Unpacking the compact clause

Texas Law Review

Volumn 88, Issue 4, 2010, Pages 741-806

  Hollis, Duncan B ^a  

^a TEMPLE UNIVERSITY   (United States)

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EID: 78649314650     PISSN: 00404411     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (504)

1. Sebelius Ready to Do Business with Cubans, WICHITA EAGLE, Jan. 13, 2004, at 4B.
2. See Scott Rothschild, Sebelius Signs Trade Pact with Cuba, HAVANA JOURNAL, Jan. 15, 2004, http://havanajournal.com/business/entry/sebelius-signs- trade-pact-with-cuba/ (stating that the deal obligated Alimport to spend "$10 million on Kansas agricultural products").
3. The joint communiqué - which Kansas officials subsequently characterized as "nonbinding" - " 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." Rothschild, supra note 2;
4. see also Agricultural Sales to Cuba Keep Rising Despite Embargo & Administration Policy Crackdown, NOTICEN: CENT. AM. & CARIBBEAN AFF., Apr. 1, 2004, available at 2004 WLNR 21985029 (describing a 2003 agreement between Kansas Governor Kathleen Sebelius and Alimport, which "binds the Governor to work with the state's congressional delegation to abolish trade and travel restrictions").
5. See Press Release, Office of the Governor of Kan., Lt. Gov. Moore Announces Sale of Kansas Wheat to Cuba (Feb. 11, 2005), LEXIS, News Library, USFDNW File (announcing a $3 million sale of Kansas wheat to Cuba, emphasizing that "[i]t is vital we have less restrictions in dealing with Cuba," and supporting Kansas Congressman Moran's bill to repeal such restrictions). Neither the House bill - nor a companion Senate version - received substantial congressional attention.
6. See History of Bills, H.R. 719, 109th Cong. (2005);
7. History of Bills, S. 238, 109th Cong. (2005) (both reporting no action taken on the bill except the addition of co-sponsors).
8. For a history of U.S.-Cuba relations, see generally DONNA RICH KAPLOWITZ, ANATOMY OF A FAILED EMBARGO: U.S. SANCTIONS AGAINST CUBA (1998) and LOUIS A. PÉREZ JR., CUBA AND THE UNITED STATES: TIES OF SINGULAR INTIMACY (2d ed. 2003).
9. U.S. CONST. art. I, § 10, cl. 1.
10. Id. cl. 3 (emphasis added).
11. The Kansas - Cuba deal or others like it may explain a bill Representative Peter Deutsch of Florida introduced in the U.S. House of Representatives the day before the Kansas - Cuba agreement, December 8, 2003;
12. it would have imposed a 100% tax on amounts received from trading with Cuba "if there [was] an agreement or understanding that such person [would] directly or indirectly lobby Congress to lift trade or travel restrictions on Cuba." Anti-Communist Cooperation Act of 2003, H.R. 3670, 108th Cong. (2003). The bill never made it out of committee.
13. See id. (reporting no action taken on the bill).
14. Such Executive silence stood in marked contrast to earlier opposition to a proposed Cuba - Florida trade agreement. See infra note 295 and accompanying text.
15. See, e.g., Northwest Wildland Fire Protection Agreement, Pub. L. No. 105-377, 112 Stat. 3391 (1998) (approving an FSA among four U.S. states, three Canadian provinces, and one Canadian territory);
16. Northeastern Interstate Forest Fire Protection Compact, Pub. L. No. 82-340, 66 Stat. 71 (1952) (authorizing Canadian provincial participation, which survived the statute's repeal pursuant to 16 U.S.C. § 1647(b) (2006)), repealed by Pub. L. No. 95-307, 92 Stat. 353, 356 (1978).
17. See, e.g., International Bridge Act of 1972, 33 U.S.C. § 535a (2006) (authorizing FSAs by U.S. border states on transboundary bridges).
18. See Duncan B. Hollis, The Elusive Foreign Compact, 73 MO. L. REV. 1071, 1075-78 (2008) (reviewing four subjects of congressional consent - bridges, firefighting, highways, and emergency management - and noting that the six FSAs that actually resulted all relate to U.S. border-state coordination of resource sharing with Canadian and Mexican counterparts);
19. supra notes 10-11 (citing statutes authorizing bridges and firefighting FSAs). Congress disavowed Canadian provincial participation in the 1968 Great Lakes Basin Compact. Pub. L. No. 90-419, 82 Stat. 414 (1968).
20. In its only sustained analysis of the topic, the State Department found the Compact Clause implicated by a 2001 Memorandum of Understanding between Missouri and Manitoba but declined to opine firmly on its constitutionality. Memorandum from William H. Taft, IV, Legal Adviser, Dep't of State, to Senator Byron L. Dorgan (Nov. 20, 2001) (on file at http://www.state.gov/s/l/22720.htm) [hereinafter Legal Adviser Compact Memo]. In the interest of full disclosure, I worked on earlier versions of this Memorandum during my 1998-2004 tenure in the State Department's Office of the Legal Adviser.
21. In 1995, Maryland's Attorney General considered the relevant constitutional limits and found them inapplicable to a proposed Maryland agreement with the World Health Organization. 80 Op. Md. Att'y Gen. 48, 49-52 (1995), available at http://www.oag.state.md.us/Opinions/1995/80OAG48.pdf [hereinafter Maryland AG Opinion].
22. Most scholars incorrectly assume that Congress has not approved an FSA in the last 40 years.
23. See, e.g., Peter R. Jennetten, State Environmental Agreements with Foreign Powers, 8 GEO. INT'L ENVTL. L. REV. 141, 168 n.163 (1995) (suggesting that congressional approval has not been sought for any FSA since 1968);
24. Edward T. Swaine, Does Federalism Constrain the Treaty Power?, 103 COLUM. L. REV. 403, 497 (2003) (suggesting that there have been no congressionally approved FSAs since 1957). But Congress has not ceased approving foreign compacts. In 1998, it consented to Canadian provincial participation alongside U.S. states in the Pacific Northwest Emergency Management Assistance Arrangement. Pub. L. No. 105-381, 112 Stat. 3402 (1998). More recently, in 2007, Congress approved Canadian participation in an International Emergency Management Assistance Memorandum of Understanding (IEMA). Pub. L. No. 110-171, 121 Stat. 2467 (2007). Julian Ku recently reviewed some examples of FSAs but did so largely to advance his theory of gubernatorial foreign policy. Julian G. Ku, Gubernatorial Foreign Policy, 115 YALE L.J. 2380, 2391-96 (2006).
25. Ne. Bancorp, Inc. v. Bd. of Governors of the Fed. Reserve Sys., 472 U.S. 159, 175-76 (1985);
26. see also U.S. Steel Corp. v. Multistate Tax Comm'n, 434 U.S. 452, 473 (1978) (defining interference with federal supremacy in terms of agreements that bind states (a) to exercise powers they could not exercise in the absence of the agreement;
27. (b) to adopt rules or regulations they would be otherwise free to reject; and (c) to not withdraw from the agreement);
28. New Hampshire v. Maine, 426 U.S. 363, 369-70 (1976) (distinguishing states' commitments to precisely locate a preexisting boundary line by giving effect and meaning to prior consent decree from an "agreement or compact" within the meaning of the Compact Clause);
29. Virginia v. Tennessee, 148 U.S. 503, 520-21 (1893) (declaring that states' selection of parties to settle a boundary dispute and subsequent legislative adoption does not amount to a "compact" or "agreement" between the states unless the boundary established leads to an increase or decrease in the political power of the states affected).
30. See Maryland AG Opinion, supra note 14, at 51 ("Congressional approval is required only for those agreements directed at ⋯ forming a combination that tends to increase the political power of the states and that tends to encroach upon or interfere with the just supremacy of the United States.");
31. infra notes 112-22 and accompanying text (detailing entities and sources that have understood the Court's interstate compact doctrine to apply to all compacts). To date, Edward Swaine appears as the lone, modern proponent of differentiating foreign and interstate compacts to fulfill his vision of a dormant treaty power.
32. See generally Edward T. Swaine, Negotiating Federalism: State Bargaining and the Dormant Treaty Power, 49 DUKE L.J. 1127, 1224 (2000) (arguing that case law differentiates between foreign and interstate compacts);
33. see also Comment, The Power of the States to Make Compacts, 31 YALE L.J. 635, 638 (1922) (proclaiming that compacts between individual states and foreign powers are subject to "fatal objections" and are "obviously ⋯ vast[ly] differen[t]" from interstate compacts).
34. See supra note 3.
35. My research was collected using publicly available online records during 2008 and is available on request. The states concluded 334 FSAs directly with foreign national or subnational governments;
36. an additional six were concluded by groupings of U.S. states (e.g., the New England Conference of Governors) with foreign governments.
37. For example, Congress has approved two FSAs on transboundary firefighting cooperation. Northwest Wildland Fire Protection Agreement, Pub. L. No. 105-377, 112 Stat. 3391 (1998);
38. Northeastern Interstate Forest Fire Protection Compact, Pub. L. No. 82-340, 66 Stat. 71 (1952), repealed by Pub. L. No. 95-307, 92 Stat. 353, 356 (1978). In 1984, however, the Great Lakes states concluded their own firefighting compact with neighboring Canadian provinces without congressional approval.
39. See R. Bruce Sackinger, Paradiplomatic Maneuvers on the Longest Undefended Border, 13 WILLAMETTE J. INT'L L. & DISP. RESOL. 319, 343-44 (2005) (describing a "rather informal" compact between Minnesota, Wisconsin, Michigan, Manitoba, and Ontario).
40. See U.S. CONST. art. I, § 8, cl. 3 ("The Congress shall have Power ⋯ To regulate Commerce with foreign Nations, and among the several States ⋯ ."); Kraft Gen. Foods, Inc. v. Iowa Dep't of Revenue & Fin., 505 U.S. 71, 79 (1992) ("[C]onstitutional prohibition against state taxation of foreign commerce is broader than the protection afforded to interstate commerce ⋯ .");
41. Japan Line, Ltd. v. County of L.A., 441 U.S. 434, 448 (1979) (asserting that despite the parallel phrasing of the foreign and interstate commerce clauses "there is evidence that the Founders intended the scope of the foreign commerce power to be the greater").
42. See, e.g., PHILIP BOBBITT, CONSTITUTIONAL INTERPRETATION 12-13 (1991) (describing six "modalities" of constitutional interpretation: historical, textual, structural, doctrinal, ethical, and prudential).
43. In this respect, my work represents an extension of the scholarship challenging the centrality of judicial decision making to constitutional interpretation.
44. See, e.g., LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW 8 (2004) (advocating a return to popular control over constitutional law as was envisioned by the founders);
45. MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS 6-7 (1999) ("Legislators took an oath to support the Constitution - the Constitution, not the Supreme Court. What the Constitution means is not necessarily what the Supreme Court says it means.");
46. J.M. Balkin & Sanford Levinson, The Canons of Constitutional Law, 111 HARV. L. REV. 963, 1023 (1998) (criticizing current constitutional canons and encouraging the adoption of new canons that better reflect current political and social movements);
47. Ernest A. Young, The Constitution Outside the Constitution, 117 YALE L.J. 408, 411 (2007) ("[M]uch - perhaps even most - of the 'constitutional' work in our legal system is in fact done by legal norms existing outside what we traditionally think of as 'the Constitution.'").
48. See, e.g., Judith Resnik, Categorical Federalism: Jurisdiction, Gender, and the Globe, 111 YALE L.J. 619, 620 (2001) (expounding on categorical federalism's presumption of the mutually exclusive nature of state and federal lawmaking).
49. See supra notes 10-15 and accompanying text.
50. Another development - the ongoing revisionist movement in U.S. foreign affairs law - provides a third reason for revisiting the Compact Clause. Since 1997, scholars have undertaken a nearly systematic reconsideration of the constitutional interpretations of U.S. foreign relations proffered in the RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES (1987).
51. See, e.g., Curtis A. Bradley & Jack L. Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 HARV. L. REV. 815, 835-36 (1997) (criticizing the RESTATEMENT (THIRD) as lacking adequate support for the assertion that courts regard customary international law as federal common law that is binding on the states). This Article contributes to that movement by challenging orthodox understandings of the Compact Clause.
52. See EMER DE VATTEL, THE LAW OF NATIONS § 113, at 338 (Béla Kapossy & Richard Whatmore eds., Liberty Fund 2008) (1758) ("Public treaties can only be made by superior powers, by sovereigns who contract in the name of the state.").
53. See S.S. Wimbledon (Gr. Brit. v. Ger.), 1923 P.C.I.J. (ser. A) No. 1, at 25 (June 28) ("[T]he right of entering into international engagements is an attribute of State sovereignty.");
54. A. MCNAIR, THE LAW OF TREATIES 755 (1961) ("Fifty years ago it might have been possible to say that only States could conclude treaties, but today any such statement would be out of date.").
55. See Jose E. Alvarez, The New Treaty Makers, 25 B.C. INT'L & COMP. L. REV. 213, 216 (2002) ("From 1970 to 1997, the number of international treaties more than tripled.").
