Interstate Compacts Under the Constitution – A Tool for Good or Ill

After President Trump announced the U.S. will withdraw from the Paris climate agreement, the three Governors of New York, California, and Washington State said they would form the ‘United States Climate Alliance’ to comply with the terms of the Paris agreement on their own.

It could all just be political posturing but, if this is a binding commitment, the arrangement may well run afoul of the Interstate Compacts Clause found in Article I, section 10, clause 3 of the U.S. Constitution. Generally speaking, that clause prevents states from entering into agreements among themselves or with foreign powers without consent of Congress.  Not all interstate compacts require Congressional approval, but those that increase the power of the states at the expense of the federal government do. [Virginia v. Tennessee]  A state Climate Alliance that looks like a treaty and smells like a treaty would be the kind of separate arrangement diminishing federal power that the Constitution was intended to prevent.

The interstate compact is another tool in the toolbox of our Republic. As with other tools, interstate compacts can be used for good or ill.  Interstate compacts have been used to establish government agencies to deal with common problems faced by several states, such as with the Colorado River and the Great Lakes.

The proposed Health Care Compact was popular in Tea Party circles some years ago.  If approved by Congress, it would transfer control over healthcare programs and funding to signatory states.  More recently, Progressives have talked about using an interstate compact to preserve Obamacare in signatory states if the law is repealed.

Also, there’s been renewed interest lately in the National Popular Vote interstate compact plan. That plan would require participating states to cast their electoral college votes for the presidential candidate who wins the national popular vote.  The compact would not go into effect until enough states ratified it to create a majority – 270 votes – in the electoral college.  The plan has been adopted in enough states to get to 165 electoral college votes.  The Oregon House voted last month to join the plan.  That would be seven more electoral college votes if adopted.  The interesting wrinkle here is that, for the first time, the matter would be put to all Oregon voters by way of ballot initiative.  Supporters hope that passage by popular vote in Oregon would inspire similar referendum efforts in red states. 

The interstate compact is a tool for good or ill.  Compacts can be used to frustrate tyranny – as in blocking Obamacare – or to destroy essential features of our Republic and usher in direct democracy – the National Popular Vote plan – something the Founders thought would be a very bad idea.  The National Popular Vote compact would use the Constitution to destroy the Constitution. Fiendishly clever, don’t you think?  But that’s the Progressive Left for you.
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