






























Brandeis University Law Journal            2024-2025, Volume 12 

 

 

 

 

Mission Statement  

The Brandeis University Law Journal aims to provide Brandeis 
University with the opportunity to contribute to discussions of 
law and law-related topics with the publication of 
undergraduate scholarship. We hope to aid in the furtherance of 
Brandeis University’s motto of “truth even unto its innermost 
parts” through publishing rigorously researched articles and 
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we are grounded in an undergraduate academic environment 
and constantly trying to learn, grow and improve. Our journal 
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academic scholarship can flourish. We focus on academic 
excellence, encouraging expressions of scholarship, and 
encouragement of educational purposes.  

 
 
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Brandeis University Law Journal            2024-2025, Volume 12 

 

 

 

 

 

 

Statement of Neutrality 

The Brandeis University Law Journal is an independent publication, 
managed entirely by undergraduate students, that functions as a 
neutral platform for the unrestricted circulation of community 

members’ views on legal matters. The views expressed in the Journal 
do not necessarily reflect those of the Journal’s Executive Board or 

its other authors and editors. 
 

 

 

 

 

 

 

 

 
 
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Brandeis University Law Journal            2024-2025, Volume 12 

Submissions 

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be: 
1) Original and written by members of the Brandeis 
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2) Related to law and/or using legal reasoning. 
 
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https://journals.library.brandeis.edu/index.php/blj


Brandeis University Law Journal            2024-2025, Volume 12 

 
 
 
 
 

 
 
 
 
 
 
 
 

Brandeis University Law Journal ©2025 
 

ISSN: 22154-4468 
 

e-ISSN: 2836-7251  

 
 
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Brandeis University Law Journal            2024-2025, Volume 12 

Brandeis University Law Journal©2025 
 

Fall 2024 & Spring 2025  VOLUME 12 
 

Executive Board 

Editor-in-Chief 
Daniel Block 

 
Editor-in-Chief Emerita 

Gonny Nir 
 

Copy Editor 
Koby Gottlieb 

 
Layout Editor 
Alyssa Golden 

 
Editorial Librarian 

Aimee Slater 
 

Faculty Advisor 
Professor Rosalind Kabrhel 

Editor-in-Chief 
Noah Levy 

 
Publisher and Treasurer 

Peyton Gillespie 
 

Social Media Manager 
Sadie Lieberman 

 
Library Liaison 

Kaylin Ger 
 

Archival Librarian 
Wendy Shook 

 
Faculty Advisor 

Professor Daniel Breen 
 

Technical Editors:  
Benjamin Grimes, Carolyn Jiang (Deputy Treasurer), Casey Shea Dinkin*, 

Fairooz Abida*, Zachary Miller*. 
 

Editors**:  
Anna Ertischek, Julia Fair, Maia Katsnelson*, Olivia (Yujuan) Zhang, 

Tehilla Oami, Adira Muskat, Harry Watkin-Fox*, Lauren Lederer, Coco 
Cao, Malia Perry*, Emily Yao*, Liam Gurevitch, Syeda Qadri. 

 
 

(*) Indicates editor engaged in workshops and training to learn The Bluebook: A Uniform 
System of Citations  

     (**) Editors listed in the Journal have not only met but exceeded the publication’s rigorous 
standards for editorial excellence. While we are grateful to have over 200 individuals who 
provide valuable feedback throughout the editing process, these editors have gone above and 
beyond, consistently demonstrating exceptional skill, dedication, and attention to detail. Their 
contributions were integral to maintaining the Journal's high standards of quality, ensuring that 
each article undergoes thorough review and revision. These editors are recognized for their 
outstanding commitment to the Journal's success.  

 
 
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Brandeis University Law Journal            2024-2025, Volume 12 

CONTENTS 
 
 
 
 
 
 
Letter from the Editor-in-Chief..........................................7 

The Canary in the West Virginia Coal Mine: How the 
Major Questions Doctrine Led to the Demise of Chevron, 
Daniel Block.......................................................................8 

Second to One: Walking in the Footsteps of a Giant, Noah 
Levy.................................................................................. 40 

Ambiguities Embedded in the Systems of Interstate 
Compacts, Zachary Miller............................................... 47 

State Responsibility for State Sponsors of Terror, Koby 
Gottlieb...........................................................................105 

The Sedition Act of 1798 as a Federalist Legal Instrument, 
Jack Granahan...............................................................120 

A Debate Decided: Civil Liberties for Guantanamo Bay 
Detainees, Lanie Hymowitz............................................134 

 
 

 

 
 
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Brandeis University Law Journal            2024-2025, Volume 12 

Letter from the Editor-in-Chief  
 
Dear Reader, 
 

Thank you for lending your time to our scholarship. Our dedicated team of 
over two hundred editors labored over these pages to provide an analytical lens 
through which to view past, present, and future legal issues. 

This issue is chock-full of novel perspectives. Our authors braved the 
uncharted waters of the rise of the Major Question Doctrine and trade with state 
sponsors of terror. Others looked back to our nation’s founding to clarify the period 
and teach lessons for the present. Some looked into the structure of American 
government, commerce, and justice, bringing fresh insights to enduring debates. 
Through joint journal and departmental workshops designed to refine their work, our 
authors have crafted a style of legal narrative sure to keep you engaged. 

We have completely transitioned our citation style to The Bluebook: A 
Uniform System of Citation. This process has been over a year in the works, and we 
are so grateful for the whole-of-organization effort that brought this full transition to 
fruition. 

Our editors are the unsung heroes that constitute the backbone of our 
journal. They have submitted thousands of comments and spent over a hundred 
hours fixing spelling, syntax, content, and style to ensure our articles meet the 
highest standards of clarity and accuracy. 

Our authors went beyond their call of duty to meet with our Executive 
Board frequently, adding entire sections to their writing as recommended by our 
editors, and invested exorbitant amounts of their time to polish their work. Their 
contributions were a labor of love, as evident from the quality of the articles they 
produced. 

The Executive Board is a uniquely deliberative setting. Mutual respect and 
admiration constitute its core. Our faculty advisors, Professor Breen and Kabrhel are 
our guiding lights and remind us of our dedication to Judah Marans. Without 
resources from the Student Union Allocation Board, this journal wouldn’t come to 
print. We dearly thank all our backers for their support. 

Four board members in particular have been instrumental in the Journal. 
Gonny Nir, my predecessor, is a model I aspire to emulate in this role. Daniel Block, 
my Co-Editor-in-Chief, has had some of the most thought-out opinions and 
guidance, vitally keeping us on track and ensuring the Journal runs smoothly. Koby 
Gottlieb, who is transitioning into Daniel’s position, has been a phenomenal 
collaborator whose efforts have ensured the successful piecing together of a thriving 
future for the platform. Our outgoing treasurer, Peyton Gillespie, worked tirelessly 
with our publisher and the university at the final stretch of our programming and 
editorial process. 

Like the crystal back of a timepiece or the open hood of a 
high-performance vehicle, we hope this brief view into the operations behind the 
words nourishes your experience and you come back for more. 

 
Sincerely, 

Noah Levy 
Editor-in-Chief 

 
 
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Brandeis University Law Journal            2024-2025, Volume 12 

The Canary in the West Virginia Coal Mine: How the Major 
Questions Doctrine Led to the Demise Of Chevron 

By Daniel Block1 
For almost four decades, federal courts ruling on issues of 
administrative law relied on Chevron v. Natural Resource 
Defense Council (NRDC).2 The Chevron Doctrine instructed 
courts to defer to an agency’s reasonable interpretation of 
ambiguous texts.3 In 2000, the Supreme Court began 
sporadically applying a new “Major Questions Doctrine” 
(MQD) that weakened Chevron’s primacy.4 The MQD, while 
not named until West Virginia v. EPA (2022), would 
increasingly undermine basic assumptions of Chevron.5 Two 
years after West Virginia, in Loper Bright Enterprise v. 
Raimondo, the Court found Chevron unworkable, contrary to 
principles of separation of powers, and incongruent with the 
Administrative Procedure Act.6 This article traces the 
twenty-year leadup to West Virginia and Loper Bright, arguing 
that, while the MQD began as a rarely used tool for statutory 
interpretation, the Court’s growing hostility toward agency 
powers led it to expand the MQD into a stringent clear 

6 This paper does not discuss the Court’s decision in Loper Bright, but 
argues that MQD cases led to the Court’s holding that “Congress expects 
courts to handle technical statutory questions.” see Loper Bright Enterprises 
v. Raimondo, 603 U.S. __, 24 (2024). 

5 West Virginia v. EPA, 597 U.S. 697 (2022). 

4 Daniel Deacon & Leah Litman, The New Major Questions Doctrine, 109 
Va. Law Rev. 1040 (2023) (The “major questions doctrine operates as a 
clear statement rule that directs courts not to discern the plain meaning of a 
statute using the normal tools of statutory interpretation, but to require 
explicit and specific congressional authorization for certain agency 
policies.”). 

