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Interstate compacts: a useful tool for power sharing among the states.

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. The creation of an interstate commission--through a specific grant of a state's sovereign authority to it--provides a formal regulatory scheme for the development of rules and enforcement of the compact. Numerous provisions of the compact detail the powers and duties of the interstate commission. What's important is that the rulemaking process of the interstate commission must substantially conform to the principles of due process provided in the federal or state administrative procedure acts. Such administrative agencies act as supra-state, sub-federal bodies accountable to the collective member states. (6) Many older compacts have been, or are being revised, in order to create such interstate commissions, recognizing the deficiencies in the old compacts and other recent compacts have also used interstate commissions as a mechanism for implementing and regulating interstate compacts. (7)

The Future

Increasingly, interstate compacts hold the promise for states to solve their own problems without federal intervention. "History demonstrates that states are most at risk of federal preemption when they fail to timely and effectively address supra-state, sub-federal problems." (8) Formal compacts creating intermediate governing authorities allow states to create fair and efficient ways of addressing interstate issues. They provide a "shared power" approach that allows states to preserve their sovereignty over problems which, while transcending individual state boundaries, should remain under the jurisdiction of "the several states." As state and federal decision-makers realize the benefits offered by compacts, they are likely to continue to be an increasingly used and valued form of interstate cooperation.

Richard Masters is general counsel to the Interstate Commission for Adult Offender Supervision; Elizabeth Oppenheim is director of Interstate Affairs at the American Public Human Services Association.

1 See, West Virginia, ex rel. Dyer vs. Sims, 341 U.S. 22 (1951).

2 Patricia S Florestano, Interstate Compacts: The Invisible Area of Interstate Relations, Schaefer Center for Public Policy, University of Baltimore, Sept. 1993.

3 Michael Buenger, Richard Masters, The Interstate Compact on Adult Offender Supervisions: Using Old Tools to Solve New Problems, Roger Williams University Law Review, Fall 2003.

4 Zimmerman and Wendell, The Law and Use of Interstate Compacts, The Council of State Governments, 1976.

5 Examples of compacts having such an administrative structure included the Interstate Compact on Juveniles, The Interstate Compact on the Placement of Children, and the Interstate Compact for the Supervision of Parolees and Probationers.

6 Michael Buenger, Richard Masters, The Interstate Compact on Adult Offender Supervisions: Using Old Tools to Solve New Problems, Roger Williams University Law Review, Fall 2003.

7 Ibid.

8 Ibid.
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Title Annotation:legal notes
Author:Masters, Richard; Oppenheim, Elizabeth
Publication:Policy & Practice
Geographic Code:1USA
Date:Mar 1, 2006
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