Interstate Compacts: A Useful Tool for Power Sharing among the States
Masters, Richard, Oppenheim, Elizabeth, Policy & Practice
Former U.S. Supreme Court Justice Felix Frankfurter referred to interstate compacts as one of the "axioms of modern government." In a historic court decision in which the court upheld the validity of a state's authority to enter into compacts and delegate authority to an interstate agency, he called such state action as "a conventional grant of legislative power." (1) Throughout the history of the United States, interstate compacts have been used to define and redefine the relationships of states and the federal government on a broad range of issues. Up until 1969, interstate compacts were used mostly to settle boundary disputes, disposition of land between two adjoining states, and resolve other issues, including natural resources conservation, utility regulation, and public transportation. (2) Today there are almost 200 compacts in effect. Most of the compacts being developed involve some interstate regulatory matter and are designed for regional or national participation. (3)
Given the continued movement to decentralization of government activities and increased state responsibilities in the U.S. federal system, our increasingly mobile society, and the increasing number of state problems that exceed unilateral solution by one state, interstate compacts continue to enjoy wide appeal as an effective tool for resolving national-state and interstate conflicts and problems in intergovernmental relations. Among the most recent of these enactments are the Emergency Management Assistance Compact, the Interstate Insurance Product Regulation Compact, the Interstate Mining Compact, the Interstate Passenger Rail Compact, and the Nurse Licensure Compact.
Toward More Formalized Administration
Whether a given compact should establish a special administrative structure depends on the subject matter and scope of the agreement. In boundary disputes and water allocation, implementation of the compacts was left to state personnel and considered an extension of their regular duties. (4) Later, many compacts went one step beyond and, while not creating an administrative structure, provided for the appointment of "compact administrators" acting in concert with their counterparts to promulgate rules and regulations to carry out the terms of the compact. Informal, professional, trade-like associations were formed that informally developed the rules to carry out the terms of the compact. (5)
Compacts formed for the purpose of providing regional and national legal channels for intergovernmental action require a more formal governing structure. In most cases, a state-created interstate commission that is a sub-federal, supra-state governing body is being advanced. Without such an agency, the efficacy of the rules governing the administration of a compact is questionable and often not enforceable between states. Associations of "compact administrators" have questionable legal standing to develop rules or lack the political clout to ensure compliance. In many states, the rules developed by these associations are not recognized. …