3 Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984). 

2 Kent Barnett & Christopher J. Walker, Chevron and Stare Decisis, 31 
George Mason Law Rev. (2024). 

1 Brandeis University, Class of 2025; Brandeis University Law Journal, 
Editor-in-Chief. 

 
 
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Brandeis University Law Journal            2024-2025, Volume 12 

statement rule.7 This shift reshaped principles of separation of 
powers, eliminating any need for Chevron deference. 
 

I.  Roadmap 
This article begins with an introduction to Chevron 

deference, highlighting its respect for separation of powers and 
its support for the administration of laws meant to protect 
people and the environment. Then, a historical analysis of 
MQD cases will highlight the Supreme Court’s growing 
opposition to administrative deference. Afterward, a review of 
the first three cases of the “Major Questions Quartet” will show 
how the MQD is underpinned by poorly defined constitutional 
values.8 Then, a close reading of the atextual decision in West 
Virginia v. EPA will argue that the MQD encourages judges to 
draw from their personal beliefs to hold agencies to an 
ambiguous and arbitrarily applied threshold defined by 
“economic and political magnitude.”9 Finally, this article will 
show how the MQD cases turned Chevron’s version of 
separation of powers on its head, rendering the decades old 
precedent unworkable and unconstitutional. 

 
II.  Chevron as Law 

 In 1979, the Environmental Protection Agency (EPA) 
created a “bubble” rule under the Clean Air Act (CAA), 
allowing factories in areas that met the National Ambient Air 
Quality Standards (NAAQS) to treat all pollutant-emitting 
sources within a plant as though they were inside a single 

9 FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000). 

8 The term “Major Questions Quartet” comes from Mila Sohoni and refers 
to Alabama Ass’n of Realtors v. DHHS, NFIB v. OSHA, Biden v. Missouri, 
and West Virginia v. EPA. see infra note 29. 

7 John F. Manning, Clear Statement Rules and the Constitution, 110 
Columbia Law Rev. 399, 401 (2010) (a clear statement rule “insist[s] that 
Congress express itself clearly when it wishes to adopt a policy that presses 
a favored constitutional value.”). 

 
 
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Brandeis University Law Journal            2024-2025, Volume 12 

“bubble.”10 This meant that emissions could be managed 
collectively, enabling plants to offset increases from some 
pollutant-emitting devices with reductions from others, as long 
as overall emissions remained stable. With the change of 
presidential administrations in 1981, President Reagan’s EPA 
expanded this rule so that it also applied to factories in areas 
that did not meet air quality standards, known as 
“nonattainment” areas.11 By extending the bubble rule to 
include plants in these more polluted regions, the EPA allowed 
factories to receive permits for new or modified equipment 
even if they increased emissions, provided that the net 
emissions from the entire plant did not increase.12 

Arguing that the new policy ran contrary to the CAA’s 
goals of protecting “human health and the environment from 
emissions that pollute ambient, or outdoor, air,” the Natural 
Resources Defense Council (NRDC) filed a petition for review 
in the U.S. Court of Appeals for the District of Columbia.13 
Writing for a unanimous panel, then-Judge Ginsburg noted that 
the raison d’être of the nonattainment provisions of the CAA is 
to ensure reductions in air pollution such that “attainment can 
be achieved… no later than five years from the date the area 
was designated nonattainment.”14 Since the bubble rule could 
only guarantee the maintenance of the status quo, the panel 
ruled that the EPA’s promulgation was an inappropriate 
interpretation of the statute.15 The Chevron Corporation 

15 Id.; 42 U.S.C. § 7502 (a)(2); 42 U.S.C. § 7502 (c)(2). 
14 Natural Resources Defense Council, v. Gorsuch, supra note 13. 

13 42 U.S.C. § 7401; Natural Resources Defense Council, v. Gorsuch, 685 
F.2d 718 (1982). 

12 For more detail on the bubble rule, see Jack L Landau, Economic Dream 
or Environmental Nightmare? The Legality of the “Bubble Concept” in Air 
and Water Pollution Control, 8 Environ. Aff. (1980). 

11 46 Fed. Reg. 16,280, 16,281 (1981). 

10 Saideman Ellen, An Overview of the Bubble Concept, 8 Columbia J. 
Environ. Law (1982). 

 
 

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intervened and petitioned the Supreme Court to grant 
certiorari.16 

Writing for a unanimous Supreme Court against 
NRDC, Justice Stevens determined that, because Congress did 
not articulate a clear meaning of the term “stationary source,” 
and because the EPA’s bubble rule was not “arbitrary, 
capricious, or manifestly contrary to the statute,” the Court 
should defer to the reasoned rulemaking of the EPA.17 Justice 
Stevens’ opinion established a two-prong test that would 
become known as the Chevron Doctrine. Under this doctrine, 
when a court reviews an agency’s actions, it must determine at 
Chevron Step One whether Congress explicitly addressed the 
issue in question. If Congress addressed the issue, the court 
does not defer to the agency and applies the statute as written.18 
If Congress did not directly address the issue, the court 
proceeds to determine at Chevron Step Two whether the 
agency’s interpretation of the statute is “reasonable” and 
“permissible.”19 If the agency’s interpretation meets this 
standard, the court defers to the agency’s interpretation.20 

Following its publication, this two-pronged test became 
the hallmark of Administrative Law. Under Chevron, federal 
courts were instructed to recognize that Congress, which 
generally lacks the expertise to address complex issues with 
finely detailed policy prescriptions, reasonably delegates 
rulemaking authority to agencies.21 This assumption is 
supported by Congress’s role as a generalist body that enacts 
broad statutes outlining overarching policy goals (e.g., 

21 Alli Orr Larsen, Becoming a Doctrine, 76 Fla. Law Rev., 27 (2024); 
Catawba County, N.C. v. E.P.A., 571 F.3d 20 (2009) (explaining that 
“ambiguity… suggests a congressional intent to leave unanswered questions 
to an agency’s discretion and expertise.”). 

20 Id. at 844; Catherine M Sharkey, Cutting in on the Chevron Two-Step, 86 
Fordham Law Rev. (2018). 

19 Id. at 844. 
18 Id. at 842. 
17 Id. at 844. 
16 Chevron U.S.A., Inc. v. NRDC, supra note 3. 

 
 

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promoting vaccinations or preventing pollution), while 
agencies are tasked with implementing these goals by drawing 
from their “experience with how a complex regulatory regime 
functions and with what is needed to make it effective.”22 In 
turn, these agencies, through painstaking administrative 
procedures, utilize their subject-matter competence to fill in the 
policy gaps left by Congress.23 

The Chevron doctrine required judges who, like 
Congress, often lack industry-specific expertise of complex 
issues, to defer to agencies’ reasonable construction of a 
statute.24 Some opponents of Chevron argue that it violates 
basic separation of powers principles because it could appear 
that the Executive Branch usurps both the Legislative Branch’s 
lawmaking authority and the Judicial Branch’s Article III 
charge to interpret statutes.25 Such a reading of Chevron is 
wrong. Chevron upholds the Constitution’s separation of 
powers by affirming Congress’ policymaking authority, 
including its broad discretion to delegate rulemaking to 
administrative agencies within the Executive Branch that are 
charged with enforcing the law.26 Meanwhile, the Judiciary 

26 Elena Kagan, Presidential Administration, 114 Harv. Law Rev. 2376 
(2001) (asserting that “Presidential supervision of administration could 

25 Nathan Alexander Sales & Jonathan H Adler, The Rest Is Silence: 
Chevron Deference, Agency Jurisdiction, and Statutory Silences, 2009 Univ. 
Ill. Law Rev. (2009); Abigail Moncrieff, Reincarnating the “Major 
Questions” Exception to Chevron Deference as a Doctrine of 
Non-Interference (Or Why Massachusetts v. EPA Got It Wrong), 60 Adm. 
Law Rev. (2008); Randolph J May & Andrew K Magloughlin, NFIB v. 
OSHA: A Unified Separation of Powers Doctrine and Chevron’s No Show, 
74 S. C. Law Rev. (2022). 

24 Transcript of Oral Argument, Loper Bright Enters. v. Raimondo, 35–37 
(2024). 

23 Rybachek v. U.S.E.P.A, 904 F.2d 1276 (1990) (emphasizing the 
importance of deferring to agency expertise when there are conflicting 
readings of a statute); Sierra Club, Inc. v. Bostick, 787 F.3d 1043 (2015) 
(underscoring the importance to defer when the technical expertise of an 
agency leads it to a conclusion “substantia[lly] bas[ed] in fact.”). 

