9.23 Myths about Congressional Consent

The U.S. Supreme Court stated in 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.”[442] [Emphasis added]

Thus, congressional consent is not required prior to a state legislature’s consideration of an interstate compact.

If a particular compact requires congressional consent, Congress can consider the matter before, during, or after the period when the states are considering it.

Sometimes Congress gives its consent in advance to a particular compact or a broad category of compacts.

For example, Congress gave its consent in advance to compacts in the Low-Level Radioactive Waste Policy Act of 1980, the Tobacco Control Act of 1936, the Crime Control Consent Act of 1934, and the Weeks Act of 1911 (section 5.19).

When Congress granted its consent in 1921 to a Minnesota–South Dakota compact relating to criminal jurisdiction over boundary waters, it simultaneously granted its advance consent in case Iowa, Minnesota, Nebraska, North Dakota, South Dakota, and Wisconsin were to adopt a similar compact (section 5.19).

Footnotes

Some interstate compacts require congressional consent, whereas others do not (as discussed in detail in the next section of this chapter).

Because every interstate compact is subordinate to the U.S. Constitution, compacts typically do not specifically mention congressional consent in their text—even if the particular compact clearly requires congressional consent and even if the compacting states intend to seek it.

The absence of a mention of Congress in the text of a particular interstate compact provides no guidance as to whether Congress must give its consent prior to the compact becoming effective.

For example, the text of the Multistate Tax Compact was silent as to the role of Congress. It simply said that the compact would go into effect when seven states approved it.

The states involved initially sought congressional consent. However, they encountered ferocious opposition in Congress by lobbyists for business interests that would be subjected to the compact’s audit provisions.

Relying on the Supreme Court’s 1893 decision in Virginia v. Tennessee[443] and its 1976 decision in New Hampshire v. Maine,[444] the compacting states then decided to implement the compact without congressional consent (as discussed in detail in the next section of this chapter).

U.S. Steel challenged the states’ power to do so.

In 1978, the U.S. Supreme Court ruled that the Multistate Tax Compact did not require congressional consent.[445]

If U.S. Steel had won in the Supreme Court, the compacting states would, of course, have been forced to return to Congress and try to overcome the opposition.

Similarly, the text of the 1921 Agreement of New York and New Jersey establishing the Port Authority was silent as to the role of Congress. Relying on the 1893 case of Virginia v. Tennessee, New York and New Jersey did not originally intend to seek congressional consent. The compact simply said that it would take effect when approved by both states.

When the Port Authority sought to borrow money—a novelty at the time for interstate authorities—it found that bankers and potential investors were hesitant to purchase bonds in the absence of congressional consent. The two states then decided to seek, and quickly obtained, congressional consent for their compact.[446]

The silence of most interstate compacts as to the steps required to bring them into effect are analogous to the texts of most bills passed by state legislatures and Congress.

The steps required to bring a proposed piece of legislation into effect are specified by a state’s constitution (for state legislation) and by the U.S. Constitution (for federal laws), respectively.

Thus, the texts of state and federal legislative bills do not recite all the steps required to bring them into effect. They do not explicitly state, for example, that a legislative bill must be presented to the chief executive for approval or veto, and they do not itemize the procedures for overriding a veto if the executive does not approve.

Footnotes

The Compacts Clause of the U.S. Constitution (Article I, section 10, clause 3) provides:

“No state shall, without the consent of Congress, … enter into any agreement or compact with another state….”[447]

In 2023, the Congressional Research Service summarized the judicial precedents concerning congressional consent of interstate compacts:

“One of the most common questions to arise under the Compact Clause is whether congressional consent is required for a particular state commitment. A literal reading of the Compact Clause would require congressional approval for any interstate compact, but the Supreme Court has not endorsed that approach in interstate compacts cases. Instead, the Court adopted a functional interpretation in which only interstate compacts that increase the political power of the states while undermining federal sovereignty require congressional consent.[448] [Emphasis added]

Early 19th-century federal and state court decisions concerning congressional consent

Although it was not until 1893 that the U.S. Supreme Court explicitly ruled that some interstate compacts can go into effect without congressional consent, the Supreme Court in 1808 accepted the validity of an interstate compact that had gone into effect without congressional consent.

In their seminal article on interstate compacts, Felix Frankfurter (later a Justice of the U.S. Supreme Court) and James Landis identified the Virginia and Tennessee Boundary Agreement of 1803 as the earliest example of an interstate compact that went into effect without congressional consent.

“The agreement was ratified by Virginia on January 22, 1803, and by Tennessee on November 3, 1803. In Robinson v. Campbell (1808, U.S.) 3 Wheat. 212,[449] the Supreme Court assumed the validity of the compact.”[450] [Emphasis added]

Frankfurter and Landis also identified the Georgia and Tennessee Agreement of 1837 as the earliest example of a compact (other than a boundary compact) that went into effect without congressional consent.

“By the Act of January 24, 1838, Tennessee granted a railroad company the privilege of a right of way through the State, on condition that upon the extension of its line through Georgia the latter State would give it the same privileges. By the Act of December 23, 1847, Georgia granted the railroad the same privileges.

