Interstate Relations Trends

This article reviews interstate relations developments since 2007 pertaining to uniform state laws, interstate compacts and administrative agreements, same-sex marriage, civil unions and other pertinent legal matters.

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About the Author
Joseph F. Zimmerman is a professor of political science at Rockefeller College of the State University of New York in Albany, and is the author of numerous books on intergovernmental relations.


 

An Imperium in Imperio (an empire within an empire) is an apt descriptor of a federal system, as sovereign political powers are divided between a national government and constituent state governments. This power division in the United States automatically produces interstate relations characterized by competition, cooperation and/or controversies.

Uniform State Laws

Nonharmonious state laws, particularly regulatory ones, create problems for citizens and businesses operating on a multistate basis. Such laws led to the establishment in 1892 of the National Conference of Commissioners on Uniform State Laws, which drafts uniform laws on a wide variety of subjects and urges state legislatures to enact them.

The commissioners promulgated four uniform laws in 2007, six in 2008, five in 2009 and nine in 2010. Examples include the Uniform Collaborative Law Act (2009), and the Model State Administrative Procedures Act (2010). There were 198 introductions of uniform and model acts and 93 of them were enacted in 2010. In general, Midwestern and Northwestern states have the highest propensity to enact uniform laws, and Southern states have the least propensity to so enact. Various associations—the Multistate Tax Commission, interest groups and citizens—also draft model laws.

Interstate Compacts

The U.S. Constitution (art.I,§10) authorizes states to enter into compacts with sister states with congressional consent. The U.S. Supreme Court, however, opined in 1893 that consent was required only for compacts encroaching upon the powers of the federal government (148 U.S. 503 at 520). The 2004 Insurance Product Regulation Compact is exempt from the consent requirement because in 1945,

Congress transferred the authority to regulate the business of insurance to the states. This compact, as of 2010, had been enacted by the legislature in 36 states and Puerto Rico, and represents more than one-half of the premium volume nationwide. A member state may opt out of a compact standard, and Indiana in 2010 became the first state to use the provision by opting out of the Long-Term Care Standard.

Congress in 2007 granted consent (121 Stat. 730) to the Great Plains Wildland Fire Protection Compact enacted by the state legislatures in Colorado, Kansas, North Dakota, South Dakota and Wyoming. Congress in the same year granted consent (121 Stat. 2467) to the International Emergency Management Assistance Memorandum of Understanding entered into by Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, Vermont, New Brunswick, Newfoundland, Prince Edward Island and Québec. The revised Interstate Compact for Juveniles became effective in 2008 with its enactment by Illinois and Tennessee, and currently has 41 member states. In 2010, Congress granted its consent (124 Stat. 1124) for a minor amendment to the Washington Area Metropolitan Transit Regulation Compact pertaining to the appointment of commission members.

The Interstate Agreement for the Popular Election of the President of the United States is an innovative interstate compact based on section 10 of article I authorizing states to enter into interstate agreements or compacts and section 1 of article II of the U.S. Constitution directing state legislatures to appoint presidential-vice presidential electors. Consent is not required for the agreement since it does not encroach upon federal powers. The California legislature for the second time enacted the agreement, but it was again vetoed by Gov. Arnold Schwarzenegger, who wrote: “Such a significant change should be voted on by the people.” Proponents lacked the required two-thirds vote in each house to override the veto. Six state legislatures and the District of Columbia Council, which combined have 76 electoral votes, have enacted the agreement and both houses in four additional states have approved it.

The Interstate Nurse Licensure Compact, enacted by 24 states as of 2010, allows a nurse licensed by a state to work in other compact states. The national shortage of nurses resulted in hospitals relying more heavily on traveling nurses. Pro Publica in 2010 investigated the compact and reported its officers do not keep records on nurses sanctioned by their respective primary states for misconduct elsewhere in the U.S.

Interstate Administrative Agreements

State legislatures enacted numerous laws granting authority to heads of state departments and agencies to enter into administrative agreements with their counterpart in other states. The agreements may be formal contracts, informal written contracts or verbal agreements. The consent requirement is not applicable to the agreements since they are not enacted into law.