56. See, e.g., ANTHONY AUST, MODERN TREATY LAW AND PRACTICE 26 (2000) (describing the rise of memorandums of understanding between nations as a product of the realization that the large volume of international transactions cannot all be embodied in treaties);
57. COMMITMENT AND COMPLIANCE: THE ROLE OF NON-BINDING NORMS IN THE INTERNATIONAL LEGAL SYSTEM 10-11 (Dinah Shelton ed., 2000) (noting that the memorandum of understanding has become a regular practice in international legal regimes as a way of circumventing political, economic, and legal constraints of formal treaty making);
58. MCNAIR, supra note 28, at 6 (asserting that heads of state will frequently concur in declarations of policy that are not legal obligations between the states but are regarded as morally and politically binding); Michael Bothe, Legal and Non-legal Norms - A Meaningful Distinction in International Relations?, 11 NETH. Y.B. INT'L L. 65, 65 (1980) ("[A] considerable body of state practice ⋯ points to the existence of non-legal (pre-legal, para-legal, moral, political) obligations as distinguished from legal ones.");
59. Pierre Michel Eisemann, Le Gentleman's agreement comme source du droit international, 106 J. DROIT INT'L 326, 331-33 (1979) (Fr.) (giving examples of several "gentlemen's agreements" in European history and noting that what links these informal political agreements is their focus on specific policy goals);
60. Duncan B. Hollis & Joshua J. Newcomer, "Political" Commitments and the Constitution, 49 VA. J. INT'L L. 507, 511 (2009) (highlighting political commitments between nations as a popular alternative to treaties when nations do not want to or cannot create legal obligations);
61. Oscar Schachter, Comment, The Twilight Existence of Nonbinding International Agreements, 71 AM. J. INT'L L. 296, 296 (1977) (illustrating how countries will support an international agreement, even with extensive requirements, specifically because the agreement is considered not legally binding). Alternatively, states may opt to use contracts for their agreements, where the binding character is a function of one or more domestic laws. Hollis & Newcomer, supra, at 518-19.
62. Shanghai Communiqué, U.S.-P.R.C., Feb. 27, 1972, 11 I.L.M. 443;
63. Conference on Security and Cooperation in Europe: Final Act, Aug. 1, 1975, DEP'T ST. BULL., Sept. 1975, 323 [hereinafter Helsinki Accords];
64. Declaration of Principles, Known as the Atlantic Charter, by the President of the United States of America and the Prime Minister of the United Kingdom, Aug. 14, 1941, 55 Stat. 1603 [hereinafter Atlantic Charter];
65. see also Press Release, The White House, Declaration on Environment and Climate Change (July 8, 2008), available at http://www.america.gov/st/ texttransenglish/2008/July/20080708114240bpuh5.363101e-02.html (detailing the G8 members' commitment to seek 50% reductions in global greenhouse-gas emissions by 2050).
66. Anthony Aust, The Theory and Practice of Informal International Instruments, 35 INT'L &COMP. L.Q. 787, 788 (1986);
67. see also CONG. RESEARCH SERV., COMM. ON FOREIGN RELATIONS U.S. SENATE, 106TH CONG., TREATIES AND OTHER INTERNATIONAL AGREEMENTS: THE ROLE OF THE UNITED STATES SENATE 63 (Comm. Print 2001) [hereinafter SFRC REPORT] (asserting that political commitments "are often used, and often evoke expectations of compliance from affected states");
68. Hollis & Newcomer, supra note 30, at 540-44 (describing the evolution of political commitments).
69. See Duncan B. Hollis, Why State Consent Still Matters - Non-state Actors, Treaties, and the Changing Sources of International Law, 23 BERKELEY J. INT'L L. 137, 160-65 (2005) (discussing the treaty-making capacities of supranational and extranational actors).
70. See Peter J. Spiro, Foreign Relations Federalism, 70 U. COLO. L. REV. 1223, 1224 (1999) [hereinafter Spiro, Federalism] ("The nation has been disaggregated, so that the channels of contact across national boundaries are now myriad where they used to be singular.");
71. see also Peter J. Spiro, Globalization and the (Foreign Affairs) Constitution, 63 OHIO ST. L.J. 649, 670 (2002) [hereinafter Spiro, Globalization] (concluding that globalization dilutes "the necessity of central government responsibility"). Although subject to multiple definitions, I refer to globalization here in the sense of increasing transnational movements of capital, goods, people, and ideas. Less costly information, more trade, and greater movement of people have all contributed to new webs of subnational and non-national interactions.
72. See, e.g., Richard B. Bilder, The Role of States and Cities in Foreign Relations, 83 AM. J. INT'L L. 821, 821 (1989) ("[M]ore than 1,000 U.S. state and local governments of all political stripes are participating in foreign affairs, and their numbers are expanding.");
73. Earl H. Fry, The New International Cities Era, in THE NEW INTERNATIONAL CITIES ERA 5, 7 (Earl H. Fry et al. eds., 1989) (noting the efforts of American and Canadian subnational units to attract foreign investment abroad);
74. Ku, supra note 15, at 2392 (asserting that states use bilateral cultural-exchange agreements to enhance economic relationships with foreign countries);
75. Michael Shuman, Dateline Main Street: Courts v. Local Foreign Policies, FOREIGN POL'Y, Spring 1992, at 158, 158 ("The explosive growth of municipal foreign policy in the past decade has been impressive ⋯ .");
76. Spiro, Federalism, supra note 34, at 1248 (reporting that many states have concluded "trade-related agreements with foreign entities").
77. Hollis, supra note 33, at 146-47. When subnational actors conclude unauthorized agreements, the responsible sovereign will frequently take steps to adopt or reject it;
78. otherwise, the legal status of such agreements remains murky. Id. at 150-51. Of course, the other potential treaty partners must also accept the subnational actor's treaty-making capacity in order for them to produce a legally binding instrument.
79. Id. at 151-54.
80. Id. at 146.
81. CHRIS WHATLEY, COUNCIL OF STATE GOV'TS, STATE OFFICIAL'S GUIDE TO INTERNATIONAL AFFAIRS 3 (2003);
82. see also John Kinkaid, The American Governors in International Affairs, PUBLIUS, Fall 1984, at 95, 102 (observing that the involvement of American governors in international affairs "has increased significantly since the 1950s" and noting that this trend started with the state delegation led by Hodges in 1959).
83. See, e.g., Sudan Accountability and Divestment Act of 2007, Pub. L. No. 110-174, §§ 3(b), (d), 121 Stat. 2516, 2518 (authorizing states to divest their assets from companies investing in Sudan in certain sectors);
84. Medellín v. Texas, 552 U.S. 491, 498 (2008) (finding that Texas was not required to comply - directly or at the President's direction - with the decision of the International Court of Justice on the rights of a Mexican national defendant facing execution under Texas law);
85. Am. Ins. Ass'n v. Garamendi, 539 U.S. 396, 401 (2003) (holding that a California statute requiring insurers doing business in the state to disclose information about policies sold in Europe between 1920-1945 was preempted by the federal government's foreign policy, including that reflected in several executive agreements); Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 366 (2000) (holding that a Massachusetts statute restricting state agency procurement from companies doing business with Burma was preempted by federal statute);
86. Bilder, supra note 35, at 821-22 (describing the involvement of state and local governments in foreign relations);
87. Curtis A. Bradley, A New American Foreign Affairs Law?, 70 U. COLO. L. REV. 1089, 1097-1100 (1999) (discussing the increased involvement of state and local governments in foreign affairs);
88. Ku, supra note 15, at 2397 (discussing governors acting in cooperation with state legislatures to further "gubernatorial foreign policy");
89. Spiro, Federalism, supra note 34, at 1247 (discussing "diplomatic controversy and constitutional litigation concerning state and local sanctions against companies doing business in Burma").
90. See Hollis, supra note 12, at 1076 (describing the limited number of congressionallyapproved FSAs as between border states and their corresponding "transboundary region").
91. See id. (identifying only four categories of FSAs that Congress has approved: bridges, highways, firefighting, and emergency management).
92. See supra notes 10-12 and accompanying text.
93. My analysis is limited, however, solely to government-to-government agreements;
94. it does not cover agreements U.S. states may make with foreign corporations or other nongovernmental actors, nor does it cover agreements by U.S. territories (e.g., Puerto Rico or Guam) with foreign governments.
95. See supra note 19.
96. See supra notes 2-3 and accompanying text.
97. The chart lists 335 FSAs and includes those approved by Congress. For the remaining five FSAs, the available data did not give sufficient information as to the date of the agreement for their inclusion.
98. See supra notes 10-12 and accompanying text.
99. See infra Figure 2.
100. See infra Figure 3.
101. See supra note 19.
102. See supra note 19. FSAs may also encompass agreement making by U.S. cities and municipalities. I assume for such purposes that the U.S. cities and municipalities operate as agents their respective states. Thus, these instruments pose the same questions about the constitutional limits of the treaty prohibition and the Compact Clause.
103. See supra note 19. The subnational category includes several agreements involving U.S. municipalities. In addition, one Californian FSA was with an international organization - the U.N. Development Program.
104. E.g., Memorandum of Understanding on Tourism Cooperation Between the State of Hawaii & the China National Tourism Administration of the People's Republic of China, Haw.-P.R.C., Apr. 3, 2006, http://www.hawaiireporter.com/ story.aspx?39ff83e4-da93-4abd-9961-76fdf9462a12[hereinafter China - Hawaii MOU];
105. Memorandum of Intent Between Israel and New Jersey Concerning a Joint Israel - New Jersey Program to Promote the Establishment of Environmental Management Systems, Isr.-N.J., Nov. 13, 1996, http://www.sviva.gov.il/ Enviroment/Static/Binaries/Articals/0496-1.pdf [hereinafter Israel-New Jersey MOI].
106. E.g., Partnership on Global Climate Change Action Between the United Kingdom and the State of Wisconsin, U.K.-Wis., May 12, 2008, http://www.wisgov.state.wi.us//docview.asp?docid=13713 [hereinafter UK-Wisconsin Partnership];
107. Memorandum of Understanding Between the State of Victoria and the State of California for Collaboration on Climate Change Action, Cal.-Vict., May 4, 2007, http://gov.ca.gov/pdf/press/070506-climate-change-document.pdf [hereinafter Victoria - California MOU]; Memorandum of Understanding, Alaska-Taiwan, Sept. 16, 2004, http://www.secinfo.com/d14D5a.15Z75.b.htm#1stPage [hereinafter Alaska-Taiwan MOU];
108. Memorandum of Intent Between the Republic of Moldova and the State of North Carolina, Mold.-N.C., Apr. 22, 1999, http://www.secretary.state.nc.us/ Partnership/memorandum.htm [hereinafter Moldova-North Carolina MOI];
109. Letter of Intent Between the Ministry of Housing, Spatial Planning [and the Environment of] the Netherlands and the Department of Environmental Protection, the
110. See supra notes 10-12 and accompanying text.
111. See, e.g., UK-Wisconsin Partnership, supra note 54 (climate change);
112. Victoria - California MOU, supra note 54 (climate change);
113. Memorandum of Understanding Between the Department of Education and the State of Kansas and the Office of Chinese Language Council International of the People's Republic of China, Kan.-P.R.C., Nov. 15, 2006, http://www.ksde.org/ LinkClick.aspx?fileticket=JGbaylRnvzg=&tabid=1751 (education);
114. China - Hawaii MOU, supra note 53 (tourism);
115. Alaska - Taiwan MOU, supra note 54 (energy);
116. 2001 Oil Spill Memorandum of Cooperation, Alaska-B.C.-Cal.-Haw.-Or.-Wash. , opened for signature May 8, 2001, http://www.oilspilltaskforce.org/memo- cooperation.htm [hereinafter Oil Spill Memorandum] (oil pollution);
117. Memorandum of Understanding Between the State of Missouri and the Province of Manitoba on their Shared Concerns About Water Transfers Between the Missouri & Hudson Bay Watersheds, Man.-Mo., Jan.25, 2001, http://gov.mb.ca/asset-library/en/documents/fedprovrelations/northamerica/ moumb-missouri-water-concernswo-signatures.pdf [hereinafter Missouri-Manitoba MOU] (water);
118. Memorandum of Understanding Between the State of Rio de Janeiro, Brazil, and Maryland, of the United States of America, Md.-Rio de Janeiro, Nov. 8, 1999, http://www.sos.state.md.us/International/mdss/RioMOU.pdf (sister-state agreement);
119. Moldova - North Carolina MOI, supra note 54 (military cooperation); Israel-New Jersey MOI, supra note 53 (environmental cooperation);
120. Transportation Cooperation Agreement Between the Province of British Columbia and the State of Washington, B.C.-Wash., Sept. 6, 1994, http://www.env.gov.bc.ca/spd/ecc/docs/annual-reports/jointstate94.pdf (transportation);
121. Quebec - Louisiana Agreement on Cultural Co-Operation, La.-Que., Sept. 8-11, 1969, Raymond S. Rodgers, Note, Conclusion of Quebec-Louisiana Agreement on Cultural Co - Operation, 64 AM. J. INT'L L. 380, 380 (1970) (culture and education);
122. News Release, State of Hawaii, Governor Lingle Signs Agricultural Cooperative Agreement with Israeli Government (May 20, 2004), available at http://hawaii.gov/gov/news/releases/2004/News-Item. 2004-05-20.2441 [hereinafter Hawaii-Israel Agreement on Agriculture and Aquaculture] (announcing a Hawaii - Israel agreement to foster cooperation on agriculture and aquaculture research and development).
123. In some cases, an FSA's coverage is not limited to a single subject. Where an FSA covers multiple subjects, it is counted in Figure 4 under each covered subject.
124. Given that multiple objectives so frequently undergird an individual FSA, I have not attempted to graph FSAs along these lines. I have also not attempted to separate out FSAs by their "commercial" vs. "public" purpose;
125. indeed, the Kansas - Cuba example suggests that even otherwise commercial deals may have ulterior motives. See supra notes 1-4 and accompanying text; infra text accompanying note 74.