22 Loper Bright Enterprises v. Raimondo, supra note 6 at 10 (Kagan, J., 
dissenting). 

 
 

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remains crucial in this dance of powers by ensuring that agency 
rulings remain within the confines of the relevant policy set 
forth by Congress.27 

Notwithstanding Chevron’s warning to the Legislative 
Branch that statutory ambiguity will be resolved “within the 
bounds of permissible interpretations” and its importance in 
maintaining Americans’ health and safety, the conservative 
Justices of the Supreme Court have deemed it unworkable and 
in need of replacement.28 To understand how the Supreme 
Court arrived at this juncture, it is imperative to interrogate 
how the MQD was the canary in the coal mine, signaling the 
death of Chevron. 

 
III.  The Fall of Chevron 

 Some scholars point to the “Major Questions Quartet” 
as the primary departure from Chevron and adoption of the 
MQD.29 However, a closer look at the Supreme Court’s 
administrative jurisprudence reveals that the seeds for 
overturning Chevron were sown by the “elephants in 
mouseholes” rule initiated in FDA v. Brown and Williamson 
Tobacco Corp and crystallized in Whitman v. American 

29 Mila Sohoni, The Major Questions Quartet, 136 Harv. Law Rev. (2022). 

28 Scalia, supra note 27 at 517; Loper Bright Enterprises v. Raimondo, 
supra note 6 (Kagan, J., dissenting). 

27 Antonin Scalia, Judicial Deference to Administrative Interpretations of 
Law, 1989 Duke Law J. 511 (1989) (explaining that when conducting 
administrative review, courts only need to determine whether “the agency 
has acted within the scope of its discretion.”); Peter M. Shane, Chevron 
Deference, the Rule of Law, and Presidential Influence in the Administrative 
State, 83 Fordham Rev (2014) (showing that Chevron requires courts to 
differentiate lawful from unlawful administrative acts that go beyond any 
plausible intent of Congress.). 

operate to, contrary to much opinion, to trigger, not just react to, agency 
action[.]”); E. Donald Elliot, Chevron Matters: How the Chevron Doctrine 
Redefined the Roles of Congress, Courts and Agencies in Environmental 
Law, 16 Villanova Environ. Law J. (2005) (explaining that the Executive, 
through agencies, is capable of making pertinent and effective policy as 
on-the-ground facts change.). 

 
 

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Trucking Association. This “elephants in mouseholes” rule 
existed within the Chevron framework. It instructed courts to 
consider on rare occasions—along with the ordinary meaning, 
context, and structure of the statute—extratextual ideas of 
separation of powers and nondelegation.30 The newly anointed 
ultra-conservative Supreme Court, however, expanded this 
interpretation, asserting that any regulation approaching a 
politically motivated threshold of “too big” is an 
unconstitutional expression of regulatory power.31 Thus began 
the end of Chevron. 

 
III.A The Canary’s First Warning 
In the 2000 case, FDA v. Brown, the Court addressed 

the Food and Drug Administration (FDA)’s anti-smoking 
regulations. These rules were promulgated under the Food, 
Drug, and Cosmetic Act and aimed to curtail the sale, 
distribution, and advertisement of tobacco products.32 While 
acknowledging the serious public health issue of 
smoking-related illnesses in the United States, the Court denied 
the FDA the authority to regulate tobacco products. The 
Court’s holding was partly based on the FDA’s duty to ensure 
the safety and efficacy of the products it regulates, prohibiting 
the sale of those that would “present a potential unreasonable 
risk of illness or injury.”33 Justice O’Connor reasoned that 
because tobacco could never be used safely, the FDA would be 
statutorily mandated to prevent the sale of tobacco entirely.34 

34 FDA v. Brown & Williamson Tobacco Corp., supra note 32 at 142. 
33 21 U.S. Code § 360f. 
32 FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000). 

31 Chad Squitieri, Who Determines Majorness?, 44 Harv. J. Law Public 
Policy, 495–497 (2021) (discussing how the MQD allows courts to 
“exercise its own political discretion to determine whether a policy 
question is major,” thus inviting the court into the political arena.); 
Deacon and Litman, supra note 4 at 1050–1052 (describing how the MQD 
encourages the courts to consider controversy generated by special 
interest groups to justify invalidating detested policies.). 

30 Deacon and Litman, supra note 4, at 1040. 

 
 

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However, she found that Congress explicitly forbade a tobacco 
ban, thus failing the Agency’s claim at Step One of Chevron.35 

Justice O’Connor emphasized that Congress had 
devised a distinct regulatory scheme concerning the sale of 
tobacco products, “focus[ing] on labeling and advertising,” 
rather than restrictions.36 Importantly for the Justice, this 
scheme did not mention the FDA, but delegated enforcement 
responsibility to the Federal Trade Commission and Federal 
Communications Commission.37 Justice O’Connor figured that 
by providing precise regulatory instructions to specific 
agencies not including the FDA, Congress intended to preclude 
the agency from regulating tobacco.38 

FDA v. Brown illustrates a growing reluctance by the 
Court to infer implicit delegations of power in cases involving 
“decisions of such economic and political magnitude” that 
could otherwise be reasonably justified by a plain reading of 
statutory text.39 Justice O’Connor argued that in such cases, 
courts should be skeptical as to whether Congress delegated 
broad authority through ambiguous text. While it might be 
good policy to approach major agency rulings that Congress 
has not explicitly addressed with a degree of caution, such a 
legal analysis lacks a clear constitutional or legislative basis. 
Indeed, Justice O’Connor suggested that her decision was 
guided by a degree of “common sense,” which is hardly the 
rigorous legal standard required for interpreting complex 
statutory or constitutional questions.40 This “common sense” 
approach further undermines Chevron’s view that Congress 

40 Id. at 133; Manning, supra note 7 at 410. 
39 Id. at 160. 

38 Id. at 130. It is important to note that the majority did not claim that the 
plain text of the statute precluded FDA, rather their reasoning rested in a 
purposivist reading of extratextual sources.  

37 Id. at 149. 
36 Id. at 155–156. 
35 Id. at 148;156. 

 
 

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regularly makes implicit, and often major, delegations of 
authority through statutory silence.41 

If one were to compare Justice O’Connor’s “common 
sense” understanding of congressional intent with actual 
statutory directives, one would find that the Congressional 
Review Act (CRA) authorizes Congress to nullify agency 
rulemakings of which it disapproves.42 Indeed, the CRA 
explicitly details legislative procedures for reviewing “major” 
rules.43 Given this, the absence of congressional disapproval for 
a rule issued under ambiguous statutory language could 
reasonably signal legislative approval—or at least 
acquiescence—that courts should respect. 

One year after FDA v. Brown, the Supreme Court 
continued to limit agency rulemaking by building on its 
burgeoning clear statement rule in American Trucking. That 
case considered the constitutionality of the EPA’s authority 
under §109(b)(1) of the Clean Air Act (CAA) to set National 
Ambient Air Quality Standards (NAAQS)  without considering 
the financial impacts of implementing such standards.44 
Textually, §109(b)(1) gives EPA the authority to set NAAQS, 
“the attainment and maintenance of which… are requisite to 
protect the public health.”45 Justice Scalia determined that the 
omission of economic considerations in §109(b)(1), and the 
inclusion of it in many other sections of the CAA, 
unambiguously foreclosed the EPA’s ability to consider any 
factors beyond public health.46 Justice Scalia determined that, 
unless Congress explicitly stated otherwise, it is implausible 
that Congress would demand, or even allow, the EPA to 
consider costs that could “cancel[] the conclusions drawn from 
direct health effects.”47 Such a reading of the statute would 

47 Id. at 469. 
46 Whitman v. American Trucking Associations, Inc., supra note 44 at 467. 
45 42 U.S.C. § 7409 (b)(1). 
44 Whitman v. American Trucking Associations, Inc., 531 U.S. 457 (2001). 
43 Id. at (A)(ii). 
42 5 U.S.C. § 801. 
41 Chevron U.S.A., Inc. v. NRDC, supra note 3 at 843–844. 

 
 

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Brandeis University Law Journal            2024-2025, Volume 12 

fundamentally alter the operating framework of the CAA. If 
Congress meant to require the consideration of costs, it knows 
how to write the words “cost-benefit analysis.”48 As Justice 
Scalia concisely put it, “Congress… does not, one might say, 
hide elephants in mouseholes.”49 

To understand American Trucking’s relationship to the 
MQD, it must be read as a limitation of administrative powers. 
Although the EPA was not asserting that it could consider 
economic factors, the Court concluded that the agency could 
not do so even if it wanted. Had Congress intended the EPA to 
have such authority, it would have explicitly said so as it did 
elsewhere in the CAA. In other words, the EPA’s authority to 
set NAAQS is not so broad that it can read the CAA in a way 
that would fundamentally alter the regulatory framework 
established by Congress. When harmonizing this principle with 
FDA v. Brown, it can be argued that, when administrative 
agencies issue rulings of significant political and economic 
magnitude to which Congress did not speak, those rulings 
inherently disrupt the intended regulatory framework. Simply 
put, any “major” agency rulemaking that can be read, textually 
or otherwise, as contradicting congressional intent would fail at 
Chevron Step One. 

