Congressional Consent and the ICJ
The Compact Clause of the U.S. Constitution states, “No State shall, without the consent of Congress, . . . enter into any agreement or compact with another State . . . .” U.S. Const. art. I, § 10, cl. 3. Although a strict reading of the Compact Clause appears to require congressional consent for every compact, the Supreme Court has determined that “any agreement or compact” does not mean every agreement or compact. Instead, the Compact Clause is triggered only by those agreements that would alter the balance of political power between the states and federal government, intrude on a power reserved to Congress, or alter the balance of political power between the compacting states and non-compacting states. Virginia v. Tennessee, 148 U.S. 503, 518 (1893) (“agreements which may tend to increase and build up the political influence of the contracting States, so as to encroach upon or impair the supremacy of the United States . . . .”)
Though congressional consent is not required for all compacts, congressional consent for the ICJ was granted through the federal Crime Control Act of 1934 which provides, “The consent of Congress is hereby given to any two or more States to enter into agreements or compacts for cooperative effort and mutual assistance in the prevention of crime and in the enforcement of their respective criminal laws and policies, and to establish such agencies, joint or otherwise, as they may deem desirable for making effective such agreements and compacts.” 4 U.S.C. § 112(a) (2012). Congressional action taken in the 1950s also indicates congressional consent. In 1954, Congress was spurred to action to address concerns regarding “a vast army of wandering kids being shuttled from place to place.” The U.S. Senate Juvenile Delinquency Subcommittee launched an extensive investigation, which drew even more attention when findings became the subject of a Parade Magazine article, entitled “Nobody’s Children: How America’s 300,000 Runaway Teenagers Get the Runaround.” Ross, S. & Keister, E. (1954, September) Nobody’s Children. Parade Magazine, 8-13. This investigation conducted by U.S. Senate Juvenile Delinquency Subcommittee led to the development of the Interstate Compact on Juveniles in 1955, which was the predecessor to the current Interstate Compact for Juveniles.
No court has specifically determined that the federal Crime Control Act and/or US Senate Juvenile Delinquency Subcommittee action provide congressional consent for the ICJ. See discussion infra Section 1.4. Nonetheless, the states have long understood the important role in the interstate transfer of supervision of both adults and juveniles who have committed offenses which in the case are referred to as crimes if committed by adults or which are categorized as acts of delinquency if committed by a juvenile. Although it does not explicitly mention juveniles, both the adult and juvenile compacts agree that the Crime Control Act provides express consent for the for the Interstate Compact for Adult Offenders (“ICAOS”) and implied congressional consent in the case of the Interstate Compact for Juveniles.
The control of crime through the lawful transfer of supervision of a criminal offender on probation or parole, as well as the return of such offenders when they abscond, was a central purpose of the Interstate Compact on Probation and Parole (ICPP) and its successor compact the Interstate Compact for Adult Offender Supervision (ICAOS). Because the purpose of the ICPP and ICAOS are to control and prevent crimes through the transfer of supervision of offenders convicted of crimes and returning them to states from which they have absconded, the Extradition Clause of the U.S. Constitution is implicated in that both compacts are alternatives to extradition under the Constitution. See U.S. Const. art. IV, § 2, cl. 2. Therefore, the invocation of the consent of Congress, granted by means of the Crime Control Act, is essential. This was the rationale of the District of Columbia Court of Appeals in the case of In Re O.M., in which the Court considered the underlying purposes of the predecessor compact to the current ICJ and determined that “the Compact was created and adopted by the states precisely because the Extradition Clause of the Constitution did not operate [regarding supervision transfers] with respect to juveniles.” 565 A.2d 573, 582-583 (D.C. 1989). This rationale is the same as that cited in support of the determination for Congressional Consent granted to the Interstate Compact for Adult Offenders. See Doe v. Pa. Bd. of Prob. & Parole, 513 F.3d 95, 99, 103 (3rd Cir. 2008); M.F. v. N.Y. Exec. Dept. Div. of Parole, 640 F.3d 491, 493 (2nd Cir. 2011); Carchman v. Nash, 473 U.S. 716, 719 (1985).
