Compact Clause


The term “Compact Clause” refers to a provision in the U.S. Constitution (Article I, § 10, Cl. 3) that prohibits a state from entering into contract with another state or foreign country without first obtaining approval from the United States Congress.

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U.S. Constitution, Article 1, § 10, Cl. 3

“No state shall, without the consent of Congress, lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.”

Cuyler v. Adams, 449 U.S. 433 (1981) (quotations and citations omitted):

“The requirement of congressional consent is at the heart of the Compact Clause. By vesting in Congress the power to grant or withhold consent, or to condition consent on the States’ compliance with specified conditions, the Framers sought to ensure that Congress would maintain ultimate supervisory power over cooperative state action that might otherwise interfere with the full and free exercise of federal authority. Congressional consent is not required for interstate agreements that fall outside the scope of the Compact Clause. Where an agreement is not 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, it does not fall within the scope of the Clause and will not be invalidated for lack of congressional consent.  But where Congress has authorized the States to enter into a cooperative agreement, and where the subject matter of that agreement is an appropriate subject for congressional legislation, the consent of Congress transforms the States’ agreement into federal law under the Compact Clause.  Congress may consent to an interstate compact by authorizing joint state action in advance or by giving expressed or implied approval to an agreement the States have already joined.”

United States Steel Corp. v. Multistate Tax Comm’n, 434 U.S. 452 (1978) (quotations and citations omitted):

“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 Virginia v. Tennessee. His conclusion that the Clause could not be read literally was 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.

“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. We have examined, nevertheless, the origin and development of the Clause, to determine whether history lends controlling support to appellants’ position.

“Article I, § 10, cl. 1, of the Constitution—the Treaty Clause—declares: ‘No State, shall enter into Any Treaty, Alliance or Confederation . . . .’ Yet Art. I, § 10, cl. 3—the Compact Clause—permits the States to enter into agreements or compacts, so long as congressional consent is obtained. The Framers clearly perceived compacts and agreements as differing from treaties. The records of the Constitutional Convention, however, are barren of any clue as to the precise contours of the agreements and compacts governed by the Compact Clause. This suggests that the Framers used  the words treaty, compact, and agreement as terms of art, for which no explanation was required and with which we are unfamiliar. Further evidence that the Framers ascribed  precise meanings to these words appears in contemporary commentary.

“Whatever distinct meanings the Framers attributed to the terms in Art. I, § 10, those meanings were soon lost.  In 1833, Mr. Justice Story perceived no clear distinction among any of the terms. Lacking any clue as to the categorical definitions the Framers has ascribed to them, Mr. Justice Story developed his own theory.  Treaties, alliances, and confederations, he wrote, generally connote military and political accords and are forbidden to the States. Compacts and agreements, on the other hand, embrace mere private rights of sovereignty; such as questions of boundary; interests in land situate in the territory of each other; and other internal regulations for the mutual comfort and convenience of States bordering on each other.  In the latter situations, congressional consent was required, Story felt, in order to check any infringement of the rights of the national government.

“The Court’s first opportunity to comment on the scope of the Compact Clause, Holmes v. Jennison, 14 Pet. 540 (1840), proved inconclusive. Holmes had been arrested in Vermont on a warrant issued by Jennison, the Governor. The warrant apparently reflected an informal agreement by Jennison to deliver Holmes to authorities in Canada, where he had been indicted for murder. On a petition for habeas corpus, the Supreme Court of Vermont held Holmes’ detention lawful. Although this Court divided evenly on the question of its jurisdiction to review the decision, Mr. Chief Justice Taney, in an opinion joined by Mr. Justice Story and two others, addressed the merits of Holmes’ claim that Jennison’s informal agreement to surrender him fell within the scope of the Compact Clause. Mr. Chief Justice Taney focused on the fact that the agreement in question was between a State and a foreign government. Since the clear intention of the Framers had been to cut off all communication between the States and foreign powers, id., at 568-579, he concluded that the Compact Clause would permit an arrangement such as the one at issue only if “made under the supervision of the United States . . . ,” id., at 578. In his separate opinion, Mr. Justice Catron expressed disquiet over what he viewed as Mr. Chief Justice Taney’s literal reading of the Compact Clause, noting that it might threaten agreements between States theretofore considered lawful.

“Despite Mr. Justice Catron’s fears, courts faced with the task of applying the Compact Clause appeared reluctant to strike down newly emerging forms of interstate cooperation. For example, in Union Branch R. Co. v. East Tennessee & G. R. Co., 14 Ga. 327 (1853), the Supreme Court of Georgia rejected a Compact Clause challenge to an agreement between Tennessee and Georgia concerning the construction of an interstate railroad.  Omitting any mention of Holmes v. Jennison, the Georgia court seized upon Story’s observation that the words “treaty, alliance, and confederation” generally were known to apply to treaties of a political character. Without explanation, the court transferred this description of the Treaty Clause to the Compact Clause, which it perceived as restraining the power of the States only with respect to agreements “which might limit, or infringe upon a full and complete execution by the General Government, of the powers intended to be delegated by the Federal Constitution . . . .” 14 Ga., at 339.  A broader prohibition could not have been intended, since it was unnecessary to protect the Federal Government. Unless this view was taken, said the court:

We must hold that a State, without the consent of 467*467 Congress, can make no sort of contract, whatever, with another State. That it cannot sell to another state, any portion of public property, . . . though it may so sell to individuals. . . . We can see no advantage to be gained by, or benefit in such a provision; and hence, we think it was not intended. Id., at 340.

