



























Miller Manuscript: Law Journal: Volume 12


Brandeis University Law Journal            2024-2025, Volume 12 

Ambiguities Embedded in the Systems of Interstate 
Compacts 

Zachary Miller1  
The United States is noteworthy in that the federal government 
is the product of a union of autonomous states bound together 
by the Constitution. The Framers sought to concurrently insert 
the sovereignty of the states and the strength of the federal 
government into this binding document through a series of 
compromise measures. One of these compromise measures was 
the Compact Clause which outlines the parameters for the 
enactment of an interstate compact.2 Presently, interstate 
compacts are legally both federal statutes enacted by Congress 
and contracts entered into by the party states.3 Existing case 
law and literature surrounding interstate compacts largely 
presupposes this duality. This article explores the 
circumstances that led to each of these characterizations and 
some problems posed by their continued usage, both 
individually and jointly. 
 
Overview 

The possibility of states forging clandestine agreements 
with one another remains a perennial danger that the Compact 
Clause is designed to combat, but one it can never fully 
eradicate. Congressional consent is the major mechanism for 
effectuating a defense against this threat. The Framers created 
this system to mitigate the risk of state insurgency while 
preserving a degree of state sovereignty for interstate 
collaboration and achieving mutual policy goals. Essentially, 
when two or more states uncover a shared interest, they can 

3 Stephen P. Mulligan, Interstate Compacts: An Overview, (2023), 
https://crsreports.congress.gov/product/pdf/LSB/LSB10807. 

2 U.S. Const. art. I, § 10, cl. 3; Felix Frankfurter & James M. Landis, The 
Compact Clause of the Constitution. A Study in Interstate Adjustments, 34 
Yale Law J. 685 (1925). See infra note 126 for a discussion of additional 
historical context for the enactment of the Compact Clause. 

1 Brandeis University Undergraduate, Class of 2025, Brandeis University 
Law Journal, Senior Technical Editor. 

 
 

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draft a compact and seek the consent of Congress to allow 
them to ratify and execute the compact. While compacts have 
historically governed issues such as boundary disputes and 
water distribution agreements, in the twentieth and twenty-first 
centuries, compacts have grown to encompass more ambitious 
policy objectives.4 The Compact Clause is silent as to what 
congressional consent indicates, when consent is required, and 
what constitutes consent. Given the range of subjects an 
interstate compact could address, Congress’s role in this 
process has been viewed as advisory. Congress’s power to 
provide consent has historically, therefore, been seen as 
independent of the stringent enumerated powers delegated to 
Congress by the Constitution.5  

5 Some Legal and Practical Problems of the Interstate Compact, 45 Yale 
Law J. 324, 328 (1935). (“The essence of Congressional consent is…a grant 
to the compacting states of permission to compact, and such consent does 
not make a compact a law of the union in any significant sense. Congress' 
supervision of compact-making among the states is thus a political function, 
independent of Congress' other enumerated powers.”) The former portion of 

4 Katherine M. Crocker, A Prophylactic Approach to Compact 
Constitutionality, 98 Notre Dame L. Rev. 1185, 1186-1189 (2023). 
(Interstate compacts have been floated amongst both Democrats and 
Republicans in recent years to advance political goals. Democrats 
formulated an interstate compact designed to combat climate change 
following President Donald Trump’s withdrawal from the Paris Accords. 
Democratic Governor Phil Murphy proposed an interstate compact to 
implement gun control policies in response to federal inaction following the 
2018 Parkland school shooting. Democratic Governor Andrew Cuomo 
explored an interstate compact to combat the coronavirus pandemic. 
Conversely, Republicans initiated an interstate compact in opposition to 
President Barack Obama’s immigration policies and to counteract the 
effects of the passage of the Affordable Care Act.) 

An interstate compact has also been discussed to commit member 
states to allocating their electoral votes to presidential candidates who win 
the popular vote in their states (the National Popular Vote Compact). This 
article does not discuss this particular compact and instead offers a 
generalized critique of the legal frameworks interstate compacts occupy. For 
an analysis of this compact in the context of compact law, see Tara Ross & 
Robert M. Hardaway, The Compact Clause and National Popular Vote: 
Implications for the Federal Structure, 44 N.M. L. Rev. 383 (2014). 

 
 

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First, this article will examine the role that Congress 
has played in the formation and execution of compacts. This 
Part of the article will culminate in the 1981 case Cuyler v. 
Adams, which held that compacts are acts of Congress.6 This 
article will then examine the Supreme Court’s recent interstate 
compact opinion in the 2023 case of New York v. New Jersey 
and its reliance on the “contract-law rule,” which posits that 
compacts can be governed by common-law contract 
principles.7 Here, the article will analyze the application of 
contract law principles to compacts. Finally, this article will 
demonstrate the inability of compacts to embody these 
classifications simultaneously by interrogating lingering 
questions posed by this judicial duality. 

 
I. The Role of Congress and the Road to Statutory 

Status 
A. People v. Central Railroad: Congress as a Notary 

In 1870, the Supreme Court heard the case of People v. 
Central Railroad. The State of New York brought a complaint 
against the Central Railroad Company for seizing “about 800 
acres of land and water, and erecting docks, wharves, piers, and 
other improvements” without authorization from the 
government of New York.8 New York alleged that the 
corporation’s conduct violated a compact ratified between New 
York and New Jersey, with the consent of Congress in 1834, 
because the compact had placed the approval of the 

8 People v. Central Railroad, 79 U.S. 455, (1870). See also The People v. 
Central R.R. Co. of N.J, 42 N.Y. 283 (N.Y. 1870). This section’s goal is to 
provide an abstract overview of this particular theory of compact law; rather 
than to provide the expansive chronology of case law, an endeavor left to 
subsequent sections of this article. For this reason, discussion of the history 
chronicled in infra note 38 is omitted here. 

7 New York v. New Jersey, 143 S. Ct. 918 (2023). 
6 Cuyler v. Adams, 449 U.S. 433 (1981). 

this excerpt has been abrogated by Cuyler v. Adams (see infra notes 6 & 
38-39; Part I, Section D of this article), but this recognition of the 
independence of the compact supervision power remains largely intact. 

 
 

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undertakings within the purview of New York. Conversely, the 
Central Railroad Company argued that the compact placed the 
projects within the jurisdiction of New Jersey, the entity from 
whom the corporation had received approval for its activities. 
The Court of Appeals ruled in favor of the corporation and 
interpreted the compact as granting discretion over these assets 
to New Jersey.9 

The case was appealed to the Supreme Court where 
New York contended that questions posed by interstate 
compacts were fundamentally ones of federal law, by virtue of 
their prerequisite acquisitions of congressional consent. New 
York argued this precluded the lower court from adjudicating 
the matter in the first place and that only the Supreme Court 
could examine the case. The Supreme Court used this case to 
decide whether compacts were simply agreements between 
states or if the consent of Congress converted them into federal 
law. The Supreme Court chose the former option, that 
congressional consent did not make compact agreements 
federal law.10 As a result, state courts were understood to 
possess jurisdiction over the adjudications of compact matters 
and the Court of Appeals’ ruling was respected.11 

11 One area where Central Railroad falls short is in its failure to explain why 
a state is obligated to respect the legislation and judicial proceedings of 
other states. Specifically, Central Railroad was silent as to what 
rectification mechanisms might have existed if the lower court had found 
that the Central Railroad Company had actually usurped property from New 
York. Perhaps the Supreme Court implicitly believed that the Full Faith and 
Credit Clause of the Constitution would have imbued New Jersey with the 
obligation to respect and enforce the ruling of the New York court. This 
clause states that “Full Faith and Credit shall be given in each State to the 
public Acts, Records, and judicial Proceedings of every other State.” (U.S. 
Const. art. IV, § 1, cl. 1). Presently, compacts are confined to the federal 
court system and deemed to present federal questions which obviates this 
issue. See Part III, Section C and its accompanying notes; infra notes 38 & 
41 for an explanation of this shift. 

10 Id. 
9 People v. Central Railroad, supra note 8 at 455-456. 

 
 

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The question of whether an interstate compact is 
transformed into an act of Congress through the acquisition of 
congressional consent is important. The Constitution requires 
that the states receive the consent of Congress, but Central 
Railroad held that the core of a compact is the contractual 
agreement entered into by the states. This understanding of 
how Congress factors into the development of compacts, 
espoused in Central Railroad, frames Congress merely as a 
notary.12 Congress providing its consent to a compact did not 
transform the compact into a matter of federal law. Thus, 
Congress was not the policy actor driving the compact and 
could not be perceived as having any investment in the 
compact’s execution aside from offering its consent.13 States 
handled the orchestration of the compact’s imperatives through 
state legislation and adjudications in state courts. Similarly, 
when two individuals enter into a contract with one another, 
they are tasked with carrying out the obligations assigned to 
them under the agreement.14  

A positive byproduct of Central Railroad’s 
jurisprudence, which prevents a compact from instantaneously 
becoming a matter of federal law, is that it ensures Congress 
does not acquire legislative powers not afforded to the federal 
government by the Constitution. States have an inherent series 
of reserved powers as a condition of their sovereignty that the 

14 Id. at 455-456; American Society of Notaries, Notary Conflict Of Interest,  
https://www.asnnotary.org/?form=conflictofinterest. 

13 People v. Central Railroad, supra note 8 at 456. (“We think that…the 
question [in this case] arose under the agreement and not under any act of 
Congress. The assent of Congress did not make the act giving it a statute of 
the United States…The construction of the act…had no effect beyond 
giving the consent of Congress to the compact between the two States.”). 

12 A notary is someone legally authorized to officiate a contract to ensure 
the parties are on the same page. A notary cannot preside over the formation 
of a contract where they might have a personal interest.  
See generally National Notary Association, What is a Notary Public? 
https://www.nationalnotary.org/knowledge-center/about-notaries/what-is-a-
notary-public#:~:text=A%20Notary%20Public%20is%20an,exercise%20of
%20significant%20personal%20discretion. 

 
 

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Constitution does not explicitly delegate to the federal 
government. While there is ambiguity in where each entity’s 
domain begins and ends, state powers typically include matters 
more specific in scope. The federal government generally may 
not interfere with or take up reserved powers retained by the 
states.15 If the federal government was emboldened to complete 
these localized imperatives, federal power would be 
unnecessarily overextended and enlarged.16 However, Congress 
can utilize its compact consent powers to consider a wide range 
of subject matters pertaining to the capacity of states to 
exercise their respective reserved powers.17 The 1918 case of 
Virginia v. West Virginia posed a complication to the Central 
Railroad framework.18 Here, the Supreme Court held that 
Congress’s compact consent power affords Congress the ability 
to enforce and operate any given compact.19 

 
 

19 Id. at 601. (“The vesting in Congress of complete power to control 
agreements between states, that is, to authorize them when deemed 
advisable and to refuse to sanction them when disapproved, clearly rested 
upon the conception that Congress…was virtually endowed with the 
ultimate power of final agreement which was withdrawn from state 
authority and brought within the federal power. It follows as a necessary 
implication that the power of Congress to refuse or to assent to a contract 
between states carried with it the right, if the contract was assented to and 
hence became operative by the will of Congress, to see to its 
enforcement.”); Id. at 605. (“[B]ecause of the character of the parties and 
the nature of the controversy, a contract approved by Congress and subject 
to be by it enforced...full opportunity may be afforded to Congress to 
exercise the power which it undoubtedly possesses.”). 

18 Virginia v. West Virginia, 246 U.S. 565 (1918). 
17 See supra note 5. 

16 Edward P. Buford, Federal Encroachments upon State Sovereignty, 9 Va. 
Law Regist. 321 (1923); P.F., Constitutional Law: Encroachment by Treaty 
Upon the Reserved Powers of the States, 8 Cal. Law Rev. 177 (1920). 

15 Even the Necessary and Proper Clause of the Constitution, which 
empowers Congress to do what is necessary and proper to achieve an 
objective, is confined to Congress’s explicitly enumerated constitutional 
powers (U.S. Const. art. I, § 8, cl. 18). 

 
 

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B. Virginia v. West Virginia: Congress as an Executor 
Under West Virginia, Congress is a direct executor of 

interstate compacts. But if Congress has the ability to enforce a 
compact’s execution, compacts cease to simply be a matter 
upon which two or more states have an agreement. When states 
come to Congress to ratify an agreement, under the Central 
Railroad theory of compact law, the expectation is that those 
states will carry out the obligations of the compact. Congress 
has certain abilities pursuant to its delegated powers, however, 
and these powers have historically been distinct from 
Congress’s power to consent to the ratification of compacts. 
Under these parameters, Congress has traditionally been 
granted the discretion to consider compacts that stray outside 
the powers delegated to the federal government by the 
Constitution.20  

West Virginia offered Congress the unbridled power to 
ensure the operation of compacts if states fall short of meeting 
their contractual obligations. In this constitutional framework, 
a compact that pertains to powers not explicitly delegated to 
Congress can be absorbed by Congress. West Virginia 
proclaims that Congress can use compacts for policymaking 
and that Congress can use powers reserved for the states if they 
cease to operate a compact.21 If a compact exists as an 
agreement between states, the states ought to have the 
autonomy to multilaterally withdraw from a compact that no 
longer serves their interests and to render any given compact 
obsolete and non-operational.22 A notary would not assume the 
duties of a contract and continue to operate under the contract’s 
parameters if the original signatories no longer sought to 
enforce the provisions of the contract. 

22 See Part II for a more in-depth evaluation of the application of contract 
law principles to compacts and New York v. New Jersey’s stance on state 
withdrawal from compacts.  

21 infra note 44. 
20 See supra note 5. 

 
 

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It is worth noting that historically Congress has 
enshrined a retention of the right to alter, amend, or repeal its 
consent into the act that provided it.23 Still, the compact which 
held the states to the same circumstantial arrangements could 
not be retroactively amended. The sole mechanism for states to 
rectify discrepancies in the original language of the compact 
would be to mutually agree to let an existing compact go 
dormant and to adopt a new one.24 West Virginia’s framework, 
which allows Congress to take up old compacts and consider 
their specifics, exacerbates this rigidity on the state level. Thus, 
the West Virginia opinion tacitly operates within a framework 
which presumes that Congress is an executor of the compacts it 
consents to and that Congress has a greater capacity to curate 
compacts than the states. This deference presents a potential 
conflict of interest for Congress, as West Virginia allows 
Congress to determine which compacts Congress greenlights 
while also empowering Congress to inject itself into compacts 
as an executor. 