“In Union Bridge R. R. Co. v. E.T. & Ga. R. R. Co. (1853) 14 Ga. 327,[451] the Court held that this was not such a compact as required the assent of Congress in order to make it valid.”[452] [Emphasis added]

Concerning section 10 of Article I of the U.S. Constitution, the Georgia Supreme Court wrote:

“This prohibition applies only to such an ‘agreement or compact’ … as may, in any wise, conflict with the powers which the States, by the adoption of the Federal Constitution, have delegated to the General Government.”[453]

Frankfurter and Landis also identified other compacts that went into effect, with court approval but without congressional consent during the 19^th century.[454]

Virginia v. Tennessee in 1893

In 1893, the U.S. Supreme Court first provided an explicit test for deciding whether a particular interstate compact requires congressional consent in order to become effective.

The two states involved in the case of Virginia v. Tennessee had never obtained congressional consent for a boundary agreement that they had reached earlier in the 19^th century.

The Court observed:

“There are many matters upon which different states may agree that can in no respect concern the United States. If, for instance, Virginia should come into possession and ownership of a small parcel of land in New York, which the latter state might desire to acquire as a site for a public building, it would hardly be deemed essential for the latter state to obtain the consent of congress before it could make a valid agreement with Virginia for the purchase of the land.”

“If Massachusetts, in forwarding its exhibits to the World’s Fair at Chicago, should desire to transport them a part of the distance over the Erie Canal, it would hardly be deemed essential for that state to obtain the consent of congress before it could contract with New York for the transportation of the exhibits through that state in that way.”

“If the bordering line of two states should cross some malarious and disease-producing district, there could be no possible reason, on any conceivable public grounds, to obtain the consent of congress for the bordering states to agree to unite in draining the district, and thus removing the cause of disease. So, in case of threatened invasion of cholera, plague, or other causes of sickness and death, it would be the height of absurdity to hold that the threatened states could not unite in providing means to prevent and repel the invasion of the pestilence without obtaining the consent of congress, which might not be at the time in session.”[455] [Emphasis added]

Having established that congressional consent is not necessarily required for every interstate compact, the Court then reframed the question in the case:

“If, then, the terms ‘compact’ or ‘agreement’ in the constitution do not apply to every possible compact or agreement between one state and another, for the validity of which the consent of congress must be obtained, to what compacts or agreements does the constitution apply?”[456] [Emphasis added]

The Court then answered:

“We can only reply by looking at the object of the constitutional provision, and construing the terms ‘agreement’ and ‘compact’ by reference to it. It is a familiar rule in the construction of terms to apply to them the meaning naturally attaching to them from their context. ‘Noscitur a sociis is a rule of construction applicable to all written instruments. Where any particular word is obscure or of doubtful meaning, taken by itself, its obscurity or doubt may be removed by reference to associated words; and the meaning of a term may be enlarged or restrained by reference to the object of the whole clause in which it is used.

“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.”[457] [Emphasis added]

Developments between 1893 and 1978

Relying on the Supreme Court’s decision in Virginia v. Tennessee in 1893, the legislatures of New York and New Jersey did not submit the Palisades Interstate Park Agreement of 1900 to Congress for its consent.[458]

In the same vein, the legislatures of New Jersey and New York originally had no intention of submitting the 1921 Port of New York Authority Compact to Congress. The compact simply specified that it would become effective:

“when signed and sealed by the Commissioners of each State as hereinbefore provided and the Attorney General of the State of New York and the Attorney General of New Jersey.”[459]

This compact broke new ground by establishing a new governmental entity that was separate from the administration of each state and administered by its own governing body.

The newly created Authority’s bankers and bond counsels advised the Authority that potential investors might be hesitant to lend money to the then-unprecedented entity in the absence of congressional consent. Thus, the two states sought, and quickly obtained, congressional consent for the compact.[460]

In the 1950s, the U.S. House of Representatives approved a bill granting consent to the Southern Regional Education Compact; however, the Senate did not concur, because it concluded that the subject matter of the compact—education—was entirely a state prerogative.[461] That compact then went into effect without congressional consent.

In New Hampshire v. Maine in 1976, the Supreme Court reaffirmed its 1893 ruling in Virginia v. Tennessee that not all interstate agreements require congressional consent.[462]

U.S. Steel Corporation v. Multistate Tax Commission in 1978

The case of U.S. Steel Corporation v. Multistate Tax Commission in 1978[463] is the most important recent judicial precedent on the issue of whether congressional consent is necessary for interstate compacts. In that case, the U.S. Supreme Court reaffirmed its 1893 holding in Virginia v. Tennessee.[464]

The Multistate Tax Compact addressed issues relating to multistate taxpayers and uniformity among state tax systems. The compact created a commission empowered to conduct audits of multistate businesses and gave such businesses a choice of formulas for calculating their state taxes.[465]

Like many others, the compact was silent as to congressional consent, even though the compacting parties originally intended to seek it. The compact simply stated:

“This compact shall enter into force when enacted into law by any seven states.”[466]

By 1967, the requisite number of states had approved the compact, and it was submitted to Congress for consent.