“It was precisely this approach that formed the basis in 1893 for Mr. Justice Field’s interpretation of the Compact Clause in Virginia v. Tennessee. In that case, the Court held that Congress tacitly had assented to the running of a boundary between the two States. In an extended dictum, however, Mr. Justice Field took the Court’s first opportunity to comment upon the Compact Clause since the neglected essay in Holmes v. Jennison. Mr. Justice Field, echoing the puzzlement expressed by Story 60 years earlier, observed:

The terms `agreement’ or `compact’ taken by themselves are sufficiently comprehensive to embrace all forms of stipulation, written or verbal, and relating to all kinds of subjects; to those to which the United States can have no possible objection or have any interest in interfering with, as well as to those which may tend to increase and build up the political influence of the contracting States, so as to encroach upon or impair the supremacy of the United States or interfere with their rightful management of particular subjects placed under their entire control. 148 U. S., at 517-518.

“Mr. Justice Field followed with four examples of interstate agreements that could in no respect concern the United States: (1) an agreement by one State to purchase land within its borders owned by another State; (2) an agreement by one State to ship merchandise over a canal owned by another; (3) an agreement to drain a malarial district on the border between two States; and (4) an agreement to combat an immediate threat, such as invasion or epidemic.  As the Compact Clause could not have been intended to reach every possible interstate agreement, it was necessary to construe the terms of the Compact Clause by reference to the object of the entire section in which it appears:

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. Id., at 519.

“Mr. Justice Field reiterated this functional view of the Compact Clause a year later in Wharton v. Wise, 153 U. S. 155, 168-170 (1894).

“Although this Court did not have occasion to apply Mr. Justice Field’s test for many years, it has been cited with approval on several occasions. Moreover, several decisions of this Court have upheld a variety of interstate agreements effected through reciprocal legislation without congressional consent.  While none of these cases explicitly applied the Virginia v. Tennessee test, they reaffirmed its underlying assumption: not all agreements between States are subject to the strictures of the Compact Clause. In O’Neill, for example, this Court upheld the Uniform Law to Secure the Attendance of Witnesses from Within or Without the State in Criminal Proceedings, which had been enacted in 41 States and Puerto Rico. That statute permitted the judge of a court of any enacting State to invoke the process of the courts of a sister State for the purpose of compelling the attendance of witnesses at criminal proceedings in the requesting State. Although no Compact Clause question was directly presented, the Court’s opinion touched upon similar concerns:

The Constitution did not purport to exhaust imagination and resourcefulness in devising fruitful interstate relationships. It is not to be constructed to limit the variety of arrangements which are possible through the voluntary and cooperative actions of individual States with a view to increasing harmony within the federalism created by the Constitution. Far from being divisive, this legislation is a catalyst of cohesion. It is within the unrestricted area of action left to the States by the Constitution. 359 U. S., at 6.

“The reciprocal-legislation cases support the soundness of the Virginia v. Tennessee rule, since the mere form of the interstate agreement cannot be dispositive. Agreements effected through reciprocal legislation may present opportunities for enhancement of state power at the expense of the federal supremacy similar to the threats inherent in a more formalized “compact.” Mr. Chief Justice Taney considered this point in Holmes v. Jennison, 14 Pet., at 573:

Can it be supposed, that the constitutionality of the act depends on the mere form of the agreement? We think not. The Constitution looked to the essence and substance of things, and not to mere form. It would be but an evasion of the constitution to place the question upon the formality with which the agreement is made.

“The Clause reaches both agreements and compacts, the  formal as well as the informal. The relevant inquiry must be one of impact on our federal structure.

“This was the status of the Virginia v. Tennessee test until two Terms ago, when we decided New Hampshire v. Maine, 426 U. S. 363 (1976). In that case we specifically applied the test and held that an interstate agreement locating an ancient boundary did not require congressional consent. We reaffirmed Mr. Justice Field’s view 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 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.

“Appellants maintain that history constrains us to limit application of this rule to bilateral agreements involving no independent administrative body. They argue that this Court never has upheld a multilateral agreement creating an active administrative body with extensive powers delegated to it by the States, but lacking congressional consent. It is true that most multilateral compacts have been submitted for congressional approval. But this historical practice, which may simply reflect considerations of caution and convenience on the part of the submitting States, is not controlling. It  is also true that the precise interstate mechanism involved in this case has not been presented to this Court before. New York v. O’Neill, supra, however, involving analogous multilateral arrangements, stands as an implicit rejection of appellants’ proposed limitation of the Virginia v. Tennessee rule.

“Appellants further urge that the pertinent inquiry is one of potential, rather than actual, impact upon federal supremacy. We agree. But the multilateral nature of the agreement and its establishment of an ongoing administrative body do not, standing alone, present significant potential for conflict with the principles underlying the Compact Clause. The number of parties to an agreement is irrelevant if it does not impermissibly enhance state power at the expense of federal supremacy. As to the powers delegated to the administrative body, we think these also must be judged in terms of enhancement of state power in relation to the Federal Government. See Virginia v. Tennessee, supra, at 520 (establishment of commission to run boundary not a “compact”). We turn, therefore, to the application of the Virginia v. Tennessee rule to the Compact before us.”

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