Interstate compacts solve their fed key warrants: They act like federal law

It might surprise attentive high school students nationwide that the |venerable Schoolhouse Rock! narrative for a bill becoming a law1—bicameral legislative passage followed by executive presentment—has a lesser-known understudy, one that looks like a state law, acts like a federal law, and yet is neither. This substitute is the interstate compact.2 An oddly amalgamated creature, the interstate compact roams uniquely through our constitutional system. It represents a vestige of the sovereign treatymaking powers abandoned by the thirteen colonies in their formation of the Union—providing states with the unique capability to act in concert without federal involvement. Compacts were originally governed by Article I, Section 10 of the U.S. Constitution, which provides: “No state shall, without the consent of Congress, . . . enter into any Agreement or Compact with another State, or with a foreign Power . . . .”3 However, the U.S. Supreme Court’s 1978 decision in United States Steel Corp. v. Multistate Tax Commission eviscerated the Compact Clause’s influence in constitutional law—perhaps without fully meaning to.4 Today, compacts often take effect without any oversight from Congress.5 This should concern us because compacts are everywhere. If you are a Californian pulled over for speeding in Oregon, your California driver’s license may have points deducted thanks to the Driver License Compact between forty-five states.6 If you have ever flown to New York City, or taken a subway ride in Washington, D.C., you have experienced an interstate compact in action—those transit systems are both products of innovative compacts between neighboring states.7 Indeed, countless little-noticed compacts are the sine qua non backbone of interstate initiatives integral to our daily lives. Compacts are increasingly important in an age of polarization, as they form between the lines of state and federal power—a space Rhett Larson has aptly dubbed “interstitial federalism.”8 Federal government action, or inaction, now routinely encounters state-based resistance, often in the form of a proposed compact, which can lack meaningful oversight without enforcement of the congressional approval requirement. For instance, Democratic governors have sought to forge compacts mitigating President Trump’s withdrawal from the Paris Accords and the lack of congressional action on gun safety in the wake of the Parkland massacre.9 Republicans did the same under President Obama, when they sought to enforce stronger federal immigration laws locally.10 Meanwhile, forty-six states have established their own independent system to administer a multibillion-dollar annual revenue stream from a settlement with tobacco companies despite Congress’s failure to endorse such a solution, producing a nationwide increase in cigarette prices.11