126. See, e.g., Declaration of the Federated States and Regional Governments on Climate Change, Dec. 6, 2005, http://www.mddep.gouv.qc.ca/air/leaders/ Declaration-en.pdf (declaring a joint policy between Québec, Manitoba, Northwest Territories, Nunavut, State of Bavaria, Brussels-Capital, California, Catalonia, Connecticut, Maine, New Brunswick, New South Wales, Nova Scotia, Ontario, Scotland, South Australia, Upper Austria, Vermont, Victoria, Wallonia, Western Cape, Yukon, Burgenland, Carinthia, Wales, Flanders, Prince Edward Island, and North Rhine Westphalia to combat climate change).
127. United Kingdom and California Announcement on Climate Change and Clean Energy Collaboration, Cal.-U.K., July 31, 2006, http://gov.ca.gov/index.php/ fact-sheet/united-kingdomand-california-announcement-on-climate-change-clean- energy-c/ [hereinafter Schwarzenegger- Blair Agreement on Climate Change] (declaring a joint "mission statement" to "commit to urgent action to reduce greenhouse gas emissions and promote low carbon technologies"). The agreement also sought to establish an ongoing relationship that would work on specifically planned tasks. The two sides committed "to work to" evaluate and implement market-based mechanisms, share results from ongoing studies, collaborate on technical research, enhance linkages between their respective scientific communities, and "exchange of delegations" to develop and deploy clean energy technologies globally.
128. Id.
129. Posting of Duncan Hollis to Opinio Juris, http://opiniojuris.org/2006/08/ 02/when-is-an-agreement-not-an-agreement-the-blair-schwarzenegger-global- warming-pact/ (Aug.2, 2006, 15:14 EST).
130. See, e.g., Memorandum of Understanding on Environmental Cooperation Between the California Environmental Protection Agency, the California Department of Food and Agriculture, and the California Resources Agency of the State of California, United States of America and the Ministry of Environment and Natural Resources of the United Mexican States, Cal.-Mex., Feb. 13, 2008, http://gov.ca.gov/pdf/press/021308-MOU-English.pdf [hereinafter California - Mexico Environmental Cooperation MOU] (creating an agreement between the parties to develop a Joint Action Plan to implement cooperative goals of enhancing policies for environmental protection and sustainable resources);
131. Oil Spill Memorandum, supra note 57 (forming an agreement between participants on cooperation of agencies and support for an Oil Spill Task Force to address the common problem of oil spills in the Pacific);
132. Maryland - Israel Declaration of Cooperation, Isr.-Md., May 3, 1988, http://www.marylandisrael.org/pages/publications/marylandisrael-declaration- ofcooperation.php (pronouncing a general agreement to promote economic development between Maryland and Israeli businesses and research institutions).
133. Memorandum of Understanding, Alaska - Canada Rail Link Feasibility Study, Alaska-Can., Apr. 25, 2005, http://www.alaskacanadarail.org/documents/mou- final-april252005.pdf [hereinafter MOU, Alaska - Canada Rail Link Feasibility Study];
134. see also MOU Between the Instituto de Servicios de Salud Pública del Estado de Baja California, Mexico, and the Environmental Protection Agency of the State of California, United States of America, Relative to the Study of Lead in the Baja California Population, Can.-Mex., Oct. 30, 2001, http://www.calepa.ca.gov/Border/Documents/env-agreements-eng.pdf (declaring an agreement to develop and conduct a study of lead exposure in the Baja population).
135. International Carbon Action Partnership: Political Declaration, Oct. 29, 2007, http://www.icapcarbonaction.com/index.php?option=com-content&view= article&id=12&Itemid=4&lang=en [hereinafter ICAP Declaration]. U.S. state ICAP participation builds on two interstate initiatives: the Regional Greenhouse Gas Initiative (RGGI) and the Western Climate Initiative (WCI). The RGGI currently includes ten northeastern/Mid-Atlantic U.S. states. Regional Greenhouse Gas Initiative, http://www.rggi.org. The WCI began in 2007 among five western U.S. states and now includes seven U.S. states and four Canadian provinces. Western Climate Initiative, http://www.westernclimateinitiative.org/ history. The WCI has collaborated to set a regional goal for greenhouse gas emissions reductions and is pursuing plans for a regional cap-and-trade system. Design Recommendations for the WCI Regional Cap-and-Trade Program, http://www.westernclimateinitiative.org/document-archives/wci-design- recommendations; Western Climate Initiative, http://www. westernclimateinitiative.org/designing-the-program.
136. China - Hawaii MOU, supra note 53.
137. MOU Between the State of Queensland, Australia, and the State of South Carolina, United States, Regarding a Sister-State Friendship Agreement, Austl.-S.C., May 13, 1999 (on file with Texas Law Review) [hereinafter South Carolina - Queensland Agreement].
138. Memorandum of Understanding Between the Government of the State of Iowa of the United States of America and the Ministry of Foreign Affairs of the United Mexican States, R garding Consular Notification and Access in Cases Involving Minors, Iowa-Mex., Apr. 20, 2006, http://www.dhs.state.ia.us/ policyanalysis/PolicyManualPages/Manual-Documents/Master/17-C3%20T12.pdf;
139. see also Reciprocal Agreement Between the State of New York and Québec Concerning Drivers' Licenses & Traffic Offenses, N.Y.-Que., Feb. 4, 1988, http://www.canlii.org/qc/laws/regu/c-24.2r.0.1.2/20030530/whole. html [hereinafter New York-Québec Drivers License Agreement] (regulating
140. Great Lakes - St. Lawrence River Basin Sustainable Water Resources Agreement, Dec. 13, 2005, http://www.cglg.org/projects/water/docs/12-13-05/ Great-Lakes-St-Lawrence-River-Basin-Sustainable-Water-Resources-Agreement.pdf [hereinafter Great Lakes Agreement]. The same day, eight U.S. states agreed to a "Great Lakes-St. Lawrence River Basin Water Resources Compact" that Congress consented to as an interstate compact. Pub. L. No. 110-342, 122 Stat. 3739, S.J. Res. 45, 105th Cong. (2008);
141. see also Eight U.S. Great Lakes States, Ontario, and Quebec Conclude New Agreements to Limit Diversions of Water from Great Lakes Basin, 100 AM. J. INT'L L. 467, 468 (2006) (explaining that the second document approved on December 13, 2005, was a formal compact between the eight U.S. states that was subject to approval by Congress).
142. Thus, the interstate Great Lakes Compact creates a council that can determine common standards on managing the Great Lakes' water resources for U.S. states, subject to the advice of the regional body set up by the Great Lakes Agreement (which includes Canadian provincial participation). Great Lakes - St. Lawrence River Basin Water Resources Compact, Pub. L. No. 110-342, §§ 3.1, 4.7, 122 Stat. 3739, 3745-46, 3752 (2008);
143. Great Lakes Agreement, supra note 68, at arts. 500-506 (establishing the process for regional review of proposals). The Great Lakes Agreement itself, however, includes language that appears binding on both U.S. state and Canadian provincial "parties." See Great Lakes Agreement, supra note 68, at art. 200 ("The Parties shall adopt and implement Measures to prohibit New or Increased Diversions [of water from the Great Lakes Basin], except as provided for in this Agreement.").
144. See Mark Sobocienski, Protecting the Great Lakes in the Face of a Water Crisis: The Need for Immediate Ratification of the Great Lakes - St. Lawrence River Basin Water Resources Compact, and for an Amendment to the Boundary Waters Treaty of 1909, 21 ST. THOMAS L. REV. 478, 494-95 (2009) (arguing that a lack of effective regulation made the Great Lakes water vulnerable to misuse and acted like a "catalyst" for the new compact);
145. Sonia F. Palay, Note, Muddy Waters: Congressional Consent and the Great Lakes - St. Lawrence River Basin Water Resources Compact, 36 HASTINGS CONST. L.Q. 717, 719-24 (2009) (chronicling the numerous failed attempts at regulating the waters of the Great Lakes before the 2005 signing of the Great Lakes Agreement).
146. The United States never ratified the Kyoto Protocol and is now engaged in negotiations on a successor regime.
147. See, e.g., Sheryl Gay Stolberg, Pact on Gas Emissions Eludes Rich and Developing Nations, N.Y. TIMES, July 10, 2008, at A10 (discussing White House willingness to make only general commitments on combating climate change);
148. Letter from George W. Bush, President of the United States, to Chuck Hagel, Jesse Helms, Larry Craig, and Pat Roberts, U.S.Senators (Mar. 13, 2001) (on file at http://www.c-span.org/executive/bush-letter.asp?Cat=Current- Event&Code=Bush-Admin) (explaining Executive Branch and Senate opposition to Kyoto Protocol). In 2006, it had not accepted - and likely opposed - carbon markets.
149. See Steven Mufson, Companies Gear Up for Greenhouse Gas Limits;
150. Trading of Permits Grows as Congress Considers Caps, WASH. POST, May 29, 2007, at D01 (noting the Bush Administration's opposition to a capand-trade system). Congress has as yet been unable to legislate on the topic.
151. See, e.g., Eric Pooley, Why the Climate Bill Failed, TIME.COM, June 9, 2008, http://www.time.com/time/nation/article/0,8599,1812836,00.html (discussing Congress's inability to act on climate change).
152. Missouri - Manitoba MOU, supra note 57. Federal law supports the possibility of some such interbasin water transfers. E.g., Dakota Water Resources Act of 2000, Pub. L. No. 106-554, 114 Stat. 2763;
153. Garrison Diversion Unit Reformulation Act of 1986, Pub. L. No. 99-294, 100 Stat. 418.
154. MOU to Protect Water Resources Between the State of Minnesota and the Province of Manitoba, Man.-Minn., July 13, 2001, http://www.gov.mb.ca/chc/press/ top/2001/07/agreement.pdf.
155. See supra notes 1-4 and accompanying text.
156. I am not suggesting that individual members of Congress or the Executive are always in the dark about a state's foreign activities.
157. See, e.g., Legal Adviser Compact Memo, supra note 13, at 185 ("[T]he Department of State is aware that U.S. states often conclude various arrangements with foreign powers without congressional consent."). Indeed, Kansas's congressional delegation likely knew about the state government's agreement. But, I assume that those members have incentives to keep this information private to preserve more freedom of action for their state whenever possible.
158. Felix Frankfurter & James M. Landis, The Compact Clause of the Constitution - A Study in Interstate Adjustments, 34 YALE L.J. 685, 692, 730-32 (1925) (listing nine intercolonial boundary agreements). Without Crown approval, agreements would not bind the Crown. See id. at 692 ("[A]pproval of the Crown was required."). Alternatively, a colony might appeal directly to the Crown for a Royal Commission decision, subject to appeal to the Privy Council. Id. at 692-93.
159. Id. at 732-34. The Articles of Confederation also envisioned an alternative procedure for congressional arbitration of state-to-state disputes applicable when states could not reach agreement. MERRILL JENSEN, THE ARTICLES OF CONFEDERATION 180-81 (1940).
160. James Madison, Address to the Federal Convention, June 19, 1787, in 5 DEBATES ON THE ADOPTION OF THE FEDERAL CONSTITUTION 206, 207-08 (Jonathan Elliot ed., 2d ed. 1907) (1836) [hereinafter ELLIOT'S DEBATES] (arguing that compacts between the states without congressional approval would undermine the authority of the federal government); James Madison, Preface to Debates in the Convention of 1787, in 3 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 539, 548 (Max Farrand ed., 1911) (discussing the compacts between Pennsylvania and New Jersey and between Virginia and Maryland as a violation of federal authority).
161. ARTICLES OF CONFEDERATION art. VI, cl. 2.
162. Id. cl. 1 (emphasis added).
163. Abraham C. Weinfeld, What Did the Framers of the Federal Constitution Mean by "Agreements or Compacts?," 3 U. CHI. L. REV. 453, 455-56 (1935);
164. accord SAMUEL CRANDALL, TREATIES, THEIR MAKING & ENFORCEMENT 141 (1916) ("'[A]greement or compact' was intended to comprehend such agreements as had been considered by the States, under the Articles of Confederation, as not included under the terms 'treaty, confederation or alliance.'");
165. David E. Engdahl, Characterization of Interstate Arrangements: When Is a Compact Not a Compact, 64 MICH. L. REV. 63, 79-80 (1965) ("[The] Articles of Confederation ⋯ contained separate provisions concerning the diplomatic intercourse of individual states with foreign nations and with each other.").
166. See U.S. Steel Corp. v. Multistate Tax Comm'n, 434 U.S. 452, 460 n.10 (1978) ("Apparently, however, consent was not required for mere 'agreements' between States.");
167. Wharton v. Wise, 153 U.S. 155, 167 (1894) (upholding the validity of the 1785 Virginia - Maryland Agreement on navigation and fishing rights of their boundary, the Potomac River).
168. U.S. CONST. art. I, § 10, cl. 3 (emphasis added).
169. Id. cl. 1.
170. The first mention appears in a mark-up of a draft by James Wilson, apparently in Rutledge's handwriting. Draft from the Committee of Detail, in 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 78, at 129, 163 n.17. The original text in Section Ten simply read: "No State shall enter into any (A1) Treaty, Alliance [or] Confederation," which Rutledge changed to read: "No State shall enter into any Treaty, Alliance, Confederation with any foreign Power nor with[ou]t. Const. of U.S. into any agreem[ent] or compact w[it]h another State or Power ⋯ ." Id. at 169.
171. On August 6, 1778, the Committee of Detail delivered a draft Constitution to the Convention that, substantively, mirrors the actual Constitution, although the treaty prohibition and compact provisions each operated as stand-alone articles, rather than as parts of Article I. Compare Draft from the Committee of Detail, in 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 78, at 177, 187 (stating that Article XII prohibited states from entering into "any treaty, alliance, or confederation" while Article XIII provided "[n]o State, without the consent of the Legislature of the United States, shall ⋯ enter into any agreement or compact with another State, or with any foreign power"), and Draft from the Committee of Style, in 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 78, at 565, 577 (prohibiting, under Article XII, states f rom entering into "any treaty, alliance, or confederation" while Article XIII provided "[n]o State, without the consent of the Legislature of the United States shall ⋯ enter into any agreement or compact with another State, or with any foreign power"), with U.S. CONST. art. I, § 10, cl. 1 (prohibiting any state from entering into a "Treaty, Alliance, or Confederation" and "without the Consent of Congress, ⋯ enter[ing] into any Agreement or Compact with another State, or with a foreign Power" (emphasis added)).
