The Compact Clause of Article I, Section 10 of the U.S. Constitution has garnered little attention during its two centuries of existence. Designed to regulate cooperation among the states, the Clause requires that all interstate compacts be approved by Congress. Under current doctrine, this safeguard is consigned to near obsolescence. Hundreds of compacts of all shapes and sizes have been formed over the last century with limited accountability. Amid stagnation in Congress, compacts represent an increasingly appealing means of policymaking innovation outside of Washington. Yet such circumvention of the Compact Clause is not without risk.
This Note returns to the era before the Constitutional Convention when limitations on interstate compacts were first developed. It argues that the Compact Clause holds special significance in an age of politically polarized federalism and proposes a new theoretical approach for restoring the Clause’s operation: “negative field preemption.” Bringing the Clause back to relevance would both encourage the formation of beneficial compacts and prevent potentially dangerous compacts from being enacted without oversight.
* J.D., Stanford Law School, 2019. This Note exists thanks to the support of the Stanford Constitutional Law Center, led by Michael W. McConnell and Mark Storslee, and the kind backing for my research from Jane Schacter and Pam Karlan. Special appreciation to Barbara Fried, Bernadette Meyler, and the students of their Legal Studies Workshop who provided valuable feedback during the writing process, especially Yoni Pomeranz and Mark Krass, whose incisive criticism was among the most helpfully provocative I received. Special thanks to my editing team—Alex Costin, Juan Pablo González, Arielle Mourrain, and the indefatigable Kyle Grigel—as well as the many other editors of the Stanford Law Review, particularly Jane Kessner, Yoni Marshall, Annie Shi, Lori Ding, Ethan Herenstein, and Will Orr.