While West Virginia may enable Congress to overstep, 
West Virginia’s underlying reasoning highlights a shortcoming 
in Central Railroad’s depiction of Congress as a notary. A 
notary would not maintain an interest in the affairs of the 
parties to a contract they officiate, nor would they choose to 
officiate a contract on the merits of its outcomes. Yet, Congress 
remains invested in the operations of interstate compacts 
because the federalist system creates an existential contest for 
supremacy between the federal government and the states.25 

25 Federalist Paper No. 1 (Alexander Hamilton). (“Among the most 
formidable of the obstacles which the new Constitution will have to 
encounter may…be…the obvious interest of a certain class of men in every 
State to resist all changes which may hazard a diminution of the 

24 Richard H. Leach, The Federal Government and Interstate Compacts, 29 
Fordham Law Rev. 421, 426 (1961). 

23 See generally Part III for a more in-depth evaluation of the ambiguities of 
congressional consent. Congress authored these provisions because 
Congress does not inherently possess the right to re-evaluate its consent 
retroactively. 

 
 

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The political process inextricably links states and the federal 
government in ways that do not exist between the parties to a 
contract and their notary.26 Thus, West Virginia employs a more 
accurate portrayal of Congress than Central Railroad does.  

Still, West Virginia affords Congress a tremendous 
amount of leeway to forward these interests, when some of 
these interests would be better left to the states to address. 
Furthermore, West Virginia’s jurisprudence leaves Congress 
room to exploit its consent powers. This possibility was 
displayed in 1960 by the House Judiciary Committee under the 
leadership of Chairman Emanuel Celler, a New York 
congressman who took an interest in the compact between New 
York and New Jersey that established the Port Authority as an 
interstate agency.27 The Port Authority was an unpopular 
institution within the public sphere during this time.28 
Congressman Celler introduced a resolution that would have 
required congressional consent for every new project the 
agency proposed. This resolution was controversial because the 
Port Authority had been operating within the parameters of its 
compact and its previous projects did not require congressional 
approval.29  

29 Id. 
28 Leach, supra note 24 at 436. 

27 Leach, supra note 24 at 435-436; An interstate agency or compact agency 
is “an agency of two or more States established by or pursuant to an 
agreement or compact approved by the Congress, or any other agency of 
two or more States, having substantial powers or duties” 33 U.S.C. § 
1362(2). 

26 Orie Leon Phillips, Governmental Powers, State and National, Under our 
Constitutional System, 36 Mich. Law Rev. 1051 (1938). See Part III of this 
article for discussions of the federalist challenges posed by the current legal 
classifications of compacts and the ways in which the relationships between 
the different levels and branches of government converge to conceal salient 
legal remedies for compact related inquiries. 

power…they hold under the State establishments; and the perverted 
ambition of another class of men, who…will flatter themselves with fairer 
prospects of elevation from the subdivision of the empire into several partial 
confederacies than from its union under one government.”) 

 
 

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When this resolution failed, Celler sought to place 
investigations into the internal operations of compact agencies 
within the purview of the Judiciary Committee.30 Celler’s 
imperatives were not shared by his colleagues, who nullified 
his efforts to maintain this strict construction of congressional 
consent.31 A proposed resolution to Representative Celler’s 
attempted federal encroachment was to establish a clearer 
adherence to Virginia v. Tennessee’s parameters for compact 
consent within congressional procedure.32 In 1893, this case 
evaluated what constituted congressional consent. The Court 
found that compacts could be granted congressional consent 
implicitly and that, if a compact was not retroactively nullified 
by subsequent congressional actions, the compact could be 
presumed to possess the implied consent of Congress.33 

 
C. Virginia v. Tennessee: A Medium for Congressional 

Participation 
Virginia v. Tennessee demonstrates that there are 

legitimate questions concerning the efficacy of congressional 
consent as a safeguard against compacts which may encroach 
upon the constitutional federalist framework. The Court 
acknowledged that some compacts cannot be considered until 

33 Virginia v. Tennessee, supra note 32 at 503. (“An agreement or compact 
as to boundaries may be made between two states, and the requisite consent 
of Congress may be given to it subsequently, or may be implied from 
subsequent action of congress itself towards the two states, and when such 
agreement or compact is thus made and is thus assented to, it is valid.”) 

32 Virginia v. Tennessee, 148 U.S. 503 (1893);  Leach, supra note 24 at 443. 
This suggestion was eventually adopted in U.S. Steel v. Multistate Tax 
Comm’n. For the full citation of this case and more on its role in this 
development, see infra note 92. 

31 Id. at 443. For more about this particular controversy and arguments 
raised during this time see: Id. at 436-443; Emanuel Celler, Congress, 
Compacts, and Interstate Authorities, 26 Law Contemp. Probl. 682 (1961); 
Congress and the Port of New York Authority: Federal Supervision of 
Interstate Compacts, 70 Yale Law J. 812 (1961); Congressional Supervision 
of Interstate Compacts, 75 Yale Law J. 1416 (1966). 

30 Id. at 437. 

 
 

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they are fully realized and found that these compacts could 
elicit retroactive congressional consent. The Court held that 
congressional consent is only required for agreements which 
encroach upon the “just supremacy” of the federal government, 
by finding that the word “compact” in the Compact Clause is 
noscitur a sociis.34  

In an article Celler published to elucidate his 
perspective on federal oversight of compact operations, he 
argued for narrowly applying Virginia v. Tennessee because the 
case dealt with a compact Congress had already ostensibly 
provided with consent through prior legislation.35 While there 
is a practical rationale for the standard espoused by Virginia v. 
Tennessee, it is not in the best interest of public policy to have 
a compact take shape and be retroactively denied consent by 
Congress. If the compact is nullified, this nullification would 
result in a waste of the resources consolidated by each state to 
fulfill its respective duties.  

Furthermore, the legitimate interest in preserving the 
federal republic is inadequately forwarded by the implied 
consent doctrine. Under Virginia v. Tennessee’s doctrine of 
implied consent, there may be times where a compact bears the 
imprimatur of Congress despite the fact that Congress has 

35 Celler, supra note 31 at 685. 

34 Id. at 519. (“Looking at the clause in which the terms ‘compact’ or 
‘agreement' appear, it is evident that the prohibition is directed to the 
formation of any combination tending to the increase of political power in 
the states, which may encroach upon or interfere with the just supremacy of 
the United States.”). A Latin phrase meaning it is known by its associates, 
noscitur a sociis is a statutory interpretation technique that derives the 
meaning of an ambiguous word from the Legislature’s use of associated 
words in the sentence. The “United States” is sometimes used by the Court 
to refer to the country, and sometimes to monolithically refer to the federal 
government. 
 See generally section D of this Part and Part III of this article for a 
discussion of the difficulties the Supreme Court has had in deriving the 
nature and parameters of congressional consent from a practical and 
“political” standpoint and differentiating between the various branches and 
departments of the federal government. 

 
 

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never directly evaluated the compact. As a result, states can 
implement unconstitutional compacts unbridled by the 
safeguards embedded in prerequisite congressional 
deliberations. The Court justified permitting states to enact 
unconstitutional compacts under the assumption that Congress 
would subsequently learn of their unconstitutionality and 
dismantle them. It is dangerous to assume that Congress can be 
fully aware of the parameters of a compact Congress did not 
review. 

This is especially true when, under Virginia v. 
Tennessee, the only compacts Congress is intended to review 
are ones which may encroach upon the supremacy of the 
federal government. If three individuals enter an agreement, it 
would be inequitable for two individuals to enter the agreement 
with direct consent; while one individual is subsumed into the 
agreement through implied consent without being able to 
formally review the agreement. It is especially inequitable 
when that individual can only withdraw their consent through 
subsequent actions that explicitly showcase their disinterest. 

In addition to its implementation of an implied consent 
doctrine, Virginia v. Tennessee established the “just supremacy” 
standard. This extrapolation is intriguing because it seeks to 
provide a consistent safeguard for state sovereignty by limiting 
the congressional consent prerequisite to agreements which can 
encroach on federal power. One could argue, however, that this 
remedy is inadequate even when Congress is given the 
opportunity to review and consent to a compact. If the 
enactment of a compact which encroaches on federal power is 
only checked by congressional consent, Congress can 
erroneously consent to a compact that jeopardizes the 
constitutional supremacy of the federal government. As 
previously stated, the West Virginia case afforded Congress the 
ultimate authority on the passage of a compact through its 
consent.36 But under the American system of government, it is 

36 To effectuate the “ultimate power of final agreement” doctrine, the 
Supreme Court in West Virginia countered the argument that it had 

 
 

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not the role of Congress to interpret legal documents and assess 
their constitutionality; that power is associated with the 
judiciary.37  

The quandary of whether Congress ought to be thought 
of as an executor of or as a notary to interstate compacts was 
further occluded by the 1981 case of Cuyler v. Adams, where 
the Supreme Court solidified a transformation doctrine. The 
Court found that any compact that acquires congressional 
consent and pertains to a matter appropriate for congressional 
legislation is transformed into federal law.38 Cuyler’s 

38 In Cuyler v. Adams, the Court referred to this as the “law of the Union” 
doctrine (see Cuyler v. Adams, supra note 6 at 439 n.7). This doctrine’s 
prudence had long been contested prior to its incorporation in Cuyler (see 
supra note 5). The “law of the union” compact doctrine originated in 
Pennsylvania v. Wheeling & Belmont Bridge Company, 54 U.S. 518, 566 
(1851). In the 1851 case, the Supreme Court regarded the compact in 
contention as a law of the union because it amassed the sanction of 
Congress. Neither the parties nor the Court in People v. Central Railroad 
acknowledged this precedent. This left the question of whether compacts 
were the “law of the union” without a clear answer for a substantial portion 
of American history. For an overview of this historical dilemma and a 
contemporary perspective on the law of the union doctrine prior to the 
Court’s opinion in Cuyler v. Adams; see generally David E. Engdahl, 

37 Federalist Paper No. 51 (Alexander Hamilton & James Madison); U.S. 
Const. art. III, § 2, cl. 1; Marbury v. Madison, 5 U.S. 137 (1803). In this 
case, the Supreme Court ruled that it could assess the constitutionality of 
laws and strike down unconstitutional ones. While this power is not 
enshrined in the Constitution, this power known as “judicial review” has 
become a major norm of constitutional law. See infra note 126 for an 
additional explanation of this anomalous conflict between compact consent 
and judicial review. 

undermined the explicit delegation of original jurisdiction of interstate 
disputes to the Court by the Constitution (see infra note 99). West Virginia 
v. Virginia, supra note 18 at 603. (“[T]here [is not] any force in the 
suggestion that the existence of the power in Congress to legislate for the 
enforcement of a contract made by a state under the circumstances here…is 
incompatible with the grant of original jurisdiction to this court to entertain 
a suit between the states on the same subject. The two grants in no way 
conflict, but cooperate and coordinate to a common end, that is, the 
obedience of a state to the Constitution by performing the duty which that 
instrument exacts.”). 

 
 

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transformation doctrine fundamentally altered the legal status 
of interstate compacts, by dubbing them federal statutes and 
centralizing adjudications of compact disputes in the federal 
judiciary.39 

39 Cuyler v. Adams, supra note 6 at 434. (“[W]here Congress has authorized 
the States to enter into a cooperative agreement and the subject matter of 
that agreement is an appropriate subject for congressional legislation, 
Congress' consent transforms the States' agreement into federal law under 
the Compact Clause, and construction of that agreement presents a federal 
question.”); Id. at 438. (“Although the Court of Appeals did not reach this 
constitutional issue, it held that it was not bound by the state court's result 
because the…interstate compact [is] approved by Congress and is thus a 
federal law subject to federal rather than state construction. Before reaching 
the merits of the…decision, we must determine whether that conclusion was 
correct. We hold that it was.”). 

Construction of Interstate Compacts: A Questionable Federal Question, 51 
Va. L. Rev. 987 (1965). See infra note 127 for how Engdahl’s analysis was 
factored into the opinions authored in Cuyler v. Adams. 

Hinderlider v. La Plata Co., 304 U.S. 92 (1938) directly dealt with 
the repercussions of the conflicting doctrines of the 1851 opinion in 
Wheeling and Central Railroad. In this case, the Court was hesitant to 
concede that compacts were acts of Congress but the Court sought to afford 
itself jurisdiction over the matter (see Engdahl at 998-1003). Justice Louis 
Brandeis deemed Hinderlider a question of federal common law to justify 
the federal bench’s usurpation of the case (Hinderlider v. La Plata Co. at 
110). This justification was particularly flimsy because that same year 
Justice Brandeis wrote for the Court in Erie Railroad Co. v. Tompkins, 304 
U.S. 64, 78 (1938) where he would proclaim that there is no general federal 
common law and state judicial and legislative authorities ought to be 
deferred to, by federal courts, in cases that do not deal with the Constitution 
or Acts of Congress; cases that do not present a federal question.  

Two years after Hinderlider, the Court would decide Delaware 
River Commission v. Colburn (infra note 103) where the Court would 
directly attempt to reconcile the discrepancy between Central Railroad and 
the Court’s 1851 opinion in Wheeling by overturning Central Railroad and 
holding that compacts presented federal questions as a result of their 
acquisition of congressional consent through federal statutes. For a more 
in-depth discussion of the Court’s opinion in Colburn and the development 
of the “federal question” doctrine in compact cases see Part III, Section C of 
this article. Ultimately, Cuyler v. Adams resolved this entire debacle by 
unequivocally ruling that compacts are federal statutes. However, as this 
article argues, the decision in Cuyler has garnered mixed results. 

