Interstate Cooperation, Second Edition

Compacts and Administrative Agreements

Joseph F. Zimmerman

• Publisher: SUNY Press
• Year: 2012
• Print ISBN: 9781438442341, 9781438442358
• eBook ISBN: 9781438442365
• Topic: Politics & International Relations
• Subtopic: American Government
• Index: Politics & International Relations

Cooperative interstate relations are essential for maintaining the economic and political union established by the United States Constitution. Despite this importance, interstate compacts, federal-state compacts, and interstate administrative agreements have generally been neglected by political scientists for more than half a century. In this second edition of Interstate Cooperation, Joseph F. Zimmerman demonstrates that many public goals can be achieved by either a compact or an agreement. Interstate administrative agreements, moreover, may be verbal or written, and have increased sharply in number because their flexibility allows changes to be made quickly without legislative authorization. Zimmerman aims to stimulate additional research on these forms of interstate cooperation in order to help formulate additional innovative solutions to our major interstate problems.

CHAPTER ONE

INTERSTATE COMITY

An imperium in imperio (an empire within an empire) is an apt descriptor of a federal system as sovereign political powers are divided between a national government and constituent state governments.¹ This power division automatically produces national-state relations and interstate relations characterized by competition, cooperation, and/or conflict. This book focuses on interstate comity in the United States that in origin predates the emergence of the federal system and is traceable to the Declaration of Independence of 1776 that necessitated interstate cooperation, similar to an international alliance, for the successful prosecution of the War of Independence.

The literature on national-state relations in the United States is vast in contrast to the scarcity of interstate relations literature. The first comprehensive book on such relations was not published until 1996.² This fact is surprising since boundary and trade disputes between sister states were major factors contributing to calls for amendment of the Articles of Confederation and Perpetual Union, and ultimately led to the convening of the Constitutional Convention of 1787 that drafted the U.S. Constitution as a replacement of the articles.

Political scientists generally had relatively little interest in interstate relations in the post-1940 period until the turn of the twenty-first century. The lack of interest is difficult to explain when one considers the wide variety of major economic, political, and social matters involved and the importance of daily interstate cooperative activities. The declining scholarly attention paid to such relations is apparent upon a perusal of three special issues of The Annals of the Academy of Political and Social Science devoted to federalism and intergovernmental relations.³ The 1940 issue contained six articles on interstate relations. The number of such articles declined to two in the 1974 issue, and to none in the 1990 issue. Fortunately, there has been increasing scholarly attention to such relations commencing in 1996.

The advantages of a federal system, according to its proponents, are avoidance of overcentralization of political power, national uniformity in policy areas where needed, states controlling their internal affairs and experimenting with new policies that lead to adoption of successful ones by sister states and/or the national legislature, greater opportunities for citizen participation in the policy making and implementation processes, and ability of states to remedy an internal problem without waiting for the national legislature to develop a solution.

A federal system, however, may have four major disadvantages. First, the exercise of concurrent powers by the national legislature and state legislatures may produce conflicts between the two levels of government and/or uneconomical performance of overlapping functions. Second, disharmonious state policies in numerous important areas—such as banking, criminal justice, highway safety, and taxation—create major problems for business firms and citizens who have to ascertain conflicting provisions in the various laws of the fifty states and be alert to frequent changes in many laws. Third, the refusal of a state government to recognize the public acts, judicial proceedings such as divorce, and records of another state generates significant problems. Fourth, serious transboundary problems (air and water pollution are examples) may remain unabated in the absence of national legislative action or interstate cooperation to solve them.

Formal interstate cooperation and informal interstate cooperation are the keystones holding the United States federal system together and contributing to its success, yet they are a largely unexplored area of the federal system. Cooperation is manifested in many forms. Formal cooperation is reflected in interstate compacts, reciprocity statutes, uniform laws, and written interstate administrative agreements for joint action that may be the product of self-interest of sister states and/or congressional promotion as explained in a subsequent section. Whereas compacts and uniform laws usually are intended to be relatively permanent, administrative agreements between sister states may be temporary or permanent and may be verbal or written. Interstate compacts can be located in the consolidated laws of states and, if consent has been granted by Congress, in the United States Statutes at-Large. Unfortunately, there is no central repository in any state holding all written interstate administrative agreements entered into by the state. A New York law requires the secretary of state to keep a current compilation of all interstate compacts and administrative agreements, referred to as interstate concordats, entered into by New York and its political subdivisions, yet only three agreements are in the compilation (including one with the Province of Quebec on acid rain).⁴

A notable feature of the contemporary U.S. federal system is the exceptionally large number of informal understandings between administrative officers in various states pertaining to combating organized crime, hot pursuit by police across state boundary lines, mutual assistance in extinguishing forest fires, prevention of environmental pollution, and other matters (see chapter 6). There has been a sharp increase in the number of these agreements during the past six decades with little attendant public visibility and few formal studies.