However, the compact languished in Congress because of the fierce opposition of business interests that were concerned about the multi-million-dollar tax audits that the compact was certain to generate.

The frustrated states then decided to rely on the 1893 judicial precedent in Virginia v. Tennessee. They proceeded with the implementation of the compact without congressional consent.

Led by U.S. Steel, businesses opposed to the compact challenged the constitutionality of the states’ action.

The Supreme Court’s 1978 decision in 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.

Justice Powell wrote the Court’s opinion, joined by Chief Justice Burger and Justices Brennan, Stewart, Marshall, Rehnquist, and Stevens.

In holding that the Multistate Tax Compact could go into effect without congressional consent, the Court wrote:

“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.[467] 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,[468] 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.”[469] [Emphasis added]

The Court ruled that:

“the test is whether the Compact enhances state power quaod [with regard to] the National Government.”[470] [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.”[471]

The National Popular Vote Compact does not encroach upon federal supremacy and hence does not require congressional consent.

The power of each state to choose the manner of awarding its electoral votes is specified in Article II, section 1, clause 2 of the Constitution:

“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors….”[472]

In McPherson v. Blacker in 1892, the Supreme Court ruled:

“The appointment and mode of appointment of electors belong exclusively to the states under the constitution of the United States.”[473] [Emphasis added]

The absence of federal power—much less federal supremacy—over the choice of method of appointing presidential electors is made especially clear by comparing the constitutional provision dealing with presidential elections in Article II with the parallel provision concerning congressional elections in Article I.

Article I, section 4 of the Constitution concerning congressional elections 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]

Article I gives states primary—but not exclusive—control over congressional elections. At any time, Congress can “make or alter” any state law regarding the manner of conducting congressional elections.

In contrast, Article II concerning presidential elections gives the states exclusive control over the manner of appointing presidential electors.

The National Popular Vote Compact does 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.

There is simply no federal power—much less federal supremacy—to encroach upon.

An opponent of the National Popular Vote Compact, Professor Michael T. Morley at the Florida State University College of Law, wrote in 2020:

“Perhaps the most obvious objection to the National Popular Vote Compact is that it is invalid under the Compact Clause unless and until Congress consents to it. Under the Court’s longstanding interpretation of the Clause, however, congressional approval is likely unnecessary. In any event, if states collectively holding 270 or more electoral votes joined the Compact, Congress would likely grant its approval at some point, perhaps when Democrats controlled both Congress and the Presidency. Thus, at most, the Compact Clause reflects a potential constitutional speed bump, not an impenetrable barrier.”[474]

In discussing the “speed bump,” it appears that as soon as either political party wins control of both houses of Congress and the presidency, the filibuster procedure in the U.S. Senate is likely to be abolished.[475], [476]

Other opponents of the National Popular Vote Compact, such as Professor Derek Muller, have vigorously argued that it does require congressional consent.[477], [478]Other scholars have reached the opposite conclusion.[479]

In any event, opponents of the National Popular Vote Compact have stated that they intend to litigate the question of whether it requires congressional consent after it is approved by the requisite combination of states. Therefore, the National Popular Vote organization has been working to obtain support in Congress for the Compact.

A mere federal “interest” does not constitute a threat to federal supremacy.

In discussing whether the National Popular Vote Compact requires congressional consent, Tara Ross, a lobbyist against the Compact who works closely with Save Our States, has argued that the federal government has an “interest” in the matter.

“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.”[480] [Emphasis added]

As discussed at length in section 9.1.1, the National Popular Vote Compact would not change “the presidential election procedure described in the Constitution.” Indeed, no state law 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.

The winner-take-all method of appointing presidential electors 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) had 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.

These state winner-take-all laws may be changed in the same manner as they were adopted—that is, by passage of a new state law changing the state’s method of appointing its presidential electors.

Thus, the National Popular Vote Compact does not interfere with any federal “interest” in protecting the constitutional amendment process.

More importantly, the Supreme Court specifically addressed the question of whether the mere existence of a federal “interest” is sufficient to require that a compact obtain congressional consent. In responding to a point raised in the dissenting opinion, the seven-member majority of the Supreme Court stated (in footnote 33 of its opinion):

“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.”[481] [Emphasis added]

The U.S. Supreme Court subsequently repeated the point that it made in 1978 in footnote 33 of its decision in U.S. Steel Corporation v. Multistate Tax Commission concerning the irrelevance of the existance of a “federal interest.” In overturning a lower court decision in 1981, the Court cited footnote 33 in Cuyler v. Adams:

“The [lower] Court stresses the federal interest in the area of extradition, ante, at 442, n. 10, but, for Compact Clause purposes, ‘[a]bsent a threat of encroachment or interference through enhanced state power, the existence of a federal interest is irrelevant.’ Multistate Tax Comm'n, supra, at 480, n. 33.”[482] [Emphasis added]

Dissenting opinion in Multistate Tax Commission concerning impact on non-member states

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

“A proper understanding of what would encroach upon federal authority, however, must also incorporate encroachments on the authority and power of non-Compact States.”[483]

The Court majority addressed the argument raised by the dissent 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.”[484] [Emphasis added]

In 1985, in Northeast Bancorp, Inc. v. Board of Governors of the Federal Reserve System, the Supreme Court considered 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:

“[did] not see how the statutes in question … enhance the political power of the New England states at the expense of other States.”[485]

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.”[486]

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.”[487] [Emphasis added]

Concerning Ross’ first point, the National Popular Vote Compact 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.”