The National Governors Association and the National Conference of State Legislatures drafted the Streamlined Sales and Use Tax Agreement, and 19 states launched it, with the cooperation of sellers, in 2005. The agreement simplifies the collection of sales taxes by establishing uniform standards facilitating collection of uncollected sales and use tax revenues on the products sold by electronic commercial transactions. Twenty states were full members and three states were associate members in 2010.

State attorneys general continued to file joint class-action lawsuits resulting in a number of favorable decisions in 2008, 2009 and 2010. There were four 2008 decisions, including: (1) a suit filed by 18 states against a South Carolina company that claimed to help delinquent taxpayers reduce their debt, (2) a suit filed by 14 states and the Federal Trade Commission against businesses taking advantage of the economic downturn to defraud consumers, (3) a suit filed by nine states against the U.S. Environmental Protection Agency for its rule exempting the discharge of pollutants in “transfer waters” from permitting requirements, and (4) a suit by 33 states against Eli Lilly for improperly marketing Zyprexa to patients who did not have schizophrenia or bipolar disorder. Thirty-five states and the Federal Trade Commission won their suit in 2010 against Lifelock, which claimed it could protect any person against identity theft.

In 2010, the 50 attorneys general investigated bank foreclosures of mortgages, and 38 state and the District of Columbia attorneys general examined the unauthorized collection of personal data from wireless computer networks by Google’s street view vehicles. Google admitted it collected and stored payload data from unencrypted networks, but not from encrypted networks.

The National Governors Association Center for Best Practices and the Council of Chief School Officers in April 2010 issued Common Core State Standards in English language arts and mathematics designed to improve the quality, cost effectiveness and comparability of state assessments of student progress. Proficiency standards currently vary from one state to another. Twenty-seven states adopted the standards within two months of their issue. Only Alaska, Texas, and Virginia announced they would not adopt the standards.

States that adopt the standards may opt for additional standards.

The Western States Contracting Alliance, composed of state purchasing directors of 15 states, continues to promote cooperative multistate purchasing. The Eastern Regional Conference of The Council of State Governments in 1989 organized the Northeast Recycling Council through a memorandum of agreement with 10 states. The council seeks to minimize the amount of materials requiring disposal, and organized the State Electronic Challenge to reduce the adverse environmental impact of computers by purchasing green computers to lower energy consumption, and to recycle them when they become outmoded. Nine states and 27 local governments were members of the challenge as of 2010.

The Western States Climate Initiative, composed of 11 states and Canadian provinces, in 2010 was developing a cap-and-trade initiative to reduce greenhouse gas emissions by 15 percent by 2020. The initiative will trade an estimated $21 billion worth of allowances annually.

Double taxation can be a problem in a federal system. Fifteen states and the District of Columbia have reciprocal state tax agreements with other states providing taxpayers with credit for income taxes paid to sister states, political subdivisions, the District of Columbia and Canadian provinces.

In 2010, Maine, New Hampshire and Vermont pest control officers were engaged in a cooperative program to stop the spread of the hemlock wooly adelgid, first detected in Vermont in 2007, by using a fungi and a natural predator beetle. New York and Vermont signed an administrative agreement to replace a new bridge over Lake Champlain closed for safety reasons; and Massachusetts Gov. Deval Patrick and Rhode Island Gov. Don Carcieri signed an administrative agreement to coordinate proposed wind power projects in a designated 400 square miles of federal waters 12 miles southwest of Martha’s Vineyard and 20 miles within Rhode Island Sound.

Utah in 1995 modified its concealed firearm permits rules by waiving residency and other requirements, thereby permitting holders of a Utah permit to carry weapons in 32 sister states that recognize Utah permits or are party to reciprocity agreements with Utah. The U.S. Supreme Court’s ruling in 2010 holding the Second Amendment to the U.S. Constitution guarantees the right of an individual to bear arms applies to state and local laws made holding a Utah license attractive to numerous gun owners. Approximately one-half of the 241,811 Utah permits by midyear were held by nonresidents.

The Merrimack River Anadromous Fish Restoration program is a cooperative effort by Massachusetts, New Hampshire and the U.S. government to restore salmon, eels, herring and shad to the river. The agreement in 2010 had very limited success in restoring salmon, but has considerable success with shad.

The Chesapeake Bay Program is a federal-state partnership of six states, the District of Columbia and concerned federal agencies to improve water quality. President Barack Obama expressed his unhappiness with the program and issued Executive

Order 13508 on May 12, 2009. It established a federal leadership committee, chaired by the administrator of the U.S. Environmental Protection Agency, to develop strategies and program plans for the watershed and ecosystem of the bay.

