The Compact Clause of Article I, Section 10 provides:
No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
As a purely textual matter, it would not seem that the President must sign an interstate compact for it to be effective. The states only need the consent of Congress, which includes both houses. This is contrasted with the Article I, Section 7 presentment clause:
Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States.
“Every bill” that passes both houses must be signed by the President to take the force of law. It is not clear that a “compact” is a “bill,” though it would seem to be some species of federal law for purposes of the Supremacy Clause. Also, the phrase “Consent,” is quite different from “passed.” In other words “pass[ing]” a “Bill” seems quite different from providing “Consent” for a “Compact.” As a mater of text, I’m not sure if Presentment is necessary.
As a matter of precedent, the Court has never weighed in on whether the President must sign a compact. The Court’s compacts clause jurisprudence has been limited to a discussion of what types of agreements require Congressional approval.
In 1893, in Virginia v. Tennessee, Justice Field found for the Court that only compacts “which may encroach upon or interfere with the just supremacy of the United States” require the “Consent of Congress.”
Looking at the clause in which the terms ‘compact’ or ‘agreement’ appear, it is evident that the prohibition is directed to 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.
The Court reaffirmed this in United States Steel Corp. v. Multistate Tax Commission (1978). Cursory research shows that no court has ever considered a compact that was consented to by both Houses of Congress, but not approved by the President. (If you know of any such precedents, please share them). It may have never been challenged–in the same way that no one before Noel Canning ever challenged appointments made to fill vacancies that didn’t arise during the recess.
As a matter of Congressional practice–which we learned in Noel Canning counts for a lot–the President has historically been viewed as having to sign compact.
Bradford Clark noted in the Virginia Law Review, that historically, compacts were treated as requiring presentment.
Although the Constitution does not specify the form that such consent must take, the established congressional practice has been to give consent by law using the ordinary constitutional process of bicameralism and presentment. For a list of interstate compacts approved by Congress between 1789 and 1925, see Felix Frankfurter & James M. Landis, The Compact Clause of the Constitution–A Study in Interstate Adjustments, 34 Yale L.J. 685, 735-48 (1925). A review of the compacts cited in this study reveals that each was approved by legislation passed by both Houses of Congress and presented to the President. Congress appears to have continued this practice. See Edward T. Swaine, Does Federalism Constrain the Treaty Power?, 103 Colum. L. Rev. 403, 508 (2003) (stating that “in practice the President’s role in approving compacts has been honored as in ordinary legislation”).
Bradford R. Clark, Domesticating Sole Executive Agreements, 93 Va. L. Rev. 1573, 1661 (2007).
Edward T. Swaine observes much the same.
“in practice the President’s role in approving compacts has been honored as in ordinary legislation.411
411 See Note, Charting No Man’s Land: Applying Jurisdictional and Choice Of Law Doctrines to Interstate Compacts, 111 Harv. L. Rev. 1991, 1993-94 n. 19 (1998) [hereinafter Note, Charting No Man’s Land] (citing Frederick L. Zimmermann & Mitchell Wendell, The Interstate Compact Since 1925, at 94 (1951)); see also, e.g., Holt Cargo Sys., Inc. v. Delaware River Port Auth., 165 F.3d 242, 243 n.1 (3d Cir. 1999) (noting that compact creating Delaware River Port Authority was “signed into law by Congress and the President under the Interstate Compact Clause”). The terms of an individual compact may also provide for presidential participation. See, e.g., West Virginia ex rel. Dyer v. Sims, 341 U.S. 22, 27-28 (1951) (noting that compact terms provided for the President to appoint members of the compact commission). As Professor Tribe has previously noted, however, situating the power of international agreement in Article I would appear to give Congress the power to override the President’s veto. Tribe, Taking Text and Structure Seriously, supra note 22, at 1252-58.