In Cuyler v. Adams in 1981, the Supreme Court discussed the potential impact on non-member states of a compact that allows every state to join:

“In light of our recent decisions, however, it cannot seriously be contended that the Detainer Agreement constitutes an ‘agreement or compact’ as those terms have come to be understood in the Compact Clause. In New Hampshire v. Maine, 426 U.S. 363 (1976), we held that the ‘application of the Compact Clause is limited to agreements that are ‘directed to the formation of any combination tending to the increase of the political power in the States, which may encroach upon or interfere with the just supremacy of the United States.’ Id., at 369, quoting Virginia v. Tennessee, 148 U.S. 503, 519 (1893). This rule was reaffirmed in United States Steel Corp. v. Multistate Tax Comm'n, 434 U.S. 452, 471 (1978), where the Court ruled that the quoted test ‘states the proper balance between federal and state power with respect to compacts and agreements among States.’ Certainly nothing about the Detainer Agreement threatens the just supremacy of the United States or enhances state power to the detriment of federal sovereignty. As with the ‘compact’ in Multistate Tax Comm’n, any State is free to join the Detainer Agreement, so it cannot be considered to elevate member States at the expense of nonmembers. See Id., at 477–478.”[488] [Emphasis added]

Ross’ second point concerning constitutional amendments was discussed earlier in this section.

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 does not confer any advantage on states belonging to it, 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 influence of votes cast in their states created by the winner-take-all method of awarding electoral votes—while simultaneously arguing that disadvantaged or altruistic states have no right to exercise their independent constitutional power over the method of awarding their electoral votes with the aim of creating equality.

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 closely divided battleground states plainly diminishes the political value of the votes cast by citizens in non-battleground states.

It is inherent in the grant by the U.S. Constitution, to each state, of the independent power to choose the method of appointing its presidential electors that one state’s decision can enhance the political value of votes cast in its state—thereby impacting (and diminishing) the influence of votes cast in other states. This is a direct consequence of federalism and the fact that the Constitution gives each state the independent power to decide the method of appointing its presidential electors.

Indeed, maximization of Virginia’s political clout was the candidly stated purpose of the adoption of winner-take-all in 1800 by Jefferson’s supporters, as discussed in section 2.6.1 and as explained in their nine-page broadside entitled “A Vindication of the General Ticket Law” (appendix C).

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, say, the whole-number proportional method for awarding electoral votes (section 4.2), presidential candidates would pay almost no attention to that state, because only one electoral vote would be at stake in most cases. 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 importance of voters in other 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 counterbalance the political effects of that decision (and, arguably, create a better overall system in the process).

In any case, the electoral votes of the non-compacting states would, under the National Popular Vote Compact, 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, the non-compacting states would continue to cast their votes for the winner of the statewide popular vote (or perhaps the district-wide popular vote in Nebraska and Maine) 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 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 subsequent widespread adoption by the states of the winner-take-all rule. 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 votes 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 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 most electoral votes (43). Delaware argued that New York’s decision to use the winner-take-all rule effectively disenfranchised voters in Delaware and the other 11 plaintiff states. New York’s (defendant) brief is especially pertinent.[489] 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.[490]

In 1968, the constitutionality of the winner-take-all rule was challenged in Williams v. Virginia State Board of Elections.[491] A federal court in Virginia upheld the winner-take-all rule. The U.S. Supreme Court affirmed this decision in a per curiam decision in 1969.[492] See section 9.1.7.

Developments since 1978

In 2003, Michael S. Greve reported:

“No court has ever voided a state agreement for failure to obtain congressional consent.”[493]

In 2007, the Harvard Law Review reported:

“No court has ever invalidated an interstate agreement for lack of such consent.”[494]

In the period since the Supreme Court’s decision in U.S. Steel Corporation v. Multistate Tax Commission in 1978, numerous compacts that did not receive congressional consent have been challenged in the courts, and none has been invalidated because of lack of congressional consent.

In 1983, McComb v. Wambaugh involved the Interstate Compact on Placement of Children. That compact had become effective without congressional consent,[495] and it contained a provision that delayed a state’s withdrawal for two years. The U.S. Court of Appeals for the Third Circuit held that no encroachment on federal supremacy occurred, because the subject of the compact concerns:

“areas of jurisdiction historically retained by the states.”[496]

In 1983, Breest v. Moran[497] involved the New England Interstate Corrections Compact allowing for the transfer of prisoners among detention facilities in the New England states.

