Article 1, Section 1, Clause 3 — Requirement Of Congressional Consent To Compacts

prev | next

Article I, Section 10, Clause 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.

One of the most common questions to arise in Compact Clause cases is whether congressional consent is required for a particular state commitment.[1](https://www.law.cornell.edu/constitution-conan/article-1/section-1/clause-3/requirement-of-congressional-consent-to-compacts#fn1art1 " See e.g., Ne. Bancorp, Inc. v. Bd. of Governors of Fed. Rsrv. Sys., 472 U.S. 159, 175 (1985); U.S. Steel Corp. v. Multistate Tax Comm’n, 434 U.S. 452, 469–70 (1978); New Hampshire v. Maine, 426 U.S. 363, 370 (1976); Virginia v. Tennessee, 148 U.S. 503, 518–19 (1893). ") The plain language of the Compact Clause suggests congressional approval is mandatory for “any” compact with another state or foreign government,[2](https://www.law.cornell.edu/constitution-conan/article-1/section-1/clause-3/requirement-of-congressional-consent-to-compacts#fn2art1 " See U.S. Steel Corp, 434 U.S. at 459 ( “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.” ). ") but the Supreme Court has not adopted a literal interpretation of the clause in all cases. In the context of interstate compacts, the Supreme Court has held that only compacts that increase states’ power and diminish federal supremacy need Congress’s consent.[3](https://www.law.cornell.edu/constitution-conan/article-1/section-1/clause-3/requirement-of-congressional-consent-to-compacts#fn3art1 " See Ne. Bancorp, Inc., 472 U.S. at 175; U.S. Steel Corp., 434 U.S. at 469–70; New Hampshire v. Maine, 426 U.S. at 370; Virginia v. Tennessee, 148 U.S. at 518–19. See also St. Louis & S.F. Ry. v. James, 161 U.S. 545, 562 (1896) (holding that state legislation authorizing a railroad organized under the laws of one state to extend services into a second state, subject to the second state’s regulations, did not require congressional approval). ") The Court has not said whether the same interpretation applies to states’ compacts with foreign governments, but the frequency with which states make international pacts suggests congressional approval often is unnecessary.[4](https://www.law.cornell.edu/constitution-conan/article-1/section-1/clause-3/requirement-of-congressional-consent-to-compacts#fn4art1 " See infra note 12. ")

The closest the Supreme Court has come to invalidating a compact for lack of congressional approval came in a non-controlling 1840 opinion about a state’s agreement with a foreign official.[5](https://www.law.cornell.edu/constitution-conan/article-1/section-1/clause-3/requirement-of-congressional-consent-to-compacts#fn5art1 " Holmes v. Jennison, 39 U.S. (14 Pet.) 540 (1840) (affirmed by an equally divided court). ") In Holmes v. Jennison, the Governor of Vermont ordered a resident of Quebec (then part of Great Britain) arrested and returned to Quebec to stand trial for murder even though the United States did not have an extradition treaty with Britain at the time.[6](https://www.law.cornell.edu/constitution-conan/article-1/section-1/clause-3/requirement-of-congressional-consent-to-compacts#fn6art1 " See id. at 561 (Taney, C.J.). ") A crucial legal issue—whether the Supreme Court had jurisdiction—turned on the whether the Governor of Vermont had arrested the fugitive under an informal “agreement” with Canadian authorities within the meaning of the Compact Clause.[7](https://www.law.cornell.edu/constitution-conan/article-1/section-1/clause-3/requirement-of-congressional-consent-to-compacts#fn7art1 " The Supreme Court had jurisdiction if the lower court’s decision was final and implicated a question of whether Vermont’s actions were “repugnant to the constitution[.]” An Act to Establish the Judicial Courts United States, 1 Stat. 73, 85 (1789). The constitutional repugnancy element hinged on whether the Governor of Vermont made an “agreement” under the Compact Clause. See Holmes, 39 U.S. at 562–86 (Taney, C.J.). ") The case ultimately ended with an equally divided court on the jurisdiction issue,[8](https://www.law.cornell.edu/constitution-conan/article-1/section-1/clause-3/requirement-of-congressional-consent-to-compacts#fn8art1 " When the Supreme Court is made up of an even number of justices and is equally divided on the merits of a case, the lower court’s decision is affirmed. See Durant v. Essex Co., 74 U.S. 107 (1868). ") with four Justices determining that the governor made an agreement that should have been submitted to Congress for consent.[9](https://www.law.cornell.edu/constitution-conan/article-1/section-1/clause-3/requirement-of-congressional-consent-to-compacts#fn9art1 " See Holmes, 39 U.S. at 573–74 (Taney, C.J.). ") This four-Justice opinion, written by Chief Justice Roger Taney, was based on a literal interpretation of the Compact Clause that viewed congressional approval as necessary for “every agreement, written or verbal, formal or informal, positive or implied, by the mutual understanding of the parties.” [10](https://www.law.cornell.edu/constitution-conan/article-1/section-1/clause-3/requirement-of-congressional-consent-to-compacts#fn10art1 " Id. at 572. ")

