Thursday, August 03, 2006

Global Warming and the Compact Clause

In my perusing of National Review’s The Corner, I came across a post by Iain Murray questioning the recently announced agreement between the State of California and the United Kingdom with respect to global warming research and technology.  Mr. Murray’s post questions how these respective governments, specifically California, are going to square the agreement with Article 1, section 10, clause 3 of the United States Constitution, more commonly referred to as the “Compact Clause.”  This is an interesting question that actually has a very simple answer.  

 Article I, section 10, clause 3 of the Constitution states that:

[n]o 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.

     This provision of the Constitution has been the subject of much Supreme Court litigation.  In fact, early Supreme Court interpretations of the Compact Clause appear to support Mr. Murray’s literal reading, holding that the words “agreement and compact” differed from the word “treaty” and, therefore, “were designed to make the prohibition more comprehensive …. The word ‘agreement,’ does not necessarily import and direct any express stipulation; nor is it necessary that it should be in writing.”  See Holmes v. Jennison, 39 U.S. (14 Pet.) 540, 570-572 (1840).  The Court went on to hold that the clear intent of the framers could not be exercised, “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.

     More than a half century later, however, the Supreme Court decided Virginia v. Tennessee, 148 U.S. 503 (1893), and retreated from its earlier strict application of the Compact Clause.  The Court held that the unqualified prohibition of compacts and agreements between States without the consent of Congress did not apply to agreements concerning matters that have neither the tendency to increase the political powers of the contracting States, nor the intention of encroaching upon or impairing the just supremacy of the United States. This more lenient interpretation was affirmed in 1978 when the Court held that the States did not enhance their political powers in such a way as to encroach into the power of the Federal Government by entering into the Multi-state Tax Compact. See U.S. Steel Corp. v. Multi-state Tax Comm’n, 434 U.S. 452, 471 (1978).  Thus, the Court upheld the agreement as one not requiring congressional consent.  See id. at 479.  

     Hence, the relevant inquiry is not whether California and the UK have entered into an agreement, but whether that agreement increases the power of the State government or somehow encroaches or impairs the supremacy of the United States.  It is difficult for me to see how this type of agreement does either.  Simply being at odds with the Administration’s position on global warming is not likely going to satisfy the conditions that would trigger the Clause’s application.  Presumably, CA conducts its own global warming research, funded by its own state funds, which, of course, makes the results entirely sovereign from the federal government.  Thus, CA can do what it wants with this information or product without any fear of impinging on the sovereignty of the federal government.  Even if so-called co-mingled or wholly federal grant funds are expended on the research and development, I have a hard time accepting that those facts would change the legal result.  An R&D agreement does not expand the power of the State or diminish the sovereignty of the federal government, plain and simple.  

     The fact is states enter into compacts or agreements with foreign countries all the time.  Ever travel to a foreign country (i.e. Canada) by automobile?  What legal agreement permits one licensed in an American State (remember there are no federal driver’s licenses) to drive internationally in a sovereign nation like Canada and vice versa?  It’s actually not a treaty, but a Memorandum of Understanding (MOU), which has been in place for quite some time and has never, to my knowledge, required or received congressional approval.  Almost all states have similar agreements with many other western countries.  MOU’s like these are what allows Americans to drive cars in England, and the English to rent cars for vacations here.  I could go on, but I think you get the point.  MOU’s are not treaties as they are not “legally binding” and according to State Department cannot contain legally enforceable language, nevertheless, they serve a functional purpose and many of them exist.  

     Simply put, an MOU appears to be what California and the UK have in place for global warming related research and technology.  As such, it does not appear to violate the Compact Clause and Mr. Murray has little to be concerned with.  


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