172. THE FEDERALIST NO. 44, at 283 (James Madison) (Clinton Rossiter ed., 1961).
173. U.S. Steel Corp. v. Multistate Tax Comm'n, 434 U.S. 452, 461 n.11 (1978);
174. Weinfeld, supra note 81, at 454.
175. See Frankfurter & Landis, supra note 76, at 735-49 (listing interstate agreements through 1925 with congressional consent);
176. id. at 749-54 (listing interstate agreements through 1925 without congressional consent). Several early state court decisions, however, may have paved the way for the subsequent Supreme Court doctrine, finding that only those compacts interfering with Congress's powers or increasing the political power of the states needed approval.
177. See Union Branch R.R. Co. v. E. Tenn. & Ga. R.R. Co., 14 Ga. 327, 328 (1853) (holding that a contract or grant of a franchise is not political in character and thus does not need congressional consent);
178. Fisher v. Steele, 1 So. 882, 883 (La. 1887) (finding that a Louisiana statute authorizing a levee in Arkansas does not need approval because it does not overexpand the power of the state); Dover v. Portsmouth Bridge, 17 N.H. 200, 207 (1845) (holding that approval is not needed where the state agreement did not interfere with Congress's powers).
179. 148 U.S. 503 (1893).
180. Id. at 522. The case involved Virginia's request to set aside its 1803 boundary compact with Tennessee as unconstitutional since the two states had concluded it without congressional consent.
181. Id. at 517. The Court refused, reasoning that congressional consent could be "fairly implied" in light of subsequent legislation and proceedings relating to judicial, revenue, and federal elections law issues.
182. Id. at 521-22;
183. see also Green v. Biddle, 21 U.S. (8 Wheat.) 1 (1823) (implying congressional consent for the Virginia - Kentucky Compact of 1789 as a result of Kentucky's admission into the Union).
184. Virginia v. Tennessee, 148 U.S. at 519. In U.S. Steel Corp., the Supreme Court suggested that this distinction had its origins in a Georgia Supreme Court decision, Union Branch, 14 Ga. 327 (1853). 434 U.S. at 468. In Union Branch, the Georgia Supreme Court reasoned that the Compact Clause extended to restrain the power of the States only with respect to agreements that "might limit, or infringe upon a full and complete execution by the General Government, of the powers intended to be delegated by the Federal Constitution." 14 Ga. at 339.
185. Virginia v. Tennessee, 148 U.S. at 518. The court went on to treat "agreement" and "compact" as essentially synonymous. Id. at 520.
186. Id. at 518. Justice Field also differentiated an agreement to adopt a boundary line (which would require congressional consent) from an agreement to a process by which the line was drawn (which would not).
187. Id. at 520.
188. Frankfurter & Landis, supra note 76, at 691, 729;
189. Kevin J. Heron, The Interstate Compact in Transition, 60 ST. JOHN'S L. REV. 1, 2 (1985) see also Act of Aug. 23, 1921, ch. 77, 42 Stat. 174 (granting congressional consent to a compact establishing the Port of New York Authority);
190. THE COUNCIL OF STATE GOV'TS, INTERSTATE COMPACTS 1783-1977, at 5 (1977) (cataloging interstate compacts during the given time period, such as the New York - New Jersey Port Authority Compact, and providing citations for the relevant statutes).
191. See FREDERICK L. ZIMMERMANN & MITCHELL WENDELL, THE INTERSTATE COMPACT SINCE 1925, at 3-9 (1951) (describing how states have progressively used compacts to address boundary - jurisdictional, boundary - administrative, regional - administrative, administrative - exploratory-recommendatory, and administrative - regulatory concerns).
192. 426 U.S. 363, 369-70 (1976). Earlier cases had cited the federal-supremacy distinction with approval. E.g., North Carolina v. Tennessee, 235 U.S. 1, 16 (1914) (citing Virginia v. Tennessee when holding that the determination of the boundary line between North Carolina and Tennessee by commissioners from both states did not violate a previous, congressionally approved cession act concerning the two states, even though Congress did not explicitly approve of the commissioners' determination);
193. Stearns v. Minnesota, 179 U.S. 223, 246-48 (1900) (referencing Virginia v. Tennessee and its indication that states might be able to agree to certain matters without congressional consent); Louisiana v. Texas, 176 U.S. 1, 17 (1900) (recalling statements by Justice Field in Virginia v. Tennessee to the effect that "there are many matters on which the different states may agree that can in no respect concern the United States"). State courts meanwhile had long relied on Virginia v. Tennessee's federal supremacy test.
194. See, e.g., State v. Doe, 178 A.2d 271, 275 (Conn. 1962) ("Agreements relating to the care of the poor, made among the states pursuant to their statutes, are not compacts which challenge the supremacy of the United States ⋯ . They can be entered into without the consent of the Congress.");
195. Bode v. Barrett, 106 N.E.2d 521, 535-36 (Ill. 1952) (quoting Virginia v. Tennessee for the proposition that the Constitution prohibits compacts that interfere with federal supremacy), aff'd, 344 U.S. 583 (1953);
196. Gen. Expressways, Inc. v. Iowa Reciprocity Bd., 163 N.W.2d 413, 419-20 (Iowa 1968) (citing Virginia v. Tennessee, among others, for the proposition that "the constitutionality of interstate compacts ⋯ is tested by whether the compact is a combination tending to increase the political power of the state which may encroach upon or interfere with the supremacy of the United States");
197. Dixie Wholesale Grocery, Inc. v. Martin, 129 S.W.2d 181, 184 (Ky. 1939) (quoting Virginia v. Tennessee before holding that a reciprocal agreement between Kentucky and Ohio addressing tax evasion did not require congressional consent);
198. Roberts Tobacco Co. v. Dep't of Revenue, 34 N.W.2d 54, 57 (Mich. 1948) (citing Virginia v. Tennessee for saying that the constitutional prohibition "only applies to political alliances which may encroach upon the supremacy of the United States");
199. Ivey v. Ayers, 301 S.W.2d 790, 794-95 (Mo. 1957) (quoting from Virginia v. Tennessee, among other sources, to hold that "[a]ssuming that the Missouri Act constitutes a compact with another state, it does not increase or decrease political power, and therefore it is not void but at most is voidable");
200. Ham v. Me.-N.H. Interstate Bridge Auth., 30 A.2d 1, 3 (N.H. 1943) (declaring that although the Maine - New Hampshire Interstate Bridge Authority was formed by compact between two states, it did not encroach upon federal supremacy and as such, did not require congressional consent);
201. Landes v. Landes, 135 N.E.2d 562, 566 (N.Y. 1956) (citing Virginia v. Tennessee, among others, when holding that "the reciprocity mentioned in the California and New York Acts is not the result of an agreement or compact requiring the consent of Congress");
202. McHenry County v. Brady, 163 N.W. 540, 544-45, 547 (N.D. 1917) (holding that consent obtained by North Dakota county drainage boards from a Canadian municipality for the construction of a drain did not violate the Compact Clause, having quoted extensively from Virginia v. Tennessee and its progeny); Kinnear v. Hertz Corp., 545 P.2d 1186, 1190 (Wash. 1976) ("We therefore feel that it is appropriate to follow the test described in Virginia v. Tennessee.").
203. See Ne. Bancorp, Inc. v. Bd. of Governors of the Fed. Reserve Sys., 472 U.S. 159, 175-76 (1985) (holding that Massachusetts and Connecticut state banking deregulation statutes likely did not amount to a compact;
204. however, even assuming they did, no impact on U.S. federal structure existed given the statutes' compliance with the federal banking statute);
205. Cuyler v. Adams, 449 U.S. 433, 440-42 (1981) (indicating that a federal crime act constituted advance consent to an agreement between Pennsylvania and New Jersey on detainers);
206. U.S. Steel Corp. v. Multistate Tax Comm'n, 434 U.S. 452, 472-73 (1978) (reasoning that since the compact did not authorize member states to exercise powers they could not exercise in the absence of the compact, no enhancement of state power in relation to the federal government arose).
207. U.S. Steel Corp., 434 U.S. at 472. Michael Greve argues, however, the Court failed to follow this standard even as it proclaimed it, since it ruled against congressional consent by finding no actual conflict between the compact provisions and the federal norm. Michael S. Greve, Compacts, Cartels, and Congressional Consent, 68 MO. L. REV. 285, 306-07 (2003).
208. See U.S. Steel Corp., 434 U.S. at 472 (indicating that an administrative body, along with the multilateral agreement that established it, does not necessarily implicate the Compact Clause).
209. See id. at 479 n.33 ("Absent a threat of encroachment or interference through enhanced state power, the existence of a federal interest is irrelevant.").
210. 4B Op. Off. Legal Counsel 828, 830-31 (1980) (citing U.S. Steel Corp., 434 U.S. at 467-71;
211. Wharton v. Wise, 153 U.S. 155, 171 (1894)).
212. 434 U.S. 452 (1978).
213. Id. at 472-73.
214. See, e.g., Clark v. Allen, 331 U.S. 503, 516-17 (1947) (declining to find a compact where California law on succession rights to property by nonresident aliens turned on reciprocal rights in the aliens' country of residence or citizenship).
215. 472 U.S. 159 (1985).
216. Id. at 175.
217. See U.S. Steel Corp., 434 U.S. at 459-60 (recognizing that the Compact Clause "could not be read literally").
218. Greve, supra note 99, at 289 n.15.
219. See U.S. Steel Corp., 434 U.S. at 471 ("It is true that most multilateral compacts have been submitted for congressional approval. But this historical practice, which may simply reflect considerations of caution and convenience on the part of the submitting States, is not controlling.").
220. See Legal Adviser Compact Memo, supra note 13, at 184 ("Congress has been asked to consent to only a few foreign compacts involving U.S. states, leaving uncertain Congress' view of the scope of the Compact Clause."). None of the FSAs approved by Congress appear to otherwise threaten federal supremacy.
221. Id. But some do exhibit signs of the "classic indicia" the Court has invoked to define a compact. For example, the Northeastern Interstate Forest Fire Protection Compact allocates liability for expenditures, requires six months notice for withdrawal, and sets up a Commission to maintain common fire - protection services, with each member having a duty to "take such measures as may be recommended by the Commission." 113) See CONN. GEN. STAT. ANN. § 23-53 (West 2008) (authorizing the Governor of Connecticut to enter into the compact with other northeastern states as well as Canadian provinces and providing the text of the compact);
222. Jennetten, supra note 15, at 164-65 (summarizing the provisions of the compact and reviewing its legislative history before Congress).
223. See infra notes 116-17 and accompanying text.
224. See infra note 119 and accompanying text.
225. See infra note 120 and accompanying text.
226. E.g., LOUIS HENKIN, FOREIGN AFFAIRS AND THE U.S. CONSTITUTION 155 (2d. ed. 1996) ("Since the same language applies to foreign compacts, one might extend and adapt the [Virginia v. Tennessee] Court's distinction to such agreements as well.");
227. Ku, supra note 15, at 2395 (citing Virginia v. Tennessee for the proposition that "state governors may have the authority to make agreements with foreign governments that are never reviewed by the federal government");
228. Herbert H. Naujoks, Compacts and Agreements Between States and Between States and a Foreign Power, 36 MARQ. L. REV. 219, 233 (1953) ("[U]nder the Constitution a compact between one or more states and a foreign power is permissible and is on the same level as an ordinary compact between two states.");
229. see also, e.g., Noah D. Hall, Toward a New Horizontal Federalism, 77 U. COLO. L. REV. 405, 446 n.244 (2006) ("[C]ongressional consent may not be necessary for interstate compacts relating to matters in which the United States has no possible interest or concern or that do not increase the states' political power.");
230. Jennetten, supra note 15, at 153-54 (advocating that a state has the capacity to enter into a compact with a foreign state so long as the compact does not encroach upon a power held solely by the federal government); Raymond Rodgers, The Capacity of States of the Union to Conclude International Agreements, 61 AM. J. INT'L L. 1021, 1023 (1967) (suggesting that, under Virginia v. Tennessee, the consent of Congress may be unnecessary for compacts regarding boundary conservation). However, Professor Henkin did acknowledge that the "foreign element and the relevance to U.S. foreign relations might sometimes suggest a difference" between interstate and foreign compacts. HENKIN, supra, at 425 n.20;
231. see also Swaine, supra note 17, at 1224, 1229 n.353 (suggesting that all foreign compacts encroach on federal authority and require consent).
232. Legal Adviser Compact Memo, supra note 13, at 181-85.
233. Id.
234. The Legal Adviser's memo did raise certain questions about the utility of applying Northeast Bancorp's "classic indicia" to agreements between states and foreign governments, and asked if exceptions might exist to qualifying only legally binding agreements as compacts or agreements.
235. Id. at 186-88.
236. 163 N.W. 540 (N.D. 1917).
237. See id. at 547 (analogizing a drainage agreement to Justice Field's hypothetical purchase of property from Virginia in New York state). In addition, at least one lower federal court has ruled that reciprocal legislation by a state and foreign province - New York and Ontario - did not constitute a compact where it merely "grants to citizens of a foreign jurisdiction the same procedural remedies in New York courts as the foreign state grants to our citizens." Blouin v. Dembitz, 367 F. Supp. 415, 417 (S.D.N.Y. 1973) (interpreting the Uniform Support of Dependents Act), aff'd, 489 F.2d 488 (2d Cir. 1973).