In 2002, Star Scientific, Inc. v. Beales concerned the Master Settlement Agreement that resolved the lawsuit between states and major tobacco companies and established an administrative body to determine compliance with the agreement. The U.S. Court of Appeals for the Fourth Circuit concluded:

“The Master Settlement Agreement does not increase the power of the States at the expense of federal supremacy and that, therefore, it is not an interstate compact requiring congressional approval under the Compact Clause.”[498]

As Michael S. Greve wrote in 2003:

“After U.S. Steel one can hardly imagine a state compact that would run afoul of the Compact Clause without first, or at least also, running afoul of other independent constitutional obstacles.”[499]

Footnotes

The U.S. Constitution places no restriction on the subject matter of an interstate compact other than the implicit limitation that it must be among the powers that states are permitted to exercise.

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

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

“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors….”[500]

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.”[501] [Emphasis added]

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

There is currently no other interstate compact concerned specifically with elections. Nonetheless, 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 uniform durational residency requirements in presidential elections.

He also 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.”[502] [Emphasis added]

The states have used interstate compacts in increasingly creative ways—especially since the 1920s. The judiciary has been repeatedly asked to consider the validity of various novel compacts. Nonetheless, we are aware of no case in which the courts have invalidated any interstate compact.[503]

Moreover, in recent years, the courts have accorded even greater deference to the power of states and even wider and freer use of interstate compacts by them.

The 10^th Amendment provides an additional argument in favor of a state power:

“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]

Article II, section 1 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 a federal appointee as presidential elector.

Footnotes

Ian J. Drake, an assistant professor of political science and law at Montclair State University, claims that there is a “Catch-22” that prevents Congress from giving its consent to the National Popular Vote Compact.

Drake believes that the National Popular Vote Compact requires congressional consent before it can come into effect—a belief that we separately discussed in section 9.23.3.

For the sake of argument in this section, let’s say that the National Popular Vote Compact does require congressional consent.

Drake argues that the National Popular Vote Compact is “manifestly unconstitutional,”[504] because Congress does not have the power to give its consent:

“Even if Congress wanted to approve the NPV, it would be unconstitutional to do so. The Supreme Court has held that Congress’ approval of an interstate compact converts the agreement into federal law. Although the Constitution leaves the appointment of electors up to the states—a point NPV proponents repeatedly make—the submission of the NPV compact to Congress puts Congress in the position of approving a measure that Congress would be prohibited from enacting by itself. The Constitution does not allow Congress to create a popular vote system on its own initiative. Therefore, how could Congress approve a state-based plan that does the same?”[505] [Emphasis added]

In fact, there is no “Catch-22” here, because Drake has ignored a key element of the Supreme Court’s ruling in Cuyler v. Adams in 1981:

“[W]here Congress has authorized the States to enter into a cooperative agreement and the subject matter of that agreement is an appropriate subject for congressional legislation, Congress’ consent transforms the States’ agreement into federal law under the Compact Clause, and construction of that agreement presents a federal question.”[506] [Emphasis added]

Drake’s argument also misinterprets what it means to “convert” an interstate compact into federal law. The effect of this conversion is to ascertain whether the courts are to interpret a compact under state or federal law—something that is clear from the history leading up to the decision in Cuyler v. Adams (covered in section 5.10).

Needless to say, Congress cannot acquire the power to exercise a power that the Constitution assigns exclusively to the states through the legerdemain of approving legislation already passed by the states.

Footnotes

In 2023, the Congressional Research Service stated:

“In Northeast Bancorp, Inc. v. Board of Governors of Federal Reserve System,[507] the Supreme Court addressed a constitutional challenge to a system of reciprocal state legislation that limited acquisition of banks in Massachusetts and Connecticut. The Court determined that congressional consent was not required because the reciprocal state legislation scheme lacked four ‘classic indicia of a compact,’ which are:

‘(1) Creation of a joint organization or body,

‘(2) Conditioning one state’s action on the actions of other states,

‘(3) Restricting states’ power to modify or repeal their laws unilaterally, and

‘(4) A requirement for reciprocal constraints among all states.’”[508]

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.

Hans von Spakovsky of the Heritage Foundation 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:

“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.”[509] [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 McComb v. Wambaugh in 1991 dealing with the enforceability of the Interstate Compact for the Placement of Children, which:

• became effective without congressional consent, and
• contained a provision that delayed a state’s withdrawal for two years.[510]

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 for the Third Circuit 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.”[511] [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:

“the test is whether the Compact enhances state power quaod the National Government.”[512] [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 in order to become effective.

Footnotes

Michael Maibach, a Distinguished Fellow at Save Our States and Director of the Center for the Electoral College,[513] has written:

“NPV would create a Constitutional crisis. The Constitution’s Compact Clause (Article 1) requires that state compacts gain Congressional approval.”[514] [Emphasis added]

Despite Maibach’s hyperbole, no constitutional crisis will be created because of the question about whether congressional consent is required before the National Popular Vote Compact can take effect.