National and regional associations of state administrative officers play key roles in promoting interstate cooperation. Numerous associations draft model laws and model administrative agreements, and association members promote the models in their home states. Certain national associations of state administrative officers encourage interstate cooperation to solve problems in order to fend off congressional preemption of their regulatory powers.⁵ For example, the national association of insurance commissioners initiated action to improve state solvency regulation of property-casualty and life-insurance companies by establishing an accreditation program for states (see chapter 6).⁶

Interstate collaboration is common, but should not blind us to interstate conflicts over water allocation and/or pollution, boundary lines, taxation, and other subjects. Furthermore, interstate economic competition is common as individual states rationally seeking to attract major federal government facilities, industrial firms, service industries, tourists, and in some instances gamblers. Tax abatements, grants, and loans commonly are offered as inducements to firms to locate in a particular state. The U.S. Advisory Commission on Intergovernmental Relations (ACIR) in 1991 identified “competition in the areas of education, public welfare, and public works infrastructure … and right-to-work laws and laws regulating workers' compensation insurance.”⁷ States also compete to obtain certain federal grants-in-aid. Tax exportation is another feature of a federal system with states rich in and exporting natural resources—coal, forest products, natural gas—levying relatively high extractive taxes that are passed on by purchasers in sister states to consumers. New Hampshire is perhaps the outstanding example of a state engaging in another type of tax exportation. The state's low alcoholic beverages and tobacco products excise taxes and lack of a sales tax and a bottle deposit act as magnets for shoppers from the other New England states that all levy sales taxes and have higher excise taxes and a bottle deposit act. It is apparent conflicts and competition may hinder interstate cooperation.

Interstate compacts and interstate administrative agreements are the specific foci of this book, and selected ones are assessed in terms of their success in chapter 7. A proper understanding of state interactions necessitates an acquaintance with the origin of the federal system, constitutional distribution of political powers between Congress and the states, congressional promotion of interstate cooperation, and interstate constitutional principles (see chapter 2).

ORIGIN OF THE FEDERAL SYSTEM

English institutions and philosophies of governance influenced greatly the United States governmental system as the colonists brought to the new world concepts of popular sovereignty, natural law, natural rights, rule of law, and separation of powers. They, of course, lived under a centralized unitary system with sovereignty residing in the mother country.

New Hampshire in 1775 revolted against British rule and the Declaration of Independence in 1776 formally instituted the Revolutionary War by the thirteen former colonies against the British Crown. The declaration's immediate result was the establishment of thirteen independent nations with eleven drafting constitutions and Connecticut and Rhode Island converting their royal charters into constitutions. Although no national constitution or government existed, each state sent delegates to the second Continental Congress which directed the war effort, borrowed funds, raised armies, and entered into treaties with other nations. The Congress recognized the need for a national government, but did not seriously consider a unitary system as the colonists had revolted against such a system. Two nations—Switzerland and the United Netherlands—operated under a confederate system that appealed to the newly independent states.

Articles of Confederation and Perpetual Union

The Continental Congress in 1777 drafted the articles and submitted them for ratification to the states with the proviso they would become effective upon the ratification by all states. Maryland, the thirteenth state, did not ratify the articles until 1781. Boundary disputes, attributable to imprecision in royal-land grants, were responsible for the ratification delay and were overcome when the Continental Congress proposed in 1780 that the title to disputed lands should be transferred to the proposed national Congress to be “disposed of for the common benefit of the United States and be settled and formed into distinct states which shall become members of this Federal Union, …”⁸ New York, which had few territorial claims, and Virginia with numerous land claims in 1781 ceded their lands to the Congress, and their lead was followed by the other states with such claims.

PROVISIONS

Congress enacted the Northwest Ordinance in 1787 stipulating that sections of the Northwest Territory would be admitted as states when the population in each section reached 50,000.⁹ Article XI of the Articles of Confederation and Perpetual Union provided “Canada, acceding to this Confederation, and joining in the measures of the United States, shall be admitted into and entitled to all the advantages of this Union, but no other colony shall be admitted into the same unless such admission be agreed to by the nine States.”