 
 

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D. Cuyler v. Adams: Compacts as Acts of Congress 
 The power that West Virginia affords Congress to 

upkeep compacts, coupled with Cuyler, enables Congress to 
usurp reserved powers for itself. West Virginia’s framework 
allowed Congress to use compacts as instruments for its own 
policymaking; Cuyler deemed compacts federal statutes. These 
rulings disincentivize states from respecting their obligations 
under a compact because Congress can assume a compact’s 
responsibilities on a state’s behalf. As previously mentioned, a 
primary motivation for the Compact Clause was the Framers’ 
concern about states entering into clandestine agreements with 
one another. However, states can theoretically place a compact 
before Congress with a mutual intention of abstaining from 
fulfilling the compact’s obligations. In this paradigm, Congress 
will absorb the duties of these states and keep the compact in 
effect. This incentivizes states to relinquish their reserved 
powers and instead incentivizes states to afford Congress 
powers the federal government was not explicitly delegated by 
the Constitution.40 

While Cuyler only held that compacts pertaining to 
subjects appropriate for congressional legislation bear the 
imprimatur of federal law, presuming they meet the definition 
of a compact under Virginia v. Tennessee, the common 
takeaway has been that all compacts are federal law. In 
Washington Metro. Area T.A. v. One Parcel of Land, the Fourth 

40 Kevin J. Heron, The Interstate Compact in Transition: From Cooperative 
State Action to Congressionally Coerced Agreements, 60 St John's Law Rev. 
1, 23 (1985). (“If Congress were permitted to create arrangements [with the 
prerogatives and objectives of compacts]…pursuant to its commerce power, 
the power of the states under the Compact Clause would essentially be 
nullified and they would be deprived of the element of state sovereignty 
specifically retained in the Constitution.”). 

This Section exclusively discusses the ramifications of the majority 
opinion authored in Cuyler v. Adams as it pertains to the statutory status of 
compacts. See Part III for more about the implications of Cuyler coupled 
with the character of compacts as contracts. See infra note 127 for an 
overview of the dissenting opinion in Cuyler. 

 
 

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Circuit held that congressional consent delegates federal 
powers to those involved in a compact’s operation, rather than 
simply viewing Cuyler as dubbing compacts federal law for 
interpretation purposes. This generalized the Cuyler precedent 
beyond merely subject matters appropriate for federal 
legislation.41 It has even been posited that Cuyler partly 
overturned Virginia v. Tennessee because Cuyler framed 
congressional consent as the prerequisite for something being 

41 Washington Metro. Area T.A. v. Land, 706 F.2d 1312 (4th Cir. 1983). 
Regarding the common takeaway being that even compacts with 

subject matters not appropriate for federal legislation still become federal 
law, see 1317 n.9. (“[S]tate agreements whose subject matter is appropriate 
for federal legislation…which do not threaten to increase the political power 
of the states at the expense of the federal government…that do…not receive 
congressional consent will not be invalidated for lack of consent, but a 
compact that is consented to by Congress will thereby become federal 
law.”). 

On the question of federal prerogatives for compact enforcement, 
see 1318-1319. The Fourth Circuit grappled with the question of whether a 
compact is delegated federal power or if it is a document merely interpreted 
on the federal level because state courts would be unable to provide a 
neutral forum for compact dispute adjudication (see Part III, Section C for a 
discussion of the evolution of compact interpretation and the development 
of the “federal questions” doctrine and see generally West Virginia ex rel. 
Dyer v. Sims, infra note 115, for an overview of the centralization of 
compact disputes in the federal court system to maintain the impartiality of 
compact proceedings). Ultimately, the Fourth Circuit held that Congress 
could delegate federal powers to forward compact executions and to 
interstate agencies. 

The Fourth Circuit permitted a compact agency to nullify a 
provision in the Maryland Constitution because the compact agency was 
understood to have been empowered to do so by way of its attainment of 
congressional consent. By allowing the compact agency to act in a manner 
inconsistent with the constitution of a signatory state, the Fourth Circuit 
afforded compact agencies more power than the states that create them 
because a state cannot pass a law in conflict with its constitution. (See 
Eichorn, infra note 42 at 1409.) On appeal, the Supreme Court declined to 
address the finding in this case. Nevertheless, in New York v. New Jersey 
(New York v. New Jersey, supra note 7 at 924) the Supreme Court held that 
the fact that compacts are federal laws means compacts preempt “contrary 
state law.” 

 
 

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considered a compact, whereas Virginia v. Tennessee vested 
this evaluation in the subject matter of the compact and its 
impact on the just supremacy of the United States.42 This 
framework can pose a significant danger as polarization 
increases in Congress, as the political makeup of Congress can 
determine which compacts are approved.43  

Furthermore, if compacts are acts of Congress then, 
congressional consent is a mechanism for Congress to 
contemplate whether its own laws comply with the 
Constitution. Traditionally, the Supreme Court is the branch of 
government tasked with judicial review. In Virginia v. 
Tennessee, by interpreting Congress’s consent power as one 
that requires Congress to strictly scrutinize a compact, the 
Supreme Court abdicated its judicial review imperatives to 
Congress. The Cuyler doctrine does more than permit Congress 
to circumvent constitutional checks placed on Congress, 
however.  

Prior to Cuyler, there were already complications 
surrounding the procedure for providing consent to interstate 
compacts. Compacts were rarely examined by all members of 
Congress. Instead, compacts were delegated to the committees 
that dealt with the subject matter of the compact. There were 
also ambiguities regarding whether Congress could examine 
the merits of the compact or whether Congress’s consent power 
exclusively pertained to its analysis of a compact’s effect on 
the federal structure of the union.44 There have also been times 

44 With regard to these ambiguities, West Virginia v. Virginia holds “that the 
power of Congress to grant or withhold assent to such contracts carries with 
it the duty and power to see to their enforcement when made operative by 
its sanction. This power is plenary, limited only by the general rule that acts 
done for the exertion of a power must be relevant and appropriate to the 
power exerted. As a national power it is dominant and not circumscribed by 
the powers reserved to the states.” (Virginia v. West Virginia, supra note 18 

43 Id. at 1395-1396. 

42 See infra note 127; See also L. Mark Eichorn, Cuyler v. Adams and the 
Characterization of Compact Law, 77 Va. Law Rev. 1387, 1393-1394 
(1991).  

 
 

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when Congress has actively lobbied for a compact through 
consent-in-advance legislation, before compacts had been 
submitted for approval, which advocated for states to create 
them.45 The status of compacts as federal law creates 
ambiguities because Congress could theoretically bypass 
constitutional limitations on its power with the enactment of a 
compact. But, before Cuyler, a major issue stemmed from a 
paradigm that imposed an antithetical separation of powers 
issue. The lack of a focal point within Congress led the branch 
to defer to executive branch agencies on the validity of certain 
compacts.46  

While the integration of executive branch agencies may 
produce better policy outcomes and ensure that compacts are 
examined by those with subject-matter expertise, this 
integration presents a grave danger to the constitutional 
doctrine of separation of powers. If compacts are acts of 
Congress, then two constitutionally detrimental scenarios can 
unfold. Firstly, Congress can defer to the executive branch to 
determine whether to offer its consent. This outcome is 

46 Id. at 428-430. This section emphasizes the separation of powers 
predicament posed by the integration of executive agencies into compact 
ratifications and the implications of conceptualizing compacts as federal 
laws from a federalist standpoint. For a broader discussion of the 
implications of encroachments upon separation of powers principles and 
compact issues concerning federalism, see Part III.  

45 U.S. Steel Corp. v. Multistate Tax Comm’n, infra note 92 at 485 (White, 
J., dissenting); Leach, supra note 24 at 429. The compact at bar in Cuyler v. 
Adams was an example of such an instance, see infra note 106 for an 
overview of this relevant example of a compact consented to prior to the 
compact’s construction. 

at 566). As a result, Congress is encouraged to evaluate policy issues and 
take an active role in compacts. Whereas, Virginia v. Tennessee limits 
congressional discretion to matters that encroach upon the “just supremacy 
of the United States” which proffers a more hands-off approach to compact 
evaluations (see supra note 34). It was not until U.S. Steel Corp v. 
Multistate Tax Comm’n that the Court directly applied the “just supremacy” 
standard (see infra notes 92-93). But see Cuyler v. Adams, supra note 6 
which would revive ambiguity surrounding what standard the Court truly 
preferred and what standard ought to be deferred to soon after. 

 
 

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antithetical to the Constitution because it enables the executive 
branch to make legislative considerations and allows for 
external actors to influence the development of a contract that 
the Constitution explicitly limits to certain parties.47  

Secondly, this doctrine empowers states to formulate 
agreements that usurp prerogatives from Congress as the 
federal legislative branch. It empowers states to potentially 
enact federal law and vests interstate compact agencies with 
the imprimaturs afforded to federal agencies without the 
procedural safeguards encased in congressional deliberations. 
This danger is heightened by the implied consent doctrine of 
Virginia v. Tennessee which, after Cuyler, empowers states to 
enact federal laws without receiving the direct prerequisite 
consent of the federal legislature.48 

Thus, throughout the nineteenth and twentieth 
centuries, the nature of the relationship between Congress and 

48 Eichorn, supra note 42 at 1405; Washington Metro. Area T.A. v. Land, 
supra note 41; Some Legal and Practical Problems, supra note 5 at 328. 
(“[M]ost compacts, even when they affect interstate commerce or some 
other federal province…have not been subjected to Congress’ legislative 
deliberation[s]”). 

47 For examples of compacts ratified with executive input, see Id. at 430 
(internal citations omitted). (“Although the Constitution mentions only the 
Congress in connection with compacts, agencies in the executive branch 
have also come to have a number of relations with both compacts and 
compact agencies. Congress itself has been responsible to some degree for 
bringing executive agencies into the picture…[I]n the Eighty-sixth Congress 
the Senate Committee on the Judiciary asked the Department of Justice, the 
Department of Interior and the Bureau of the Budget for comments on the 
compact for a new boundary between Arizona and Nevada which the 
Committee had before it for consent. And the House Committee on Public 
Works, while considering the Northeastern Water and Related Land 
Resources Compact, solicited opinions from eight executive agencies which 
it felt might have an interest in the proposed compact.”). Agency input is 
not the only way the Executive Branch has inserted itself into compact 
enactments. President Franklin D. Roosevelt vetoed the Republican River 
Compact in 1942 after Congress consented to it. See generally: Linda Hein, 
FDR vetoes Republican River Compact,  MCCOOK GAZETTE (October 
12, 2001), https://www.mccookgazette.com/story/1046711.html. 

 
 

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the compacts it consents to has evolved. In People v. Central 
Railroad, the Supreme Court regarded Congress as nothing 
more than a notary to compacts. In this way, Congress had the 
opportunity to preview a range of compacts that states would 
then operate and enforce. In Virginia v. West Virginia, Congress 
was afforded the capacity to see through the operation of 
compacts. West Virginia provided Congress a far larger role in 
the compact process than that of a notary and factored 
Congress in as more of an executor.  

Virginia v. Tennessee obscured the role of Congress in 
the process because not all compacts required congressional 
consent and compacts could sometimes receive the implied 
consent of Congress. Finally, Cuyler v. Adams stated that all 
compacts are matters of federal law. Cuyler affords compacts a 
legal status equivalent to the statutory documents directly 
authored by Congress. There is a major difference between 
being legally recognized as a contract’s notary, an executor of a 
contract, an author of a contract, or all three. Nevertheless, the 
Supreme Court ascribes all of these roles to Congress in 
interstate compact matters. Concurrently, the Court regards 
Congress as the body afforded the power to evaluate a 
compact’s constitutionality.49 

The devolving of all of these responsibilities onto 
Congress is a result of the inherent ambiguity posed by the 
Compact Clause’s prerequisite mandate of congressional 
consent. The endowment of all of these roles upon Congress is 
antithetical to the cultivation of prudent public policy and the 
safeguarding of constitutional norms. The Court’s deference to 
Congress to assess the constitutionality of compacts is largely 
unparalleled in constitutional law. Virginia v. Tennessee tasks 
Congress with evaluating the impact of compacts on the 
federalist structure. In all other cases, the Supreme Court 
possesses judicial review and the imperative of preserving the 
dictates of the Constitution. This is because the Supreme 

49 For further discussion of the complications of concurrent ascriptions, see 
Part III of this article. 

 
 

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Court’s subject-matter expertise qualifies the Court to make 
constitutional evaluations in a way Congress cannot.  

Furthermore, the separation of powers doctrine 
correctly recognizes that a conflict of interest is posed by 
allowing a Legislature to review its own laws. Under Cuyler, 
compacts are laws of Congress. There are no direct examples 
of improprieties resulting from this arrangement; nonetheless, 
the existence of these ambiguities poses detrimental 
consequences for the United States. These ambiguities further 
prove detrimental as a result of their entanglement with the 
perception of compacts as contracts and the Supreme Court’s 
ascription of contract law principles to compacts. In the next 
part, this article will use the Court’s recent opinion in New York 
v. New Jersey as a backdrop for demonstrating the 
ineffectiveness of arbitrating compact disputes with contract 
law principles. 
 
II. Compacts as de jure Contracts  

A. New York v. New Jersey: Unilateral Withdrawal for 
Party States and the “Contract-Law Rule” 
In 2023, the Supreme Court decided the case of New 

York v. New Jersey. This case arose in 2018 when New Jersey 
sought to unilaterally withdraw from a compact it had entered 
into with New York in 1953 that was designed to mitigate the 
spread of organized crime. The Supreme Court found that New 
Jersey had the right to unilaterally withdraw from the compact. 
Thus, the Court held that any state can unilaterally withdraw 
from a compact which does not contain a set duration of time 
for its execution.50 The Court held that compacts that impose 
active obligations, such as the exhaustion of labor and 
resources, have traditionally been understood to be governed 

50 New York v. New Jersey, supra note 7 at 920. See infra notes 71 & 134 
and the accompanying references for more background about the 
circumstances of the case. 