238. See RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 302 cmt. f (1987) ("By analogy with inter-state compacts, a State compact with a foreign power requires Congressional consent only if the compact tends 'to the increase of political power in the States which may encroach upon or interfere with the just supremacy of the United States.'" (citing Virginia v. Tennessee, 148 U.S. 503, 519 (1893))).
239. Maryland AG Opinion, supra note 14, at 51. I have been unable, however, to determine if Maryland actually concluded the proposed agreement, let alone locate a copy of it.
240. See supra subpart I(B).
241. See Ne. Bancorp, Inc. v. Bd. of Governors of the Fed. Reserve Sys., 472 U.S. 159, 175 (1985) (noting the absence of the classic indicia of joint organization, conditional action, reciprocity, and legal restrictions on content and exit in the agreement between Connecticut and Massachusetts).
242. China - Hawaii MOU, supra note 53; Missouri-Manitoba MOU, supra note 57.
243. See MOU, Alaska - Canada Rail Link Feasibility Study, supra note 63, § 3 (defining the Committee's primary function as merely overseeing a group tasked with creating a "feasibility study"). However, the MOU does leave room for the parties to create additional "objectives and duties" for the Committee.
244. Id. § 9.
245. But see New York - Québec Drivers License Agreement, supra note 67, pts. 1-2 (detailing specific statutory schemes reciprocally adopted by Québec and New York respectively).
246. See Great Lakes Agreement, supra note 68, art. 700(2) ("This Agreement is not intended to infringe upon the treaty power of the United States of America, nor shall any term hereof be construed to alter or amend any treaty or term thereof that has been or may hereafter be executed by the United States of America.").
247. See Jennetten, supra note 15, at 144-45 ("In addition to enforceable compacts, many states have entered into non-binding environmental covenants with foreign powers. The Constitutionality of these unconsented covenants has not been challenged, and they provide states with another avenue of foreign relations power." (internal citation omitted)).
248. ICAP Declaration, supra note 64.
249. South Carolina - Queensland Agreement, supra note 66, at 1.
250. See supra section II(A)(2).
251. See supra subpart II(B).
252. U.S. CONST. art. I, § 10, cl. 3 (emphasis added).
253. See supra section II(A)(2) (discussing how interpretation of the Compact Clause has evolved away from interpreting the literal text to focus instead on interpreting it consonant with its presumed purpose).
254. See supra notes 76-77 and accompanying text.
255. See TIMOTHY J. SHANNON, INDIANS AND THE COLONISTS AT THE CROSSROADS OF EMPIRE: THE ALBANY CONGRESS OF 1754, at 108-09 (2000) (describing a dispute between parties in Pennsylvania and Connecticut over land involving Native Americans and noting that their conduct "was typical of Indian land purchases");
256. see also DOROTHY V. JONES, LICENSE FOR EMPIRE: COLONIALISM BY TREATY IN EARLY AMERICA 122 (1982) (describing the conflicting policies and attitudes of the states towards expansion into Indian lands during 1775-1786).
257. See FRANCIS JENNINGS, THE AMBIGUOUS IROQUOIS EMPIRE: THE COVENANT CHAIN CONFEDERATION OF INDIAN TRIBES WITH ENGLISH COLONIES FROM ITS BEGINNINGS TO THE LANCASTER TREATY OF1744, at 225-37 (1984) (describing the process leading up to the Susquehanna treaty and Pennsylvania's use of it to undermine New York's position);
258. Deed for the Susquehanna, 1700 (Sept. 13, 1700), available at http://www.hsp.org/files/susquehannadeed.pdf (transcribing the original deed for improved legibility).
259. See SHANNON, supra note 136, at 105-07 (describing how New England colonial governmental interests in forming an intercolonial union to manage Indian affairs sprang in part from disgust over New York's management of these matters).
260. See JAMES H. MERRELL, INTO THE AMERICAN WOODS: NEGOTIATORS ON THE PENNSYLVANIA FRONTIER 266 (1999) (indicating that the Crown created a superintendent of Indian affairs a decade after the 1754 Albany convention due to the elusiveness of a union on the matter). 140) See JENSEN, supra note 77, at 108 (indicating that under the Albany congressional plan, control over Indian affairs would be given to a central body);
261. FRANCIS PAUL PRUCHA, AMERICAN INDIAN TREATIES: THE HISTORY OF A POLITICAL ANOMALY 36-37 (1994) (indicating that Franklin relied on the ideas regarding management of Indian affairs in his 1754 plan and in his July 21, 1775 draft for a confederation). Despite the endorsement of Franklin's plan by those meeting in Albany, no colony ever ratified it. JENSEN, supra note 77, at 108.
262. BENJAMIN FRANKLIN, Papers Relating to a Plan of Union of the Colonies, in 3 THE WRITINGS OF BENJAMIN FRANKLIN 197, 208-11, 217-20 (A. Smyth ed., 1905); PRUCHA, supra note 140, at 36-37.
263. FRANKLIN, supra note 141, at 217 (emphasis added).
264. JENSEN, supra note 77, at 126.
265. See ARTICLES OF CONFEDERATION art. IV ("No Colony or Colonies, without the Consent of the United States assembled, shall ⋯ enter into any Treaty, Convention, or Conference with the King or Kingdom of Great-Britain, or any foreign Prince or State ⋯ ."); id. art. XVIII, at 550 ("The United States assembled shall have the sole and exclusive Right and Power of ⋯ Entering into Treaties and Alliances ⋯ and managing all Affairs with the Indians.").
266. Id. art. IV, at 547; see also PRUCHA, supra note 140, at 37-39 (noting that the Articles left open whether Native Americans required treatment as foreign sovereigns or dependent subjects and discussing inconsistent prior European approaches).
267. Compare ARTICLES OF CONFEDERATION art. VI ("No State, without the consent of the United States in Congress assembled, shall ⋯ enter into any conference, agreement, alliance or treaty with any King, Prince or State."), with id. art. IX ("The United States in Congress assembled, shall have the sole and exclusive right and power of entering into treaties and alliances ⋯ . Congress assembled shall also have the sole and exclusive right and power of ⋯ regulating the trade and managing all affairs with the Indians, not members of any of the States.").
268. U.S. CONST. art. I, § 10, cl. 1. On the other hand, the Articles of Confederation envisioned that a treaty, alliance, or confederation could be formed, not solely with foreign powers, but interstate as well.
269. See supra notes 79-81. One could, therefore, read the treaty-prohibition text as relevant in both foreign and interstate contexts. And since it did not bar the development of the Court's interstate compact doctrine, an argument exists that, by itself, the treaty prohibition would not bar a similar development for FSAs.
270. Louis Henkin has argued that the difference between treaties and compacts "has lost all practical significance" since Congress acquired a treaty-making capacity through the practice of congressional - executive agreements. HENKIN, supra note 115, at 153, 425 n.14. There are at least two problems with that assertion. First, it assumes a total equivalence between Article II treaties and congressional - executive agreements. But, if Missouri v. Holland has any continued relevance, there are some treaties the President and Senate may conclude that Congress cannot, which, in turn, might inform the scope of the Constitution's treaty prohibition.
271. See 252 U.S. 416, 433 (1920) ("It is obvious that there may be matters of the sharpest exigency for the national well being that an act of Congress could not deal with but that a treaty followed by such an act could ⋯ .");
272. see also Oona Hathaway, Treaties' End, 117 YALE L.J. 1236, 1247 (2008) (recognizing that congressional - executive agreements are not complete substitutes for Article II treaties). Second, Henkin appears to undervalue the possibility that Congress might deny its consent to a foreign agreement precisely because it decided the text constituted a prohibited treaty as opposed to opposing it for other, domestic public-policy reasons. Given these possibilities, the distinction between treaties and compacts has continued relevance, even if it is not something the courts are likely to play a large role in delineating.
273. See supra notes 79-81 and accompanying text.
274. The ambiguity exists regardless of the version of originalism employed, although the Supreme Court has recently endorsed the original-public-meaning approach in District of Columbia v. Heller, 128 S. Ct. 2783, 2788 (2008). For a discussion of originalism as a method of constitutional interpretation, see RANDY E. BARNETT, RESTORING THE LOST CONSTITUTION 89-117 (2004); KEITH E. WHITTINGTON, CONSTITUTIONAL INTERPRETATION: TEXTUAL MEANING, ORIGINAL INTENT, AND JUDICIAL REVIEW (1999);
275. H. Jefferson Powell, The Original Understanding of Original Intent, 98 HARV. L. REV. 885 (1985).
276. For example, the term compact appears 138 times in the Journals of the Continental Congress. JOURNALS OF THE CONTINENTAL CONGRESS 1774-1789 (Worthington Chauncey Ford ed., 1906), available at http://lcweb2.loc.gov/ammem/ amlaw/lwjc.html. It was used forty-nine times to refer to agreements involving U.S. states (many of which are simply references to the Compact Clause itself). Another forty-seven times, the term referred to international agreements between the Union and foreign governments. In seventeen cases, compact referred to a generic agreement. In ten cases, it was used to define the bond or promise that exists between a sovereign and its subjects, through instruments like the Bill of Rights. In six cases, it referred to the familial relationship of European sovereigns. Four times, compact referred to the duties members of a society owe one another. Finally, compact was used five times as either a verb or an adjective.
277. 5 ELLIOT'S DEBATES, supra note 78, at 206-07, 354.
278. Id. at 354.
279. See, e.g., Curtis A. Bradley, The Treaty Power and American Federalism, 97 MICH. L. REV. 390, 410 (1998) ("[R]eferences to treaties in these [framing] materials primarily concern the process by which the federal government would conclude treaties and the proper governmental actors to be involved in this process.");
280. David M. Golove, Treaty-Making and the Nation: The Historical Foundations of the Nationalist Conception of the Treaty Power, 98 MICH. L. REV. 1075, 1132 (2000) ("[The i]ssue on which [the framers'] debate focused was how such a momentous [treaty] power could be properly safeguarded ⋯ .").
281. THE FEDERALIST NO. 44 (James Madison), supra note 87, at 281.
282. U.S. Steel Corp. v. Multistate Tax Comm'n, 434 U.S. 452, 462-63 (1978);
283. see also LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 1-14, at 60 (3d ed. 2000) (discussing the difficulty of understanding arcane terms of art and how the Court has dealt with it).
284. See infra notes 161-67 and accompanying text.
285. See infra notes 168-71 and accompanying text.
286. See infra notes 172-77 and accompanying text.
287. See infra notes 178-80 and accompanying text.
288. VATTEL, supra note 27.
289. See Letter from Benjamin Franklin to Charles F. W. Dumas (Dec. 19, 1775), in 2 FRANCIS WHARTON, REVOLUTIONARY DIPLOMATIC CORRESPONDENCE OF THE UNITED STATES 64, 64 (1889) (stating that since the "circumstances of a rising State make it necessary frequently to consult the law of nations," a French copy of Vattel "has been continually in the hands of the members of our Congress now sitting"). Weinfeld was the first to suggest Vattel informed the framers' choice of terms, and the Supreme Court has acknowledged the possibility as well. U.S. Steel Corp. v. Multistate Tax Comm'n, 434 U.S. 452, 462 n.12 (1978); Weinfeld, supra note 81, at 458-60;
290. see also Engdahl, supra note 81, at 78-79 (speaking to the pervasiveness of Vattel's distinction between treaties and agreements or contracts). James Wilson, whose draft text Rutledge marked up to include the phrase "any agreement or compact," acknowledged Vattel during the Pennsylvania ratification convention. James Wilson, Address at the Convention of the State of Pennsylvania (Dec. 4, 1787), in 2 ELLIOT'S DEBATES, supra note 78, at 453, 454. St. George Tucker's 1803 constitutional treatise cited Vattel's definitions in differentiating "treaties, alliances, and confederations" from "agreements or compacts" (although he emphasized the latter's transitory or local effects rather than their dispositive character). 1 WILLIAM BLACKSTONE, COMMENTARIES app. at 310 (St. George Tucker ed., 1803).
291. VATTEL, supra note 27, § 152, at 192. I located the volume of Vattel that Benjamin Franklin gave the Continental Congress;
292. it is currently held by the Library Company of Philadelphia. That text unfortunately contains no useful marginalia but reads in the original, "Un Traité, en Latin Foedus, est un Pacte fait en vue du bien public par les Puissances supérieures, soit à perpétuité, soit pour un temps considérable." The copy to which Franklin referred was likely his personal copy and is now lost.
293. See EDWIN WOLF 2ND & KEVIN J. HAYES, THE LIBRARY OF BENJAMIN FRANKLIN 806-07 (2006) (listing the volume location as unknown).
294. VATTEL, supra note 27, § 153, at 192. The original French reads, "Les Pactes qui ont pour objet affaires transitoires, s'appellent Accords, Conventions, Pactions. Ils s'accomplissent par un acte unique, et non point par des prestations réitérées. Ces Pactes se consomment, dans leur execution, une fois pour toutes. Les Traités reçoivent une execution successive, don't la durée égale celle du Traité." Vattel made clear that an agreement still had a "perpetual and irrevocable effect" but simply did not require successive acts of performance by the parties as a treaty did.
295. Id. § 192, at 208.
296. Vattel's definitions appear to build on the scholarship of Christian von Wolff, who had little exposure in the nascent American Republic.
