Blair/Schwarzenegger Agreement on Climate Change

Tue Sep 12 13:01:22 PDT 2006

I'm not an expert in this area, but I did some research on the 
Compact Clause a while back.  On the basis of that research, (a) I 
don't think there's a completely settled answer to Bill's question, 
but (b) I think the best answer is probably that the Compact Clause 
does not apply here.

Some details:

1.  There is certainly some basis for arguing that the 
California-Britain agreement is covered by the Compact Clause.  The 
best support is probably Holmes v. Jennison, 39 U.S. 540 (1840), 
which states that the Compact Clause was intended to cover 
essentially all agreements between states and foreign powers that are 
not covered by the separate Treaty Clause (which categorically 
forbids states from entering into treaties, alliances, and such):

It was the intention of the framers of the Constitution to use the 
broadest and most comprehensive terms [in the Compact Clause]; and . 
. . they anxiously desired to cut off all connection or communication 
between a state and a foreign power:  and we shall fail to execute 
that evident intention, unless we give to the word "agreement" its 
most extended signification; and so apply it as to prohibit every 
agreement, written or verbal, formal or informal, positive or 
implied, by the mutual understanding of the parties.

Id. at 572.  There is also an Attorney General opinion from the early 
20th century that relies on Holmes to construe the Compact Clause as 
"prohibit[ing] a State from making any kind of an agreement with a 
foreign power."  Construction of Long Sault Rapids Dam, Rainy River, 
27 Op. U.S. Att'y Gen. 327 (1909).  Of course, the language of 
"prohibition" here doesn't mean categorical prohibition; it means 
that states aren't allowed to enter into such agreements without 
Congress's consent.  So if we were to understand the Compact Clause 
in Holmes's broad terms, then I think the California-Britain 
agreement would need congressional approval.  And since it apparently 
doesn't have that approval, it would be in trouble.

2.  On the other hand, there are a number of later Supreme Court 
cases that construe the Compact Clause more narrowly, effectively to 
require congressional consent only for those agreements "tending to 
the increase of political power in the states, which may encroach 
upon or interfere with the just supremacy of the United 
States."  Virginia v. Tennessee, 148 U.S.503, 519 (1893); see also, 
e.g., Louisiana v. Texas, 176 U.S. 1, 17 (1900); North Carolina v. 
Tennessee, 235 U.S. 1, 16 (1914); United States Steel Corp. v. 
Multistate Tax Comm'n, 434 U.S. 452, 468-69 (1978).

3.  The problem, though, is that all these later cases involve 
agreements between or among states of the Union, not agreements 
between a state and a "foreign power."  So Virginia v. Tennessee and 
the other cases might not apply here.

4.  Still, I'm inclined to think that the Compact Clause is best read 
so that "agreement" has the same basic scope without regard to 
whether the pact is between domestic states or a state and a foreign 
power.  The Court seemed to take this position in United States Steel 
Corp. when it described Virginia v. Tennessee, a case involving a 
pact between states, as narrowing Holmes, a case about an agreement 
between a state and Canada.  See 434 U.S. at 463-69.  Similarly, at 
least one state court has construed Virginia v. Tennessee to apply to 
state-foreign agreements as well as to state-state agreements.  See 
McHenry County v. Brady, 163 N.W. 540 (N.D. 1917).  The Restatement 
(Third) of the Foreign Relations of the United States takes the same 
position (at section 302f), as does Louis Henkin (the Chief Reporter 
of the Restatement).  See Henkin, Foreign Affairs and the United 
States Constitution 155 (2d ed. 1996).

5.  Also arguably supporting this conclusion is the practical 
consideration that if the Compact Clause were construed as broadly as 
Holmes suggests, a number of current arrangements would run afoul of 
it.  As Henkin's book points out, New York City and State have 
arrangements with both the United Nations and with the permanent 
missions to the UN of various foreign governments.  And there are 
other agreements too, including between the Pacific states (AK, CA, 
HI, OR, and WA) and British Columbia regarding the prevention of and 
response to oil spills.

Given all this, I think the narrower understanding of the Compact 
Clause probably applies to state-foreign agreements just as to 
state-state agreements.  And under that narrower understanding, the 
California-Britain pact probably doesn't fall within the Compact 
Clause, since it does not appear to increase the political power of a 
state in a way that meaningfully encroaches upon or interferes with 
federal supremacy.

Trevor Morrison

Trevor W. Morrison
Associate Professor of Law
Cornell Law School
116 Myron Taylor Hall
Ithaca, NY 14853
ph. 607.255.9023
fax 607.255.7193
SSRN author page:  http://ssrn.com/author=372569

At 02:52 PM 9/12/2006, William Funk wrote:
>It was Article I, Section 10, cl. 3, that I was really asking 
>about.  I know that for interstate compacts there is a body of law 
>that allows various interstate agreements without the consent of 
>Congress, but I don't know if that applies to agreements "with a 
>foreign power", and I was hoping someone here might know.
>Bill Funk
>
>
>----------
>From: conlawprof-bounces at lists.ucla.edu 
>[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
>Sent: Tuesday, September 12, 2006 11:28 AM
>To: conlawprof at lists.ucla.edu
>Subject: RE: Blair/Schwarzenegger Agreement on Climate Change
>
>     Wouldn't that be a state "enter[ing] into an[] agreement ... 
> with another state," which under article I, section 10 would 
> require consent of Congress?  Or has "agreement ... with another 
> state" been read in a way that excludes agreement to cooperate on studies?
>
>     Eugene
>
>
>----------
>From: conlawprof-bounces at lists.ucla.edu 
>[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of William Funk
>Sent: Tuesday, September 12, 2006 11:24 AM
>To: conlawprof at lists.ucla.edu
>Subject: Blair/Schwarzenegger Agreement on Climate Change
>I have been off the list for a while.  Has there been any discussion 
>of the constitutionality of Arnie and Tony signing a formal 
>agreement to cooperate on climate change studies?
>Bill Funk
>Lewis & Clark Law School
>
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Trevor W. Morrison
Associate Professor of Law
Cornell Law School
116 Myron Taylor Hall
Ithaca, NY 14853
ph. 607.255.9023
fax 607.255.7193
SSRN author page:  <http://ssrn.com/author=372569>http://ssrn.com/author=372569

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