, on occasion, overridden state choices that it deemed to not be in the national interest (e.g., electing members of the U.S. House of Representatives at-large, instead of from single-member districts).

Article II is different in that state decisions are not subjected to such congressional scrutiny. “Each state” is empowered to choose the manner of appointing its presidential electors, irrespective of Congress’ opinion of the method.

Of course, there is always the possibility that the U.S. Supreme Court might change the legal standards concerning congressional consent contained in its 1893 and 1978 rulings. Because there could be litigation about congressional consent, National Popular Vote is working to obtain support for the compact in Congress.

Because Congress typically considers a compact only after the compact has been approved by the combination of states required to bring the compact into effect, one would expect that any action in Congress would occur after the compact had been approved by the 25 (or so) states possessing the requisite majority of the electoral votes (i.e., 270 of 538).

Congressional consent can be explicitly conferred by a majority vote in both the U.S. House and Senate and approval of the President (or enactment by a two-thirds majority if the President vetoes the bill).

The question of congressional consent is discussed in greater detail in chapter 5.

The specific additional question of congressional consent in relation to a compact’s withdrawal procedure is discussed in section 9.16.6.

Footnotes

In U.S. Steel Corp. v. Multistate Tax Commission, the U.S. Supreme Court made three observations about the characteristics of the Multistate Tax Compact, including the fact that states could withdraw from that particular compact without delay.

The Multistate Tax Compact permits withdrawal from the compact, without delay or advance notice to other states.

“Any party state may withdraw from this compact by enacting a statute repealing the same. No withdrawal shall affect any liability already incurred by or chargeable to a party state prior to the time of such withdrawal.

“No proceeding commenced before an arbitration board prior to the withdrawal of a state and to which the withdrawing state or any subdivision thereof is a party shall be discontinued or terminated by the withdrawal, nor shall the board thereby lose jurisdiction over any of the parties to the proceeding necessary to make a binding determination therein.” [Emphasis added]

Von Spakovsky has incorrectly interpreted the U.S. Supreme Court’s observations in U.S. Steel Corp. v. Multistate Tax Commission about the characteristics of the Multistate Tax Compact as “prongs” of a legal test as to whether a compact requires congressional consent. Von Spakovsky wrote:

“In U.S. Steel Corp. v. Multistate Tax Commission, the Supreme Court of the United States held that the Compact Clause prohibited compacts that

‘encroach upon the supremacy of the United States.’

“The Court emphasized that the real test of constitutionality is whether the compact

‘enhances state power quoad the National Government.’…

“To determine this qualification, the Court questioned whether:

(1) The compact authorizes the member states to exercise any powers they could not exercise in its absence;

(2) The compact delegates sovereign power to the commission that it created; or

(3) The compacting states cannot withdraw from the agreement at any time.

“Unless approved by Congress, a violation of any one of these three prongs is sufficient to strike down a compact as unconstitutional.…

“Under the third prong of the test delineated in U.S. Steel Corp., the compact must allow states to withdraw at any time. The NPV, however, places withdrawal limitations on compacting states. The plan states that

‘a withdrawal occurring six months or less before the end of a President’s term shall not become effective until a President or Vice President shall have been qualified to serve the next term.’

“This provision is in direct conflict with the U.S. Steel Corp. test.”[455] [Emphasis added]

The Supreme Court’s three observations about characteristics of the Multistate Tax Compact were not “prongs” of any “test.”

The incorrectness of von Spakovsky’s interpretation of the Supreme Court’s 1978 decision in U.S. Steel Corp. v. Multistate Tax Commission is demonstrated by the 1991 case of McComb v. Wambaugh dealing with the enforceability of the Interstate Compact for the Placement of Children.

The Interstate Compact for the Placement of Children did not require congressional consent to become effective, and it delayed withdrawal for two years.[456]

Article IX of the Interstate Compact for the Placement of Children provides:

“Withdrawal from this compact shall be by the enactment of a statute repealing the same, but shall not take effect until two years after the effective date of such statute and until written notice of the withdrawal has been given by the withdrawing state to the governor of each other party jurisdiction. Withdrawal of a party state shall not affect the rights, duties, and obligations under this compact of any sending agency therein with respect to a placement made prior to the effective date of withdrawal.” [Emphasis added]

In McComb v. Wambaugh, the U.S. Court of Appeals for the Third Circuit interpreted and applied the test established by the U.S. Supreme Court in U.S. Steel Corp. v. Multistate Tax Commission concerning the question of whether congressional consent was necessary for a compact to become effective. The U.S. Court of Appeals wrote:

“The Constitution recognizes compacts in Article I, section 10, clause 3, which reads, ‘No state shall, without the Consent of the Congress ... enter into any Agreement or Compact with another State.’ Despite the broad wording of the clause Congressional approval is necessary only when a Compact is ‘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.’ United States Steel Corp. v. Multistate Tax Comm'n, 434 U.S. 452, 468, 98 S.Ct. 799, 810, 54 L.Ed.2d 682 (1978) (quoting Virginia v. Tennessee, 148 U.S. 503, 519, 13 S.Ct. 728, 734, 37 L.Ed. 537 (1893)).

