Can states enter into interstate compacts to coordinate reopening society as the coronavirus outbreak wanes?

The lead paragraph from this Associated Press story sets up the issue:

Governors in the Northeast and along the West Coast on Monday announced separate state compacts to coordinate one of their biggest challenges in the weeks to come: How to begin reopening society amid the coronavirus pandemic.

Compare that with the Compact Clause of the United States Constitution:

No State shall, without the Consent of Congress, . . . enter into any Agreement or Compact with another State, or with a foreign Power . . . .

Importantly I don’t think the story accurately conveys what these states are doing—at least, not yet. And how states go about their business affects how we think about whether the Compact Clause is implicated.

Let’s see the West Coast “agreement,” as articulated with key phrases:

COVID-19 has preyed upon our interconnectedness. In the coming weeks, the West Coast will flip the script on COVID-19 – with our states acting in close coordination and collaboration to ensure the virus can never spread wildly in our communities.

We are announcing that California, Oregon and Washington have agreed to work together on a shared approach for reopening our economies – one that identifies clear indicators for communities to restart public life and business. 

While each state is building a state-specific plan, our states have agreed to the following principles as we build out a West Coast framework . . .

In the coming days the governors, their staff and health officials will continue conversations about this regional pact to recovery.

This is a “shared approach,” but one with “state-specific” plans guided by “shared principles.” At the end, it’s described as a “regional pact.”

Here’s the Northeast “multi-state council”:

Recognizing that their states have one integrated regional economy, New York Governor Andrew M. Cuomo, New Jersey Governor Phil Murphy, Connecticut Governor Ned Lamont, Pennsylvania Governor Tom Wolf, Delaware Governor John Carney and Rhode Island Governor Gina Raimondo today announced the creation of a multi-state council to restore the economy and get people back to work. This announcement builds on the states' ongoing regional approach to combatting the COVID-19 pandemic. 

The coordinating group - comprised of one health expert, one economic development expert and the respective Chief of Staff from each state -- will work together to develop a fully integrated regional framework to gradually lift the states' stay at home orders while minimizing the risk of increased spread of the virus.

Again, the emphasis is consulting together and an agreement to work with one another in a shared framework.

UPDATE 4/16: Here’s a new plan from the Midwest:

Today, we are announcing that Michigan, Ohio, Wisconsin, Minnesota, Illinois, Indiana, and Kentucky will work in close coordination to reopen our economies in a way that prioritizes our workers’ health.

…

Phasing in sectors of our economy will be most effective when we work together as a region. This doesn’t mean our economy will reopen all at once, or that every state will take the same steps at the same time. But close coordination will ensure we get this right.

Note that here the states emphasize that states may not act in lock-step and that regions may respond differently.

While the Associated Press piece (and other commentary) styles these as “interstate compacts,” it’s not clear they even meet that standard—at least, as understood from a legal use of the term “interstate compacts.” The Supreme Court has (I think, rightly) recognized that a “compact” turns on, say, some sort of consideration, including “mutual declarations [that may be] reasonably treated as made upon mutual considerations,” or some sort of “reciprocity.” That is, coordinated behavior or activity is not a “compact,” if there’s nothing binding on the states that are a part of it. If it is just a good-will gesture, unilateral actions that states may withdraw from at any time, it’s not a “compact.” And that means the Compact Clause is not implicated.

That’s why these should not be described (or, at least, not yet described!) as “interstate compacts.” Indeed, the West Coast language that refers to it as a “regional pact” is an overstatement. (I also think there’s not much difference between “agreement” and “compact”—at least, for these purposes there’s not a distinction, which likely turns more on the subject matter than the enforceability of it; and the Supreme Court has—but, probably wrongly—conflated the terms.)

But suppose these states do advance a framework that requires some obligations on their parts, some reciprocity, some coordinated activity that the other states have a legal right to enforce.

In my view, from an original understanding of the Constitution, such an agreement would need the consent of Congress.

But, even then, the Supreme Court has narrowed the kinds of compacts that require congressional consent. In 1893, in Virginia v. Tennessee, the court had a broader view:

The terms "agreement" or "compact" taken by themselves are sufficiently comprehensive to embrace all forms of stipulation, written or verbal, and relating to all kinds of subjects; to those to which the United States can have no possible objection or have any interest in interfering with, as well as to those which may tend to increase and build up the political influence of the contracting States, so as to encroach upon or impair the supremacy of the United States or interfere with their rightful management of particular subjects placed under their entire control.

By 1978, in U.S. Steel Corp. v. Multistate Tax Commission, the Court focused on whether any shift in political power exists:

But the test is whether the Compact enhances state power quoad the National Government. This pact does not purport to authorize the member States to exercise any powers they could not exercise in its absence.

The same focus was in place in 1985, in Northeast Bancorp, Inc. v. Board of Governors of the Federal Reserve System:

We do not see how the statutes in question either enhance the political power of the New England States at the expense of other States or have an "impact on our federal structure."

A unanimous Supreme Court decision in 2018, Texas v. New Mexico, provided the latest, small summary of the Compact Clause:

Our analysis begins with the Constitution. Its Compact Clause provides that “[n]o State shall, without the Consent of Congress, ... enter into any Agreement or Compact with another State.” Art. I, § 10, cl. 3. Congress's approval serves to “prevent any compact or agreement between any two States, which might affect injuriously the interests of the others.” Florida v. Georgia (1855). It also ensures that the Legislature can “check any infringement of the rights of the national government.” 3 J. Story, Commentaries on the Constitution of the United States § 1397 (1833) (in subsequent editions, § 1403). So, for example, if a proposed interstate agreement might lead to friction with a foreign country or injure the interests of another region of our own, Congress may withhold its approval. But once Congress gives its consent, a compact between States—like any other federal statute—becomes the law of the land. Texas v. New Mexico (1983).

There’s pending litigation about whether California’s “cap and trade” agreement with Quebec flunks the Compact Clause and requires congressional consent. If a court looks at agreements that are sufficient enough to provide a financial inducement to remain in them, then perhaps the agreement rises to the level of a “compact.”

On the whole, however, I’m sympathetic to the argument that, at least as presently understood, the “regional councils” are not “agreements” or “compacts” for purposes of the Compact Clause—which means that Congress does not need to consent to their existence. If they grow more powerful, they might then fall into the Supreme Court’s examination of whether they encroach on federal or state political power. If, for instance, the states band together to defy a constitutionally-permissible executive order or federal statute that might otherwise supersede state activity (although that seems like a more challenging hypothetical to develop in the first place), then it might be the kind of thing that would require congressional consent. Their actions might also adversely affect non-compacting states, and those non-compacting states might raise a claim against them. Or, perhaps federal courts would be willing to revisit precedent on this matter and require consent for any compacts that bind the signing states.

For now, however, it remains, I think, hypothetical. We’ll see what these agreements end up purporting to do and whether they start to rise to the level of more than coordinated activity.

UPDATE 4/17: This post has been lightly revised for clarity.