Academic

Hollis on the Compact Clause

By Lawrence Solum

Duncan B. Hollis (Temple University - James E. Beasley School of Law) has posted two papers on the compact clause on SSRN.

The Elusive Foreign Compact (Missouri Law Review, Vol. 73, No. 4, 2008):

This symposium essay identifies and explains Congress?s inactivity in exercising its Compact Clause power in the foreign context. The Constitution prohibits U.S. states from concluding treaties, alliances or confederations, and gives Congress the power to approve ?any Agreement or Compact? by a U.S. state with a foreign power. Congress, however, has consented to a mere handful of foreign compacts, even though U.S. states have concluded hundreds of agreements with foreign governments in recent years. How has the Compact Clause become so dormant? I argue that Congress?s inaction is a function of judicial and executive action. The Supreme Court?s rulings have greatly limited when Congress must consent to foreign compacts, suggesting the states have their own power to make many foreign agreements free from congressional oversight or approval. At the same time, the Executive has come to police the constitutional propriety of U.S. state agreements with foreign governments.

This essay focuses on the informational, functional and structural challenges of having the Executive act as a surrogate for Congress in overseeing state agreements abroad. First, executive oversight has done little to remedy a growing informational deficit on what agreements U.S. states are making with foreign governments. Second, even if the Executive knew what the states were doing, it lacks the functional capacity to control such state activity. Third, having the Executive interpret for Congress the scope of Congress?s power raises separation of powers concerns. Taken together, these problems suggest a need for closer scrutiny of U.S. state practice overseas and a more robust congressional role in monitoring and approving foreign compacts.

Unpacking the Compact Clause (Texas Law Review, Forthcoming):

The Compact Clause prohibits U.S. states from making ?any Agreement or Compact with another State, or with a foreign Power? absent congressional consent. No one, however, has ever studied the Clause?s application to agreements by foreign powers with U.S. states (FSAs). The conventional wisdom views FSAs as infrequent, unimportant, and otherwise identical to those interstate compacts for which the Supreme Court has opined congressional consent is generally unnecessary.

My article explains why the conventional wisdom is wrong on all counts. For the first time, I present a typology of 340 FSAs and show how they are increasing in both number and importance. The states have simply not reported their practice to the federal government.

More importantly, my article introduces the idea that the Constitution contains not one Compact Clause, but two - one for interstate compacts and another for FSAs. Using text, history, doctrine, function, and structure, I demonstrate how Congress can dictate for itself when states must obtain congressional approval of FSAs, independent of the interstate compact doctrine devised by the Court. In doing so, my work aims to demonstrate that the Court is not the only actor that can construct constitutional meaning; Congress has its own powers to interpret the constitutional text outside the courtroom. Ultimately, my article shows that, despite some costs, a Foreign Compact Clause will benefit states, their foreign partners, the federal government, and even our understanding of federalism as a cooperative venture, rather than just a competitive one.

Full post as published by Legal Theory Blog on May 15, 2009 (boomark / email).