Consent can be implied when actions by the states and federal government indicate that Congress has granted its consent even in the absence of a specific legislative act. See Virginia v. Tennessee, 148 U.S. 503, 524-25 (1893)[2] As noted above, the states believed they were acting with congressional consent pursuant to the Crime Control Act, 4 U.S.C.§ 112 (1934) and have specifically premised the enactment of the ICJ on the recognition that the federal act authorized such compacts and incorporated it by reference in the compact statute enacted by all 50 states, the District of Columbia, and the U.S. Virgin Islands. See Interstate Compact for Juveniles, art. I (2008).
Further, the process of drafting the ICJ and assisting states in the replacing the prior compact with the ICJ was supported and funded largely by a governmental grant from the U.S. Department of Justice, Office of Juvenile Justice and Delinquency Prevention (OJJDP). See Press Release, Council of State Gov’ts, States Enact New Juvenile Compact (Mar. 24, 2003) (on file with author) (“The Council of State Governments and the federal Office of Juvenile Justice and Delinquency Prevention have led the effort to draft the new compact which will more effectively facilitate state autonomy and national cooperation in the supervision transfer process of juveniles.”). In addition, the OJJDP has continued to publicize and support the work of the ICJ. Congress is not only aware of the ICJ but has solicited input from the ICJ administrators concerning the reauthorization of the Juvenile Justice and Delinquency Prevention Act and the inclusion of specific reference to the ICJ exemption concerning the detention of runaways on several occasions. See JJDPA Deinstitutionalization of Status Offender Provision, 34 U.S.C. 11133 (a) 11 (A) (III). Moreover, while the ICJ has been in effect since 2008, no action has been taken by Congress which is inconsistent with the presumption of congressional consent as invoked in the compact statutes enacted by every state in the union.
Thus, it seems clear that congressional consent to the ICJ can be readily implied. It is also important to note that the presumption of congressional consent has never been legally challenged or judicially determined to be inapplicable. The control of crime through the orderly transfer of supervision, as an alternative to extradition of both adult offenders on parole and probation and their juvenile ‘counterparts,’ is the rationale articulated by the Court in In Re O.M., 565 A.2d 573, 582-583 (1989), and is the same as that cited in support of the determination for congressional consent granted to the Interstate Compact for Adult Offenders. See Doe v. Pa. Bd. of Prob. & Parole, 513 F.3d 95, 99, 103 (3rd Cir. 2008); M.F. v. N.Y. Exec. Dep’t Div. of Parole, 640 F.3d 491, 493 (2nd Cir. 2011); Carchman v. Nash, 473 U.S. 716, 719 (1985).
States’ amendment of a compact with consent requires Congress’ consent to the amendment. See, e.g., Joint resolution granting consent to amendments to the compact between Missouri and Illinois, Pub. L. 112-71, 125 Stat. 775 (2011); Int’l Union of Operating Eng’rs, Local 542 v. Del. River Joint Toll Bridge Comm’n, 311 F.3d 273, 280 n.7 (3rd Cir. 2002) (suggesting that where a compact contains no provision for amendment, congressional consent to any modification would be necessary).
[2]See also Waterfront Comn. of New York Harbor v. Construction & Marine Equipment Co., Inc., 928 F. Supp. 1388, 1402 (W. Dist. NJ 1996) (“Actual consent may be express or implied, and may be given before or after the states enter into the agreement. See Cuyler v. Adams, 449 U.S. at 441 & n. 9, 101 S.Ct. at 708 & n. 9.
PRACTICE NOTE:
Article X., C of the Revised ICJ authorizes the Interstate Commission for Juveniles to propose amendments to the Revised ICJ for the states to adopt, and all compacting states must enact the amendment before it becomes effective. Congressional consent to an amendment would not be necessary unless the amendment conflicts with a condition of Congress’s consent under the Crime Control Act or any actions that support Congress’s implied consent.