297. See CHRISTIAN VON WOLFF, JUS GENTIUM METHOD SCIENTIFICA PERTRACTUM (Joseph H. Drake trans.), in 2 CLASSICS OF INTERNATIONAL LAW § 369, at 1, 191 (James Brown Scott ed., 1934) (1764) ("A treaty is defined as a stipulation entered into reciprocally by supreme powers for the public good, to last forever or at least for a considerable time. But stipulations, which contain temporary promises, or those not to be repeated, retain the name of compacts.").
298. See, e.g., Engdahl, supra note 81, at 77-78 (ascribing to Vattel the distinction between treaties, defined as arrangements that oblige a party to perform repeated acts at specified occasions, and agreements or compacts, which are international arrangements that make one final disposition of the parties' claims or rights).
299. See supra notes 79-81 and accompanying text (suggesting that the absence of the term agreement in reference to the states' power to contract with one another under the Articles of Confederation, when considered alongside the term's inclusion in reference to the states' power to contract with foreign governments, implies the states had the power under the Articles of Confederation to enter into agreements with one another without congressional involvement);
300. see also infra note 195 and accompanying text (noting Taney's reliance on Vattel in distinguishing treaties and compacts in Holmes v. Jennison, 39 U.S. 540 (1840)).
301. Swaine, supra note 17, at 1138. Although Swaine's thesis helps explain the Constitution's approach to treaties and compacts, he devised it to operate in lieu of Congress's commerce authority to regulate state activity impacting foreign relations.
302. See id. at 1140 (arguing that it is the presidential power to make treaties, rather than Congress's authority over commerce, that is implicated when the states make agreements with foreign governments).
303. Id. at 1174.
304. See id. at 1162 ("[T]he Framers were quite clear in supposing that the vertical distribution [of the treaty power] was zero-sum, and that permitting the states to simulate the international bargaining powers of the national government would disserve the interests of all concerned."). Swain takes a broad view of prohibited state "bargaining" - i.e., not only actual foreign agreements but also statutes inviting negotiation with foreign governments because they operate contingent on a foreign state's policies.
305. Id. at 1141.
306. Id. at 1224.
307. JOSEPH STORY, 3 COMMENTARIES ON THE CONSTITUTION § 1349 (1833).
308. Id. § 1396.
309. Story's view of Vattel came via St. George Tucker. Compare BLACKSTONE, supra note 162, at app. 310 ("[Treaties] relate ordinarily to subjects of great national magnitude and importance, and are often perpetual, or made for a considerable period of time: the power of making these is altogether prohibited to the individual states; but agreements, or compacts, concerning transitory or local affairs, or such as cannot possibly affect any other interest but that of the parties, may still be entered into by the respective states with the consent of congress." (citing VATTEL, supra note 161, at 296-97)), with STORY, supra note 172, § 1396 ("What are subjects of great national magnitude and importance? Why may not a compact, or agreement between states, be perpetual? If it may not, what shall be its duration? Are not treaties often made for short periods, and upon questions of local interest, and for temporary objects?"). Story's discomfort thus focused on Tucker's differentiation of "perpetual" treaties of "great national magnitude" from agreements that "relate to transitory, or local concerns." STORY, supra note 172, § 1396. Tucker, however, may have misunderstood Vattel's reference to transitory as a temporal condition, when in fact he sought to distinguish dispositive and nondispositive commitments.
310. See supra note 161-167 and accompanying text.
311. STORY, supra note 172, § 1397. Chief Justice Marshall offered a similar explanation of the treaty prohibition, stating, A state is forbidden to enter into any treaty, alliance or confederation. If these compacts are with foreign nations they interfere with the treaty making power which is conferred entirely on the general government, if with each other, for political purposes, they can scarcely fail to interfere with the general purpose and intent of the constitution.
312. Barron v. Baltimore, 32 U.S. (7 Pet.) 243, 249 (1833) (emphasis added);
313. see also WILLIAM RAWLE, A VIEW OF THE CONSTITUTION 136 (1825) (suggesting that the "true construction" of the treaty prohibition is "that political compacts in any form are alone intended").
314. See STORY, supra note 172, § 1397 (listing treaties of political character to include "treaties of alliance for purposes of peace and war;
315. and treaties of confederation, in which the parties are leagued for mutual government, political co-operation, and the exercise of political sovereignty;
316. and treaties of cession of sovereignty, or conferring internal political jurisdiction, or external political dependence, or general commercial privileges").
317. Id.
318. See Frankfurter & Landis, supra note 76, at 693-94 (viewing Congress as standing in for the Crown's earlier role).
319. Id. at 694-95.
320. See id. at 695 n.37 ("There is no self-executing test differentiating 'compact' from 'treaty.' Story and other writers have attempted an analytical classification. The attempt is bound to go shipwreck for we are in a field in which political judgment is, to say the least, one of the important factors." (internal citation omitted)).
321. See U.S. Steel Corp. v. Multistate Tax Comm'n, 434 U.S. 452, 468 n.19 (1978) (noting Justice Field's Virginia v. Tennessee opinion misinterpreted Story's distinction between treaties of a political character and other agreements or compacts).
322. 148 U.S. 503, 519 (1893). Earlier, the Georgia Supreme Court had relied on Story for a similar proposition. Union Branch R.R. Co. v. E. Tenn. & Ga. R.R. Co., 14 Ga. 327, 339 (1853). More recently, in U.S. Steel Corp. v. Multistate Tax Commission, the Court made a similar categorical error in relying on Chief Justice Marshall's views about the nature of the treaty prohibition as informing its understanding on the meaning of agreements and compacts.
323. See U.S. Steel Corp., 434 U.S. at 466-67 (echoing Marshall's concerns with agreements of a political nature between two states (citing Barron v. Baltimore, 32 U.S. (7 Pet.) 243, 249 (1833))).
324. STORY, supra note 172, §§ 1396-1397.
325. Debates, of course, may continue over whether the Constitution prohibits Congress from consenting to certain state agreements that constitute a prohibited treaty under one or more of the definitions proffered. See supra note 148. But, by definition, those debates assume a very different framework than the present, where the states do not submit their FSAs to Congress, and Congress only rarely approves, and virtually never rejects, FSAs.
326. 434 U.S. at 460.
327. See id. ("Appellants urge us to abandon Virginia v. Tennessee and New Hampshire v. Maine, but provide no effective alternative other than a literal reading of the Compact Clause. At this late date, we are reluctant to accept this invitation to circumscribe modes of interstate cooperation that do not enhance state power to the detriment of federal supremacy.").
328. 39 U.S. (14 Pet.) 540 (1840) (4-4 decision).
329. Id. at 560.
330. Id. at 568-69.
331. Id. at 569. As to how the federal government had such power, Taney sourced it to the treaty - making power, the power to appoint and receive ambassadors, and a broader claim that the Constitution granted the federal government all powers relating to "foreign intercourse." Id. at 570.
332. Id.
333. Id.
334. Id. at 571.
335. Id. at 573, 578.
336. Id. at 572.
337. See id. at 573-74 ("Provisions were therefore introduced to cut off all negotiations and intercourse between the state authorities and foreign nations. If they could make no agreement, either in writing or by parol, formal or informal, there would be no occasion for negotiation or intercourse between the state authorities and a foreign government.").
338. Id. at 573. Taney reasoned, in the alternative, that Vermont's acts violated a dormant foreign-affairs power with respect to extradition: "But if there was no prohibition to the states, yet the exercise of such a power on their part is inconsistent with the power upon the same subject conferred on the United States." Id. at 574.
339. See Swaine, supra note 17, at 1228 (contending that Chief Justice Taney's departure in Holmes from his general prejudice against dormant national power is perhaps one reason that Taney's opinion was considered authoritative).
340. Id.
341. In addition to Taney's opinion, four Justices wrote separately. Justice Catron disputed that the case before the Court involved an agreement between Vermont and Canada but also indicated that if it had, "I admit, the act would have been one as of nation with nation, and governed by the laws of nations; that the agreement would have been prohibited by the Constitution ⋯ ." Holmes, 39 U.S. at 595 (Catron, J., dissenting). Justice Thompson concluded that the Court lacked jurisdiction under Section Twenty-Five of the Judiciary Act.
342. Id.
343. at 585 (Thompson, J., dissenting). Justice Baldwin, ignoring the Compact Clause question, found the states had reserved police powers over fugitives absent a treaty. Id. at 614, 618 (Baldwin, J., dissenting). Finally, Justice Barbour found states free to conclude "treat[ies] for the surrender of fugitives from justice" because he found such an exercise of power not prohibited as to the states by the Constitution but rather, a power concurrent to both the federal government and the states, that the states might exercise absent a conflicting exercise of the power by the federal government. Id. at 590-94 (Barbour, J., dissenting).
344. Ex Parte Holmes, 12 Vt. 631, 635-42 (Vt. 1840) (holding, based on Justice Taney's opinion and evidence, that Justice Catron would have likely found a compact existed).
345. See 3 Op. Att'y Gen. 661, 661 (1841) ("I think, from the whole argument of the bench in the case of Holmes v. Jennison, 14 Peters, 540, we may consider it as law ⋯ [t]hat no State can without the consent of Congress, enter into any agreement or compact, express or implied, to deliver up fugitives from justice from a foreign State who may be found within its limits ⋯ .").
346. 119 U.S. 407 (1886).
347. Id. at 414. The Rauscher language may be susceptible of two readings. On the one hand, it may endorse Taney's reasoning that the power at issue was the Governor's power to reach an agreement with a foreign power to extradite and that power ran afoul of the prohibition on agreements and compacts. On the other hand, the Court might have endorsed Taney's alternative holding that extradition constitutes one of the subjects within the dormant foreign-affairs power.
348. 27 Op. Att'y Gen. 327, 332 (1909).
349. U.S. Steel Corp. v. Multistate Tax Comm'n, 434 U.S. 452, 465 n.15 (1978). It is unclear from this reference whether the Court endorsed Holmes's notion of extradition's exclusivity because it implied prohibited agreements with foreign powers or because of his more general argument that extradition fell within the dormant foreign-affairs power. In either case, however, Holmes remains available to support the construction of a separate Foreign Compact Clause.
350. See id. at 466 n.18 ("Mr. Chief Justice Taney may have shared the Georgia court's view of compacts [in Union Branch,] which, unlike the agreement in Holmes v. Jennison, did not implicate the foreign relations power of the United States.").
351. The Taney language that the Court cites in U.S. Steel Corp. does address interstate compacts but does not suggest that any of them could be concluded without congressional consent.
352. See Florida v. Georgia, 58 U.S. (17 How.) 478, 494 (1855) ("And if Florida and Georgia had, by negotiation and agreement, proceeded to adjust this boundary, any compact between them would have been null and void, without the assent of congress.").
353. See, e.g., Mark Tushnet, The Possibilities of Comparative Constitutional Law, 108 YALE L.J. 1225, 1228 (1999) ("Functionalism claims that particular constitutional provisions create arrangements that serve particular functions in a system of governance.").
354. See, e.g., Frankfurter & Landis, supra note 76, at 691 (noting how "the pressure of modern interstate problems has revealed the rich potentialities of this [compact] device" and assessing constitutional problems that might be raised with respect to its usage);
355. Jennetten, supra note 15, at 142-44 (detailing multiple policy-oriented rationales in support of the Compact Clause);
356. Note, The Compact Clause and the Regional Greenhouse Gas Initiative, 120 HARV. L. REV. 1958, 1958 (2006) ("The Supreme Court, however, has long been reluctant to give the Compact Clause a 'literal' reading ⋯ . Instead, the Court has used a functional test ⋯ .").
357. Ne. Bancorp., Inc. v. Bd. of Governors, 472 U.S. 159, 175-76 (1986);
358. U.S. Steel Corp., 434 U.S. at 471;
359. Virginia v. Tennessee, 148 U.S. 503, 519 (1893).
360. Although the Court has declined to revisit its interstate compact doctrine, Michael Greve has highlighted the anomaly of invoking federal supremacy to govern any compacts. Greve, supra note 99, at 310-15. He rightly notes that Article I, Section Ten is the one textual vestige of Madison's negative - i.e., Madison's proposal at the Constitutional Convention that would have given state law effect only with federal approval.
361. Id.
362. Federal supremacy ultimately supplanted a federal negative as the constitutional framework in all respects save one; the Compact Clause remains the one provision where state action depends on congressional consent.
363. Id.
364. See, e.g., New Hampshire v. Maine, 426 U.S. 363, 369 (1976) ("The application of the Compact Clause is limited to agreements that are 'directed to the formation of any combination tending to increase the political power in the States, which may encroach upon or interfere with the just supremacy of the United States.'" (quoting Virginia v. Tennessee, 148 U.S. at 519)).
365. Serious questions exist, for example, as to whether the supremacy test makes the conditional prohibition on interstate compacts superfluous. Indeed, for a state agreement to violate federal supremacy, it would seem to require violating some other constitutional doctrine;
366. as such, it prohibits nothing that is not already prohibited. See U.S. Steel Corp., 434 U.S. at 482 (White, J., dissenting) ("If [the Compact Clause's] only purpose in the present context were to require the consent of Congress to agreements between States that would otherwise violate the Commerce Clause, it would have no independent meaning. The Clause must mean that some actions which would be permissible for individual States to undertake are not permissible for a group of States to agree to undertake.");
367. Note, supra note 209, at 1958 ("This functional test, however, has become untethered from the text of the Compact Clause itself, in the process stripping the clause of independent force.").
368. See, e.g., Virginia v. Tennessee, 148 U.S. at 520 (suggesting a test to allow state autonomy to make agreements if Congress had no reason to care about the agreement);
369. Note, supra note 209, at 1958 (explaining that a "fear of posing unnecessary, and perhaps insurmountable, barriers to beneficial state cooperation" motivated a move away from a literal test concerning interstate compacts).