If laws approving the Compact have been enacted (and taken effect) in the requisite combination of states, and congressional consent has not been previously given, a lawsuit will (almost certainly) be filed raising the question of whether congressional consent is required before the Compact can become operative. This question of constitutional interpretation will be heard and settled in an orderly manner by the courts.

Footnotes

Professor Norman Williams of Willamette University in Salem, Oregon, raises a variation on John Samples’ hypothetical withdrawal scenario (section 9.25):

“In every state where the state legislature is controlled by the party of the national popular vote loser, there will be calls by disaffected constituents to withdraw from the NPVC.”

“In fairness, the NPVC foresees this problem and attempts to address it by forbidding states from withdrawing from the compact after July 20 in a presidential election year. States that are signatories as of July 20 are mandated by the NPVC to adhere to the compact and its rules for appointing electors. Depending on whether Congress ratifies the NPVC, however, that provision is either toothless or fraught with difficulties.”[515] [Emphasis added]

Williams then presents the following legally incorrect arguments in support of his claim of toothlessness. His argument contains several astonishingly inappropriate legal citations in the footnotes, which we will discuss momentarily:

“Article I, Section 10 of the U.S. Constitution requires Congress to consent to any interstate compact before it can go into operation. [Williams’ footnote 171 appears here]

“Let’s suppose Congress does not consent to the compact, as its supporters urge is unnecessary despite the seemingly categorical command of the Compact Clause.

“In that case, the compact does not acquire the force of federal law, as congressionally endorsed compacts do, and therefore, it remains merely the law of the state.

“Its status as state law, however, makes it no different from any other statute enacted by the state legislature.

“And, like any other state statute, a subsequent legislature can amend or repeal the NPVC consistent with the state’s own constitutionally prescribed legislative process. [Williams’ footnote 175 appears here]

“A prior legislature may not bind subsequent legislatures through subconstitutional measures, such as statutes or congressionally unratified interstate compacts.”[516] [Williams’ footnote 176 appears here] [Emphasis added]

Williams’ statement that “the U.S. Constitution requires Congress to consent to any interstate compact before it can go into operation” is supported by his footnote 171 citing the Compacts Clause of the Constitution.

However, Williams’ footnote fails to cite a century and a quarter of compact jurisprudence interpreting the Compacts Clause of the Constitution, including rulings of the U.S. Supreme Court such as the 1893 case of Virginia v. Tennessee[517] and the 1978 case of U.S. Steel Corporation v. Multistate Tax Commission[518]—both of which are quoted at length in section 9.23.3.

The facts are that numerous interstate compacts that never received congressional consent are in force today based on the U.S. Supreme Court’s rulings in Virginia v. Tennessee and U.S. Steel Corporation v. Multistate Tax Commission. For example, the Supreme Court ruled that the Multistate Tax Compact—the subject of U.S. Steel Corporation v. Multistate Tax Commission—did not require congressional consent in order to go into effect.

Williams’ characterization of the Compacts Clause as a “categorical command” fails to acknowledge that the U.S. Supreme Court explicitly ruled in both U.S. Steel Corporation v. Multistate Tax Commission and Virginia v. Tennessee that the Compact Clause was not categorical. As the Court said:

“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.[519] His conclusion [was] that the Clause could not be read literally [and this 1893 conclusion has been] approved in subsequent dicta, but this Court did not have occasion expressly to apply it in a holding until our recent decision in New Hampshire v. Maine,[520] 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.”[521] [Emphasis added]

See section 9.23.3 for additional discussion of the U.S. Supreme Court’s decisions and criteria for whether a particular interstate compact requires congressional consent.

Williams’ statement that a compact’s “status as state law … makes it no different from any other statute enacted by the state legislature” is also legally incorrect.

The fact that a congressionally approved compact acquires the status of federal law is unrelated to the question of whether a compact has gone into effect and is an enforceable contract.

Compacts go into operation in one of two ways:

• First, if the compact requires congressional consent, it goes into effect only after (1) being enacted by the requisite combination of states, and (2) Congress confers its consent. A compact that requires congressional consent, but has not received it, simply never goes into effect.
• Second, if the compact does not require congressional consent, it goes into effect after being enacted by the requisite combination of states.

The legal question of whether a particular compact requires congressional consent in order to take effect is answered by whether it satisfies the criteria established by rulings of the U.S. Supreme Court.

When Congress consents to an interstate compact, the compact acquires the status of federal law, and the courts interpret it as federal law (section 5.10). Conversely, a compact that does not require congressional consent does not acquire the status of federal law, and the courts interpret it as state law.

Once a compact is in effect, it is an enforceable contractual arrangement among participating states. The Impairments Clause of the U.S. Constitution provides:

“No State shall … pass any … Law impairing the Obligation of Contracts.”[522]

State courts routinely enforce interstate compacts not requiring congressional consent on the basis of the Impairments Clause.