 
 

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by the principles of contract law under a doctrine the Court 
termed the “contract-law rule” for this case.51 

Finally, the Court held that it was incumbent upon 
states to include language which expressly allows or prohibits 
withdrawal. The Court reasoned that states clearly enumerating 
withdrawal terms would alleviate future confusion; and this 
decree countered New York’s contention that a ruling in New 
Jersey’s favor would induce a slippery slope of states 
unilaterally withdrawing from compacts. In the absence of a 
specified duration of time, however, states retain this right to 
unilaterally withdraw from compacts.52 

New York v. New Jersey’s understanding of compacts, 
wherein compacts are differentiated on the basis of the 
activeness or passiveness of the obligations a compact carries, 
is useful for preserving the autonomy of a state to successfully 
unilaterally withdraw from a compact. This opinion’s deference 
to the “contract-law rule” is not firmly rooted in historical 
jurisprudence. While compacts may have been analogized to 
contracts throughout American history, in early Supreme Court 
jurisprudence, compacts were largely recognized as treaties. 
This initial view of interstate compacts posited that, upon the 
acquisition of congressional consent, states were restored to 
their full sovereignty under the parameters of any given 
compact to ensure its execution.53  

53 Gerald Stapp, Interstate Compacts and the Federal Treaty Power, 29 
Denver Law Rev. 211, 212-214 (1952). See generally Rhode Island v. 
Massachusetts, 37 U.S. 657 (1838). 

52 Id. at 926. (“New York argues that allowing New Jersey to withdraw 
would have sweeping consequences for interstate compacts generally. 
But…for any current and future compacts, States can propose language 
expressly allowing or prohibiting unilateral withdrawal if they wish to do 
so.”). 

51 Id. at 925. (“To be clear, the contract-law rule…does not apply to other 
kinds of compacts that do not exclusively call for ongoing performance on 
an indefinite basis—such as compacts setting boundaries, apportioning 
water rights, or otherwise conveying property interests.”). 

 
 

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This interpretation neglected the intent of the Framers 
of the Constitution to maintain federal hegemony in 
international relations and ensure a united front on the world 
stage.54 If this were the underlying conceit, it is unlikely that 
the Framers would have even implemented the Compact 
Clause because the Clause would have afforded Congress a 
means of forfeiting the federal government’s supremacy in 
foreign policy.55 Overall, the twentieth century observed a shift 
characterized by compacts becoming more active instruments 
of policy; this zeitgeist also likely served as the impetus for the 
shift to contract principles.56  

So, where did New York v. New Jersey get the 
“contract-law rule” from? New York v. New Jersey cited the 
2013 case Tarrant Regional Water District v. Herrmann to 
strengthen the presumption that interstate compacts ought to be 
construed as contracts governed by the principles of contract 
law.57 Tarrant undergirded this assertion by citing the 1987 
case Texas v. New Mexico.58 Texas v. New Mexico, in turn,  
cited a 1959 dissenting opinion authored by Justice Felix 
Frankfurter in the case of Petty v. Tennessee-Missouri Bridge 
Comm’n.59 In his dissent, Justice Frankfurter wrote that a 

59 Texas v. New Mexico, 482 U.S. 124, 128 (1987) (“a compact when 
approved by Congress becomes a law of the United States…but ‘[a] 

58 Tarrant Reg'l Water Dist. v. Herrmann, 569 U.S. 614, 615 (2013). 
(“Because interstate compacts are construed under contract law principles… 
the Court begins by examining the Compact's express terms as the best 
indication of the parties' intent.”) (internal citations and quotation marks 
omitted). 

57 New York v. New Jersey, supra note 7 at 924. 

56 Congressional Supervision of Interstate Compacts, supra note 31 at 1426 
n.61; Frederick L. Zimmerman & Mitchell Wendell, New Experiences with 
Interstate Compacts, 5 Western Political Quarterly 258 (1952). 

55 Stapp, supra note 53 at 214.  

54 Federalist Paper No. 3 (John Jay). (“It is of high importance to the peace 
of America that she observe the laws of nations…[I]t appears evident that 
this will be more perfectly and punctually done by one national government 
than it could be either by thirteen separate States or by three or four distinct 
confederacies.”). 

 
 

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“Compact is, after all, a contract. Ordinarily, in the 
interpretation of a contract, the meaning the parties attribute to 
the words governs the obligations assumed in the agreement.”60  

Perhaps the incorporation of contract language was 
most prudent for the Court to apply in New York v. New Jersey. 
Indeed, using vocabulary associated with the development of a 
contract is helpful, and this article has relied upon this 
framework to construct its analogies. In any case, this 
chronology demonstrates that the “contract-law rule” is not as 
entrenched in American jurisprudence as the Court implicitly 
surmised in New York v. New Jersey. It is important to assess 
the history of any given doctrine that a Supreme Court opinion 
reveres because if the opinion champions that outlook, the 
philosophy will continue to reverberate in American 
jurisprudence. In this matter, the doctrine of treating compacts 
like contracts is important because this doctrine supposes a 
correspondence between interstate compacts and the contracts 
entered into by individuals. While the contract doctrine may be 
more analogous to a compact than the treaty doctrine, this 
doctrine’s novelty is important to emphasize because 
continuing to entrench the doctrine into American 
jurisprudence can have detrimental effects on public policy. 
The potential drawbacks of the “contract-law rule” will be 
discussed below in the second Section of this Part. 
 

B. Trump v. Trump and the Democratic Caveat of the 
“Contract-Law Rule” 
Following the distribution of the opinion in New York v. 

New Jersey, the case was cited in the 2023 case Trump v. 
Trump; this case was heard in the New York State Supreme 

60 Petty v. Tennessee-Missouri Bridge Comm’n, 359 U.S. 275, 285 (1959) 
(Frankfurter, J., dissenting). See Part III, Section C for a more in-depth 
discussion of this case. The citation of this dissenting opinion is noteworthy 
against the backdrop of the duality discussed generally in Part III. 

Compact is, after all, a contract.’ It remains a legal document that must be 
construed and applied in accordance with its terms.”) (internal citations 
omitted). 

 
 

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Court in New York County.61 This case arose after President 
Donald Trump sued his niece, Mary Trump, for attempting to 
publish a book that cast him in a negative light by revealing 
personal details of their familial dealings. Mary Trump’s 
conduct allegedly violated the terms of a confidentiality 
agreement she had previously signed. One of the questions 
before the court in Trump was whether this confidentiality 
agreement was terminable at will, as the confidentiality 
agreement contained no end date.62 At first glance, Trump is an 
unusual case for a citation of an interstate compact dispute. 
However, this citation highlights the dangers of 
conceptualizing interstate compacts as contracts. 

Mary Trump’s attorneys argued that because New 
Jersey was permitted to withdraw from its compact agreement 
in New York v. New Jersey, the court was obligated to permit 
Mary Trump to withdraw from her confidentiality agreement. 
The court found that these cases were too incongruent for New 
York v. New Jersey to be an applicable precedent to the facts of 
Trump because New Jersey’s compact obligations were actions, 
whereas the confidentiality agreement binding Mary Trump 
imposed an obligation of inaction and silence.63 It is 
noteworthy that the Trump court’s sole consideration, regarding 
the applicability of New York v. New Jersey, was the nature of 
each agreement’s impositions. If the obligations imposed upon 
New Jersey were ones of inaction or if Mary Trump’s 
obligations were active in nature, perhaps the court would have 
used New Jersey’s victory to assess Mary Trump’s options. 

 It was this discrepancy, the passivity of the 
confidentiality agreement, that led the court to refrain from 
applying New York v. New Jersey. The adverse underlying 
presumption here is that the principles that govern individuals 
and those that govern states are similar enough for courts to 

63 Id. at 778 n.9.  
62 Id. at 766-768, 777. 
61 Trump v. Trump, 80 Misc. 3d 765 (N.Y. Sup. Ct. 2023). 

 
 

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sometimes apply them interchangeably.64 Whether or not Mary 
Trump now wishes to unilaterally withdraw from the 
confidentiality agreement, she signed it. There is no denying 
that the Mary Trump who sought to withdraw from the 
confidentiality agreement is the same Mary Trump who signed 
the agreement at its inception. Mary Trump is a specific 
individual with the absolute ability to assess and scrutinize the 
agreement she enters. The signatories to any given interstate 
compact, however, are the states.  

Unlike individuals, states are not inherently monolithic 
entities. Rather, states are constructs which individuals create 
to settle their affairs in an orderly fashion.65 This fact creates 
complications when the inanimate idea of a state is tasked with 
serving as a signatory to an agreement. The state encompasses 
all of the local municipalities, corporations, and people who 
reside and operate within it. Mary Trump’s decision to sign a 
contract only inhibits her own autonomy. A state, by signing 
onto an interstate compact, inhibits the autonomy and liberty of 
its entire constituency. Mary Trump does not have to build a 

65 John Locke, Concerning the True Original Extent and End of Civil 
Government, (1689). 

64 The personhood of states was addressed in Monell v. Department of Soc. 
Svcs., 436 U.S. 658 (1978). This case assessed whether local governmental 
agencies could be held liable in accordance with a provision in the Civil 
Rights Act of 1871 that explicitly contained the term “person(s).” That case 
assessed the peoplehood of states in a manner more narrow in scope than 
the evaluations of this Section. Additionally this Section’s evaluations are 
distinct from those made in Citizens United v. FEC, 558 U.S. 310 (2010) for 
two major reasons. Firstly, the unique longevity contained in the promise of 
a government juxtaposes the subject matter of this Section from a 
corporation whose affairs occupy a comparatively brief duration of time. 
Secondly, governmental actors are uniquely linked to the democratic will of 
the populace. Whereas corporations, like individuals, perennially operate to 
advance their own interests without an equivalent direct mechanism of 
democratic accountability; nor do the imperatives of corporations bear 
democratic imprimaturs in a manner congruent to government. These 
factors, taken together, confine the evaluations of this Section to the 
applicability of contract law principles to governmental actors in the context 
of interstate compacts. 

 
 

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coalition or reach a consensus to relinquish her own autonomy 
and sign an agreement. She would, however, have to obtain the 
consent of others to compromise their autonomy and sign an 
agreement on their behalf. 

Given that a state is truly an amalgamation of entities 
with a plethora of interests, a state risks unduly inhibiting the 
autonomy of segments of its constituency when that state signs 
onto a compact that poses adverse consequences for the 
forwarding of those members’ interests. By equating the 
conditions of an interstate compact with those of a contract, the 
judicial system ascribes states a monolithic capacity to discern 
the merits of an agreement. A presumption of states as 
monolithic actors may impose no impediments on the 
autonomy of the entities within a state in the context of water 
distribution agreements, property rights matters, or border 
disputes. But, the principles of contract law and the 
presumption of transitivity explicitly arise in the case of the 
compacts which have the greatest capacity to inhibit the 
autonomy of the states and the entities which exist within the 
framework of the state.66 

Perhaps compacts are an instance where states 
relinquish aspects of their autonomy for a common interest. 
However, by framing the state as the signatory, courts create a 
paradox because ascribing a state the capacity to discern is 
inherently impossible. Given that the state is a nonhuman entity 
and a union of a plurality of interests, there must be some body 
that courts are actually offering the power to make 
considerations on the merits of prospective compacts. If the 
state is the signatory and it is a monolithic personification of a 
population, perhaps the name of the state is truly a moniker for 
that state’s government. For the doctrine of transitivity to truly 
be applicable, however, the body that possesses the signatory 
prerogatives must remain intact throughout the duration of an 
agreement’s execution. While Mary Trump sought to withdraw 
from her agreement, she remained the same entity throughout 

66 See supra notes 51-52. 

 
 

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the confidentiality agreement’s enforcement. The same is not 
true for a state government, which possesses compact signatory 
capabilities. 

An individual’s decision about signing a contract differs 
from a state’s decision about signing onto a compact because 
the entire constituency is impacted by a compact’s officiation. 
A source of pride in democratic societies is that constituents 
have a say in the composition of the government and the policy 
directions the elected government takes. The rigidity and 
perceived permanence of compacts prevents the public from 
exercising these rights and altering the trajectory of political 
affairs. While imposing contractual obligations upon states 
might be beneficial for ensuring obligations are upheld, there 
are tremendous drawbacks in empowering states to sign 
themselves onto indefinite agreements unbridled by the checks 
and balances of a democratic society.67 

 If public sentiments surrounding the continuity of a 
compact have shifted, democratic and federalist intuitions 
would point towards offering states the unilateral ability to 
withdraw to comply with the mandate of their voters. This 
interpretation of compact obligations, however, precludes state 
officials from unilaterally withdrawing from a compact that 
fails to comport with the democratic will of the people. 
Ultimately, any particular governmental administration seeks to 
implement legislation or policy agenda items that will outlast 
them. This prerogative is an inherent aspect of civic 
engagement and service in government. Perhaps this goal is 
inherently at odds with the democratic process’s commitment 
to flexibility and a system which consistently alters its course 
based on the will of the people. 

However, even if one were to argue that the interest in 
stable public policy ought to outweigh the interest in 
preserving this democratic check, this scenario offers little 
room for state governments to implement new policies in 

67 Jill Elaine Hasday, Interstate Compacts in a Democratic Society: The 
Problem of Permanency 49 Fla. L. Rev. 1, 7-8; 16 (1997). 

 
 

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response to progressions in the circumstances of the underlying 
problem that any given compact is enacted to solve.68 The 
compact in New York v. New Jersey was enacted in 1953 to 
slow the spread of organized crime; New Jersey sought to 
withdraw more than 60 years later. Throughout this time, the 
composition of each state’s government underwent significant 
changes. Furthermore, the nature of the issue did not remain 
stagnant, despite the continuity of the compact. Yet the 
trajectory of state policies was immovably beholden to the 
pre-existing compact. This critique is not specific to interstate 
compacts and it is an issue that plagues any fledgling executive 
administration assuming office following the ratification of 
agreements and laws by their predecessors. 