The National Governors Association in 2010 selected Colorado, Hawaii, Massachusetts, North Carolina, Utah and Wisconsin to participate jointly in its policy academy on state building efficiency retrofit programs that include such measures as air sealing, appliance replacement, insulation, lighting upgrades, replacement of heating or hot water systems, and window replacements.

Full Faith and Credit

Section 1 of article IV of the U.S. Constitution requires each state to accord full faith and credit to “the public acts, records, and judicial proceedings of every other state.” Congress is authorized to prescribe the manner in which documents are to be proved “and the effect thereof.”

Same-Sex Marriage

In 1996, Congress responded to the 1994 decision of the Hawaiian Supreme Court opining same-sex couples had the right to marry by enacting the Defense of Marriage Act of 1996 defining a marriage as a union of one man and one woman, and thereby allowing each state to decline to extend full faith and credit to a same-sex couple who married in another state. The constitutionality of this act was challenged in court in 2010.

The 2003 decision of the Massachusetts Supreme Judicial Court authorizing same-sex marriages reopened the controversy. In 2008, the Connecticut Supreme Court issued a similar decision, and the Iowa Supreme Court invalidated a 1998 law defining a marriage as between one man and one woman.

The California Supreme Court in 2008 struck down Proposition 22 of 2000, approved by 61 percent of the voters, banning same-sex marriages.Proponents of the ban placed Proposition 8 restoring the ban on the Nov. 4, 2008, ballot and voters approved the proposition. The California Supreme Court in 2009 rejected a challenge to the proposition,but opined the 16,000 same-sex couples who married prior to its decision are legally married.Wisconsin voters in 2006 approved a constitutional amendment banning same-sex marriage and its constitutionality was upheld by the state supreme court in 2010.

In 2008, voters in Arizona and Florida also approved constitutional amendments prohibiting same-sex marriages. Arkansas voters in the same year ratified a proposition banning the adoption of children by same-sex couples. New York Gov. David A. Paterson in 2009 issued an executive order directing state departments and agencies to recognize same-sex marriages performed in sister states.

The 2009 Vermont General Assembly, by a one-vote margin, overrode Gov. James Douglas’s veto of a bill allowing same-sex marriage, and became the first state legislature to authorize this type of marriage. The Maine State Legislature one month later enacted a same-sex marriage law and Gov. John Baldacci signed it. The New Hampshire General Court in 2009 enacted a same-sex marriage law after amending the first version of the bill, at the insistence of Gov. John Lynch, to exempt religious organizations and their employees from having to participate in such a marriage. Maine voters in November 2009 employed the protest referendum to repeal the same-sex marriage act.

The District of Columbia City Council in 2009 approved an ordinance recognizing same-sex marriages performed in sister states and foreign nations. Congress failed to act on the ordinance during the 30 days it had to review it. In contrast, the New York Senate in 2009 and the New Jersey Senate in 2010 each rejected a same-sex marriage bill. Judge Joseph L. Tauro of the U.S. District Court for the District of Massachusetts in 2010 invalidated as unconstitutional a section of the Defense of Marriage Act of 1996 that forbids the federal government to recognize same-sex marriages because the act forces Massachusetts to discriminate against same-sex couples in order to receive certain federal grants. The judge opined the section violated the Tenth Amendment that reserves powers to the states.

Civil Union

In 2000, the Vermont General Assembly authorized civil unions of same-sex couples, and its lead has been followed the state legislature in Connecticut, New Hampshire and New Jersey. Hawaii Gov. Linda Lingle in 2010 vetoed a bill authorizing same-sex civil unions on the ground such a union “is essentially same-sex marriage by another name.”

A civil union entered into in one state can create a legal morass if the same-sex couple seeks a divorce in a state with no legal provision for such a divorce. In 2006, a Vermont court dissolved the first civil union in the state, and in 2007 the family court dissolved the civil union of two Virginia women who traveled to Vermont to enter into a union and who subsequently were engaged in a four-year legal battle over custody of the child conceived by one of the woman through in-vitro fertilization. Their civil union was terminated by a Vermont court in 2007.