370. See supra notes 76-81 and accompanying text.
371. See Frankfurter & Landis, supra note 76, at 691 (noting state compacts' rich potential to solve interstate problems); Heron, supra note 95, at 7-9 (noting that with the rapid development of the United States after World War I there "arose complex regional problems, wholly unsuited to federal control, which required regional solutions");
372. Jennetten, supra note 15, at 142-44 ("Regional pacts give states an additional tool in attacking the problems encountered in addressing environmental issues, especially where the federal government is unlikely to become involved.").
373. See, e.g., Swaine, supra note 17, at 1197-1203 (contending that the framers understood the requirement of congressional consent for independent state diplomacy as a means of enhancing the federal government's treaty-making power).
374. See, e.g., STORY, supra note 172, § 1349 (proclaiming that in order to prevent state subversion and to preserve the national government's power, it is necessary to limit the states liberties to enter into treaties, alliances, and confederacies with foreign states); supra notes 78, 136-46 and accompanying text (demonstrating that the concern with state interactions with foreign powers was pervasive before and during the drafting of the Articles of Confederation).
375. Holmes v. Jennison, 39 U.S. (14 Pet.) 540, 574 (1840) (emphasis added); accord Swaine, supra note 17, at 1162 ("[T]he Framers were quite clear in supposing ⋯ that permitting the states to simulate the international bargaining powers of the national government would disserve all concerned.").
376. See HENKIN, supra note 115, at 162 (suggesting that the Supreme Court struck down some state regulations of foreign affairs because "they might run afoul of an implicit constitutional limitation barring state intrusion on the federal domain of foreign relations even when the federal government had not acted");
377. see also Bradley, supra note 39, at 1093 (observing that the twentiethcentury view of American foreign affairs law includes the belief that states are broadly prohibited from engaging in foreign affairs activities);
378. Michael P. Van Alstine, Executive Aggrandizement in Foreign Affairs Lawmaking, 54 UCLA L. REV. 309, 350 (2006) (noting that the prohibition on state obstruction of external affairs is "implied in the constitutional assignment of authority over foreign affairs to the national government").
379. See Swaine, supra note 17, at 1269 ("Locating federal exclusivity in the principles of the Treaty and Compact Clauses permits us to see that the constitutional value at stake is control over the beginning, middle, and end of negotiations, not control over every possible topic of negotiation.").
380. See, e.g., U.S. Steel Corp. v. Multistate Tax Comm'n, 434 U.S. 452, 471 (1978) (acknowledging that compacts require congressional consent only if they enhance state power in relation to the federal government); Virginia v. Tennessee, 148 U.S. 503, 519 (1893) (holding that congressional consent is required for "the formation of any combination tending to the increase of political power in the states, which may encroach upon or interfere with the just supremacy of the United States");
381. see also Note, supra note 209, at 1966 (suggesting that the federal supremacy inquiry includes an analysis of the initiative's effect on other states).
382. See THE FEDERALIST NO. 42 (James Madison), supra note 87, at 264 ("If we are to be one nation in any respect, it clearly ought to be in respect to other nations."). Or, as Jefferson wrote Madison, the national government should "make us one nation as to foreign concerns, and keep us distinct in Domestic ones." Letter from Thomas Jefferson to James Madison (Dec. 16, 1786), in 10 THE PAPERS OF THOMAS JEFFERSON 602, 603 (Julian P. Boyd et al. eds., 1954);
383. see also Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 381 (2000) (proclaiming that state laws "compromise the very capacity of the President to speak with the Nation with one voice in dealing with other governments");
384. Am. Ins. Ass'n v. Garamendi, 539 U.S. 396, 399 (2003) (remarking that "the President's authority to provide for settling claims in winding up international hostilities requires flexibility in wielding 'the coercive power of the national economy' as a tool of diplomacy" and deciding that the denial of this authority "compromises the President's very capacity to speak for the Nation with one voice in dealing with other governments" (quoting Crosby, 530 U.S. at 377)). Although the one-voice rationale has generated controversy in its application to questions of presidential power, I am using it here in a more general sense to describe the power of the federal government as a whole - including Congress.
385. Indeed, even where the federal government is silent, that silence may be a conscious choice that an FSA could undercut by its very existence.
386. See supra notes 64, 71 and accompanying text (contrasting individual states' involvement in ICAP with the Bush Administration's open hostility to the Kyoto Protocol).
387. See, e.g., Paul Krugman, Editorial, Climate of Change, N.Y. TIMES, Feb. 27, 2009, at A27 ("After years of denial and delay by its predecessor, the Obama [A]dministration is signaling that it's ready to take on climate change."); WhiteHouse.gov, Energy & Environment, http://www.whitehouse. gov/agenda/energy-and-environment/ (laying out the Obama Administration's policies and goals to advance energy and climate security).
388. For example, the fact that the northeastern U.S. states will legislatively adopt a cap-andtrade program through an interstate agreement, the Regional Greenhouse Gas Initiative, may well have foreign-policy implications since it will show foreign governments that there is a significant constituency within the United States committed to reductions in carbon emissions.
389. See supra note 64 (discussing the Regional Greenhouse Gas Initiative and the Western Climate Initiative, two initiatives for greenhouse-gas-emissions reductions).
390. See Hollis, supra note 33, at 154-55 ("[S]tates generally take the view that, where a substate actor concludes a treaty within the conditions laid down by the state, it is the state, not the substate component, that bears international legal responsibility under the resulting agreement.").
391. See Hollis & Newcomer, supra note 30, at 542-43 (mentioning as an example the U.S. withdrawal of economic aid and quest for sanctions in reaction to North Korea reneging on its political commitment to cease the enrichment of uranium).
392. See Letter of Robert E. Dalton, Assistant Legal Adviser for Treaty Affairs, to Margaret Grant, Executive Dir., Great Lakes Council of Governors (June 15, 2001) (on file at http://www.state.gov/documents/organization/16462. pdf) (presenting Canada's position that it would be contrary to "international law and the Constitution of Canada" for Québec and Ontario to conclude binding agreements with the Great Lakes States on their own).
393. See, e.g., Holmes v. Jennison, 39 U.S. (14 Pet.) 540, 574 (1840) ("[A]ny intercourse between a state and a foreign nation was dangerous to the Union.");
394. STORY, supra note 172, § 1349 (expressing the framers' concern that treaties, alliances, or confederations among states and foreign powers would "become utterly subversive of the power confided to the national government on the same subject").
395. Legal Adviser Compact Memo, supra note 13, at 190-93. The State Department made clear that simply showing the existence of a federal power was insufficient; Missouri's enlistment of Manitoba's support in the MOU had to operate to the legal detriment of the federal government by interfering with the decision-making scheme set out in the federal legislation. Id. at 190-91. At the same time, however, the Legal Adviser recognized that to the extent that the MOU contemplated "mutually supportive" cooperation (i.e., acts that could not occur without another party) that might trigger the "exclusive foreign relations power expressly reserved to the federal government."
396. Id. at 192.
397. The problem with Kansas lobbying, therefore, rests in its representation, presumably undisclosed, of Cuba's interests alongside its own. See supra note 3.
398. See, e.g., THOMAS A. BAILEY, A DIPLOMATIC HISTORY OF THE AMERICAN PEOPLE 52-53 (9th ed. 1974) (describing how, under the Articles of Confederation, U.S. diplomatic efforts faced hostility from the monarchial nation-states of Europe).
399. See Spiro, Globalization, supra note 34, at 669-71 (hypothesizing that as disaggregation challenges the assumption of the unitary state, the international system will become aware of a fuller range of entities engaged at the global level).
400. See Spiro, Federalism, supra note 34, at 1225 (highlighting the specific contingency of the doctrine of federal exclusivity over foreign relations);
401. Spiro, Globalization, supra note 34, at 715 (summarizing various doctrines of foreign-relations law as historically contingent on features of the international system in which they arose and positing that as globalization dissipates their underlying historical justifications the doctrines should be abandoned).
402. See Spiro, Globalization, supra note 34, at 686-96 (arguing that in light of globalization's effect of dismissing the rationale for barring state activity affecting foreign relations, subfederal actors should not be barred from international action).
403. See, e.g., Spiro, Federalism, supra note 34, at 1225-26 (asserting that U.S. states enjoy the capacity to act alone and that foreign countries understand this and can therefore retaliate directly and discretely against the state);
404. Spiro, Globalization, supra note 34, at 669 (reporting that contacts between governmental subunits and foreign government entities have become routine).
405. See PAUL REUTER, INTRODUCTION TO THE LAW OF TREATIES 114-15 (1995) (stating that generally in a federal state only the composite entity is itself a state under international law and that even when the state allows a subnational entity to conclude a specific treaty, it is done with its agreement or under its control);
406. Swaine, supra note 15, at 521 ("[S]tate obligations under foreign compacts would be enforceable in international law, and the pivotal role of the national government in perfecting such an agreement would make it (at least) responsible for breaches.");
407. see also Oliver J. Lissitzyn, Territorial Entities Other than Independent States in the Law of Treaties, in 3 RECUEIL DES COURS 1, 24-32 (1968) (acknowledging a theory that makes a sovereign state legally responsible for a subnational unit's agreements but finding little support for that view with respect to U.S. state compacts with foreign powers).
408. But see SHABTAI ROSENNE, BREACH OF TREATY 58 (1985) (declaring that a component element of a state bears the international responsibility for a breach of contract into which it has entered).
409. Hollis, supra note 33, at 155.
410. See supra notes 81, 136-46 and accompanying text.
411. See supra notes 1-4 and accompanying text.
412. See, e.g., Spiro, Globalization, supra note 34, at 693-94 ("International actors will now almost always enjoy channels through which to retaliate more or less cleanly against a particular subnational jurisdiction, by redirecting their economic activity elsewhere, usually at minimal cost.").
413. See Hollis & Newcomer, supra note 30, at 559 (finding a lack of attention to political commitments at the framing "unsurprising" where the practice of concluding such instruments did not gain traction until the 1860s).
414. Chief Justice Taney suggested for FSAs that "every agreement, written or verbal, formal or informal, positive or implied, by the mutual understanding of the parties" required congressional approval. Holmes v. Jennison, 39 U.S. 540, 572 (1840). From a doctrinal perspective, one could view Taney's opinion as answering the question posed. I do not find it dispositive, however, because it predates the emergence of the political-commitment practice and, as discussed below, I believe the political branches, not the Court, should dictate the scope of any Foreign Compact Clause.
415. See Vienna Convention on the Law of Treaties art. 26, May 23, 1969, 1155 U.N.T.S. 331, 339 [hereinafter VCLT] ("Every treaty in force is binding upon the parties to it and must be performed by them in good faith.").
416. See Bothe, supra note 30, at 89 (observing that, while some nonlegal agreements are difficult to terminate because they are established with "a clear expectation that they will not be declared politically irrelevant overnight," other nonlegal agreements "where there is no such expectation of duration" are easy to terminate); Hollis & Newcomer, supra note 30, at 522 n.55 (noting that while historically political commitments were considered to be terminable at will, they have become more difficult to terminate);
417. id. at 541 (positing that political commitments remain relatively easier to exit than treaties).
418. See Hollis & Newcomer, supra note 30, at 540-48 (arguing that treaties and political commitments have substantial overlaps in terms of international and domestic functions).
419. Early Warning System in Sinai: Hearings Before the S. Comm. on Foreign Relations, 94th Cong. 211 (1975) (statement of Henry Kissinger, Secretary of State of the United States);
420. see also SFRC REPORT, supra note 32, at 63 (explaining that political commitments "are often used, and often evoke expectations of compliance from affected states"); Treaty on the Reduction and Limitation of Strategic Offensive Arms (START), U.S.-U.S.S.R., Transmittal Letter, Nov. 25, 1991, S. TREATY DOC. No. 102-20 ("A 'political' undertaking is not governed by international law⋯ . Until and unless a party extricates itself from its 'political undertaking,' which it may do without legal penalty, it has given a promise to honor that commitment, and the other Party has every reason to be concerned about compliance with such undertakings. If a Party contravenes a political commitment, it will be subject to an appropriate political response.").
421. Robert E. Dalton, Memorandum on International Documents of a Non-legally Binding Character, in DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 1991-1999, at 682, 682 (Sally J. Cummins ed., 2005).
422. Hollis & Newcomer, supra note 30, at 513.
423. See Aust, supra note 32, at 807, 810-11 ("[I]n general, it may be said that where clear statements (or conduct) of one government lead another government bona fide and reasonably to act in its own detriment, or to the benefit of the first government, then the first government is estopped from going back on its statements or conduct.");
424. Schachter, supra note 30, at 300-01 (acknowledging that political commitments do not give rise to legally binding obligations but noting that reliance on their terms might estop a state from violating them).
425. Of course, as an "alliance," the Constitution would ban all state participation. I suspect, however, that the difficulty lies more in characterizing this as an agreement or compact, since any categorization of it as a treaty, alliance, or confederation would prove difficult given continuing debate on how to define those terms. See supra notes 161-80 and accompanying text.
426. See supra notes 64, 71 and accompanying text.
427. See supra note 66 and accompanying text.
428. See U.S. CONST. amend. X ("[P]owers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to
429. To the extent the Executive supplants or substitutes for Congress in communicating with states about their FSAs, it may create a distinct separation-of-powers problem.
430. See infra notes 291-92 and accompanying text.
431. Of course, even if the Compact Clause does not retain its literal meaning, Congress can still employ other enumerated powers (over interstate and foreign commerce) to regulate or preempt most state agreements. But, as Justice White noted in his dissent in U.S. Steel Corp., those powers should not be read to deny the Compact Clause's independent meaning. U.S. Steel Corp. v. Multistate Tax Comm'n, 434 U.S. 452, 482 (1978) (White, J., dissenting).