Interstate compacts can exist for longer periods of time 
than any given contract may exist between two individuals. 
There is no lifespan for a compact signed by theoretical entities 
in the same way that a contract between individuals ceases to 
be operational upon the death of one of the signatories. This 
truth is the result of the limited lifespans of humans and the 
regulatory influence of the democratic process, which 
consistently alters the composition of governments. In this way 
the state government, which possesses the prerogative to 
consider the compacts onto which a state becomes a signatory, 
cannot assess the validity of a compact that exists prior to the 
ascension of that particular administration. On the one hand, 
this framework offers compacts stability and continuity 
irrespective of changes in the ideological or governmental 
composition of one particular state. If an individual signed a 
contract and then immediately sought to withdraw after they 
changed their mind, the goods and services promised in the 
contract might not be delivered. On the other hand, there is an 
inherent difference between individuals and states that inhibits 
an equivalent perception of these signatories.69 

69 New Jersey v. New York, 523 U.S. 767 (1998). (Clarifying a dispute 
regarding Ellis Island pursuant to a compact between New York and New 

68 Id. at 10. 

 
 

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The elimination of this system of indenturing state 
governments to the compacts entered into by their predecessors 
is a significant victory of New York v. New Jersey. By allowing 
states the autonomy to unilaterally withdraw from an 
agreement that does not specify a set duration of time, the issue 
of indefinite compacts is obviated. The issue of state 
immortality highlights the inefficacy of equating the legal 
obligations of individuals and states. New York v. New Jersey 
affords state governments the autonomy to determine their 
destinies regarding pre-existing compacts. Ultimately, however, 
New York v. New Jersey does not fully rectify this matter of 
indenturing state governments to pre-existing compacts. The 
Supreme Court addressed the slippery slope argument raised by 
New York, in defense of holding New Jersey to the compact, 
by finding that states could be held to pre-existing compacts if 
a duration of time was specified within the terms of the 
compact or if withdrawal was expressly prohibited.70 

While the delegation of this responsibility to include 
terms of withdrawal to states obviates any indefinite obligation 
based on an omission of withdrawal capabilities, this still may 
require subsequent gubernatorial administrations to oversee the 
completion of pre-existing compacts because of the continuity 
of the state as the signatory. There are policy merits to this 
framework because it ensures that a state continues to uphold 
its obligations to another state irrespective of the political 
whims of a particular gubernatorial administration. However, 
this landscape has the detrimental effect of insulating interstate 
compacts from the democratic process.  

The lack of a perfectly fitting analytical unit of 
measurement for interstate compacts speaks to the unique legal 
status of the states that undergird the United States of America. 
The states are not sovereign nations capable of treaty-making. 
Simultaneously, they are not individuals capable of 

70 See supra note 52. 

Jersey enacted in 1834 that remained binding upon the party states in 1998 
using common law contract principles.)  

 
 

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contract-making. The goal of the Compact Clause was to 
balance the supremacy of the federal government with the 
desire to offer states the autonomy to formulate agreements for 
forwarding shared interests. Ultimately, this balancing act is 
extremely delicate and points to a deeper fragility which 
underlies the federalist structure of the United States.  

The first two parts of this article each dissected a 
distinct characteristic that the Supreme Court has imputed to 
interstate compacts. Part I examined the jurisprudence 
surrounding Congress’s role in the formation and execution of 
interstate compacts, and Part II examined the “contract-law 
rule” applied to interstate compacts. Despite isolating these 
attributes from one another to explain them and their 
connections to interstate compacts, interstate compacts are 
legally an embodiment of both of these characteristics. This 
duality doctrine, however, obscures a clear roadmap for 
efficiently arbitrating interstate compact disputes. Some of the 
major lingering questions over the character of compact law 
will be expounded upon below in the final part of this article. 
 
III. The Undynamic Duality: Compacts as Federal 

Statutes and Contracts 
A. The Duality and the Rights of the Federal 

Government in Interstate Compact Disputes 
This Part of the article will discuss the various 

problems with the duality doctrine. This first Section discusses 
the negative consequences the duality poses for states because 
their contractual disputes can be hampered by federal interests. 
Virginia v. West Virginia recognized Congress as an executor 
while Central Railroad conceptualized Congress as a notary. 
This discrepancy highlights a fundamental confusion regarding 
the status of interstate compacts and Congress’s role in their 
development and execution. In tandem with this enigma exists 
the dual classification of compacts as federal statutes under 
Cuyler, and as contracts entered into by party states. If 
Congress can pick up the responsibilities of a compact and 

 
 

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maintain a compact’s operativeness, a compact is further 
juxtaposed in its legal status from a contract entered into 
exclusively by two or more parties. There is no expectation that 
a third party can continue to operate a contract after the 
signatory parties have opted to terminate it. But New York v. 
New Jersey empowers states to withdraw from a compact and 
render the compact inactive. This highlights the inability of 
these attributes to harmoniously characterize a compact. 

While New York v. New Jersey held that states can 
unilaterally withdraw from a compact, this opinion does not 
speak on whether Congress can still restore a dormant compact. 
Therefore, the West Virginia problem of Congress potentially 
usurping state prerogatives and unilaterally undertaking 
compact imperatives remains viable. Perhaps the United States 
filing its own brief in New York v. New Jersey in support of 
New Jersey highlights a federal indifference to the maintenance 
of this particular compact.71 Regardless, West Virginia appears 
to remain controlling in the case of this power. Along the same 
lines of this federal retention of the power to maintain a 
dormant compact, the federal government has been empowered 
to extend a compact dispute; despite the fact that compact 
disputes are contractual disputes amongst states. 

In 2024, the Supreme Court decided Texas v. New 
Mexico and Colorado.72 This matter began in 2013 when Texas 
sued Colorado and New Mexico for grievances accrued during 
joint participation in a compact.73 By 2024, the litigant states 
had reached a resolution to this legal battle and sought a 
consent decree74 from the Court in accordance with the 

74 A consent decree is enacted by a presiding court to approve a settlement 
agreement and bind the parties of a lawsuit to the settlement’s agreed-upon 
terms. The consent decree is a common law mechanism independent of the 
consent mechanisms of compact law. See Black’s Law Dictionary (9th ed. 

73 Id. at 1761. 

72 Texas v. New Mexico and Colorado, 144 S. Ct. 1756 (2024). This article 
was largely completed prior to the publication of this ruling. 

71 Brief for the United States as Amicus Curiae, New York v. New Jersey, 
143 S.Ct 918 (2023). 

 
 

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settlement they had reached.75 The federal government, 
however, opposed the settlement agreement and argued against 
the Court providing a consent decree.76 The federal government 
had an interest in the outcome of this dispute, and the 
continuity of the compact, because of the federal government’s 
obligations to the neighboring country of Mexico and various 
indigenous tribes in the region.77 In 2018, in a prior ruling, the 
Supreme Court permitted the federal government to enter this 
particular dispute because the Court recognized “distinctively 
federal interests” in the matter at bar.78  

In the 2018 decision, the Supreme Court held that it 
was possible for the federal government to have interests in the 
execution of a compact independent from those of the states 
and permitted the federal government to insert itself into a 
compact dispute as a party. But, the 2018 opinion attempted to 
avoid creating a slippery slope whereby the federal government 
could invariably insert itself into compact disputes. The Court 
clarified that: 

 
Viewed from some sufficiently abstract level of 
generality, almost any compact between the States will 
touch on some concern of the national 

78 Texas v. New Mexico, supra note 77. The Supreme Court had already 
published an opinion pertaining to this particular legal battle, since it began 
in 2013, by the time the Court was tasked with considering a consent decree 
in 2024. To reach the determination made in the 2018 case, the Court relied 
upon Maryland v. Louisiana, 451 U.S. 725, 746 n.21 (1981). 

77 Texas v. New Mexico, 583 U.S. 407,  407–412 (2018); see generally: 
Rachel Reed, Supreme Court Tackles Water Rights in the West in Texas v. 
New Mexico and Colorado, Harvard Law School Today, (March 13, 2024) 
https://hls.harvard.edu/today/supreme-court-tackles-water-rights-in-the-west
-in-texas-v-new-mexico-and-colorado/. 

76 Id. 
75 Texas v. New Mexico and Colorado, supra note 72 at 1761. 

2009) at 471. The Supreme Court was the body tasked with providing the 
consent decree in this matter because the Court possesses original 
jurisdiction over interstate disputes (see infra note 99). Also, the settlement 
agreement reached by the states was not an interstate compact.  

 
 

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government—foreign affairs, interstate commerce, 
taxing and spending. No doubt that is the very reason 
why the Constitution requires congressional ratification 
of state compacts. But just because Congress enjoys a 
special role in approving interstate agreements, it does 
not necessarily follow that the United States has blanket 
authority to intervene in cases concerning the 
construction of those agreements.79 
 
In the 2024 case, the states argued that the federal 

government did not have standing to obstruct their attainment 
of a consent decree.80 The compacting states argued that the 
federal government did not have a compelling enough interest 
in the matter at bar to halt the consent decree because the 
compact was a water distribution agreement and the federal 
government was not a party who would be apportioned water.81 
Nonetheless, the Court regarded the interests that justified the 
entrance of the federal government into the matter in 2018 as 
compelling enough for the Court to consider the federal 

81 Id. 
80 Texas v. New Mexico and Colorado, supra note 72 at 1767. 

79 Texas v. New Mexico, supra note 77 at 413. This justification is 
interesting because it neglects to mention the implied consent doctrine of 
Virginia v. Tennessee in its recounting of the congressional consent 
requirement. Along these same lines, the 2018 majority opinion is 
interesting in its parallel to U.S. Steel v. Multistate Tax Comm’n (infra note 
92 at 479 n.33). While the 2018 majority opinion does not cite U.S. Steel, 
U.S. Steel similarly conceded that any compact poses the capacity to touch a 
federal interest. U.S. Steel held that the existence of a “federal interest” was 
irrelevant to whether a compact required congressional consent and instead 
emphasized “threats to ‘federal supremacy’” as a criterion distinct from that 
of the federal interest (see infra note 92); the 2018 majority opinion 
conceded that any compact can touch on a national concern but conjectured 
that this truth did not necessarily confer the right to intervene in any 
interstate dispute upon the federal government. As discussed in Part I, 
Section D of this article, Cuyler may have shifted the metric of a compact to 
its acquisition of congressional consent rather than its impact on federal 
supremacy. Nevertheless, the 2018 opinion makes use of U.S. Steel’s 
framing device. 

 
 

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government’s opposition and deny the consent decree on the 
basis of the federal government’s grievances.82 

Justice Neil Gorsuch, who authored the 2018 case’s 
majority opinion, filed a dissenting opinion in the 2024 matter. 
Justice Gorsuch’s dissent argued that the majority’s conduct set 
a dangerous precedent by permitting the federal government to 
exercise unprecedented authority over interstate disputes, a 
constitutional mechanism the political branches of the federal 
government traditionally possessed no role in, by prolonging 
this case against the wishes of the litigating states.83 Justice 
Gorsuch argued that once the dispute between the states died, 
the original jurisdiction of the Court died with it. The only 
course of action the Court could have taken in this case, 
according to Gorsuch, was dismissing the federal government’s 
claims without prejudice.84 

This division amongst the ranks of the Court poses an 
interesting dilemma as far as the duality is concerned. If a 
compact were exclusively a federal law, then the states would 
remain beholden to the federal government in a manner similar 
to any other law; the majority’s jurisprudence would 
unequivocally prevail.85 If a compact were exclusively a 
contract between party states, then Justice Gorsuch would be 
correct as contractual disputes cease and consent decrees are 
granted upon the acquisition of a consensus amongst the parties 
without examining the interests of nonparties. Justice Gorsuch 
would have been further vindicated because most other 
interstate original jurisdiction cases deal with state prerogatives 
and leave no room for input from the federal government.86  

86 Id. at 1772-1779 (Gorsuch, J., dissenting). 
85 Id. at 1763. 
84 Id. at 1779 (Gorsuch, J., dissenting). 

83 Id. at 1772 (Gorsuch, J., dissenting). For an overview of original 
jurisdiction, see infra note 99; see generally Sections B-D of this Part for 
more about the delineation between the political and the constitutional and 
the role of compact cases as a convergence of these questions in the wake of 
the duality. 

82 Id. 

 
 

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Compacts are anomalous in that they exist as an 
amalgamation of federal, interstate, and state political 
apparatuses. Therefore, the duality doctrine and the legal 
character of compacts transcend the binary between the 
majority and dissenting opinions in the 2024 case because each 
faction of the Court was only looking at half of the equation for 
adjudicating a compact dispute. 

Even before the emergence of the duality, however, the 
Supreme Court inconvenienced states by enshrining the 
vantage point of the national government into interstate 
compact disputes. In the 1854 case Florida v. Georgia, despite 
confirming that the United States was not legally a party to the 
dispute, the Supreme Court invited the Attorney General of the 
United States to an original jurisdiction dispute over a compact 
enumerating the boundary between two states.87 The Court 
extended this invitation to the Attorney General against the 
wishes of both of the party states so that the Attorney General 

87 Florida v. Georgia, 58 U.S. 478, (1854). Notably, Maryland v. Louisiana, 
supra note 78, which the 2018 and 2024 opinions rely upon to support their 
integration of the federal government into the interstate proceeding, makes 
no mention of this historical event to support its finding that the federal 
government is entitled to make a case for “distinctively federal interests” in 
interstate original jurisdiction hearings. Additionally, neither the 2018 nor 
the 2024 opinion mentions this historical fact about the Florida v. Georgia 
opinion. Although Justice Gorsuch acknowledged the sometimes 
unconventional structure of original jurisdiction interstate hearings in his 
2018 majority in dicta. “Our role in compact cases differs from our role in 
ordinary litigation. The Constitution endows this Court with original 
jurisdiction over disputes between the States. And this Court's role in these 
cases is to serve as a substitute for the diplomatic settlement of 
controversies between sovereigns and a possible resort to force. As a result, 
the Court may, [i]n this singular sphere… regulate and mould the process it 
uses in such a manner as…its judgment will best promote the purposes of 
justice.” Texas v. New Mexico, supra note 77 at 412 (citations and internal 
quotation marks omitted). Gorsuch noted that “[u]sing that special 
authority,” the Court “sometimes permitted the federal government to 
participate in compact suits to defend ‘distinctively federal interests’ that a 
normal litigant might not be permitted to pursue in traditional litigation.” 

 
 

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could raise issues neither of the states wanted addressed.88 
Despite the fact that the intervention of the Attorney General 
might have led to a settlement neither of the party states 
wanted, and the fact that this matter was a dispute between two 
states, the Court felt that the Attorney General’s attendance was 
vital to ensuring that federal interests were defended.89 If 
compacts are federal law, then it is reasonable to allow the 
federal government to be represented in compact disputes. But 
if compacts are also contracts, this poses a major impediment 
upon the ability of a compact dispute’s party states to procure 
expeditious and amicable settlements congruent with those 
awarded in traditional contractual disputes. 