The confederation was “perpetual” in nature according to the articles that did not employ the word government. Article III described the governance system as a “firm league of friendship,” thereby emphasizing the importance of cooperative interstate relations, and declaring its purposes to be “common defence, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other, against all force offered to, or attacks made upon them, or by any of them, on account of religion, sovereignty, trade, or any other pretence whatever.”

The second article made clear the confederate nature of the new governance system: “Each State retains its sovereignty, freedom and independence, and every power, jurisdiction and right, which is not by this confederation expressly delegated to the united States in Congress assembled.” Note the lower case u in “united” denoting the establishment of a league of states by the articles rather than a national government with powers derived from the people.

The unicameral congress had two-to-seven delegates from each state appointed and recallable by their respective state legislatures for a maximum term of three years in any period of six years. Each state had only one vote in Congress which was authorized to appoint a committee of the states, composed of one delegate from each state, to meet during congressional recesses and to appoint a president as presiding officer for a term not exceeding one year during a three-year period. The committee was empowered to borrow funds, declare war, build a navy, raise an army, coin money, negotiate treaties, establish a postal system, fix standards of measures and weights, and regulate relations with Indian tribes. The committee also was authorized to exercise additional powers delegated by Congress provided nine states agreed. There were, however, no separate executive branch and no separate judicial branch.

DEFECTS

Experience quickly revealed the articles had five defects:

First, the power of taxation was not granted to Congress, and it was dependent upon individual states sending their contribution quotas of funds and many failed to send their quotas. In consequence, Congress was unable to exercise its delegated powers effectively.

Second, Congress lacked the power to enforce its laws and treaties entered into with foreign nations, and states were under no legal obligation to respect congressional laws and treaties. James Madison in 1787 noted states violated the Peace Treaty of 1783, the Treaty with France, and the Treaty with Holland, and “as yet foreign powers have not been rigorous in animadverting on us.”¹⁰

Third, the lack of power to regulate interstate commerce made it impossible for Congress to counteract the mercantilist practices of states that had erected trade barriers against sister states, thereby bringing interstate commerce to a near standstill. This defect clearly was the most serious one and contributed greatly to the increasing public pressure for the amendment of the articles.

Fourth, Congress possessed the authority to raise and support an army and a navy, but lacked the resources to do so during a period when England controlled Canada, Spain occupied lands to the south-west, and the French monarchy, which had supported the states during the revolutionary war, was in danger of collapse. More importantly, Congress was unable to assist states in suppressing domestic disorders such as Shay's rebellion in western Massachusetts.

Fifth, dissolution of the confederacy was a distinct possibility. Madison commented in 1787 “a breach of any of the Articles of Confederation by any of the parties to it absolves the other parties from their respective obligations, and gives them a right if they choose to exert it of dissolving the Union altogether.”¹¹

Constitutional Convention

The articles' defects became more apparent with the passage of time. Maryland and Virginia recognized fully the importance of cooperative interstate relations, and their representatives in 1785 drafted the Potomac River and Chesapeake Bay Navigation and Trade Agreement. The Maryland General Assembly ratified the compact and proposed Delaware and Pennsylvania be included in negotiations of interstate commercial regulations. The Virginia General Assembly also ratified the agreement and invited all thirteen states to attend a convention in Annapolis, Maryland in 1786 to develop a uniform system of commerce and trade.

Nine states appointed commissioners to attend the convention, but only twelve commissioners from five states participated. The convention approved a resolution requesting Congress to convene a convention in Philadelphia in May 1787 to examine the Articles of Confederation and Perpetual Union and to propose needed amendments. Congress, without enthusiasm, approved on February 21, 1787 a resolution calling a convention, but failed to designate the method of selecting delegates. They were appointed by each state legislature or by the governor under legislative authorization.

Only the State of Rhode Island and the Providence Plantations failed to send delegates to the convention that met from May 25 to September 17, 1787. Rhode Island maintained the articles could be amended only in conformance with Article XIII, requiring the approval of Congress and con...

Table of contents

• Title Page
• Preface
• Acknowledgements
• 1. Interstate Comity
• 2. Constitutional Interstate Governance
• 3. The Compacting Process
• 4. Compact Commissions
• 5. State-administered Compacts
• 6. Formal and Informal Administrative Agreements
• 7. Interstate Comity: An Assessment
• Appendix A: Interstate Compacts Granted Congressional Consent
• Appendix B: Federal-Interstate Compacts Granted Congressional Consent
• Notes
• Bibliography