Edward T. Swaine, Does Federalism Constrain the Treaty Power?, 103 Colum. L. Rev. 403, 508 (2003)
It seems in the past, the threat of a presidential veto has stalled compacts:
Frederick L. Zimmermann & Mitchell Wendell, The Interstate Compact Since 1925, at 94 (1951). Zimmermann and Wendell note that the threat of a presidential veto has occasionally been an obstacle to compact formation. See Zimmermann & Wendell, supra note 13, at 24.Charting No Man’s Land: Applying Jurisdictional and Choice of Law Doctrines to Interstate Compacts, 111 Harv. L. Rev. 1991, 2008 (1998)
But that, like Noel Canning, doesn’t prove how the Compact Clause was originally understood.
So here we are in an odd Noel Canning situation. For a very long time, Congress has presented compacts to the President, and the President has approved them, or vetoed them. Even though there is nothing in the Constitution saying that this is a requirement. Were the Court to ever find that Presentment was unnecessary, virtually nothing from the past would change. The President’s approval would be viewed an honorific surplusage.
But unlike Noel Canning, bypassing the Presentment requirement would enable both houses of Congress–such as this one–to work around the President, and give states the authority to do things that states could not otherwise do. Such an understanding would greatly shift the power of Congress and the states against the Executive.
This thought only occurred to me this morning while talking to a friend, so there may be a lot that I’m missing. I’m also not sure how I feel about it as a matter of policy. But I’ll think this open question through more.
On a related note, speaking of states, after last week’s elections, 27 states have both chambers of Congress controlled by the GOP. Article V provides that a constitutional convention can be called by an “Application of the Legislatures of two thirds of the several states.” In other words, we are still 6 states shy of the 33 states necessary where both houses of the Legislature are controlled by a single party.
Update: A colleague writes in, pointing to Article 1, Section 7, Clause 3?
“Every order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment) shall be presented to the President of the United States …”
If a compact fits in with “order, resolution, or vote,” then compacts would have to be presented. The Art. I, S. 7, Cl. 3 argument is better than the straight-up bicameralism and presentment argument, as a “Compact” is definitely not a bill. It may be closer to a “vote.” (I haven’t seen this argument before, but I’ve only looked into it briefly)
Update: Seth Barrett Tillman writes:
My own view, which for reasons I will explain below (and I expect is not widely shared or, perhaps, even known), is that congressional consent to interstate compacts requires Congress to make use of the legislative procedural mechanisms laid down either in Article I, Section 7, Clause 2 or (the arguably alternative procedure) in Article I, Section, 7, Clause 3.In other words, just as Congress has specifically enumerated powers (e.g., Article I, Section 8), it has specifically enumerated legislative procedures. Congress cannot exceed its enumerated powers, nor can Congress opt out of these legislative procedures. (cf. INS v Chadha).However, the counter-argument, the position that congressional consent to interstate compacts does not require presentment, is stronger than your post makes clear. The argument would go something like this … some congressional enumerated powers expressly call for congressional action “by law”, that is “by statute”. See, e.g., Inferior Office Appointments Clause (“Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”). But other clauses only call for congressional action, but do not expressly call for congressional action “by law”. See, e.g., Compacts Clause (“No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.”). The textual distinction might allow congress some play — to consent absent a proper statute (with requires presentment and possible veto and veto override), perhaps by simple concurrent resolution (bypassing the President). You find hints of this position in the works of Professor Charles Black, and Professor Treanor (as I remember) has suggested that the Declare War Clause can be implemented by Congress absent a statute.My own view is sui generis. I explain it in my 2005 Texas Law Review paper and related exchange with Professor Gary Lawson.My view is that 1/7/2 (the Presentment Clause) and 1/7/3 (the Second Presentment Clause) are different procedures. When a substantive constitutional provision requires Congress to act “by law”, then Congress must exclusively use 1/7/2. But absent 1/7/2-related “by law” language, Congress can use either 1/7/2 or 1/7/3 procedures — the latter allows Congress to opt of bicameralism, but not presentment. (Article V presents its own separate puzzle, which I discuss in detail in my paper.)