Thus, the duality imposes a legal methodology 
antithetical to the timely amelioration of compact disputes by 
hampering these contractual disputes with evaluations of the 
interests of nonparties. Specifically, the Supreme Court has 
come to examine federal interests as a distinct factor in the 
Court’s interrogations of interstate compact disputes because of 
the federal nature of compacts post-Cuyler. The contractual 
characterization of compacts falls short because America’s 
federal system requires the Supreme Court to examine federal 
interests. The fate of the contract’s parties, therefore, resides in 
the external interests of nonparties; this would not be the case 
in other contractual disputes. Concurrently, the statutory 
identification of compacts fails because of the stringent 
constitutional limitations placed on the Court’s original 
jurisdiction in interstate cases. Overall, the Court’s conduct in 
Florida v. Georgia is also worthy of examination for its 
postulations of the nature of congressional consent, a lingering 
unresolved element of the Compact Clause. In this way, 
Florida v. Georgia further muddles Compact Clause 
jurisprudence as this next Section will demonstrate. 

 

89 Id. at 1429-1430. 
88 Congressional Supervision of Interstate Compacts, supra note 31 at 1429. 

 
 

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B. Political vs. Constitutional Consent: The Mystery of 
Equity and the Nature of Congressional Consent 
Under the Duality  
As a result of silence embedded in the Compact Clause, 

there are still lingering questions about the nature of 
congressional consent. If the criteria for congressional consent 
are policy-based then Congress can be more readily regarded 
as a party, as it was in West Virginia. If the criterion is simply 
ensuring states are on the same page to conduct their affairs, 
Congress can be conceived of as a notary as it was in Central 
Railroad. If congressional consent is an evaluation of the 
constitutionality of the compact and its compliance with the 
federalist framework, as Virginia v. Tennessee’s just supremacy 
standard posits, then Congress is tasked with considerations of 
constitutionality in its consent deliberations; despite the fact 
that the Judiciary is otherwise entrusted with this kind of 
evaluation. 

The Court affirmed in Florida v. Georgia that “a 
question of [the] boundary between States is…a political 
question, to be settled by [an interstate] compact made by the 
political departments of the government.”90 In this case, the 
Court also opined that congressional consent “is obviously 
intended to guard the rights and interests of the other States, 
and to prevent any compact or agreement between any two 
States, which might affect injuriously the interest of the 
others.”91 In U.S. Steel Corp. v. Multistate Tax Comm’n, the 
majority referred to these principles from Florida v. Georgia as 
dicta.92 In his dissent, however, Justice Byron White interpreted 
the principle of Florida v. Georgia as a binding truth in an 
attempt to neatly divide up interstate compact responsibilities 

92 U.S. Steel Corp. v. Multistate Tax Comm’n, 434 U.S. 452, 466 n.18. 
(1978). The majority opinion in this case is noteworthy for its expansion of 
the “just supremacy” standard and its contention that this standard is also 
applicable to compacts that create interstate agencies. See Id. at 452–453. 

91 Id. 
90 Florida v. Georgia, supra note 87 at 494.  

 
 

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between the courts and Congress. Justice White averred that 
“Congress does not pass upon a submitted compact in the 
manner of a court of law deciding a question of 
constitutionality. Rather, the requirement that Congress 
approve a compact is to obtain its political judgment”.93 

Regardless of whether these elements of Florida v. 
Georgia were intended to be dicta or a compulsory roadmap 
for the evaluation of congressional consent, Florida v. Georgia 
highlights the weighty burdens the Court imposes upon 
Congress and congressional consent deliberations. Florida v. 
Georgia ostensibly tasks Congress with evaluating equitability 
issues, in a compact, that have the potential of affecting 
non-signatory states by deeming these considerations 
“political.” Irrespective of the complexity of the responsibility 
this theory delegates to Congress and the ambiguity 
surrounding what distinguishes a “political” question from a 
“constitutional” one, this dichotomy is a commendable effort to 
distinctly define and characterize congressional consent. In the 
wake of the Court’s opinion in Cuyler and the emergence of the 
duality, however, this solution was diluted. This 

93 Id. at 486 (footnotes omitted). In this passage, Justice White also stated 
that an interpretation of the Compact Clause that reads its mandate as one 
requiring states to seek “the political consent [of] Congress affords that such 
consent may be expressed in ways as informal as tacit recognition or prior 
approval, that Congress be permitted to attach conditions upon its consent, 
and that congressional approval be a continuing requirement.” As discussed 
in infra note 130, White’s conception of congressional consent as a 
“continuing requirement” is unsupported. Additionally, his theory of 
congressional equitable oversight was nullified by the subsequent decision 
of the Court in Cuyler v. Adams and the emergence of the duality; as well as 
by his failure to account for Virginia v. Tennessee’s implied consent doctrine 
in this aspect of his opinion. The implied consent doctrine is such that 
Congress does not directly officiate every compact enacted to ensure they 
take an equitable form. Justice White’s references to prior approval and tacit 
consent further demonstrate the instability of his proposal. Nonetheless, 
White’s delegation of political oversight to Congress and constitutional 
oversight to courts is worth discussing to decipher the nature of 
congressional consent. 

 
 

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dysfunctionality can be seen in the Court’s 2010 opinion in 
Alabama v. North Carolina.94 According to Alabama v. North 
Carolina, congressional deliberations are also the sole venue 
where any equitability issues imposed upon a compact’s 
signatory states can be rectified. 

In Alabama v. North Carolina Justice Antonin Scalia, 
writing for the Court, declared that “an interstate compact is 
not just a contract; it is a federal statute enacted by Congress. If 
courts were authorized to add a fairness requirement to the 
implementation of federal statutes, judges would be potent 
lawmakers indeed. We do not—we cannot—add provisions to a 
federal statute.”95 While the Supreme Court certainly cannot 
insert provisions into a federal statute, the Court should still be 
able to adjudicate issues stemming from inequities in a contract 
and provide relief to any aggrieved parties. If compacts are a 
contract, then the states should be able to judicially redress 
grievances posed by the compact. However, despite the Court’s 
concession that every contract imposes a duty of good faith and 
fair dealing upon the parties, the Court has “never held that an 
interstate compact approved by Congress includes an implied 
duty of good faith and fair dealing.”96 The fact that interstate 
compacts are an exception to this fundamental rule of 
contract-making further complicates conceptualizations of 
interstate compacts as contracts.  

Alabama v. North Carolina’s preclusion on equitable 
judicial intervention and judicial enforcement of an implied 
duty of good faith and fair dealing, safeguards largely 
guaranteed to parties in contract law, is a direct result of the 
Court’s decision in Cuyler. The Court has rendered itself 
incapable of adjudicating and resolving inequities embedded in 
interstate compacts. In addition to this dilemma, the Court 
demonstrated the incongruence of compacts and contracts on 
federalist grounds; the Court deemed itself unable to read 

96 Id. at 351. 
95 Id. at 351–352. 
94 Alabama v. North Carolina, 560 U.S. 330 (2010). 

 
 

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absent terms into an agreement of states.97 The Court’s 
federalist objection highlights the incompatibility of contract 
law principles and interstate compacts. As, generally in 
contract law, courts are permitted to supplement agreements 
with incomplete or ambiguous terms by judicially filling these 
gaps to maintain the continuity and enforceability of the 
contract.98 

It is the unique constitutional relationship between 
states, Congress, and the courts that has led the Court to deny 
states this recourse. Yet, despite the Court recognizing these 
structural conflicts of interest, the Court remains the exclusive 
venue with original jurisdiction for arbitrations of interstate 
disputes.99 A court would not usually refrain from adjudicating 
a contract dispute because of who the notary was. But when it 
comes to interstate compacts, the Court has abdicated its duty 
to equitably arbitrate interstate disputes because compacts are 
concurrently a contract between the party states and a federal 
statute; a contract between the parties and an imperative of the 

99 Alabama v. North Carolina, supra note 94 at 344; U.S. Const. art. III, § 2, 
cl. 2. This constitutional provision explicitly delegates original jurisdiction 
of legal disputes between states to the Supreme Court; compact cases that 
are not intrinsically arbitrations of interstate disputes are heard throughout 
the federal court system, as a result of the evolution of the “federal 
question” doctrine highlighted in Section C of this Part.  

98 U.C.C. § 2-204(3) (2002). 

97 Id. at 352. (“We are especially reluctant to read absent terms into an 
interstate compact given the federalism and separation-of-powers concerns 
that would arise were we to rewrite an agreement among sovereign States, 
to which the political branches consented.”) The Court’s description of the 
branches who consent to compacts as “political” is noteworthy. In Baker v. 
Carr, 369 U.S. 186 (1962) the Court provided some parameters for what a 
political question outside the Court’s reach might look like. Still, the term 
remains opaque in the context of compact law. In Alabama v. North 
Carolina, the Court surreptitiously deemed questions of compact 
equitability “political” and pushed them squarely outside the domain of the 
Court and into the custodianship of Congress. The Court delegated this 
responsibility, of ensuring equitability amongst the states, to Congress 
despite the fact that the Court possesses original jurisdiction for resolving 
interstate disputes (see infra note 99). 

 
 

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contract’s notary. This perception of Congress as both an 
author and curator of compacts only emerged from the likening 
of compacts to congressionally-authored federal statutes in 
Cuyler.100 Thus, the duality doctrine is detrimental to the 
interests of party states and prevents the Supreme Court from 
performing its duties. This is especially disconcerting when 
one recalls the fact that the Supreme Court voluntarily 
absorbed compact disputes into the federal judiciary in a 
controversial maneuver in Petty v. Tennessee-Missouri Bridge 
Comm’n. 

 
C. Compacts as Federal Questions and the Derivation 

of Meaning Under the Duality  
 People v. Central Railroad rejected the notion that 
compacts were federal laws and instead as contracts between 
the two states. Central Railroad did not regard compact 
disputes as federal questions and held that state courts could 
hear cases pertaining to them. As previously stated, New York 
v. New Jersey’s “contract-law rule” is predicated on a chain of 
citations originating from Justice Frankfurter’s dissenting 
opinion in Petty v. Tennessee-Missouri Bridge Comm’n, that a 
“Compact is…a contract.” Frankfurter’s ideological distance 
from the majority was a result of the majority’s finding that a 
compact dispute presented a federal question because of a 
compact and compact dispute’s interstate nature. Justice 
Frankfurter’s notion in Petty, that the parties retain the ability 
to assign the meaning to the words that govern their 
obligations, stemmed from his desire to imagine compacts 
exclusively as contracts.101  

101 Petty v. Tennessee-Missouri Bridge Comm’n, supra note 60 at 285 
(Frankfurter, J., dissenting). (While Justice Frankfurter acknowledged that 
compacts presented a federal question, he argued that “a federal question 

100 Alabama v. North Carolina, supra note 94. Similar to Justice White’s 
dissent in U.S. Steel, this setup fails to account for the implied consent 
doctrine from Virginia v. Tennessee. This mechanism is such that Congress 
does not actually serve as a curator of every compact, let alone serve as 
every compact’s author. 

 
 

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Both Justice Frankfurter and the majority cite Delaware 
River Commission v. Colburn’s holding that a compact presents 
a federal question.102 Colburn overturned Central Railroad and 
held that a compact presents a federal question because a 
compact's congressional consent is bestowed through the 
enactment of a federal statute.103 It must be noted that Colburn 
falls short because it fails to account for the fact that compacts 
could also be effectuated with implied consent under Virginia v. 
Tennessee in its emphasis on the prerequisite consent statute’s 
centrality; although Colburn cited Virginia v. Tennessee to 
affirm its contention that “[t]he Compact clause does not make 
the Supreme Court the final arbiter with respect to the 
interpretation of interstate compacts.”104  

Justice Frankfurter argued that while Colburn was 
correct in stating that congressional consent conferred a federal 
character to compact disputes, compacts concurrently 
possessed the intrinsic character of a contract. It would 
therefore appear that Justice Frankfurter’s definition of a 
compact, a contract where parties determine the meaning of the 
words, directly conflicts with Cuyler.105 After Cuyler, any 
effort of a single state to unilaterally alter the provisions of an 

105 See supra notes 40 and 104. See also: Reiser, infra note 109 at 1999. 

104 Id. at 423. A premise that was subsequently undermined by the regime 
discussed later in this Section. 

103 Delaware River Commission v. Colburn, 310 U.S 419, 427 (1940). 

102 Id. at 277–280; 285 (Frankfurter, J., dissenting). See supra note 38 for 
more details about the historical relationship between the localized 
approach perpetuated in Central Railroad and championed by Frankfurter in 
Petty with the federal “law of the union” doctrine concurrently promoted by 
the Court in the 1851 Wheeling opinion and in Delaware River Commission 
v. Colburn (see infra note 103). While Petty cited Colburn, Petty’s majority 
held that the interstate nature of compacts conferred a federal question to 
them, irrespective of the existence of a federal statute bestowing 
congressional consent. 

does not require a federal answer by way of a blanket, nationwide 
substantive doctrine where essentially local interests are at stake.”).  

 
 

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active compact–as Congress can–risks encroaching upon the 
Supremacy Clause.106 

Under Cuyler, compacts are understood to present 
federal questions because the compacts themselves are federal 
statutes. One justification for Cuyler is that making compacts a 
matter of federal law ensures that there is a uniform 
interpretation and application of any given compact; Cuyler 
unequivocally held that compacts would be dealt with as 
federal laws. But, in the case of contracts, different 
interpretations of the terms by the different parties do not 
inherently hinder the execution of the contract.107 Hence Justice 
Frankfurter’s assertion that “in the interpretation of a contract, 
the meaning the parties attribute to the words governs the 
obligations assumed in the agreement.”108 Furthermore, parties 
will typically specify within the contract which laws they wish 
to have govern the contract’s provisions.109 

 One of the reasons Justice Frankfurter articulated for 
his distance from the majority was that the party states had not 
given authorization to have their dispute heard in the federal 
court system, as the case arose because an individual had filed 
the suit against the compacting states.110 The Eleventh 

110 Petty v. Tennessee-Missouri Bridge Comm’n, supra note 60 at 284–285 
(Frankfurter, J., dissenting).  

109 Eichorn, supra note 42 at 1406–1407; Dana Brakman Reiser, Charting 
No Man's Land: Applying Jurisdictional and Choice of Law Doctrines to 
Interstate Compacts 111 Harv. L. Rev. 1991 (1998). 

