More Foreign Compacts!

Last week, I blogged about my recent symposium contribution, examining what role the Executive plays in U.S. state agreements with foreign governments, whether national or sub-national in character.  Since then, I’ve posted a much bigger piece that’s forthcoming in the Texas Law Review — Unpacking the Compact Clause (you can download it here).  Building on my earlier work, this article examines actual U.S. state practice and questions whether the Constitution contains one or two Compact Clauses.  Here’s the abstract:

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.