The Compact Clause of the U.S. Constitution states "No State shall, without the Consent of Congress . . . enter into any Agreement or Compact with another State." Despite this language, the Supreme Court has consistently held that only a small fraction of agreements entered into by states require approval in the form of federal legislation. This Note examines the current state of the law concerning when interstate compacts need congressional consent and argues that this body of law is ripe for reexamination in light of recent proposals to adapt the interstate compact to address issues such as climate change and reform of the electoral college. The current test for when an interstate compact requires congressional approval was articulated by the Court more than thirty years ago in U.S. Steel v. Multistate Tax Commission. This test is poorly tailored to combat the dangers that some proposed interstate compacts pose both to states that choose not to participate in the compacts and also to the federal system itself. The U.S. Steel test should be replaced by a comparatively simple judicial standard, which requires congressional approval for interstate compacts that address issues not widely recognized as particularly suited to state action.
On February 23, 2006, an organization calling itself the "National Popular Vote" held its initial press conference in Washington, D.C. The group, composed of prominent current and former elected officials from both the Republican and Democratic parties, as well as the heads of several public interest organizations,1 proposed a new piece of legislation for states throughout the country: an interstate compact titled the Agreement Among the States to Elect the President by Nationwide Popular Vote.2 This agreement is intended to revolutionize the process by which the United States elects its President. Each state in the compact would pledge to award all of its electoral votes to the presidential candidate who received the most votes in the 50 states and the District of Columbia.3 Because each state that joined the compact would award its electoral votes not based on the winner of the most votes within its borders but rather on the results of the election nationwide, this proposed system would effectively circumvent the electoral college; it would force Presidential candidates to shift their resources from the small number of "battleground" states to the broader American electorate. This dramatic change in the method of electing the President, a federal officer, could be made without the approval of any branch of the federal government save - in the event of a legal challenge - the judiciary. As the organization asserts, because "under the U.S. Constitution, the states have exclusive and plenary . . . power to allocate their electoral votes"4 such a change could be accomplished solely by altering state law, rather than federal law or the Constitution itself.5
That a limited number of states could agree to create such a fundamental shift in the federal political system without the approval of Congress might strike someone acquainted with the text of Article I of the Constitution as odd.6 One section of this Article, labeled "the Compact Clause," proclaims "No State shall, without the Consent of Congress . . . enter into any Agreement or Compact with another State."7 Read literally, this provision would require all agreements between states to be approved by both houses of Congress and to be signed by the President before coming into effect.8 The Supreme Court, however, has held in a series of decisions beginning with Virginia v. Tennessee9 in 1893, that only a small subset of interstate agreements require congressional assent. In its most recent major case to consider the issue, U.S. Steel v. Multistate Tax Commission,10 the Supreme Court ruled that only those interstate agreements that "enhance! ] state power quoad the National Government" are ineffective without the approval of Congress. …