Although Interstate Compacts are not uncommon, they have made a comeback of sorts recently as states grapple to figure out what happens next if the U.S. Supreme Court rules the Patient Protection and Affordable Care Act (PPACA, aka Obamacare) constitutional. Many interstate agreements have been sanctioned by Congress for various reasons including mutually beneficial relationships based on water rights, fishing territories, port authorities, bridges, sex offender registration, transportation corridors, regional planning, etc.
Are Interstate Compacts a way to “end run” the Obamacare mandate?
STATES SHORING UP A CRUMBLING DIKE
Rep. Brad Daw, PHC Member and House Sponsor of SB208 Healthcare Compact (Sen. S. Adams), successfully passed a piece of legislation authorizing Utah to join an interstate Advisory Health Care Commission. This measure pledges to take joint and separate action to secure the consent of the United States Congress to a compact in order to return the authority to regulate health care to the member states, consistent with the goals and principles articulated in the compact. (Taken from text of SB208, 2012)
States that seek for and are granted permission to create a compact will figure out how to solve health care issues on their own. Federal government encroachment into this private sector and local public sector issue will be mitigated.
The big “IF” is…will the states be able to realistically presume that Congress will grant congressional consent?
A CONGRESSIONAL BLESSING
Article I, Section 10, Clause 3 of the U.S. Constitution, mandates that compacts between states must be ratified first by Congress.
Clause 3 states…
No 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.
Additionally, constitutional scholar, Michael Greve, gives us the following background into the rationale behind a Congressional stamp of approval for compacts…
The Framers of the Constitution had little difficulty seeing that combinations among the states, or any foreign-affairs activities undertaken by the states, were so fraught with danger to the union, that none should be allowed unless Congress consented. Comparable prohibitions had already been contained in the Articles of Confederation, but the Framers chose somewhat stronger language in the Constitution to assure national supremacy in foreign affairs and in relations among the states. The provisions caused no significant debate at the Constitutional Convention, and James Madison described them in The Federalist No. 44 as “fall[ing] within reasonings which are so obvious, or have been so fully developed, that they may be passed over without remark.” (Greve, Michael S., The Heritage Guide to the Constitution, p. 178, compiled by Edwin Meese III)
So, the Founders agreed that having a federal “check” on interstate collaborations (or compacts) was necessary and appropriate. To this day the argument remains sound. The United States should not tolerate the factionism of a few rogue states, but must focus on the security and common good of the union.
Does this argument run contrary to a position of States’ sovereignty?
No, in fact it is completely consistent with the principle. Separate sovereign authorities, at times, require moderation of their interests in the preliminary course of association. In this case, Congress under constitutional supremacy is the arbitor of the Separate States to join those interests in equity and duty. Once the relationship is created between the entities, the federal government may then step back and allow those states thus joined to work freely among themselves to function within their defined and approved framework. It is the execution and fulfillment of both constitutional mercy and constitutional justice.
SOME CONGRESSIONAL MEMBERS ON BOARD
It pays to have your own $600/hour constitutional attorney elected as one of your U.S. Senators (it’s a bargain at any price). During Senator Mike Lee’s Nephi Town Hall meeting, the senator assured his constituency that if the U.S. Supreme Court ruled in favor of sustaining Obamacare, he would be on the front lines to fight the decision utilizing an Interstate Compact methodology in Congress. Lee is a nationally respected constitutional attorney and has argued many similar cases in court. Lee is ready for the battle.
You may view Sen. Lee’s May 31, 2012 comments regarding Interstate Compacts on his USTREAM channel by linking HERE. [Start at marker 22:06, end at marker 25:45]
If the U.S. Supreme Court doesn’t rule the PPACA unconstitutional, how will states protect their citizens from this unilateral federal encroachment?
Many states have teed up counter-offensive legislation so if the Supreme Court rules in favor of PPACA, the States will force the proverbial Congressional hand, and pressure our federal lawmakers to take appropriate legislative action or face replacement at the ballot box. (And, depending on its composition at the time these strategies may or may not work.) With the Supremes decision due shortly and November elections approaching just as fast, this could be an interesting five months.
…AND CARRY A BIG STICK
As the federal government extends its reach into the business of the States, those states will inevitably push back. Interstate compacts will be a strong “stick” with which to beat the feds back into their constitutionally mandated corner. Instead of taking a wait and see attitude, citizens from across the nation must contact their state and federal lawmakers and convince them to work with other like-minded states to prepare for utilizing the next weapon of choice during the protracted health care battle—Interstate Compacts.