INTRODUCTION
Interstate compacts are not new legal instruments; they are rooted in the nation’s colonial past where agreements similar to modern compacts were utilized to resolve inter-colonial controversies, particularly boundary disputes. The colonies and crown employed a process by which disputes were negotiated and submitted to the crown through the Privy Council for final resolution. This created a long tradition of resolving state disputes through negotiation followed by submission of the proposed resolution to a central authority for its concurrence. The modern “compact process” was formalized in the Articles of Confederation, Article VI, which provided: “No two or more states shall enter into any treaty, confederation or alliance whatever without the consent of the United States in Congress assembled, specifying accurately the purposes for which the same is to be entered into, and how long it shall continue.”
The Founders were so concerned with managing interstate relations, and the creation of powerful political and regional allegiances, that they barred states from entering into “any treaty, confederation or alliance whatever” without the approval of Congress. The Founders also constructed an elaborate scheme for resolving interstate disputes. Under the Articles of Confederation, Article IX, Congress was to “be the last resort on appeal in all disputes and differences now subsisting or that hereafter may arise between two or more States concerning boundary, jurisdiction or any other causes whatever[.]”
The concern over unregulated interstate cooperation continued during the drafting of the U.S. Constitution and resulted in the adoption of the “Compact Clause” found in Article I, § 10, cl. 3. This clause provides that “No state shall, without the consent of Congress… enter into any agreement or compact with another state, or with a foreign power[.]” While the literal meaning of the foregoing clause appears to require that the consent of Congress is necessary for every interstate compact, the U.S. Supreme Court has clarified that the Constitution bars states from entering into compacts without congressional consent only where the agreement affects the balance of power between the states and the federal government, or threatens the prerogatives of the national government. E.g., Northeast Bancorp, Inc. v. Board of Governors of the Federal Reserve System, 472 U.S. 159, 176 (1985) Cuyler v. Adams, 449 U.S. 433, 451 (1981); New Hampshire v. Maine, 426 U.S. 363 (1976); Virginia v. Tennessee, 148 U.S. 503, 519 (1893) (Supreme Court affirmed the principle that only those compacts affecting the “political balance” of the federal system require consent but also that such consent may be implied after the fact). Unlike the Articles of Confederation, however, in which interstate disputes were resolved by appeal to Congress, the Constitution vests ultimate resolution of interstate disputes in the Supreme Court either under its original jurisdiction or through the appellate process. For a thorough discussion on the history of interstate compacts from their origins to the present, see generally, Michael L. Buenger & Richard L. Masters, The Interstate Compact on Adult Offender Supervision: Using Old Tools to Solve New Problems, 9 Roger Williams U. L. Rev. 71 (2003); Felix Frankfurter & James M. Landis, The Compact Clause of the Constitution–A Study in Interstate Adjustments, 34 Yale L.J. 685 (1925); Michael L. Buenger, Jeffrey B. Litwak; Richard (Rick) L. Masters; & Michael H. McCabe, The Evolving Use Law and Use of Interstate Compacts: A Practitioner’s Guide (2016).