Interstate Compacts and Congressional Consent

Guest Author: Rick Masters, CSG Special Counsel for Interstate Compacts

When is Congressional Consent required?
The determination of whether congressional consent is required depends upon the applicability of the compact clause of the U.S. Constitution (Art. I, Sec. 10, Cl. 3).  Despite the wording of this provision, not all interstate compacts require the consent of congress, only those which interfere or conflict with some enumerated power granted to the federal government under the Constitution. 

The Supreme Court has specifically interpreted the meaning of the 'compact clause' in this manner in a number of decisions.  See for example U.S. Steel Corp. v. Multi-tate Tax Comm’n, 434 U.S. 452, 459-460, 463-65, 468-69 (1978); also Cuyler v. Adams, 449 U.S. 433, 440 (1981).
How is Congressional Consent granted?
Under Article I., Section 10., Clause 3, of the U.S. Constitution (Compact Clause), no specific procedures are established for states to follow in obtaining congressional consent to interstate compacts, nor does the Constitution outline specific procedures which Congress must respect in granting consent.  Although the Constitution is silent on the matter, tradition demonstrates that congressional consent is generally given in one of three ways.

1) Congress can explicitly give consent upon submission of a compact by the member states for approval.  Such consent is most often seen in compacts that resolve boundary disputes, but can occur in other areas.  For example, in 1999 Congress gave its consent to the establishment of the boundary between South Carolina and Georgia. See Public Law No. 106-90, 113 Stat. 1307 (1999).
2) Congress may give its consent broadly and in advance by adopting legislation that encourages states to enter into an interstate compact for a specific purpose or by granting consent in advance of the actual adoption of a compact by the states.  See Petty v. Tennessee-Missouri Bridge Comm’n, 359 U.S. 275, 281-282 (1959).  Examples of such advance consent include the Crime Control Compact Consent Act of 1934, in which Congress authorized “any two or more States to enter into agreements or compacts for cooperative effort and mutual assistance in the prevention of crime and in the enforcement of their respective criminal laws and policies, and to establish such agencies, joint or otherwise, as they may deem desirable for making effective such agreements and compacts.” See 4 U.S.C., Section 112 (2003).   The Interstate Compact for Adult Offender Supervision (ICAOS), adopted in 2002, as well as the compact superceded by ICAOS, the Interstate Compact for the Supervision of Parolees and Probationers, relied upon this 1934 statute.  Likewise Congress gave its’ advance consent to states authorizing the development of interstate pilot banking programs for the financing of highway infrastructure, (Pub. Law No. 104-59, Title III, Section 350, 109 Stat. 618 (1996); the development of radioactive waste disposal facilities, (42 U.S.C., Section 2021d (2004); coordination of mass metropolitan transit systems, See Transportation Equity Act for the 21st Century, Pub. Law No. 105-178 (1998); and for the construction of deep water ports, See 33 U.S.C., Section 1508(d) (2004).
3) Consent may be implied through congressional acquiescence to a compact.  In Virginia v. Tennessee, 148 U.S. 503 (1893) the Supreme Court held that congressional consent may be inferred when Congress engages in acts that demonstrate acquiescence to the compact.  Such acts may include the adoption of subsequent legislation consistent with the terms of the compact or ratification of actions by state authorities and Congress that are harmonious with the purposes of the compact.  Implied consent is most easily demonstrated in the context of border compacts, as subsequent actions would clearly point to Congress’s intention vis-à-vis the compact.
In recent years congressional consent to most interstate compacts requiring it, has been granted by specific legislative authority being granted which would require the same formalities as any other federal legislation including passage by both House and Senate and signed by the President.