The question of whether a compact has been converted into federal law is concerned with whether the compact is interpreted as federal or state law. The fact that a compact not requiring congressional consent has not been converted into federal law is unrelated to its enforceability.

A 2012 state court ruling involving the Multistate Tax Compact (the same interstate compact that was the subject of the U.S. Supreme Court’s decision in U.S. Steel Corporation v. Multistate Tax Commission) illustrates this point.

In The Gillette Company et al. v. Franchise Tax Board, the California Court of Appeal voided a state law attempting to override a provision of the Multistate Tax Compact (from which California had not withdrawn at the time of the decision).

“In 1972, a group of multistate corporate taxpayers brought an action on behalf of themselves and all other such taxpayers threatened with audits by the Commission. The complaint challenged the constitutionality of the Compact on several grounds, including that it was invalid under the compact clause of the United States Constitution. (U.S. Steel, supra, 434 U.S. at p. 458.)

“The high court acknowledged that the compact clause, taken literally, 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.’ (U.S. Steel, supra, 434 U.S. at p. 459.) However, it endorsed an interpretation, established by case law, that limited application of the compact clause ‘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.’ … This rule states the proper balance between federal and state power with respect to compacts and agreements among States.”’ (Id. at p. 471, initial quote from Virginia v. Tennessee (1893) 148 U.S. 503, 519.)

“Framing the test as whether the Compact enhances state power with respect to the federal government, the court concluded it did not.”[523]

The California court continued:

“Some background on the nature of interstate compacts is in order. These instruments are legislatively enacted, binding and enforceable agreements between two or more states.”[524]

“As we have seen, some interstate compacts require congressional consent, but others, that do not infringe on the federal sphere, do not.[525]

“Where, as here, federal congressional consent was neither given nor required, the Compact must be construed as state law. (McComb v. Wambaugh (3d Cir. 1991) 934 F.2d 474, 479.) Moreover, since interstate compacts are agreements enacted into state law, they have dual functions as enforceable contracts between member states and as statutes with legal standing within each state; and thus we interpret them as both. (Aveline v. Bd. of Probation and Parole (1999) 729 A.2d 1254, 1257; see Broun et al., The Evolving Use and the Changing Role of Interstate Compacts (ABA 2006) § 1.2.2, pp. 15–24 (Broun on Compacts); 1A Sutherland, Statutory Construction (7^th ed. 2009) § 32:5; In re C.B. (2010) 188 Cal.App.4^th 1024, 1031 [recognizing that Interstate Compact on Placement of Children shares characteristics of both contractual agreements and statutory law].)

“The contractual nature of a compact is demonstrated by its adoption: “There is an offer (a proposal to enact virtually verbatim statutes by each member state), an acceptance (enactment of the statutes by the member states), and consideration (the settlement of a dispute, creation of an association, or some mechanism to address an issue of mutual interest.)” (Broun on Compacts, supra, § 1.2.2, p. 18.) As is true of other contracts, the contract clause of the United States Constitution shields compacts from impairment by the states. (Aveline v. Bd. of Probation and Parole, supra, 729 A.2d at p. 1257, fn. 10.) Therefore, upon entering a compact, “it takes precedence over the subsequent statutes of signatory states and, as such, a state may not unilaterally nullify, revoke or amend one of its compacts if the compact does not so provide.” (Ibid.; accord, Intern. Union v. Del. River Joint Toll Bridge (3d Cir. 2002) 311 F.3d 273, 281.) Thus interstate compacts are unique in that they empower one state legislature—namely the one that enacted the agreement—to bind all future legislatures to certain principles governing the subject matter of the compact. (Broun on Compacts, supra, § 1.2.2, p. 17.)

“As explained and summarized in C.T. Hellmuth v. Washington Metro. Area Trans. (D. Md. 1976) 414 F.Supp. 408, 409 (Hellmuth): ‘Upon entering into an interstate compact, a state effectively surrenders a portion of its sovereignty; the compact governs the relations of the parties with respect to the subject matter of the agreement and is superior to both prior and subsequent law. Further, when enacted, a compact constitutes not only law, but a contract which may not be amended, modified, or otherwise altered without the consent of all parties. It, therefore, appears settled that one party may not enact legislation which would impose burdens upon the compact absent the concurrence of the other signatories.’ Cast a little differently, ‘[i]t is within the competency of a State, which is a party to a compact with another State, to legislate in respect of matters covered by the compact so long as such legislative action is in approbation and not in reprobation of the compact.’ (Henderson v. Delaware River Joint Toll Bridge Com’m (1949) 66 A.2d 843, 849–450.) Nor may states amend a compact by enacting legislation that is substantially similar, unless the compact itself contains language enabling a state or states to modify it through legislation ‘ “concurred in” ’ by the other states. (Intern. Union v. Del. River Joint Toll Bridge, supra, 311 F.3d at pp. 276–280.)”[526] [Emphasis added]

The California court thus overturned a California state law overriding the provisions of the Multistate Tax Compact.[527]