Chief Justice Taney’s opinion has been influential, and the Supreme Court later cited it positively,[11](https://www.law.cornell.edu/constitution-conan/article-1/section-1/clause-3/requirement-of-congressional-consent-to-compacts#fn11art1 " See United States v. Rauscher, 119 U.S. 407, 414 (1886) ( “[T]here can be little doubt of the soundness of the opinion of Chief Justice [Taney], that the power exercised by the governor of Vermont is a part of the foreign intercourse of this country, which has undoubtedly been conferred upon the federal government[.]” ); U.S. Steel Corp. v. Multistate Tax Comm’n, 434 U.S. 452, 465 n. 15 (1978) (discussing the consistency of Chief Justice Taney’s opinion with later Compact Clause jurisprudence). The Supreme Court of Vermont relied, in part, on Chief Justice Taney’s opinion in later proceedings when it concluded that the governor lacked the constitutional authority to transfer the fugitive to Canadian officials. See Ex parte Holmes, 12 Vt. 631, 635–42 (1840). ") but the view that all pacts between states and foreign governments require Congress’s consent has not been supported in practice.[12](https://www.law.cornell.edu/constitution-conan/article-1/section-1/clause-3/requirement-of-congressional-consent-to-compacts#fn12art1 " See Memorandum from William H. Taft, IV, Legal Adviser, Dep’t of State, to Senator Byron L. Dorgan (Nov. 20, 2001) [Taft Memorandum], in Digest of United States Practice in International Law 2001, at 182 (Sally J. Cummins & David P. Stewart eds., 2001) [2001 Digest] ( “In general, the notion articulated by Chief Justice Taney that all U.S. state agreements constitute compacts that require congressional consent has not been widely supported.” ); Duncan B. Hollis, Unpacking the Compact Clause, 88 Tex. L. Rev. 741, 747–60 (2010) (cataloging and describing state agreements with foreign governments that did not receive congressional approval); Ryan M. Scoville, The International Commitments of the Fifty States, UCLA L. Rev. (forthcoming 2022) (updating research on the proliferation of states’ agreements with foreign governments). ") To the contrary, states often conclude pacts with foreign officials without congressional approval, and the Supreme Court eventually developed a new line of cases that more narrowly interprets the congressional consent requirement in the context of interstate compacts.[13](https://www.law.cornell.edu/constitution-conan/article-1/section-1/clause-3/requirement-of-congressional-consent-to-compacts#fn13art1 " See supra notes 1 & 12. ")

In 1893, the Supreme Court expressed doubt in Virginia v. Tennessee that Congress must approve every interstate compact regardless of its relevance to the Federal Government.[14](https://www.law.cornell.edu/constitution-conan/article-1/section-1/clause-3/requirement-of-congressional-consent-to-compacts#fn14art1 " See 148 U.S. 503, 518–19 (1893). ") The Virginia Court saw no reason congressional approval would be necessary for compacts “to which the United States can have no possible objection” or desire to interfere.[15](https://www.law.cornell.edu/constitution-conan/article-1/section-1/clause-3/requirement-of-congressional-consent-to-compacts#fn15art1 " See id. at 518. ") The Court gave several examples of hypothetical agreements that would not concern the United States, such as two states contracting to send exhibits to the Chicago World’s Fair via the Erie Canal.[16](https://www.law.cornell.edu/constitution-conan/article-1/section-1/clause-3/requirement-of-congressional-consent-to-compacts#fn16art1 " See id. ") Rather than require congressional approval in every case, the Virginia Court reasoned that interstate compacts only need Congress’s consent if they have the potential to “increase of political power in the states, which may encroach upon or interfere with the just supremacy of the United States.” [17](https://www.law.cornell.edu/constitution-conan/article-1/section-1/clause-3/requirement-of-congressional-consent-to-compacts#fn17art1 " See id. at 519. ")

In later cases, the Supreme Court repeated Virginia's test for determining when congressional consent is necessary and clarified how it applies to modern interstate compacts.[18](https://www.law.cornell.edu/constitution-conan/article-1/section-1/clause-3/requirement-of-congressional-consent-to-compacts#fn18art1 " See Ne. Bancorp, Inc. v. Bd. of Governors of Fed. Rsrv. Sys., 472 U.S. 159, 175 (1985); U.S. Steel Corp. v. Multistate Tax Comm’n, 434 U.S. 452, 469–70 (1978); New Hampshire v. Maine, 426 U.S. 363, 370 (1976). ") In U.S. Steel Corp. v. Multistate Tax Commission, for example, the Supreme Court held that a compact creating uniform rules for state taxation of multistate corporations did not require congressional consent even though it increased the states’ bargaining power in relation to the taxed companies.[19](https://www.law.cornell.edu/constitution-conan/article-1/section-1/clause-3/requirement-of-congressional-consent-to-compacts#fn19art1 " See U.S. Steel Corp., 434 U.S. at 472–73. ") Virginia's test does not focus on whether the compact makes the states more influential in general, the U.S. Steel Corp. Court explained, but whether it could enhance the states’ power in relation to the Federal Government.[20](https://www.law.cornell.edu/constitution-conan/article-1/section-1/clause-3/requirement-of-congressional-consent-to-compa