Governor Sebelius, Cuba & The Compact Clause

I’ve been spending more time than is probably healthy over the last year researching the Compact Clause.  Article 1, Section 10 of the Constitution prohibits U.S. states from entering into any “treaty, alliance or confederation” and bans them “without the consent of Congress” from entering “into any agreement or compact with another state, or with a foreign power.”  The Supreme Court has had its way with these provisions in the context of interstate compacts, interpreting “any agreement” to only mean “some agreements”, namely those that threaten the unity or supremacy of the federal government.  And most (with a few notable exceptions like Ed Swaine and his dormant treaty power thesis) have assumed that the Court’s rationale extends to compacts or agreements with foreign powers.  That might explain the results of my own research, where I’ve only found 5 instances in which Congress has specifically consented to a foreign compact (2 on fire fighting assistance; 2 on emergency management assistance; and 1 for the Niagara River Peace Bridge) plus the International Bridge Act, 33 U.S.C. 535a, which authorizes trans-border bridge deals with Canadian provincial and Mexican state governments more generally.

On the other hand, my research assistants and I have found reports (or the actual texts) of more than 300 separate written agreements between U.S. states and foreign national or sub-national governments.  From this, I gather that some U.S. states appear quite comfortable self-interpreting the Court’s doctrinal gloss on the Compact Clause and using it to justify state autonomy in concluding foreign agreements.  Indeed, there’s little evidence that Congress is even aware of, let alone has approved, any of these deals, which range from sister-state arrangements to agreements managing shared resources, to commitments with more political overtones like this one.

Now, one of my projects is to challenge the conventional wisdom that equates interstate and foreign compacts, and explain why, even if interstate compacts can frequently occur without congressional oversight and approval, the same should not be true for foreign agreements.  I’ll save for a later post a fuller exposition of my argument.  But, for now, I want to highlight one of the reasons I’ve launched this project–uncovering what U.S. states have actually done under the current operation of the Compact Clause.

Enter Governor Sebelius.  Here’s a report from the Jan. 13, 2004 Wichita Eagle (via Westlaw) of her signature on Kansas’s behalf of a 2003 pact with Cuba’s state food purchasing agency, Alimport:

Gov. Kathleen Sebelius has signed a joint communique with Cuba’s largest food importer, hoping to increase trade between Kansas and the island country.  Under the deal, the Empresa Comercializadora de Alimentos, also known as Alimport, will spend $10 million on Kansas agricultural products.  In return, Kansas will try to promote business opportunities in the Cuban market and encourage normalization of trade relations between the United States and Cuba.

The communique is nonbinding but signals an intent by both sides to do business, said Patty Clark, director of the agricultural marketing division of the Kansas Department of Commerce and Housing. The accord could have been made without Sebelius’ participation, but the governor wanted to sign it “to add weight and influence to the negotiation process on behalf of Kansas companies,” Clark said. Pedro Alvarez, chairman and chief executive of Alimport, hailed the communique, which was signed by Sebelius on Dec. 9 but not publicly announced by Sebelius’ office. Kansans learned of the agreement when it was announced by Cuba’s Radio Rebelde.

Clark said the agreement was similar to others the state has pursued with other countries, such as Taiwan. She said $10 million was a benchmark, and Alimport could exceed it. The communique was worked out after three trips by state officials and Kansas agricultural producers to Cuba and Mexico to build relations with Alimport, Clark said. Kansas products, such as wheat and flour, already have been exported to Cuba since some trade restrictions were relaxed with Cuba in 2001.

The communique calls on state officials to encourage the Kansas congressional delegation to repeal remaining trade and travel restrictions with Cuba, and to help secure visas for Alimport guests to travel to Kansas.

Now, analogizing to the existing Compact Clause doctrine for interstate compacts, Governor Sebelius can probably invoke the “non-binding” label to explain why Kansas didn’t need to take this deal to Congress (In Northeast Bancorp, the Court suggested a legally binding agreement is required to constitute a compact). Moreover, it’s not like Kansas couldn’t lobby the federal government for changes in Cuba policy on its own. But, do these defense make sense where, non-binding label or no, the “deal” here appears to have involved an agreement to purchase $10 million in Kansas goods in return for Kansas representing Cuba’s interests from within the U.S. political system? Historically, one of the primary reasons for the Compact Clause was to preserve the Union from foreign corrupting influences. Now, surely Cuba can lobby the federal government directly via diplomatic or other means. But, does Cuba get to make deals with U.S. states to do such lobbying for it, without any monitoring or oversight from the federal government? Indeed, I presume that the federal government would internalize Kansas calls for changes in U.S. Cuba policy differently depending on whether or not it had any knowledge of this deal. Of course, Kansas did not publicize its deal, and I still can’t find the actual text. On the other hand, in 2005, Kansas’s Lt. Governor Moore did trumpet Kansas’s push for a change in U.S. policy toward Cuba.

I’m interested in reader reactions. Is this illegitimate behavior by a state of the United States? If not, should we revisit the idea of having Congress exercise more oversight over state agreements with foreign governments, regardless of whether they are characterized as political or legal commitments? And, of course, there’s the elephant in the room; the constitutionality of the act aside–does Kansas’s actions in 2003 impact this 2008 decision in any way?