“The Interstate Compact on Placement of Children has not received Congressional consent. Rather than altering the balance of power between the states and the federal government, this Compact focuses wholly on adoption and foster care of children—areas of jurisdiction historically retained by the states. In re Burrus, 136 U.S. 586, 593-94, 10 S.Ct. 850, 852-53, 34 L.Ed. 500 (1890); Lehman v. Lycoming County Children’s Services Agency, 648 F.2d 135, 143 (3d Cir.1981) (en banc), aff’d, 458 U.S. 502, 102 S.Ct. 3231, 73 L.Ed.2d 928 (1982). Congressional consent, therefore, was not necessary for the Compact’s legitimacy.”

“Because Congressional consent was neither given nor required, the Compact does not express federal law. Cf. Cuyler v. Adams, 449 U.S. 433, 440, 101 S.Ct. 703, 707, 66 L.Ed.2d 641 (1981). Consequently, this Compact must be construed as state law. See Engdahl, Construction of Interstate Compacts: A Questionable Federal Question, 51 Va.L.Rev. 987, 1017 (1965) (‘[T]he construction of a compact not requiring consent ... will not present a federal question....’).

“Having entered into a contract, a participant state may not unilaterally change its terms. A Compact also takes precedence over statutory law in member states.”[457] [Emphasis added]

As the Third Circuit noted, the test as to whether an interstate compact requires congressional consent is what the U.S. Supreme Court said in the 1978 case of U.S. Steel Corporation v. Multistate Tax Commission, namely

“the test is whether the Compact enhances state power quaod the National Government.”[458] [Emphasis added]

Von Spakovsky’s “prongs” are not part of any “test” as to whether congressional consent is necessary for an interstate compact to become effective. In particular, the withdrawal provisions of a compact do not determine whether the compact requires congressional consent to become effective.

Footnotes

Several opponents of the National Popular Vote compact have argued that adoption of the National Popular Vote compact would establish a precedent that interstate compacts can be used to accomplish something that would otherwise be unconstitutional.

Opponents have argued, for example, that adopting the National Popular Vote compact would establish a precedent that could be used to negate a woman’s existing constitutional right to an abortion.

The Compacts Clause of the U.S. Constitution permits states to enter into interstate compacts; however, the Compacts Clause does not expand state powers. All compacts must be consistent with the U.S. Constitution. In particular, a compact’s subject matter must be among the powers that the states are permitted to exercise (as discussed in section 9.16.2).

This invalid line of argument by opponents is based on the opponents’ own invalid argument that a federal constitutional amendment is necessary to change the winner-take-all method of appointing a state’s presidential electors. In fact, the National Popular Vote compact does not change anything in the U.S. Constitution, and therefore no federal constitutional amendment is necessary (as discussed at length in section 9.1.1, section 9.1.2, section 9.1.3, section 9.1.4, and section 9.1.6). Instead, the National Popular Vote compact changes state winner-take-all statutes that came into widespread use more than four decades after the Constitution was ratified. None of these state winner-take-all statutes was originally adopted by means of a federal constitutional amendment. These state winner-take-all statutes do not have constitutional status. Winner-take-all statutes may be changed in the same manner in which they were adopted, namely by passage of a new state law changing the state’s method of appointing its own presidential electors.

Professor Robert Hardaway of the University of Denver Sturm College of Law, an opponent of the National Popular Vote compact, presented the following testimony on the National Popular Vote bill on February 19, 2010, to the Alaska Senate Judiciary Committee:

“And what would happen if, under the Koza scheme, some of the states decided to withdraw from the conspiracy? What federal organ would be empowered to enforce the original terms of that conspiracy?”[459] [Emphasis added]

Tara Ross, an opponent of the National Popular Vote compact, refers to the states belonging to the compact as:

“colluding states.”[460]

A “conspiracy” is an agreement to commit a crime.

An interstate compact is not a “conspiracy,” but, instead, a mechanism provided by the U.S. Constitution that enables sovereign states to enter voluntarily into binding contractual arrangements with one another.

The National Popular Vote compact is based on the exclusive and plenary power of the states to choose the manner of awarding their electoral votes (as provided by section 1 of Article II of the U.S. Constitution):

“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors….”[461] [Emphasis added]

Words, such as “conspiracy,” “collusion,” and “scheme,” do not change the fact that the states have the power, under the U.S. Constitution, to award their own electoral votes in the manner that they see fit.

 

Footnotes