American Trucking and FDA v. Brown operate within 
Chevron Step One analysis.50 These rulings required courts to 
consider the breadth of the rulemaking in light of the agency’s 
charge from Congress.51 If the agency’s rulemaking is broader 
than Congress intended or spoke to, then it fails at Step One. 
Importantly, neither of the above cases address what would 
happen if the text of the statute is ambiguous and an agency 

51 FDA v. Brown & Williamson Tobacco Corp., supra note 32 at 159. 
50 Deacon and Litman, supra note 4 at 1021. 
49 Whitman v. American Trucking Associations, Inc., supra note 44 at 468. 

48 Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208, 232 (2009) ( Stevens, J., 
dissenting); American Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490, 
510 (1981) (stating that “when Congress has intended that an agency 
engage in cost-benefit analysis, it has clearly indicated such intent on the 
face of the statute.”). 

 
 

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Brandeis University Law Journal            2024-2025, Volume 12 

rulemaking is not explicitly foreclosed by a direct 
congressional charge. Nor do these cases discuss what would 
happen if Congress intentionally wrote ambiguously to allow 
the agency to determine the best course of action within the 
prescribed regulatory framework and its stated goals. As 
demonstrated below, the Court answers by shuffling the MQD 
between Chevron Step One, Step Two, and a new Step Zero, as 
well as by expanding the indicia for its application.52 This 
inconsistent application allowed the Court to scrutinize not just 
what, but how federal agencies regulate. 

 
III.B The Canary’s Coughing Fit 

 Moving on to a set of cases that further lay the 
foundation for overturning Chevron, Judicial antipathy towards 
agency powers becomes more pronounced as the Supreme 
Court narrows the Administrative State’s regulatory authority. 
These cases show how the Court inconsistently invoked the 
MQD to circumvent otherwise precedent-bound agency 
deference.53 These cases demonstrate how the MQD 
increasingly became a “get-out-of-deference” free card, 
destabilizing the traditional Chevron framework and eventually 
necessitating its elimination.54 
 In Gonzales v. Oregon, the Supreme Court ruled against 
a U.S. Attorney General’s 2001 Interpretive Rule.55 This rule 
claimed that under the Controlled Substances Act, the Attorney 
General (AG) could revoke the licenses of medical 
professionals who prescribed or dispensed controlled 
substances for physician-assisted suicide, even in states where 
such practices were legal.56 The Court determined that while 
the AG had the authority to add, remove, or reschedule 

56 Id. at 249–250. 
55 Gonzales v. Oregon, 546 U.S. 243 (2006). 
54 West Virginia v. EPA, supra note 5 at 28. (Kagan, J., dissenting).  

53 Cass R Sunstein, Chevron Step Zero, Public Law Leg. Theory Work. Pap. 
(2005). 

52 Squitieri, supra note 31 at 475. 

 
 

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substances and ensure compliance, he did not have the 
authority to unilaterally decide the legality of medical 
practices.57  

Part of the analysis supporting this conclusion derived 
from Congress’ delegation of medical policy decisions to the 
Secretary of the Department of Health and Human Services 
(DHHS), rather than the AG.58 The Court suggested that if the 
AG’s proposition were accepted, he would have the authority 
to decide “whether a physician who administers any 
controversial treatment could be” punished.59 This would make 
the AG, rather than the Secretary of DHHS, the ultimate arbiter 
of permitted medical practices — a delegation too “broad and 
unusual” to be made through the implicit language of the 
Controlled Substances Act.60 Finally, the Court noted in dicta 
that the controversial nature of physician-assisted suicide made 
the AG’s claim all the more suspect.61 

Gonzales exhibits two new factors materializing within 
the MQD’s framework. First, the mismatch between an 
agency’s actions and the powers delegated to it by Congress; 
and second, the controversial nature of a regulation. 

The Gonzalez Court argued that the AG could not 
regulate medical uses of controlled substances, since his 
authority was limited to regulating abuses of controlled 
substances.62 On its face, this premise does not seem to 
disregard Chevron’s reverence for an agency’s particular 
expertise. Indeed, Gonzales recognized that Chevron is 
predicated on the assumption that agencies typically make 
decisions within their delegated domain by relying on experts 
in the relevant field.63 When an agency attempts to regulate an 
area in which it traditionally lacks subject-matter expertise, it 

63 Id. at 267. 
62 Id. at 270. 
61 Id. at 267. 
60 Id. at 267–268. 
59 Id. at 268. 
58 Id. at 274. 
57 Id. at 262.  

 
 

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becomes quite doubtful that Congress would delegate that 
authority through ambiguous text.64 However, subsequent 
rulings applied this principle too expansively. While Gonzales 
showed respect for DHHS’s expertise in medical care policy, 
recent cases — particularly Alabama Ass’n of Realtors v. CDC 
and NFIB v. OSHA — exemplify how the “agency mismatch” 
principle has become a tool to denigrate the expertise of 
agencies attempting to address multifaceted issues like climate 
change and COVID-19.65  

The Court’s recognition of an “earnest and profound 
debate” over physician-assisted suicide in the country was 
insufficient on its own to find the AG’s actions 
unconstitutional.66 Rather, the presence of moral controversy 
provided reason to doubt that Congress had, through such 
vague language, authorized the AG to unilaterally prohibit 
physician-assisted suicide.67 As explained in Part IV.C, these 
words, while not binding, foreshadow how some Justices have 
come to undermine Chevron deference and the Administrative 
State by pointing to the presence of controversy, whether it be 
large or small, real or imagined.68 

In Utility Air Regulatory Group v. EPA, the Court 
considered the legality of the EPA’s decision to include 
greenhouse gasses under certain permitting provisions of the 
CAA, particularly the “Prevention of Significant Deterioration” 
(PSD).69 The PSD provisions require “major emitting facilities” 

69 Utility Air Regulatory Group v. EPA, 573 U.S. 302 (2014). The other 
provision at the heart of the case, Title V, shares many of the same 
definitions and effects as the PSD provisions, so for clarity's sake, only the 
PSD provisions will be discussed. 

68 Deacon and Litman, supra note 4 at 1063. 

67 Brianne J Gorod, Brian R Frazelle & J Alex Rowell, Major Questions: An 
Extraordinary Doctrine for Extraordinary Cases, 58 Wake For. Law Rev. 
599, 619. 

66 Gonzales v. Oregon, supra note 55 at 249. 

65 Thomas O McGarity, The Major Questions Wrecking Ball, 41 Va. 
Environ. Law Rev. 1, 49–50 (2023). 

64 Id. at 268. 

 
 

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in “areas designated attainment or unclassifiable” to comply 
with emissions limitations and best practices.70 The CAA 
defines “major emitting facilities” as stationary sources with 
the potential to emit 250 tons per year (tpy) of any air 
pollutant.71 Recognizing that greenhouse gasses are emitted at 
much higher rates than other pollutants, the EPA chose to 
enforce its interpretation only against facilities that emit at least 
100,000 tpy of CO2e.72 

The Court held that, even if the EPA did not change the 
numerical definition of “major emitting facilities,” the CAA 
would still preclude the EPA from including greenhouse gasses 
in the PSD provision. Echoing its reasoning in Brown, the 
Court ruled that the EPA is statutorily required to apply the 250 
tpy threshold when establishing rules under the PSD 
provisions. The EPA conceded that this threshold would be 
inappropriate for greenhouse gasses, as it would mandate the 
regulation of millions of smaller sources. As in Brown, such an 
outcome, though plausibly supported by the statute’s plain text, 
would be incompatible with the regulatory framework 
established by Congress. 

The Court reinforced this conclusion by requiring 
“clear congressional authorization” for agencies claiming 
“enormous and transformative” expansions of regulatory 
power.73 This requirement reflects the “elephants in 
mouseholes” rule articulated in American Trucking. The Court 
reasoned that the EPA’s attempt to include greenhouse gasses in 
the PSD framework, which traditionally regulated only a few 
major polluters, would fundamentally alter the statute’s scope. 
While the EPA enjoys authority to regulate greenhouse gasses 

73 Id. at 324. 

72 Utility Air Regulatory Group v. EPA, supra note 69 at 309–310. CO2e, or 
carbon dioxide equivalent, is a standard unit used to compare the emissions 
of different GHGs to CO2 based on their global warming potential.  

71 42 U.S.C. § 7479(1). 
70 Id. at 308. 

