The Elusive Foreign Compact

I’ve just posted a piece I did for Peggy’s (great) Missouri v. Holland conference last year, entitled The Elusive Foreign Compact.  Granted I’m weeks (if not months) behind other participants in getting my contribution posted (see, e.g., here and here).  Hopefully, however, this is a case of better late than never.  For those who might be interested, here’s the abstract:

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.