Another same-sex couple traveled to Vermont in 2003 to enter into a civil union. The couple separated and one traveled to Vermont to have the union annulled, but was informed she must reside in the state for one year prior to applying for an annulment. She returned to New York and sought an annulment in the state supreme court (a trial court) and the judge ruled there was no legal authority to dissolve such a union. She appealed to the Appellate Division of the Supreme Court, which overturned the lower court judgment in 2010. Wisconsin Attorney General J.B. Van Hollen in 2009 announced he would not defend a law granting same-sex couples spousal benefits, including hospital visits and inheritance, on the ground the legislature acted against voters’ decision not to extend the privileges. He noted the state constitution prohibits a same-sex couple to have a legal status “substantially similar” to marriage. In 2010, the Appellate Division of the New York Court of Appeals ruled New York has the authority to annual a civil union entered into in a sister state.

Other Developments

Nonharmonious state regulatory and tax statutes create problems for individuals and businesses operating on a multistate basis. Michigan has a refundable 10 cent deposit on beer, soft drink and other beverage containers, while other states with such a deposit set it at 5 cents. Michigan in 2008 discovered that many persons who purchased soft drinks in Indiana, Ohio and Wisconsin redeemed the containers in Michigan, thereby resulting in a revenue loss of at least $10 million.

In 2009, Judge Paul A. Magnuson of the U.S. District Court in Jacksonville, Fla., issued a ruling to resolve a dispute involving Alabama, Florida and Georgia by requiring Atlanta to stop withdrawing water from Lake Lanier, a large federal reservoir, within three years unless Atlanta obtains the approval of Congress. The dispute involved a 2003 water-sharing agreement with the U.S. Army Corps of Engineers allowing Georgia to take more water from the lake for drinking purposes. Alabama and Florida maintained the lake had been built for hydropower and providing water to Georgia was not authorized. The judge specifically ruled the corps abused its discretion in authorizing the withdrawal of additional water from the lake, and noted the lake was not constructed for water supply purposes and Georgia’s withdrawals were illegal. He did not order an immediate halt of water withdrawal because the lake is the main source of Atlanta’s water.

A Massachusetts judge ruled in 2007 that electronic highway tolls systems, such as E-Z Pass, which grant a discount only to state residents, does not violate the interstate commerce clause. Massachusetts Superior Court Judge Allan van Gestet rejected Carol Suprenant’s claim that discounted tolls by Massachusetts Turnpike Authority and Massachusetts Port Authority for residents of one

Boston area relative to one toll bridge and two tunnels violated the clause because only a minimal burden is placed on the right to interstate travel.

Surprenant, the plaintiff and a Rhode Island resident, responded by filing a suit in the U.S. District Court for the District of Massachusetts alleging violation of her rights guaranteed by the U.S. Constitution’s privileges and immunities clause and the dormant interstate commerce clause. The court in 2010 (2010 WL 786306) allowed the defendants’ motion to dismiss as to the plaintiff’s privileges and immunities claim because she failed to prove her right to travel is a fundamental one. The court denied the defendants’ motion to dismiss the dormant commerce clause claim by observing, based on the record, “the court cannot say that she has failed to plead a violation of the dormant Commerce Clause.” The court allowed 90 days for discovery and the filing of additional briefs by the parties to address the issues raised by the court.

The New York Department of Law and the Pennsylvania Department of Environmental Protection in 2010 filed suit against Edison Mission, the owner of a massive coal-fired power plant in Homer City, Pa., for violating the federal Clean Air Act of 1970 by annually producing in excess of 100,000 tons of sulfur dioxide, nitrogen oxides and particulates.

New Hampshire Gov. John Lynch in 2010 signed Bill 5 into law, relieving New Hampshire businesses of having to question their customers relative to whether they reside in another state or plan to use an item purchased in a state with a sales and use tax. The law was prompted by recent efforts of the Massachusetts revenue commissioner to collect taxes for sales made to state residents doing business in New Hampshire.

Summary and Conclusions

Interstate relations generally continue to be cooperative despite the occasional filing by a state of a petition seeking to invoke the U.S. Supreme Court’s original jurisdiction to resolve an interstate controversy. Such petitions may become more common, especially in arid areas, with respect to river water allocation. Furthermore, disharmonious state regulatory laws will continue to encourage Congress to pre-empt state regulatory powers.

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