 
 

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under the CAA, that authority was deemed insufficiently broad 
to justify such an extensive expansion of the PSD provisions.74  

The Utility Air framework extends the basic rationale of 
FDA v. Brown and American Trucking. Its holding being that, 
without clear congressional authorization, agency rulings of 
political and economic significance disrupt the intended 
regulatory scheme. The primary issue begins when the Court 
states that it “expect[s] Congress to speak clearly if it wishes to 
assign agency decisions of vast economic and political 
significance.”75 Synthesizing this principle with American 
Trucking, it follows that agencies cannot “discover” an 
unheralded power to regulate conferred through the “ancillary 
provisions” of statutes; they must find this power in explicit 
text.76 Here, Utility Air establishes a new Chevron carve-out 
whereby “ambiguous language cannot be invoked to allow an 
agency to exercise its authority in a sufficiently transformative 
way.”77 There are three major issues with this seemingly 
innocuous transformation: (1) how significant a rulemaking 
must be to require a clear statement from Congress; (2) who 
determines when this threshold has been reached; and (3) what 
constitutional compulsion supports the Court’s clear statement 
rule for “major regulations.” 

As the next section will show, the Court answers this 
line of inquiry by arrogating to itself the power to “selectively 

77 Cass R. Sunstein, Chevron as Law, 107 Georget. Law Rev. 1613, 1677 
(2019). 

76 Id.; Whitman v. American Trucking Associations, Inc., supra note 44 at 
458. 

75 Utility Air Regulatory Group v. EPA, supra note 69 at 321. 

74 Massachusetts v EPA, 549 U.S. 497 (2007) (granting EPA authority to 
regulate GHGs.); Cass R Sunstein, There Are Two “Major Questions” 
Doctrines, 73 Adm. Law Rev. 475, 491 (2021) (arguing that the rationale in 
Utility Air “could easily have been used to justify the opposite result in 
Massachusetts v. EPA”. That argument is beyond the scope of this paper, but 
it is at least worth pointing out that the Massachusetts Court gave EPA the 
authority to regulate GHGs, but the Utility Air Court stripped it of 
substantial enforcement power as it relates to certain provisions of the 
CAA.). 

 
 

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demand that explicit legislative language be used to delegate 
the authority to answer those questions that courts determine to 
be major.”78 The Court’s synthesis of the above cases leads it to 
maximalist conclusions that encourage arbitrary judicial 
policymaking excused by an ambiguously-defined threshold of 
“political and economic significance.” 

 
III.C The Canary’s Last Gasps 
If the old MQD existed within the Chevron framework, 

the “Major Questions Quartet” exemplifies how the new MQD, 
enunciated in Utility Air, comes to function as a half-baked 
federalism canon and nondelegation doctrine that undermines 
basic assumptions of Chevron.79 The Quartet’s judicial 
power-grab further turns the Court into a political actor, 
whereby questions of “political and economic significance” are 
not decided by legal reasoning but by a jurist’s policy 
preferences and world view.80 This power of “void for 
majorness” amounts to a political veto in which a jurist, for 
their own political and economic reasons, may determine that a 
policy is “too grand” to stand on ambiguous language.81 By 
applying this doctrine arbitrarily to administrative agencies, the 
Court disrupts forty years of precedent that informed legislative 
processes and agency rulemaking, causing a sea-change in 
Administrative Law and ultimately the demise of Chevron. 

As mentioned in Part II, Chevron put Congress on 
notice that ambiguous statutory text will be interpreted by the 
Executive, whose agencies issue rules “within the bounds of 
permissible interpretation.”82 Under Chevron, the boundaries of 

82 Scalia, supra note 27 at 516. 
81 Id. at 503–509. 

80 Squitieri, supra note 31 at 496. (describing that by voiding laws on 
majorness grounds, courts “act similarly to the President, who for 
idiosyncratically held political reasons may veto a bill…”). 

79 Cass R. Sunstein, supra note 77 at 1669; Sohoni, supra note 29; Alison 
Gocke, Chevron’s Next Chapter: A Fig Leaf for the Nondelegation 
Doctrine, 55 UC Davis Law Rev. 955 (2024). 

78 Squitieri, supra note 31 at 495. 

 
 

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permissible interpretation are not set by the majorness of the 
resulting policy, but by a plain text reading of the statute.83 This 
analysis treats statutory ambiguities as delegating authority to 
agencies, giving them the flexibility to adjust rules as 
knowledge evolves and challenges change.84 The Quartet 
undermines these assumptions that informed Congress’ 
drafting of complex regulatory schemes, skewing outcomes 
against regulation and disrupting the legislative compromises 
that often signal broad delegation.85 

The first three cases of the Quartet considered whether 
different administrative agencies had the authority to prevent 
the spread of COVID-19 through novel regulations.86 In 
Alabama Ass’n of Realtors v. DHHS, the Court held that the 
Center for Disease Control and Prevention (CDC) did not have 
the authority to prevent the spread of COVID-19 by imposing a 
national eviction moratorium.87 In National Federation of 
Independent Business (NFIB) v. Occupational Safety and 
Health Administration (OSHA), the Court held that because 
COVID-19 did not pose an exclusively occupational risk, 
OSHA’s authority to protect workers from dangerous “agents” 
or “toxins” could not extend to a vaccine mandate.88 In Biden v. 
Missouri, the Court agreed with the Government’s assertion 
that the Secretary of DHHS could set health and safety 
conditions, including a COVID-19 vaccine mandate, for 
facilities receiving funding from Medicare and Medicaid.89 

Part of the rationale in the cases in which the 
Government lost relied on a counter-Chevron assumption of the 

89 Biden v. Missouri, supra note 86. 
88 NFIB v. OSHA, supra note 86. 

87 Alabama Ass’n of Realtors v. Dep’t of Health and Human Services, supra 
note 86. 

86 Alabama Ass’n of Realtors v. Dept. of Health and Human Services, 594 
U.S. ___ (2021); NFIB v. OSHA, 595 U.S. __ (2022); Biden v. Missouri, 
595 U.S. __ (2022). 

85 Sohoni, supra note 29 at 286; Squitieri, supra note 31 at 505. 
84 Id. at 517-518. 
83 Id. 

 
 

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purpose of statutory ambiguity. The Court failed to recognize 
that Congress cannot foresee future problems and uses 
ambiguous language to ensure flexibility in agency regulations. 
Instead, it assumed that provisions in decades-old statutes, 
never previously applied expansively, could not be so applied 
without a clear statement from Congress.90 The Court 
emphasized that neither the CDC nor OSHA had previously 
used their emergency rulemaking powers to pause evictions or 
effectuate a vaccine mandate.91  By contrast, in Missouri, the 
Court noted that the Secretary claimed broader authority than 
before because the agency “never had to address an infection of 
this scale and scope.”92 

Although not cited, the only way to reconcile these 
disparate rationales is with the agency mismatch concept from 
Gonzales. One could argue that the CDC and OSHA had never 
established such regulations because doing so would touch on 
matters beyond their subject-matter expertise. DHHS on the 
other hand, was reasonably expanding upon previous 
regulations for healthcare facility operations—something 
undoubtedly within its purview and expertise. This overly 
broad application of Gonzales prevents agencies from adapting 
regulations as circumstances evolve. It further loads the dice 
against agencies trying to address multifaceted crises that touch 
on, but might not be fully encompassed by, their titular 
responsibilities.93 

This raises a fundamental question about why federal 
courts should require a clear statement from Congress to 
support an agency’s claim to regulate issues that involve, but 
are not fully encompassed by, the agency’s core 

93 Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of 
United States Federal Courts in Interpreting the Constitution and Laws, in 
A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 3, 26 (new ed. 
2018). 

92 Biden v. Missouri, supra note 86.  
91 Id. 

90 Alabama Ass’n of Realtors v. Dept. of Health and Human Services, supra 
note 86; NFIB v. OSHA, supra note 86. 

 
 

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responsibilities. The Court answers this by detaching the MQD 
from Chevron and inconsistently attaching it to poorly 
articulated constitutional values of federalism and 
nondelegation. 

III.C.1 Federalist Values 
In the CDC case, the Court found that the agency’s 

actions encroached on typically state-regulated landlord-tenant 
relationships.94 Instead of applying the federalism 
canon—which presumes that federal laws do not override state 
laws without a clear statement from Congress—the Court 
treated the disruption of state law as an indicator of political 
significance.95 By doing so, the Court linked the federalism 
canon to the MQD, creating a superficial constitutional basis 
for requiring a clear statement from Congress. By invoking 
federalist principles rather than applying an already established 
clear statement rule, the Court justified its limitation of 
statutory text by associating one doctrine with another.96 This 
judicial sleight of hand allows the Court to demand an 
unusually high level of statutory clarity, one that undermines 
Congress’s authority to delegate regulatory powers to 
agencies.97 Moreover, later cases show that federalism does not 
appear to be the primary justification for a presumption against 
major administrative powers; rather, it becomes one of a 
myriad of poorly articulated constitutional values used to 
justify the strangling of the Administrative State.98 

 

III.C.2 Nondelegation Values 
The more often-discussed constitutional value 

connected to the MQD’s clear statement rule is that of 

98 Sohoni, supra note 29 at 283. 

97 John F. Manning, The Supreme Court, 2013 Term Foreword: The Means 
of Constitutional Power, 128 Harv. Law Rev. (2014). 