108 Petty v. Tennessee-Missouri Bridge Comm’n, supra note 60 at 285 
(Frankfurter, J., dissenting).  

107 Eichorn, supra note 42 at 1406–1407. 

106 Bush v. Muncy, 659 F.2d 402, 410–412 (4th Cir. 1981). The Supremacy 
Clause (U.S. Const. art. VI,  cl. 2) affirms the supremacy of the federal 
government over the states. Bush v. Muncy is noteworthy because it 
adjudicated a lingering question of the Interstate Agreement on Detainers, 
the compact at bar in Cuyler that sparked the transformation doctrine. As 
noted on page 411 of Bush v. Muncy, Congress approved the compact before 
states had ever drafted the compact’s language. Nevertheless, the moment 
multiple states joined the compact, the compact became a matter of federal 
law and the Supremacy Clause prohibition took hold. 

 
 

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Amendment to the federal Constitution grants states immunity 
from lawsuits filed by the citizens of other states. One of the 
majority’s findings in Petty was that, by signing onto the 
compact at bar, the signatory states had waived their immunity 
under this amendment. Whereas, in Justice Frankfurter’s view, 
the suit could only reach the federal court system if the states 
individually authorized the suit to proceed.111  

In deeming compact cases adjudications of federal 
questions, the majority in Petty placed them squarely in the 
domain of federal courts; further eroding the foundations of 
Central Railroad.112 Petty’s articulation of the federal nature of 
compacts would be carried over into the Cuyler regime.113 
Thus, one area where the duality fails to forward expedient 
resolutions to interstate compact disputes is in its attempt to 
circumvent the issue of whether compacts present federal 
questions. By conceiving of compacts as federal statutes, one 
makes compact disputes the concern of federal courts 
exclusively. However, this relegation stifles the expeditious 
resolutions to compact disputes that could be reached as a 
result of the contractual character of compacts. 

In his dissenting opinion in Petty, Justice Frankfurter 
analogized compacts to contracts to justify localizing control of 
compacts for states and to evade the “federal question” 
pronouncement. The majority in Petty held that “the meaning 
of a compact is a question on which this Court has the final 

113 New York v. New Jersey, supra note 7 at 920; Reiser, supra note 109 at 
1999. 

112 Petty v. Tennessee-Missouri Bridge Comm’n, supra note 60 at 278–280. 
See also: supra note 38. 

111 Id. at 275–279 for the majority’s rationale for the compact’s role as a 
waiver. Until Cuyler v. Adams unequivocally deemed compacts federal 
questions, however, the question of whether a state waived their Eleventh 
Amendment protections by signing onto a compact was evaluated on a case 
by case basis. See Frank P. Darr, Electric Holding Company Regulation by 
Multistate Compact, 14. Energy Law J. 357, 366–368 (1993) and the cases 
cited therein. 

 
 

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say.”114 To reach this conclusion, the majority deferred to West 
Virginia ex rel. Dyer v. Sims’ declaration that “[j]ust as this 
Court has power to settle disputes between States where there 
is no compact, it must have final power to pass upon the 
meaning and validity of compacts.”115 The Sims opinion was 
authored by Frankfurter. He differentiated his dissenting 
opinion in Petty from his majority opinion in Sims by stating 
that Sims was more narrow than how the majority sought to use 
it in Petty; to confirm that all compact disputes should be 
arbitrated on the federal level because compacts fundamentally 
presented a federal question.116 

Regardless of which opinion correctly invoked Sims, 
the issue of federal jurisdiction has been deleteriously rendered 
moot as a result of the duality. Firstly, the debate over whether 
compacts present federal questions was superseded by the 
designation of compacts as federal statutes. Secondly, while the 
federal court system has been made the domain of compact 
disputes, jurisdiction over derivations of the meaning of terms 
in a compact has been denied to both the parties and the Court. 
As shown by Alabama v. North Carolina, the duality 
detrimentally altered compact law because the Court cannot 
serve as the arbiter of a compact’s meaning without raising 
constitutional qualms for itself.117 The Court effectively 

117 See supra note 97. 

116 Petty v. Tennessee-Missouri Bridge Comm’n, supra note 60 at 284 
(Frankfurter, J., dissenting). 

115 West Virginia ex rel. Dyer v. Sims, 341 U.S. 22, 28 (1951). The central 
question in Sims was whether a West Virginia state court could impartially 
adjudicate a compact dispute arising between West Virginia and its sister 
states. The Supreme Court held that the state court could not be permitted to 
be the arbiter of such a dispute and the Court consolidated that authority 
inside the federal judiciary. This marked a further departure from the 
jurisprudence of Central Railroad wherein the Supreme Court deferred to 
the judgment of the New York State Court of Appeals. Sims is also worth 
studying in the context of the dilemma the Court faced in Hinderlider v. La 
Plata Co. and the absorption of compact disputes into the jurisdiction of the 
federal bench (see supra note 38). 

114 Petty v. Tennessee-Missouri Bridge Comm’n, supra note 60 at 278. 

 
 

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rejected Frankfurter’s roadmap for handling compacts like 
contracts by deeming compacts federal laws, but the Court 
continues to analogize compacts to contracts when it is 
convenient as evidenced by the citation of Frankfurter’s 
dissenting opinion in the post-Cuyler era.  

Concurrently, as shown in this Section, the fact that 
jurisdiction over compact disputes now resides on the federal 
level means that party states cannot determine the meanings of 
the terms in the agreements they enter. While there has been an 
effort made to delineate between the responsibilities of 
Congress and the Court, the Court has abdicated the 
prerogative it provided itself to derive meanings.118 Thus, the 
duality proves further adverse to prudent public policy and 
expedient conflict resolution in its occlusion of who clarifies 
the meanings of the terms of a compact. One other matter that 
remains contentious in compact law is who can withdraw from 
a compact. This next Section advocates extending this right to 
withdraw to Congress using the framework espoused in 
previous Sections. 

 
D. Congress and the Right to Unilateral Withdrawal 

Whether Congress is a party afforded the same 
prerogative to unilaterally withdraw, afforded to states by New 
York v. New Jersey, remains unanswered. As previously 
explained, Congress sometimes affords itself the ability to 
repeal its consent and alter a compact as a condition of its 
consent. Congress has also occasionally limited its consent to a 
specified duration of time.119 While Congress has historically 
had the opportunity to include language that permits its 
withdrawal of consent, there has never been an explicit judicial 
codification of this right. If Congress is intended to be a party 
to a compact like states, then this exclusive prerogative of 
unilateral alterations poses an inequity because Congress can 
alter the contents of a compact while individual states cannot. 

119 Heron, supra note 40 at 16. 
118 See Section B of this Part. 

 
 

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The existence of this inequity further complicates the 
application of contract law principles to compact jurisprudence. 

Regardless, at first glance, this privilege uniquely 
afforded to Congress settles the query of whether Congress can 
unilaterally withdraw its consent from a compact. If Congress 
had to include these provisions to exercise this prerogative, 
Congress did not intrinsically possess the right to withdraw its 
consent at will once a compact was ratified. Instead, Congress 
only retained this right when Congress remembered to include 
these provisions. Therefore, if a compact is silent on 
mechanisms of withdrawal at its ratification, one might deduce 
that Congress withdrawing its consent is expressly forbidden.  

Putting aside the fact that the implied consent doctrine 
means Congress cannot always proactively codify these 
stipulations, this hypothesis is challenged by New York v. New 
Jersey. One of New York’s arguments for binding New Jersey 
to the compact was that there was a broader historical tradition 
of pre-1953 compacts remaining silent on unilateral 
withdrawal, but nonetheless being understood to forbid 
withdrawal. The Court rejected this interpretation because 
several compacts ratified prior to 1953 contained provisions 
which explicitly prohibited member states from withdrawing. 
The Court postulated that this language would have been 
unnecessary if, historically, a compact which was silent on 
withdrawal had presumptively been understood to forbid 
withdrawal.120 

Given this holding, Congress ought to similarly be 
afforded the prerogative to withdraw consent from a compact 
which is silent on congressional withdrawal. In this way, 
congressional withdrawal conditions for consent can serve 
merely as recitations of a right Congress invariably holds. 
There has been little jurisprudence assessing the 
constitutionality of the inclusion of consent withdrawal 
provisions. A federal court was tasked with adjudicating a 
question about the constitutionality of congressional conditions 

120 New York v. New Jersey, supra note 7 at 925-926. 

 
 

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for consent in Tobin v. United States.121 This case arose from 
the controversies surrounding the Port Authority during the 
tenure of Emmanuel Celler as Chair of the House Judiciary 
Committee. In Tobin, the appellant argued that congressional 
consent was irrevocable once consent was provided because 
congressional consent irreversibly restored states to their full 
sovereignty to effectuate the obligations of any given 
compact.122 

In this case, the court stated that no case existed which 
could affirm or dispute the notion that Congress possessed a 
constitutional right to attach conditions related to repealing its 
consent; or alter the terms of a compact. Ultimately, the court 
did not provide a definitive resolution to this discrepancy and 
limited its discussion of constitutional doctrine surrounding the 
Compact Clause and congressional conditionality. The court in 
this case did not wish to explicitly bestow this right upon 
Congress because, by its own admission, the court had “no way 
of knowing what ramifications would result from a holding that 
Congress has the implied constitutional power ‘to alter, amend 
or repeal’ its consent to an interstate compact.”123   

The court in Tobin also confessed that, if its opinion in 
Tobin further addressed the retractability of congressional 
consent, the court had “[n]o doubt the suspicion of even 
potential impermanency would be damaging to the very 
concept of interstate compacts.”124 The underlying 
presupposition here is that the intention behind all interstate 
compacts is for them to serve as permanent agreements. 
Perhaps the court in Tobin was conflating impositional 
compacts with historical treaty compacts. Regardless, New 
York v. New Jersey would later undermine this assertion 

124 Id. 
123 Id. 

122 Id. at 273. (Within this framework, the court in Tobin clarified that the 
appellant meant “sovereign[ty] in the narrow sense of being free to 
conclude an interstate compact, not sovereign[ty] in the broad sense of 
being free of the Constitution.”) 

121 Tobin v. United States, 306 F.2d 270 (D.C. Cir. 1962). 

 
 

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through its formation of unilateral withdrawal mechanisms for 
states in compacts without a specified duration of time. 

The court in Tobin stated that congressional inclusions 
of consent withdrawal provisions may have been permissible as 
an implied power. Although the court cautioned that Congress 
cannot confer a power that the federal government does not 
constitutionally possess upon itself, as a condition of its 
provision of consent. Tobin’s declaration that Congress cannot 
confer powers upon itself as a condition of congressional 
consent was supported by a citation of the case Coyle v. Smith. 
In Coyle, the Supreme Court ruled that Congress could not 
impose conditions relating to matters outside of its 
constitutional purview to provide states with consent for their 
objectives.125 While the majority opinion in Cuyler omits any 
reference to Tobin or Coyle, Cuyler overturns Tobin because 
Cuyler insulates compact consent from the jurisdiction of the 
Coyle rule, while Tobin subjects compact consent to the Coyle 
rule.126 

126 Cuyler v. Adams, supra note 6 at 439-40. (“The requirement of 
congressional consent is at the heart of the Compact Clause. By vesting in 
Congress the power to grant or withhold consent, or to condition consent on 
the States' compliance with specified conditions, the Framers sought to 
ensure that Congress would maintain ultimate supervisory power over 
cooperative state action that might otherwise interfere with the full and free 
exercise of federal authority. [See] Frankfurter & Landis,...[supra note 2 at] 
694-695.”). 

The Court’s citation of the seminal 1925 article is 
thought-provoking. On the cited pages, the 1925 article makes an argument 
about why Congress is uniquely qualified to be making these consent 
judgments and attempting to address the issues dissected in Section B of 

125 Coyle v. Smith, 221 U.S. 559 (1911). Coyle was adjudicated while 
Oklahoma was seeking statehood. Congress conditioned its consent to 
Oklahoma’s admission into the union, as a state, upon Oklahoma 
acquiescing to Congress’s preferred location for Oklahoma’s capital city. 
The Supreme Court ruled in favor of Oklahoma which served as the 
precedent for the court in Tobin to declare that “[i]f Congress does not have 
the power under the Constitution, then it cannot confer such power upon 
itself by way of a legislative fiat imposed as a condition to the granting of 
its consent.” 

 
 

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The transformation doctrine in Cuyler undoubtedly 
poses a major divergence from the jurisprudence of Coyle.127 If 
the transformation doctrine and the jurisprudence of Cuyler 
means compacts are not subject to the Coyle rule, Congress 
cannot be accused of usurping powers the federal government 
was not delegated by incorporating conditional provisions into 
compacts that exceed Congress’s delegated powers. This 
development creates a risk of Congress potentially inserting 
unconstitutional conditions into compacts. Therefore, this 
insulation of compacts from Coyle’s controlling jurisdiction 
poses negative repercussions for those seeking a judicial 
curtailment of Congress’s ability to usurp powers. But the 
exemption of compacts from the Coyle rule is a positive 

127 Cuyler v. Adams, supra note 6 at 452 (Rehnquist, J., dissenting). (“[The 
transformation] proposition is…contrary to the established rule in other 
contexts. The most fundamental example was discussed in Coyle v. 
Smith…”). See generally Id. at 450-455 for Cuyler’s dissenting opinion. In 
this dissent, relying on U.S Steel, future Chief Justice William Rehnquist 
argued that the intent of the parties and the attainment of consent did not 
inherently convert state legislation into a compact as he believed the 
majority was suggesting. Rehnquist instead sought to constrain the 
definition of a compact to the subject matter of the policy initiative and the 
policy initiative’s proximity to the federal government. Justice Rehnquist 
borrowed from Engdahl, supra note 38, to advance his argument; though it 
is worth noting that Engdahl’s article precedes U.S Steel, in addition to 
preceding Cuyler. For a broader analysis of Rehnquist’s Compact Clause 
jurisprudence, see generally Eichorn, supra note 42. 

this Part. The 1925 article does not necessarily speak to the retractability or 
conditionality of consent here, instead merely addressing the intent of the 
Framers to endow Congress with the consent power. Here, the 1925 article 
supposes that the consent mechanism was afforded to Congress as a 
“republican transformation of the needed approval by the Crown” to enter 
intercolonial arrangements under British law. 

