The Constitution of the United States of America: Analysis and Interpretation Part 36

Subject Matter of Interstate Compacts

For many years after the Const.i.tution was adopted, boundary disputes continued to predominate as the subject matter of agreements among the States. Since the turn of the twentieth century, however, the interstate compact has been used to an increasing extent as an instrument for State cooperation in carrying out affirmative programs for solving common problems. The execution of vast public undertakings, such as the development of the Port of New York by the Port Authority created by compact between New York and New Jersey, flood control, the prevention of pollution, and the conservation and allocation of water supplied by interstate streams, are among the objectives accomplished by this means.[1785] Another important use of this device was recognized by Congress in the act of June 6, 1934,[1786] whereby it consented in advance to agreements for the control of crime. The first response to this stimulus was the Crime Compact of 1934, providing for the supervision of parolees and probationers, to which forty-five States had given adherence by 1949.[1787] Subsequently Congress has authorized, on varying conditions, compacts touching the production of tobacco, the conservation of natural gas, the regulation of fis.h.i.+ng in inland waters, the furtherance of flood and pollution control, and other matters.

Moreover, since 1935 at least thirty-six States, beginning with New Jersey, have set up permanent commissions for interstate cooperation, which have led to the formation of a Council of State Governments ("Cosgo" for short), the creation of special commissions for the study of the crime problem, the problem of highway safety, the trailer problem, problems created by social security legislation, etc., and the framing of uniform State legislation for dealing with some of these.[1788]

Consent of Congress

The Const.i.tution makes no provision as to the time when the consent of Congress shall be given or the mode or form by which it shall be signified.[1789] While the consent will usually precede the compact or agreement, it may be given subsequently where the agreement relates to a matter which could not be well considered until its nature is fully developed.[1790] The required consent is not necessarily an expressed consent; it may be inferred from circ.u.mstances.[1791] It is sufficiently indicated, when not necessary to be made in advance, by the approval of proceedings taken under it.[1792] The consent of Congress may be granted conditionally "upon terms appropriate to the subject and transgressing no const.i.tutional limitations."[1793] And in a recent instance it has not been forthcoming at all. In Sipuel _v._ Board of Regents,[1794] decided in 1948, the Supreme Court ruled that the equal protection clause of Amendment XIV requires a State maintaining a law school for white students to provide legal education for a Negro applicant, and to do so as soon as it does for applicants of any other group. Shortly thereafter the governors of 12 Southern States convened to canva.s.s methods for meeting the demands of the Court. There resulted a compact to which 13 State legislatures have consented and by which a Board of Control for Southern Regional Education is set up. Although some early steps were taken toward obtaining Congress's consent to the agreement, the effort was soon abandoned, but without affecting the cooperative educational program, which to date has not been extended to the question of racial segregation.[1795] Finally, Congress does not, by giving its consent to a compact, relinquish or restrict its own powers, as for example, its power to regulate interstate commerce.[1796]

Grants of Franchise to Corporation by Two States

It is competent for a railroad corporation organized under the laws of one State, when authorized so to do by the consent of the State which created it, to accept authority from another State to extend its railroad into such State and to receive a grant of powers to own and control, by lease or purchase, railroads therein, and to subject itself to such rules and regulations as may be prescribed by the second State.

Such legislation on the part of two or more States is not, in the absence of inhibitory legislation by Congress, regarded as within the const.i.tutional prohibition of agreements or compacts between States.[1797]

Legal Effect of Interstate Compacts

Whenever, by the agreement of the States concerned and the consent of Congress, an interstate compact comes into operation, it has the same effect as a treaty between sovereign powers. Boundaries established by such compacts become binding upon all citizens of the signatory States and are conclusive as to their rights.[1798] Private rights may be affected by agreements for the equitable apportionment of the water of an interstate stream, without a judicial determination of existing rights.[1799] Valid interstate compacts are within the protection of the obligation of contracts clause and specific enforcement of them is within the original jurisdiction of the Supreme Court.[1800] Congress also has authority to compel compliance with such a compact.[1801]

ADDENDUM

Nor may a State read herself out of a compact which she has ratified and to which Congress has consented by pleading that under the State's const.i.tution as interpreted by the highest State court she had lacked power to enter into such an agreement and was without power to meet certain obligations thereunder. The final construction of the State const.i.tution in such a case rests with the Supreme Court.[1802]

Notes

[1] 4 Wheat. 316, 405 (1819).