96 Sohoni, supra note 29 at 313. 
95 Id; Manning, supra note 7 at 434. 

94 Alabama Ass’n of Realtors v. Dep’t of Health and Human Services, supra 
note 86 at 6.  

 
 

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nondelegation.99 The nondelegation doctrine derives from the 
Legislative Vesting Clause of Article I and “bars Congress 
from transferring its legislative power to another branch of 
government.”100 On only two occasions, both in 1935, has the 
Supreme Court applied this doctrine to invalidate a statute.101 
While its pedigree remains weak, the MQD today camouflages 
the reemergence of a nondelegation doctrine that provides the 
Court with a framework to decide not just whether Congress 
did delegate certain powers, but whether Congress could do 
so.102  

In a fashion similar to the Court’s justification via 
association of constitutional values in the CDC case, Justice 
Gorsuch justified the application of the MQD in the OSHA 
case by merely associating the MQD with the seldom-invoked 
nondelegation doctrine.103 The Justice explained that the 
nondelegation doctrine precludes Congress from “hand[ing] off 
all its legislative powers to unelected agency officials,” while 
the MQD prevents agencies from “exploit[ing] some gap, 
ambiguity, or doubtful expression in Congress’s statutes to 
assume responsibilities far beyond its initial assignment.”104 
According to Justice Gorsuch, both doctrines “prevent 
government by bureaucracy supplanting government by the 
people.”105 Notably, the main difference between these two 
theories is which branch of government is inappropriately 
extending its authority. The nondelegation doctrine polices 
“improper legislative delegations” from Congress while the 

105 Id. at 6.  
104 Id. 
103 NFIB v. OSHA, supra note 86, at 5 (Gorsuch, J., concurring). 

102 Id.; Loshin and Nielson, supra note 99 at 57; Gocke, supra note 79 at 
995–997. 

101 Cass R Sunstein, Nondelegation Canons, 67 Univ. Chic. Law Rev., 322 
(2000). 

100 Gundy v. United States, 588 U.S. 128 (2019). 

99 Sunstein, supra note 74; Jacob Loshin & Aaron Nielson, Hiding 
Nondelegation in Mouseholes, 62 Adm. Law Rev. (2014); Gocke, supra 
note 79. 

 
 

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MQD polices “abuse[s] of delegated authority” by the 
Executive.106 

When considering the purported constitutional 
compulsions supporting Justice Gorsuch’s nondelegation 
argument, it becomes clear that his framework stands on even 
shakier constitutional grounds than the federalist principles 
supporting the outcome in the CDC case. Unlike the federalism 
canon, the Court has been unable to articulate a workable 
version of the nondelegation doctrine that demarcates when 
statutory ambiguity meant to be resolved by the Executive 
becomes a prohibited delegation of legislative power.107 Justice 
Gorsuch’s theory purports to resolve this dilemma by asserting 
that any statutory ambiguity that results in a “major” policy is 
either an unconstitutional expression of agency powers (MQD) 
or an “unconstitutional delegation of legislative authority” 
(nondelegation).108  

For the Justice, this means that, unless the matter is 
wholly mundane or otherwise interstitial, Congress cannot even 
expressly and specifically delegate decision-making authority 
to an administrative agency.109 This theory of both the MQD 
and nondelegation doctrine turns on the question of when 
exactly an agency policy is mundane and when it is “major.” 
As will be discussed in Part IV, no consistent answer is readily 
available, as the Court has issued “ad hoc, discretionary 
rulings” that “suffer from the appearance” and reality of jurists’ 
basing the outcome of a case on a knee-jerk reaction to 
personally detested or favored policies.110 

110 Sunstein, supra note 101 at 327; Deacon and Litman, supra note 4 at 
1065–1069 (asserting that worldviews align closely with policy preferences 
“judges may be more inclined to perceive issues or policies as politically 
significant if the policies are opposed by the political party that appointed 
that judge.”). 

109 Gocke, supra note 79 at 996; Gundy v. United States, supra note 100. 
108 NFIB v. OSHA, supra note 86, at 6 (Gorsuch, J., concurring).  
107 Loshin and Nielson, supra note 99 at 56. 

106 May and Magloughlin, supra note 25 at 271; Gocke, supra note 79 at 
994. 

 
 

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IV.  The End of Chevron 
 IV.A The Canary’s Death 

Up until this point, the MQD merely warned us of 
Chevron’s death. As demonstrated in West Virginia v. EPA, the 
Court did not listen to the warnings. Instead of leaving the 
MQD behind and deferring to an agency, the Court continued 
to plunge deep into the unnavigable mines of “majorness” until 
its new doctrine finally asphyxiated Chevron.  

In West Virginia v. EPA, the Court determined that the 
EPA’s authority under section 111(d) of the CAA was not so 
capacious as to allow for the Obama-era Clean Power Plan 
(CPP).111 The CPP adopted a “generation shifting” approach to 
greenhouse gas reduction, whereby power plants would need to 
shift “from higher-emitting to lower-emitting production” of 
electricity.112 Rather than attempt to refine the contours of the 
MQD and explain the constitutional compulsions for the clear 
statement rule, the Court’s opinion and Justice Gorsuch’s 
concurrence present a hodgepodge of ideas justifying the 
MQD. The opinion and concurrence attempt to justify the 
Doctrine’s application and provide a broad framework for 
anti-regulatory judges to wage their war against the 
Administrative State. 

This final section is composed of three parts. Part IV.B 
will critique the Court’s atextual justification for applying the 
MQD in West Virginia. Part IV.C will show how the opinion 
and concurrence instruct lower courts to rule against agency 
actions that judges personally find to be too political or too 

112 Id. at 705.  

111 West Virginia v. EPA, supra note 5; 42 U.S.C. § 7411(d). Not wholly 
relevant to this article, but still crucial for context, is the issue of standing in 
the case. The majority and dissent disagreed as to whether any party 
maintained standing in the case, especially given that an entire presidency 
and a half had lapsed since the CPP was initially put into place and stayed. 
Furthermore, the Biden administration claimed that it was not going to 
reinstate the CPP. Indeed, Justice Kagan characterized the ruling as “an 
advisory opinion on the proper scope of the new rule EPA is considering.” 

 
 

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costly. Part IV.D will argue that the Court embraced Justice 
Gorsuch’s version of separation of powers from NFIB v. 
OSHA, thus making the MQD impossible to apply so long as 
Chevron breathed. 

 
IV.B The (A)Textual Justification 
The Court begins its justification for applying the MQD 

by characterizing Section 111(d) of the CAA as an “ancillary” 
and seldom employed provision of the statute.113 This 
characterization sets the rhetorical foundation for the rest of the 
Court’s opinion. 

First, the Court forwards a purposivist argument in 
textualist’s clothing, whereby it establishes an anti-regulatory 
hierarchy of statutory text in which ambiguous provisions 
executed through broad regulation are deemed “ancillary” or 
insufficient to support the agency’s ruling. Second, the Court 
determines that, because the EPA had never interpreted Section 
111(d) in such an expansive manner, it is functionally 
prevented from doing so to address novel issues like climate 
change.114 Finally, the Court jettisons textualism and replaces it 
with a post-hoc anti-regulatory framework that allows the 
inactions of subsequent Congresses to define the scope of 
statutes passed by a previous Congress. 