The importation of this monarchical procedure coupled with the 
terseness of the Compact Clause likely created the anomalous ambiguities 
embedded in the nature and retractability of congressional consent in the 
case of interstate compacts. The situation was likely complicated further by 
the advent of judicial review and the formation of a dichotomy between 
political judgments and constitutional judgments as domains of the 
legislature and the courts, respectively. 

 
 

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distinction for those seeking a legalization of the retractability 
of congressional consent from compacts. If compacts are 
federal law, it would be logical to afford Congress unique 
leeway to contemplate its consent in this area. 

The consent Congress grants for admitting new states, 
into the union, mirrors the passive compacts states have 
historically entered. In this way, it is understandable that 
Congress would not be afforded the capacity to withdraw its 
consent to statehood because that would pose tremendous 
implications for the status of a state’s sovereignty and the 
stability of political and social dynamics throughout the 
country. Nonetheless changing circumstances in the underlying 
exigence of a compact, and the protective capabilities the 
Compact Clause was designed to enshrine, necessitate 
providing Congress the right to retract its consent.128 New York 
v. New Jersey affords states the capacity to unilaterally 
withdraw from active compacts, absent provisions pertaining to 
the duration of time a compact must remain intact, whereas 
states cannot easily withdraw from compacts that enforce 
boundary lines or map out water distribution.129 Analogously, 
Congress ought to be afforded a similar prerogative to 
withdraw its consent in situations where a compact has an 
active impact on the political sphere and the federalist 
system.130  

130 In his article advocating increased federal control over compacts, supra 
note 36 at 685-686, Congressman Celler cited the case Louisville Bridge 
Company v. United States 242 U.S. 409 (1917) to support the assertion that 
Congress retains the right to periodically consider the status of its consent. 
Louisville dealt with a contract between Congress and a corporation rather 
than an interstate compact. As was the case in Part II, Section B; the 
position of this article remains that laws governing individuals and 
corporations cannot inherently transitively be applied to states.  

In his dissent in U.S. Steel Corp. v. Multistate Tax Comm’n, Justice 
White cited Celler as evidence the Court had recognized that “Congress 
must possess the continuing power to reconsider terms approved in 
compacts” (supra note 92 at 486 n.10). White also cited Pennsylvania v. 

129 See supra notes 51-52. 
128 Congress and the Port of New York Authority, supra note 31 at 816. 

 
 

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The supremacy of the federal government would 
certainly be threatened if Congress could not withdraw consent 
from a compact and instead had to remain stagnant as states 
undertook policy objectives in interstate capacities for 
indefinite periods of time. Furthermore, in the wake of the 
Court’s decision in Texas v. New Mexico and Colorado, there is 
even more of an impetus for the Supreme Court to rule that 
Congress bears the right to withdraw its consent to a compact; 
irrespective of the nature of interstate compacts as contracts. 
Ultimately, it is rational to enshrine a retention of the right to 
withdraw from compacts to Congress in subsequent cases.  

Just as a scenario in which states cannot withdraw from 
a compact or let a compact go dormant is dystopian, a scenario 
in which Congress cannot withdraw its consent is dystopian. If 
the de facto and de jure reality is that compacts are contracts in 
contemporary jurisprudence, it would be illogical for courts to 
retain a preclusion on Congress’s capacity to withdraw its 
consent. It is inequitable for some parties to retain the right to 
unilaterally withdraw from an agreement while others remain 
indefinitely bound to it. Additionally, if compacts are acts of 
Congress, Congress should be permitted to evaluate whether 
compacts should continue to remain in effect. New York v. New 
Jersey codifies a right to unilateral withdrawal for states; 
Congress should be afforded a similar right to withdraw its 
consent. 
IV. Conclusion 

The interstate compact is an anomalous facet of 
American constitutional law with a unique purpose and an 

Wheeling & Belmont Bridge Co., 59 U.S. 421, 433 (1855) (White 
erroneously listed the year of the 1855 Wheeling decision as 1856 in his 
dissent). In the 1855 opinion, “[t]he question…[wa]s whether or not the 
[interstate] compact can operate as a restriction upon the power of Congress 
under the Constitution to regulate commerce among the several states” in 
the area of a compact’s domain. This is markedly different from a verdict on 
Congress’s right to withdraw or modify the consent it provides to a 
compact. Nevertheless, Justice White’s discussion of this particular issue 
was dicta. This question remains in need of a definitive answer. 

 
 

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anomalous ratification process. As a result of the 
distinctiveness of compacts, a perennial issue in American 
history has been ascribing them a coherent body of law for 
judicial dispute resolution. In Cuyler v. Adams, the Supreme 
Court ruled that compacts are federal laws. At the same time, 
the Supreme Court has defined compacts as contracts between 
states eligible for adjudication using contract law principles. In 
New York v. New Jersey, the Court held that the “contract-law 
rule” permits states to unilaterally withdraw from compacts 
lacking a set duration of time or explicitly codified withdrawal 
mechanisms. Presently, both Cuyler v. Adams and New York v. 
New Jersey are binding precedent. Therefore, compacts possess 
a dual status as contracts and statutes. This duality is 
ineffective for elucidating remaining ambiguities posed by the 
Compact Clause.  

The Framers designed the Constitution to limit the 
power of the national government by building the principles of 
federalism, democracy, and a separation of powers into their 
new nation.131 This article has demonstrated that each of these 
constitutional norms are threatened by the Supreme Court’s 
jurisprudence pertaining to the Compact Clause: the Supreme 
Court’s dual-conception of interstate compacts as state-based 
solutions to localized problems and as congressional policies 
challenges the principle of federalism. Virginia v. Tennessee 
held that not all compacts require the involvement of Congress 
and that some could even attain the implied consent of 
Congress. Concurrently, Cuyler declared that all compacts are 
federal law and Virginia v. West Virginia asserted that Congress 
can intervene to ensure a compact is carried out. These cases, 
taken together, blur the lines between state and federal 
government and endanger the Federalist checks which 
undergird the United States. 

The permanency of compacts juxtaposed with the 
impermanence of governmental administrations and the 
exigencies of their policy imperatives highlights the 

131 See supra note 37. 

 
 

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incompatibility of the Compact Clause with democratic 
intuitions. This incompatibility with democratic values plagues 
compacts whether compacts are statutes, contracts, or both. It 
was not until New York v. New Jersey that states were afforded 
the opportunity to unilaterally withdraw from 
obligation-imposing compacts to comport with the changing 
nature of policy issues and the mandates of voters.132 Even so, 
the continuity of the Cuyler doctrine means that states 
undertaking a compact are executing federal laws. Thus, states 
withdrawals from compacts amount to states nullifications of 
federal law. In this way, the duality doctrine imposes 
tremendous strains on the constitutional and political 
infrastructure of the United States. 

Even in Alabama v. North Carolina, where the Court 
expressly worked to reach its decision in the manner that best 
comported with the duality, the Court took no issue with the 
inclusion of a provision in the compact at bar permitting states 
to withdraw from the compact by enacting laws to repeal it.133 
If a compact was merely a contract, then there would be no 
need to further examine the Court’s apathy to this provision’s 
inclusion. But a compact is also a federal statute, and this 
provision invited a state to enact laws that discontinued the 
state’s participation in the execution of federal laws. If 
compacts were merely contracts, these measures would 
exclusively constitute withdrawals from contracts. Since 
compacts are also statutes, these withdrawals are state 
nullifications of federal statutes.134  

134 The Court in Alabama v. North Carolina had the liberty to comment on 
the withdrawal provision despite its contention that courts could not alter 

133 Alabama v. North Carolina, supra note 94 at 351-352. The Court 
presupposed that North Carolina could withdraw from the compact in this 
case and referred to the compact’s enumerated procedures for withdrawal as 
the basis for this presupposition. The Court specifically assessed whether 
North Carolina’s withdrawal was in “bad faith.” This was discussed in Part 
III, Section B of this article; the Court found that an interstate compact does 
not inherently confer a duty, upon the parties, to act in good faith. 

132 See supra note 52. 

 
 

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As for the separation of powers doctrine, the Supreme 
Court has been reluctant to decide whether congressional 
consent is a political consideration or a constitutional one. 
Under Virginia v. West Virginia and Florida v. Georgia, the 
consent power is policy-based and a political consideration; 
and under Virginia v. Tennessee, that power is 
constitutionally-based as shown by the just supremacy 

federal statutes. The precedent that the Court in Alabama v. North Carolina 
relied on to make this determination held that “[o]nce congressional consent 
is given to an interstate compact as required by the Compact Clause, the 
compact is transformed into a law of the United States, and unless the 
compact is unconstitutional, no court may order relief inconsistent with its 
express terms.” Texas v. New Mexico, 462 U.S. 554, (1983) (emphasis 
added). A clear exception is outlined in this rule because a state effort to 
nullify a federal law—as compacts are—would amount to a violation of the 
Supremacy Clause of the Constitution. (See supra note 106 for an overview 
of the Supremacy Clause.) But because of the duality’s concurrent 
conception of compacts as contracts, where withdrawal provisions are 
permitted, the Court in Alabama v. North Carolina took no umbrage with 
these provisions irrespective of their dubious constitutional foundations. 
The Court in New York v. New Jersey expanded the right to withdrawal to 
compacts lacking expressly codified withdrawal provisions. See generally 
Parts II and III of this article for a discussion of the impact of the New York 
v. New Jersey decision in this light. 

The realities of any given compact’s dissolution may differ on the 
basis of a number of criteria, including whether a compact launched an 
interstate agency; nonetheless, this proliferation of compact withdrawal 
capabilities remains concerning as state initiations of withdrawals from 
compacts invariably constitute nullifications of binding federal statutes. 
Former New Jersey Governor Chris Christie was initially hesitant to sign 
the bill commencing New Jersey’s withdrawal from the compact, at bar in 
2023’s New York v. New Jersey, because he believed that such an action was 
in violation of federal law. Governor Christie ultimately signed the bill 
immediately prior to his departure from the governor’s office in 2018. 
Christie’s reservation further demonstrates the ambiguities perpetuated by 
the duality and the negative repercussions the duality poses for 
governmental affairs.  

Ryan Hutchins, Christie, Reversing Himself, Signs Bill to Abolish 
Waterfront Commission, POLITICO (January 15, 2018), 
https://www.politico.com/states/new-jersey/story/2018/01/15/christie-revers
ing-himself-signs-bill-to-abolish-waterfront-commission-189692. 

 
 

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https://www.politico.com/states/new-jersey/story/2018/01/15/christie-reversing-himself-signs-bill-to-abolish-waterfront-commission-189692
https://www.politico.com/states/new-jersey/story/2018/01/15/christie-reversing-himself-signs-bill-to-abolish-waterfront-commission-189692


Brandeis University Law Journal            2024-2025, Volume 12 

standard. While the policy-based doctrine poses federalist 
issues, the Virginia v. Tennessee approach poses separation of 
powers issues. Virginia v. Tennessee’s approach presumes 
Congress has the capacity to make evaluations of the 
constitutionality of legislation by evaluating a compact’s 
impact on the constitutional system and the preservation of the 
federal government’s supremacy.  

While the Supreme Court is afforded original 
jurisdiction for interstate disputes in all other contexts, Virginia 
v. Tennessee uniquely positions deliberations surrounding the 
constitutionality of an interstate compact within the purview of 
Congress. This framework affords Congress discretion in a 
subject matter, evaluations of constitutionality, where 
congressional deference is not otherwise typically provided. 
Additionally, Virginia v. Tennessee’s implied consent doctrine 
means that Congress does not always even directly make these 
evaluations despite being tasked with them. In the wake of 
Cuyler, this means states can enact laws of Congress without 
the direct consent of Congress. 

While these prerequisite evaluations have been reserved 
for Congress, the Court has consolidated jurisdiction over 
disputes surrounding active compacts in the federal court 
system. This was the result of Delaware River Commission v. 
Colburn, West Virginia ex rel. Dyer v. Sims, and Petty v. 
Tennessee-Missouri Bridge Comm’n; these cases were decided 
during the 1940s and 1950s as part of a national shift favoring 
the interstate compact as a policy solution. These cases 
centralized interstate compact disputes on the federal level to 
adapt to the changing political landscape. After Cuyler in 1981 
and the emergence of the duality, however, this situation 
proved disastrous for those seeking expeditious judicial 
resolutions of contractual disputes under a compact. This is 
because the Court cannot effectively balance both of the 
characteristics a compact embodies. 

 In New York v. New Jersey, the Court veered too close 
to the contract view of compacts by enumerating withdrawal 

 
 

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privileges at the expense of the continuity of federal law. In 
Texas v. New Mexico and Colorado, in 2024, the Court veered 
too far in the direction of the statute characterization. The 
Court granted the federal government the ability to prolong a 
dispute for which the compacting states had already reached an 
expeditious settlement. When the Court tries to acknowledge 
both of these attributes, the Court fails to deliver decisive 
jurisprudence as evidenced by the opinion in Alabama v. North 
Carolina. As stated, the Court permitted the inclusion of a 
withdrawal provision in the compact at bar that amounted to a 
state nullification of a federal statute; but the Court also 
rendered itself incapable of ensuring that compacts comport 
with contractual principles of equity and fair dealing because 
compacts possess the legal status of federal laws. Thus, given 
the presence of these issues and the implications they continue 
to pose for American constitutional law and public policy, the 
frameworks surrounding interstate compacts pose ambiguities 
that require amelioration. 

 

 
 

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