What you should know about
the compact clause.
Clark L. Snelson
Utah Assistant Attorney General
San Antonio, October 6,7 2015
ARTICLE I, SECTION 10, CLAUSE 3
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.
Among the various provisions of the clause, only the “Compact
“Without the consent of
congress…. No state shall….”
“enter into any agreement or
compact with another State, or
with a foreign Power…..”
Prohibition is not absolute….
• U.S. Steel V. Multistate tax Commission
• Prohibits only compacts that encroach on
Federal sovereignty or enlarge State
Powers
IS IFTA a Compact?
Three indicia of a compact:
1. Creation of a joint organization
for regulation/ administration.
2. Conditional consent by member
states in which each state is not
free to modify or repeal its
participation unilaterally.
3. Requires reciprocal action for
effectiveness.
What does IFTA Do?
It has the three indicia of a compact,
It is an agreement between States,
It is an agreement with a Foreign power,
It does allow the States to do something
they could not do otherwise.
It may be a compact that
requires Federal consent…..!
No specific form of consent is
required…
"The consent of Congress was given by ratification after
the two states had acted, but that is not a good ground of
objection. 'The Constitution makes no provision respecting
the mode or form in which the consent of Congress is to be
signified, very properly leaving that matter to the wisdom of
that body, to be decided upon according to the ordinary rules
of law and of right reason. The only question in cases which
involve that point is: Has Congress by some positive act in
relation to such agreement, signified the consent of that body
to its validity' (Green v. Biddle, 21 U.S. 1, 85)"
Congress has given consent ….
• Congress has indicated consent –Twice!
• ISTEA
• Federal Bankruptcy recodification
What does it mean to be a
Federally approved compact?
It may mean a lot………
• Some implications are:
• May be “Federal Law” supremacy clause
may apply.
• It may supersede state attempts to
unilaterally alter its provisions.
• It may be considered both state law and a
contract between the parties.
• Compact law may govern changes to the
agreement.
In joining IFTA States have
surrendered their sovereignty ,
at least to some degree.
That is a big deal, and
something we should all be
aware of……