As in American Trucking, the depiction of certain 
provisions of statutory text as “ancillary” begs the question of 
how the Court knows which provisions are unimportant 
“mouseholes” hiding regulatory elephants.115 The Court 
answers by turning its analysis into a fraught search for 
statutory purpose.116 Indeed, the Court does not determine the 
size of the “mousehole” in Section 111(d) by parsing through 
the language of the provision and situating it within the context 
of the CAA, but by pointing to the remarks made by one 

116 Id. 
115 Loshin and Nielson, supra note 99 at 45–46. 
114 Deacon and Litman, supra note 4 at 1033. 
113 Id. at 703. 

 
 

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architect of the CAA and the EPA’s previous rulings pursuant 
to Section 111(d).117 This form of statutory construction 
disregards the normative textualist theory that legislation is 
often “the result of ‘backroom deals’ and diverse individual 
compromises” rather than solely reflecting the views of a few 
cited legislators.118  

The Court’s framework further ignores Justice Scalia’s 
view that shifting agency interpretations are not indicative of 
an incorrect interpretation but that agencies change the law in 
light of new information and “within the limited range of 
discretion conferred by the governing statute.”119 Both of these 
textualist presumptions would typically render legislative 
history and shifting agency interpretations irrelevant to 
statutory interpretation.120 Notwithstanding its textualist 
commitments, the West Virginia Court misconstrued ambiguous 
text as being no more than a legislative afterthought and 
undeserving of meaningful textual analysis that would likely 
result in a policy disfavored by the majority.121 

The third atextual justification for the MQD in West 
Virginia relies on Congress’s failure to pass comprehensive 
legislation addressing climate change despite knowing that 
greenhouse gas emissions pose an existential threat to 
humanity.122 This justification is incongruent with textualism, 
as it cites inactions of subsequent Congresses as limiting the 
power of broad legislation passed by a previous Congress.123 
This justification also assumes that legislative inaction 
exclusively provides evidence of congressional disapproval, 

123 Deacon and Litman, supra note 4 at 1062. 
122 Id,  at 724. 
121 West Virginia v. EPA, supra note 5 at 703. 

120 Id.; Conroy v. Aniskoff, 507, U.S. 511, 519 (1993). (Scalia, J., 
concurring) (writing that “the greatest defect of legislative history is its 
illegitimacy. We are governed by laws, not by the intentions of 
legislators.”). 

119 Scalia, supra note 27 at 518–519. 
118 Loshin and Nielson, supra note 99 at 52.  
117 West Virginia v. EPA, supra note 5 at 703. 

 
 

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rather than evidence of acquiescence to agency rulemaking or a 
lack of expertise on exactly how issues should be regulated. As 
shown below, the atextualist justifications for applying the 
MQD in this case leads to results that appear to be, or are, 
arbitrary, inconsistent, politically motivated, and contradictory. 

 
IV.C The Political Instruction 

 To understand how the MQD’s application in West 
Virginia promotes arbitrary rulings, one needs to look no 
further than the list of possible indicia for “majorness” put 
forth by Justice Gorsuch in his concurrence. The five indicia 
for majorness that Justice Gorsuch lays out are poorly defined 
and can be interpreted in an infinite variety of ways.124 As the 
Court has noted regarding criminal statutes, poorly defined and 
limitless rules fail to establish clear standards of enforcement, 
leading to arbitrary application.125 While this understanding of 
arbitrariness pertains to statutory enforcement rather than 
rulings made pursuant to unclear reasoning, the principle still 
stands. When one branch of the government, including the 
Judiciary, establishes vague rules, it leads to inconsistent 
applications. This is concerning in the world of administrative 
law because vague rules and standards encourage judges to 
base decisions on their policy preferences. 
 First, Justice Gorsuch suggests that policies of 
“profound political significance” may be implicated in MQD 
analysis.126 As shown above, this comes from FDA v. Brown 
and its progeny. Then, Justice Gorsuch seems to expand this 
theory of majorness, citing Gonzales to show that the presence 
of societal controversy should clue judges into the majorness of 
an agency’s ruling.127 This idea, in effect, allows controversies 

127 Id. 
126 West Virginia v. EPA, supra note 5 at 743. 
125 City of Chicago v. Morales, 527 U.S. 41, 49-50 (1999). 

124 The five indicia of majorness include political controversy, economic 
significance, federalism, nondelegation, and agency mismatch. Because the 
last three have already been fleshed out in Part III.C.1-C.2, the discussion 
here focuses on the first two indicia. 

 
 

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generated by an increasingly partisan and volatile political 
landscape to determine when courts stray from normative 
statutory interpretation.128 If one party achieves its goals 
through the Legislature or Executive, the opposing party need 
not worry, so long as it can generate sufficient controversy. 
This provides antidemocratic results, as the Executive Branch 
is barred from using regulation to “end an earnest and profound 
debate” and legislative inaction is interpreted as opposition to 
the challenged policy.129  

Furthermore, the issue of political controversy allows 
for judicial policy-making. A judge’s interpretation of what is 
sufficiently controversial turns on their political values and 
worldview, which often closely align with the party that 
appointed them.130 This results in an inconsistent adjudication 
of law, in which an individual judge’s political ideology, rather 
than objective modes of statutory interpretation like textualism, 
forms the basis for their rulings.131 
 Closely related to the issue of political controversy is 
that of economic significance. Both the majority opinion and 
Justice Gorsuch’s concurrence take issue with the hefty cost 
associated with the CPP.132 For the conservative Justices, the 
fact that the CPP would result in industries shelling out billions 
of dollars in fines and compliance costs meant that it was major 
and required clear congressional authorization.133 This 
economic analysis is even more ripe for judicial policymaking 
when compared to the political controversy analysis. A policy 
does not need to result in the upending of entire industries to be 
considered economically significant, although that was a 
factually incorrect charge made against the EPA. Rather, it 

133 Id.  
132 West Virginia v. EPA, supra note 5 at 715, 744. 
131 Id. at 1069. 
130 Deacon and Litman, supra note 4 at 1065. 
129 Id. at 1060; West Virginia v. EPA, supra note 5 at 743. 
128 Deacon and Litman, supra note 4 at 1051–1052. 

 
 

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must be deemed too expensive in the eyes of the presiding 
jurist. 

The economic analysis reeks of judicial policymaking, 
as it asks whether the economic impact is too significant in 
relation to the issue in question. This leads to politically 
motivated, or at least politically informed, weighing of 
economic factors. Indeed, the conservative Justices’ hostility 
towards the CPP was based on its potential to raise the price of 
production and home energy, both of which are GOP talking 
points against the shift from nonrenewable to renewable 
energy.134 To be sure, the Justices did not mention the price 
associated with inaction, which in West Virginia would likely 
outweigh the costs of enforcement.135 No matter which way the 
analysis is sliced, any determination of majorness that asks for 
the price tag inevitably results in legislating from the bench, as 
it requires a jurist to choose between competing values and 
costs associated with a given policy. This is undeniably a 
policy determination, and it asks unelected judges to impress 
their own idiosyncratic economic views upon an electorate that 
cannot hold them accountable. 

Notwithstanding the MQD’s opening to judicial 
policymaking, the conservatives on the Court understand 
themselves to be issuing legal, rather than policy, decisions. 
This argument should be taken seriously. To be fair, in almost 
all cases before the Court, the line between legal and political 
decisions is hazy. However, the problem of West Virginia and 
the MQD is that the Court reaches legal conclusions—e.g., that 
Congress did not or could not delegate authority to a given 

135 Solomon Hsiang et al., Estimating Economic Damage from Climate 
Change in the United States, 356 Science 1362 (2017); Adam B. Smith, 
U.S. Billion-Dollar Weather and Climate Disasters, 1980 - Present (NCEI 
Accession 0209268), (2020). 

134 West Virginia v. EPA, supra note 5 at 714; Lisa Friedman, A Republican 
2024 Climate Strategy: More Drilling, Less Clean Energy, The New York 
Times, Aug. 4, 2023; Brian Kennedy Tyson Cary Funk and Alec, What 
Americans Think about an Energy Transition from Fossil Fuels to 
Renewables, Pew Research Center (Jun. 28, 2023). 

 
 

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agency—based on policy preferences—e.g., a policy is too 
expensive, controversial, and the like. The only way to justify 
such conclusions is by endorsing the anti-Chevron view that 
the Judiciary is the exclusive, rather than ultimate, interpreter 
of statutes.  

 
IV.D The Canary Dies 
The first three articles of the Constitution lay out the 

separation of powers. The Legislature makes the laws, the 
Executive enforces the laws, and the Judiciary interprets the 
laws. There are, however, nuances to this basic understanding. 
Of relevance here is Chevron’s view that statutory enforcement 
requires at least some degree of Executive interpretation of 
vague statutory language. As discussed in Part III.C.2, Justice 
Gorsuch understands the MQD to protect against 
nondelegation issues by forbidding the Executive from citing 
ambiguous statutory language to fill in major policy gaps. For 
Justice Gorsuch, any ruling made pursuant to ambiguous 
statutory language that results in policies affecting more than 
day-to-day operations would constitute a forbidden exercise of 
the Executive’s enforcement power. While it remains unclear 
whether all of the conservative Justices are prepared to join 
Justice Gorsuch in the most extreme application of that 
anti-regulatory posture, endorsing the Justice’s 
reconceptualization of separation of powers in NFIB v. OSHA 
is the only way for the conservatives on the Court to coherently 
support the conclusions of West Virginia and eventually Loper 
Bright.136 

136 This article focuses on Justice Gorsuch’s framework of the MQD 
because it appears to be the dominating conceptualization. However, it 
remains worth noting that not all conservative Justices agree that the MQD 
functions as a clear statement rule. Indeed, Justice Barrett understands the 
MQD to support ordinary principles of communication. As Cass Sunstein 
writes, for Justice Barrett, “the MQD is relevant to what the best 
interpretation is, but if Congress is best understood to have said ‘actually I 
meant that sort of [major policy],’ or perhaps better, ‘I meant the sort of 
[major policy] that the relevant agency deemed’ appropriate, then the fact 

 
 

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As mentioned in Part III.C.2, the MQD renders the 
Chevron doctrine incompatible with principles of separation of 
powers. It does so by undermining Chevron’s basic legal 
fiction that statutory ambiguities delegate regulatory authority 
to agencies who define vague terms to determine the scope of 
their regulatory power. The Court’s framework in the MQD 
cases stipulates that only clear congressional authorization can 
be understood to grant agencies expansive powers.137 Taken to 
its most extreme end, this understanding renders Executive 
interpretations of ambiguous text antithetical to the entire 
federal project, and prevents administrative agencies from 
using their subject-matter expertise to fill in policy gaps left by 
Congress.  