Although state courts are more than capable of enforcing interstate compacts (and, in particular, voiding state legislation that attempts to evade a particular state’s obligations under a compact), interstate compacts may be (and often are) litigated at the U.S. Supreme Court, as explained in Interstate Disputes: The Supreme Court’s Original Jurisdiction.[528]

The U.S. Constitution states:

“In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the Supreme Court shall have original Jurisdiction.”[529] [Emphasis added]

Williams supports his next legally incorrect statement (that a compact for which congressional consent is unnecessary is “merely” a state law and not an enforceable contract) with a totally inapplicable legal authority. He writes:

“A subsequent legislature can amend or repeal the NPVC consistent with the state’s own constitutionally prescribed legislative process. [Williams’ footnote 175 appears here]”[530]

Williams’ authority for this legally incorrect statement (that is, his own footnote 175) is the 1951 U.S. Supreme Court decision in West Virginia ex rel. Dyer v. Sim.[531] However, this case is not about a state being allowed to evade its obligations under an interstate compact, but about the U.S. Supreme Court ruling that West Virginia could not evade its obligations under a compact.

What the U.S. Supreme Court actually said was:

“But a compact is after all a legal document. … It requires no elaborate argument to reject the suggestion that an agreement solemnly entered into between States by those who alone have political authority to speak for a State can be unilaterally nullified, or given final meaning by an organ of one of the contracting States. A State cannot be its own ultimate judge in a controversy with a sister State.”[532] [Emphasis added]

Williams’ final legally incorrect statement and inappropriate footnote are even more astonishing:

“A prior legislature may not bind subsequent legislatures through subconstitutional measures, such as statutes or congressionally unratified interstate compacts. [Williams’ footnote 176 appears here]”[533]

Williams cites two authorities for this incorrect statement in his footnote 176:

• the 1996 Nebraska case of State ex rel. Stenberg v. Moore,[534] and
• the 1936 Pennsylvania case of Visor v. Waters.[535]

In fact, neither case supports Williams’ statement, and the ruling in one of them is exactly opposite to what Williams claims.

State ex rel. Stenberg v. Moore was concerned with a 1993 Nebraska state law (Legislative Bill 507) that attempted to require future legislatures to provide certain fiscal estimates and provide appropriations when that future legislature took any action that might increase the number of inmates in the state’s correctional facilities.

Legislative Bill 507 provided:

“(1) When any legislation is enacted after June 30, 1993, which is projected in accordance with this section to increase the total adult inmate population or total juvenile population in state correctional facilities, the Legislature shall include in the legislation an estimate of the operating costs resulting from such increased population for the first four fiscal years during which the legislation will be in effect.”

(3) The Legislature shall provide by specific itemized appropriation, for the fiscal year or years for which it can make valid appropriations, an amount sufficient to meet the cost indicated in the estimate contained in the legislation for such fiscal year or years. The appropriation shall be enacted in the same legislative session in which the legislation is enacted and shall be contained in a bill which does not contain appropriations for other programs.

“(4) Any legislation enacted after June 30, 1993, which does not include the estimates required by this section and is not accompanied by the required appropriation shall be null and void.” [Emphasis added]

In State ex rel. Stenberg in 1996, the Nebraska Supreme Court made the unsurprising ruling that it was unconstitutional for the legislature to attempt to bind succeeding legislatures by means of an ordinary state statute.

Significantly, in its ruling, the Nebraska Supreme Court specifically recognized interstate compacts as one of the rare exceptions to the general principle that one legislature cannot bind a future legislature:

“One legislature cannot bind a succeeding legislature or restrict or limit the power of its successors to enact legislation, except as to valid contracts entered into by it, and as to rights which have actually vested under its acts, and no action by one branch of the legislature can bind a subsequent session of the same branch.”[536] [Emphasis added]

Thus, the 1996 Nebraska case of State ex rel. Stenberg v. Moore cited by Williams does not support his statement, but makes it clear that Williams is just plain wrong.

Williams’ citation of the 1936 Pennsylvania case of Visor v. Waters also fails to support his claim. Visor v. Waters was concerned with an attempt by one house of the Pennsylvania legislature to nullify a previously enacted state statute by means of a resolution passed only by the one house. Visor v. Waters was not even about a state statute (much less an interstate compact). The court’s ruling said:

“It is a settled rule that one Legislature cannot bind another and no action by one House could bind a subsequent session of that same House, but when the constituent bodies are united in a statute, a single House, by a mere resolution cannot set aside and nullify the positive provisions of a law. … A new law can do that, but nothing less than a new law can.”[537] [Emphasis added]

The fact is that there are no applicable citations in support of Williams’ statements about the unenforceability of interstate compacts. The reason is that Williams is just plain wrong.

Another example of a compact that did not require congressional consent is the Interstate Compact for the Placement of Children. All 50 states and the District of Columbia are parties to this compact.[538]

In McComb v. Wambaugh in 1991, the U.S. Court of Appeals for the Third Circuit ruled that the compact took precedence over state law.

“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.”[539] [Emphasis added]

Footnotes