432. See Cooper v. Aaron, 358 U.S. 1, 18 (1958) ("[T]he federal judiciary is supreme in the exposition of the law of the Constitution.");
433. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) ("It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule.").
434. Article I grants Congress the power to regulate foreign commerce and currency, to define and punish offences against the law of nations, and to declare war. U.S. CONST. art. I, § 8, cls. 3, 10, 11. Congress also has more general powers, under the Necessary and Proper and Tax and Spend Clauses, which enable it to legislate and pay for all foreign affairs authorities of the federal government.
435. Id.
436. cls. 1, 18. As for executive power, it is "vested in a President of the United States of America,"
437. id.
438. art. II, § 1, cl. 1, and includes the power to make treaties with the advice and consent of the Senate, to conduct foreign relations via the "Commander in Chief" role, to nominate, appoint (subject to Senate advice and consent), and receive foreign ambassadors, id. § 2, cls. 2-3, and to execute federal law, id. § 3.
439. See, e.g., Baker v. Carr, 369 U.S. 186, 210-12 (1962) ("The nonjusticiability of a political question is primarily a function of the separation of powers."). The political question doctrine actually has its origins alongside the power of judicial review.
440. See Marbury, 5 U.S. at 170 ("Questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this Court.").
441. See supra note 65 and accompanying text.
442. Marbury, 5 U.S. at 177.
443. See supra text accompanying notes 105-107.
444. See supra notes 223-33 and accompanying text.
445. For example, despite the Court's pronouncement of the treaty power's scope in Missouri v. Holland, 252 U.S. 416, 432-35 (1920), the Executive has long exhibited an independent understanding of the content and scope of its own treaty-making power.
446. See Duncan B. Hollis, Executive Federalism: Forging New Federalist Constraints on the Treaty Power, 79 S. CAL. L. REV. 1327, 1331-32 (2006) ("As the Court has disengaged from the issue, the executive has repeatedly interpreted the treaty power's scope and devised its own mechanisms for accommodating federalism in U.S. treaty-making - for example, seeking differentiated treaty obligations for federal and nonfederal governments or leaving treaty implementation to the states in lieu of new federal legislation.").
447. KEITH E. WHITTINGTON, CONSTITUTIONAL CONSTRUCTION: DIVIDED POWERS AND CONSTITUTIONAL MEANING 5-6, 207 (1999).
448. See, e.g., Jennetten, supra note 15, at 142-44 (arguing that for many environmental problems, regional covenants are more responsive to local needs and a more efficient way to solve common regional problems than federal legislation).
449. See, e.g., id. at 144 (discussing the Pacific Coast states' agreement with British Columbia to cooperate in response to oil spills that preceded federal efforts).
450. Missouri - Manitoba MOU, supra note 57; supra notes 72-73 and accompanying text.
451. See supra note 66 and accompanying text.
452. See supra Moldova-North Carolina MOI, supra note 54. The MOU between North Carolina's National Guard and the Moldovan Military originated under the National Guard Partnership Program, overseen by the U.S. Defense Department.
453. See Nat'l Guard Bureau, Office of Int'l Affairs, The National Guard State Sponsorship Program, http://www.ng.mil/ia-backup/Tab2.aspx (describing and listing cooperative arrangements among forty-three U.S. states, two territories, the District of Columbia, and fifty-one foreign nations).
454. See New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting) ("[A] single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.").
455. See supra note 64 and accompanying text.
456. See supra note 7 and accompanying text.
457. See supra subpart III(C).
458. I recognize, as Jennetten does, that other constitutional provisions may protect against such negative externalities (e.g., the Commerce Clause), but I am persuaded by Justice White's dissent in U.S. Steel Corp., that for the Compact Clause to have any meaning, it must do more than restrict what the Constitution already otherwise restricts. 434 U.S. 452, 482 (1978) (White, J., dissenting);
459. Jennetten, supra note 15, at 146.
460. Although not required by the constitutional text, Congress typically presents interstate compacts - and the few FSAs it has approved - to the President for his signature, thereby giving them the status of federal law.
461. See, e.g., Cuyler v. Adams, 449 U.S. 433, 440 (1981) (explaining that, under the Compact Clause, cooperative agreements involving states are transformed into federal law when approved by Congress and where the subject matter of the agreement is appropriate for congressional legislation). If an FSA is a political commitment, it seems unlikely - although not impossible - that congressional approval would equate foreign compacts to federal statutes. The United States did, however, enact the Clean Diamond Trade Act to fulfill U.S. political commitments to the Kimberly Certification Process regulating trade in illicit blood diamonds. Clean Diamond Trade Act, 19 U.S.C. §§ 3901-3913 (2006).
462. In contrast, the Council of State Governments does have a National Center for Interstate Compacts that includes a database of interstate agreements. Nat'l Ctr. for Interstate Compacts, The Council of State Governments, http://www.csg.org/programs/ncic/default.aspx.
463. See supra note 61 and accompanying text. The Agreement ends with a "Next Steps" section, with the two sides "commit[ting] to an exchange of delegations" to develop and deploy clean energy technologies globally, but that page is no longer posted on the Governor's web page. Posting of Duncan Hollis, supra note 61.
464. See Hollis, supra note 33, at 154-55 (suggesting that substates can conclude treaties only under conditions set forth by the state, which ultimately bears international legal responsibility for the agreement);
465. see also supra note 239.
466. From a constructivist perspective, therefore, current understandings of the Compact Clause have impacted the form and character of those FSAs that states conclude.
467. See, e.g., Lesley Wexler, Take the Long Way Home: Sub-federal Integration of Unratified and Non-self-executing Treaty Law, 28 MICH. J. INT'L L. 1, 43 (2006) (observing that subfederal actors draft nonbinding pacts with foreign countries and other states in order to circumvent the federal approval necessary for binding commitments).
468. EARL H. FRY, THE EXPANDING ROLE OF STATE AND LOCAL GOVERNMENTS IN U.S. FOREIGN AFFAIRS 128 (1998).
469. See Holmes v. Jennison, 39 U.S. (14 Pet.) 540, 572 (1840) (stating that the intention of the framers through the Compact Clause was to cut off all connections between a state and a foreign power).
470. See Frankfurter & Landis, supra note 76, at 694-95 (leaving to Congress decisions as to what agreements fall within the scope of its Compact Clause power).
471. See supra notes 257-67 and accompanying text.
472. See Robert E. Dalton, National Treaty Law & Practice: United States, in NATIONAL TREATY LAW & PRACTICE 765, 770 (Duncan B. Hollis et al. eds., 2005) (noting frequent instances where a statute pre-authorizes the United States to conclude one or more international agreements).
473. See 16 U.S.C. § 1823 (2006) ("No governing international fishery agreement ⋯ shall become effective with respect to the United States before the close of the first 120 days ⋯ after the date on which the President transmits to the House of Representatives and to the Senate a document setting forth the text of such governing international fishery agreement.").
474. 1 U.S.C. § 112b (2006). The President must explain all late transmittals on an annual basis.
475. Id.
476. See supra note 11 and accompanying text.
477. Legal Adviser Compact Memo, supra note 13, at 180-81. Thus, in a 1981 case of a proposed agreement by Vermont with Québec on water service, the State Department took the view that it did not implicate the Compact Clause because federal permitting procedures would still apply and the district's activities would be limited to traditionally local, rather than political, functions.
478. Id. at 183-84. The Department used the local/political distinction again in 1990 to conclude it had no objections to a Preliminary Agreement to Develop and Implement a Trade Development Initiative between Indiana's Department of Commerce and the All-Union Academy of Agricultural Sciences and the Ukrainian Association of Consumer Goods Exporters.
479. Id. at 184.
480. The only time Congress rejected an FSA - the 1968 Great Lakes Basin Compact - it did so at the request of the State Department, which feared foreign participation might generate U.S. treaty violations. Jennetten, supra note 15, at 165-66. Ironically, the legislative history suggests that U.S. states only submitted it to Congress because of Canadian participation.
481. Id. at 167.
482. See 33 U.S.C. § 535a (2006) (authorizing U.S. states to conclude FSAs on transborder bridges with Canadian and Mexican counterparts, with the caveat that "[t]he effectiveness of such agreement shall be conditioned on its approval by the Secretary of State"); Mutual Aid Pacts Between Several States and Neighboring Countries, ch. 1228, 64 Stat. 1251 (1951) (authorizing foreign military-aid pacts under the Interstate Civil Defense and Disaster Compact arranged "through the Department of State"). Firefighting compacts, moreover, envision a federal agency - the U.S. forest service - coordinating the states' cooperation.
483. See, e.g., Northwest Wildland Fire Protection Agreement, art. IX, Pub. L. No. 105-377, 112 Stat. 3391, 3393 (1998) (authorizing members to ask the U.S. Forest Service to act as the primary research and coordinating agency);
484. CONN. GEN. STAT. ANN. § 23-53, art. VI (West 2008) (authorizing the commission to ask the U.S. Forest Service to act as the primary research and coordinating agency).
485. See U.S. CONST. art. I, § 10, cl. 1 (prohibiting the states from making treaties);
486. id. art. II, § 2, cl. 2 (granting the President the power to make treaties with the advice and consent of the Senate).
487. Chief of the Division of Latin American Affairs (Duggan) to J.M. Carson, Feb. 10, 1937, in 5 DIGEST OF INTERNATIONAL LAW 25, 25 (G. Hackworth ed., 1943) [hereinafter Duggan] (emphasis added).
488. See U.S. CONST. art. I, § 10, cl. 1 (prohibiting the states from making treaties). In 1938, the State Department opined that an arrangement between California and the Mexican territory of Baja California for reciprocal exemption of motor-vehicle registration fees would require the consent of Congress and might infringe the federal treaty-making power. Duggan, supra note 295, at 25. More recently, the State Department objected to two other FSAs: (i) one where a foreign government would have used its share of U.S. aid to buy a state's farm products in return for technical assistance and advice from the state, and (ii) another that would have assisted the judiciary of a South American country in ways impacting U.S. interests. Gloria Folger Dehart, Comity, Conventions, and the Constitution: State and Federal Initiatives in International Support Enforcement, 28 FAM. L.Q. 89, 103 n.46 (1994). As Attorney-Adviser in the State Department's Office of the Legal Adviser from 1998-2004, I informed U.S. state government officials on several occasions that they needed to amend proposed FSAs the department believed would otherwise trigger the treaty prohibition or the Compact Clause.
489. See Convention Between the State of New York and the Oneida Indians, June 1, 1798, available at http://earlytreaties.unl.edu/treaty.00028.html (effectuating an FSA between the tribe multiand New York);
490. see also SFRC REPORT, supra note 32, at 3-5;
491. Dalton, supra note 287, at 780-85 (both discussing the various domestic processes by which the President can conclude agreements binding under international law).
492. See Treaty Relating to the Skagit River and Ross Lake, and the Seven Mile Reservoir on the Pend d'Orielle River, Can.-U.S., Apr. 2, 1984, 1987 U.N.T.S. 313 (incorporating text of the British Columbia - Seattle Agreement). In concluding the agreement, the Executive Branch accepted responsibility for debts generated by Seattle, although it obtained a separate indemnification guarantee from that city.
493. Id. art. IV.
494. For example, notwithstanding congressional authorization of Canadian provincial participation, Canada resisted Canadian participation in the Northeastern Forest Fire Protection Compact until the United States and Canada concluded an agreement endorsing a provincial role.
495. See Agreement Relating to the Participation of the Provinces of New Brunswick and Québec in the Northeastern Interstate Forest Fire Protection Compact, Can.-U.S., Jan. 29, 1970, 21 U.S.T. 415 (authorizing the participation of New Brunswick and Québec in the Northeastern Forest Fire Protection Compact);
496. supra note 10 (citing the 1952 congressional authorization of the 1948 Northeastern Interstate Forest Fire Protection Compact). Nova Scotia joined the same agreement in 1996 without any additional explicit federal consent. Sackinger, supra note 20, at 343.
497. See Dehart, supra note 296, at 102-03 (reporting that state agreements extending reciprocity to foreign jurisdictions in family support arrangements are made with the consent of the State Department);
498. Nat'l Guard Bureau, supra note 272 (describing the National Guard State Partnership Program, which partners U.S. states with foreign nations to advance security cooperation objectives).
499. See Hollis, supra note 12, at 1099-1102 (noting informational, functional, and structural difficulties of having the Executive supervise all FSAs given the current reality of an inactive Congress).
500. See Swaine, supra note 15, at 504 (advancing a similar suggestion by arguing that Congress's power to consent to compacts includes the power to delegate to the Executive Branch the authority to approve or terminate a compact).
501. See Resnik, supra note 24, at 622-23 (describing multifaceted federalism as an alternative to the dual or categorical approach, which acknowledges that more than one source of regulation is likely to apply to any one set of behaviors).
502. See supra note 39 (listing cases involving the preemption of state action by federal foreign policy, as reflected in both legislation and executive agreements). The Medellín decision may signal a shift in the Judiciary's perception of the federal government's authority to invoke foreign affairs to override state law.
503. See Medellín v. Texas, 552 U.S. 491, 525 (2008) (holding that neither the President's foreign-affairs power nor his international responsibilities authorized by Congress in advance allow him to establish his own federal law or to override state law). That decision, however, turned on the absence of congressional involvement in executive efforts to compel a state to comply with U.S. treaty obligations.
504. See id. at 1357 (holding that the treaties at issue are not "self-executing" - they are not judicially enforceable absent implementing legislation - and that, because no such federal legislation exists, a judgment of the International Court of Justice pursuant to those treaties is not judicially enforceable either). To the extent that a Foreign Compact Clause turns on a congressional power, however, Medellín may not signal any dramatic change in direction for compact clause purposes.