Republicans’ Latest Effort to Circumvent the Constitution: Interstate Compacts

March 10, 2011
Guest Post

By Adam Winkler, professor of law, UCLA School of Law. This article is cross-posted at The Huffington Post.

On Monday, the Tennessee legislature voted along party lines to join an interstate compact intended to exempt the state from having to follow the national healthcare law. The state's Republican governor is likely to sign the bill, and at least nine other states are considering similar action. Unfortunately for them, however, no interstate compact is going to free the states from the healthcare law.

And, remarkably, proponents of the interstate compacts -- essentially contracts between two or more states -- are unwittingly helping President Obama's efforts to defend the law in court.

Interstate compacts are just the latest in a growing line of futile efforts to overturn President Obama's signature piece of legislation, the Affordable Care Act. In January, House Republicans voted to repeal the law, although they knew President Obama would veto any such effort. Healthcare opponents also promoted state laws to "nullify" the federal law, despite the clear command in the U.S. Constitution that federal law is supreme over state law.

As those efforts had no chance of working, one can only surmise that they were intended primarily as political theatre.

Compared to these other actions, the interstate compact notion looks promising -- at least so long as one doesn't look too closely.

Interstate compacts are commonplace contractual agreements that states use to handle regional problems. They are used to establish agencies and rules for transportation systems that traverse state lines (like the Metropolitan Area Transit Authority in and around D.C.), waterways between states (like the Port Authority of New York & New Jersey), and any number of other multi-state issues, from environmental protection to waste disposal to cross-border adoption.

Such agreements are perfectly legitimate. In fact, the Constitution itself envisions them. Article I, section 10 of the Constitution provides, "No State shall, without the Consent of Congress, . . . enter into any Agreement or Compact with another State." If Congress consents, therefore, states may enter into binding contracts with other states.

Healthcare opponents are encouraging states to enter into a compact that would exempt them and their residents from the demands of the Affordable Care Act, especially the requirement that most individuals have insurance. Yet such a compact faces the same insurmountable hurdle as the House Republicans' repeal effort back in January. Any such compact would need to be signed by the president.

Backers of the healthcare compact argue that because the "Interstate Compact Clause" only speaks of consent of "Congress," approval only requires a vote by the House and the Senate. The law, they say, does not need to be submitted to the president. Perhaps they didn't read all of the Constitution. The "Presentment Clause" of Article I, section 7 mandates that "Every Bill" and "Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary . . . shall be presented to the President of the United States" for his signature.

In 1983, the Supreme Court in a case called INS v. Chadha held that every act of Congress that has "the purpose and effect of altering the legal rights, duties, and relations of persons" is required to be presented to president. (The only exception is a constitutional amendment, which must have the support of 2/3ds of both houses of Congress--the same number required to override a president's veto, making the executive's approval irrelevant.) The healthcare compact is clearly designed to alter people's legal rights and duties, such as eliminating the legal obligation to have health insurance.

Other than a judicial ruling that a law is unconstitutional, the only valid way to reverse a federal law is by legislation passed by both houses of Congress and presented to the president. As the Court explained in Chadha, "Presentment to the President and the Presidential veto were considered so imperative that the draftsmen took special pains to assure that these requirements could not be circumvented."

And yet Republicans, who have made such a grand show lately of their allegiance to the Constitution, are now seeking to circumvent those requirements. So much for following the original intent of the Framers.
Historical practice also indicates that presidential approval is necessary. Compacts have long been submitted to the president for his signature. Indeed, President Franklin Roosevelt twice vetoed congressional acts consenting to interstate compacts.

Ironically, supporters of the healthcare compact may be subtly undermining their allies' effort to overturn the healthcare law in court. The court cases assert that the law was beyond Congress's limited powers under the Constitution. Yet the Supreme Court held in one landmark case on interstate compacts that congressional approval is only required where "the subject matter of the agreement is an appropriate subject for congressional legislation." Compact proponents, who have repeatedly said that Congress must give its consent to the healthcare compact, are basically conceding that the healthcare law was within Congress's authority.

If that's right, then the interstate compact movement will be one theatrical repeal effort President Obama can applaud.

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