[2] _See_ pp. 378-379.

[3] 206 U.S. 46, 82 (1907).

[4] 4 Wheat. at 407.

[5] Ibid. 411.

[6] Ibid. 421.

[7] 2 Story, Commentaries, -- 1256. _See also_ ibid. ---- 1286 and 1330.

[8] 1 Pet. 511 (1828).

[9] Ibid. at 542.

[10] Ibid. 543.

[11] Prigg _v._ Pennsylvania, 16 Pet. 539, 616, 618-619 (1842).

[12] Juilliard _v._ Greenman, 110 U.S. 421, 449-450 (1884). _See also_ Justice Bradley's concurring opinion in Knox _v._ Lee, 12 Wall. 457, 565 (1871).

[13] United States _v._ Jones, 109 U.S. 513 (1883).

[14] United States _v._ Kagama, 118 U.S. 375 (1886).

[15] Fong Yue Ting _v._ United States, 149 U.S. 698 (1893).

[16] Hines _v._ Davidowitz et al., 312 U.S. 52 (1941).

[17] 299 U.S. 304 (1936).

[18] Ibid. 315, 316-317, 318 _pa.s.sim_. For antic.i.p.ations of this conception of the powers of the National Government in the field of foreign relations, _see_ Penhallow _v._ Doane, 3 Dall. 54, 80, 81 (1795); _also_ ibid. 74 and 76 (argument of counsel); _also_ Chief Justice Taney's opinion in Holmes _v._ Jennison, 14 Pet. 540, 575-576 (1840).

[19] Locke, Second Treatise on Government, Chapter XI -- 141 (1691).

[20] 276 U.S. 394 (1928).

[21] Ibid. 405, 406.

[22] Wayman _v._ Southard, 10 Wheat. 1 (1825).

[23] The Brig Aurora, 7 Cr. 382 (1813).

[24] Wayman _v._ Southard, 10 Wheat. 1, 42 (1825).

[25] Suns.h.i.+ne Anthracite Coal Co. _v._ Adkins, 310 U.S. 381, 398 (1940); United States _v._ Rock Royal Co-operative, 307 U.S. 533, 577 (1939).

[26] United States _v._ Rock Royal Co-operative, 307 U.S. 533, 576 (1939).

[27] Schechter Poultry Corp. _v._ United States, 295 U.S. 495, 539 (1935); Opp Cotton Mills _v._ Administrator, 312 U.S. 126, 144 (1941); American Power & Light Co. _v._ Securities & Exchange Comm., 329 U.S.

90, 107, 108 (1946). _Cf._ Wichita R. & L. Co. _v._ Public Utilities Comm., 260 U.S. 48, 59 (1922).

[28] New York Cent. Securities Corp. _v._ United States, 287 U.S. 12, 24 (1932).

[29] Federal Radio Commission _v._ Nelson Bros. Bond & Mortgage Co., 289 U.S. 266, 285 (1933); National Broadcasting Co. _v._ United States, 319 U.S. 190, 225 (1943); Federal Communications Commission _v._ Pottsville Broadcasting Co., 309 U.S. 134, 138 (1940).

[30] Lichter _v._ United States, 334 U.S. 742, 783 (1948).

[31] Panama Refining Co. _v._ Ryan, 293 U.S. 388 (1935); Schechter Poultry Corp. _v._ United States, 295 U.S. 495 (1985).

[32] United States _v._ Rock Royal Co-operative, 307 U.S. 533 (1939); Suns.h.i.+ne Anthracite Coal Co. _v._ Adkins, 310 U.S. 381 (1940); Bowles _v._ Willingham, 321 U.S. 503, 514 (1944); Yakus _v._ United States, 321 U.S. 414, 424 (1944).

[33] Fahey _v._ Mallonee, 332 U.S. 245 (1947).

[34] Ibid. 250.