The Court’s framework further turns Chevron’s version 
of separation of powers on its head. First, it asserts that 
Congress cannot divest itself of its legislative powers by telling 
an agency to adopt what the agency deems to be, for example, 
the “best,” most “economically feasible,” or “safest” policy.138 
Instead, Congress must articulate policy prescriptions with an 
impractical level of specificity so that agencies know exactly 
what Congress understands to be the “best,” most 
“economically feasible,” or “safest” policy. This framework 
has the deregulatory effect of kicking important issues to a 
Congress that has often purposefully declined to determine 
exactly how issues should be regulated.139 

139 McGarity, supra note 65 at 37 (“it is beyond naïve to suggest that 
allowing federal courts to strike down consequential agency actions taken 
under fresh interpretations of old statutes will cause Congress to suddenly 
spring into action and refresh those statutes or write new statutes to address 
newly emerging problems.”). 

138 Indeed, in West Virginia, the CPP was promulgated pursuant to the EPA’s 
interpretation of the ambiguous statutory phrase “best system of emissions 
reduction.” 

137 West Virginia v. EPA, supra note 5 at 722. 

that a major question is involved is neither her nor there.” see Cass R. 
Sunstein, Two Justifications for the Major Questions Doctrine, 76 Fla. Law 
Rev. 251 (2024). 

 
 

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While purporting to give the electorate a chance to 
decide how it is regulated, this anti-Chevron version of the 
balance of powers undemocratically dispossesses the Executive 
of much of its duty to “take care that the laws be faithfully 
executed.”140 It does so by limiting the Executive Branch’s 
ability to act on issues where Congress’s intent is not explicitly 
clear but can be reasonably gleaned from the text of the statute. 
This limitation undermines the Executive’s duty to execute 
laws by restricting its ability to interpret and apply statutory 
provisions in light of new circumstances, advancing science, 
and novel policy needs.141 Perhaps most problematic for 
Chevron’s version of separation of powers is that the Executive 
cannot resolve statutory ambiguities when they inevitably 
exist.142 Rather, as Chief Justice Roberts wrote in Loper Bright, 
it is the exclusive role of the Judiciary to determine the “single, 
best meaning” of a statute.143 This means judges, who are not 
experts in much beyond law, decide what is the one “best,” 
most “economically feasible,” or “safest” policy.144 

This is a maximalist judicial power grab that justifies 
legislating from the bench by claiming that the Court’s legal 
expertise legitimizes its exclusive authority “over every open 
issue – no matter how expertise-driven or policy-laden – 
involving the meaning of regulatory law.”145 By anointing itself 
as the exclusive, rather than ultimate, interpreter of statutes, the 
Supreme Court rejects any need for agency deference, 
rendering Chevron unworkable, contrary to the separation of 
powers, and in need of overturning. 

145 Id. at 3 (Kagan, J., dissenting).  

144 Id. at 17–18 (“when the best reading of a statute is that it delegates 
discretionary authority to an agency, the role of the reviewing court under 
the APA, is as always, to independently interpret the statute and effectuate 
the will of Congress subject to constitutional limits.”). 

143 Loper Bright Enterprises v. Raimondo, supra note 6 at 22.  

142 West Virginia v. EPA, supra note 5 at 740; Sunstein, supra note 102 at 
323. 

141 McGarity, supra note 65 at 36. 
140 U.S. Const. art. 2, § 3, cl. 5. 

 
 

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V.  Conclusion 

 Over the past twenty years, the Supreme Court has 
transformed the Major Questions Doctrine from a rarely used 
tool of statutory interpretation into a rigid clear statement rule, 
weakly grounded in the Constitution. In doing so, the Court 
undermined the foundational principles of Chevron v. NRDC. 
Most notably, the MQD cases reveal how the Court disregarded 
Chevron’s vision of the separation of powers and the 
appropriate disposition of ambiguous statutory text. As these 
two doctrines sat on increasingly diametrically opposed ends, 
the Court’s desire to constrain administrative powers left 
overruling Chevron as the only logical conclusion. 

This outcome was solidified with Justice Gorsuch’s 
reconceptualization of the separation of powers in OSHA v. 
NFIB and the Court’s endorsement of that approach in West 
Virginia v. EPA. After West Virginia, so little remained of 
Chevron deference that its overruling was essentially a 
formality. To be sure, the seemingly natural progression of 
MQD cases to Chevron’s demise should not be mistaken as 
validation of the Court’s approach. Rather, it highlights the 
Roberts Court’s troubling approach to precedent. As Justice 
Kagan and legal commentators have observed, the Court often 
erodes important precedents by selectively ignoring when they 
should be applied, then calling the original decision into 
question.146 This cycle continues until the Court constructs 
enough self-justified reasoning to formally overrule the 
precedent. The MQD cases exemplify this manipulative 
approach to stare decisis, undermining the stability of bedrock 
legal principles. 

The Court has attempted to frame its manipulation of 
precedent and stare decisis as a long overdue defense of its 
constitutional role, claiming in Loper Bright Enterprises v. 
Raimondo that overruling Chevron safeguards distinctly 

146 Id.; Richard L. Hasen, The Chief Justice’s Long Game, The New York 
Times, June 25, 2023.  

 
 

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“judicial” skills like statutory interpretation. Chief Justice 
Roberts, in particular, has argued that this is simply the Court 
“saying what the law is.”147 As this article makes clear, this 
justification is a smokescreen. The MQD cases — particularly 
Justice Gorsuch’s politics-laden definition of what constitutes a 
“major question” — reveal the Court's repeated forays into 
policymaking. By deciding which issues qualify as “major” 
and dictating their resolution, the Court encroaches on 
policymaking authority that belongs to the Legislative and 
Executive Branches. 

Now, without the judicial guardrail that was Chevron, 
unelected judges are empowered to impose upon the electorate 
their subjective views on matters of vast political and economic 
importance. This invites judicial activism, where administrative 
policies become increasingly susceptible to arbitrary and 
politically motivated interference. This new era of statutory 
interpretation threatens to destabilize critical regulatory efforts, 
with potentially disastrous consequences for governance, 
environmental protection, and the public good. 

147 Loper Bright Enterprises v. Raimondo, supra note 6 at 7.  

 
 

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Second to One: Walking in the Shoes of a Giant 
Noah Levy1 

This book review of John Adams by David McCullough situates 
the reader in President Adams’ tumultuous position during the 
American Revolution. In the spirit of the law, the article utilizes 
his legal milestones to reveal the inherent risk in his actions 
and the rewards of living by a cause. 
 
The Time 

Boston is crumbling, and you are fleeing your home as 
a penniless refugee. Rewind: what just happened? While it may 
be out of fashion in the twenty-first century, imagine being a 
proud colonial British farmer in the 18th century. The sunrise is 
a signal to pick up a plow or force someone else to, depending 
on local values. When the yield is plentiful, mighty British 
trade routes are convenient to export surpluses. Most goods are 
English and support “the good life.” There is a scuffle in 
Boston, and the royal taxes become increasingly pervasive. The 
situation escalates, and suddenly, your fellow countrymen are 
declaring independence. Which side do you choose? 

In retrospect, it is easy to declare allegiance to the 
winners, but it would have been a dangerous decision in the 
historical milieu. Britain was the world’s major superpower, 
with the most powerful army, navy, and commerce network. 
Rebelling would put one’s life and livelihood at catastrophic 
risk. Playing it safe by remaining loyal to the Crown would 
result in being among the thousands who fled in haste.2 
Through riveting storytelling, David McCollough, the author of 
John Adams, illustrates that those who risked treason for liberty 
were the unlikely victors. 

2 David McCullough, John Adams 76 (2001). 

1 Brandeis University, Class of 2025, Brandeis University Law Journal, 
Editor-in-Chief. 

 
 

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The Man 

John Adams faced a far more arduous decision than 
many of his countrymen. Put yourself in his shoes, coming 
from a patrilineage of New England farmers with a prestigious 
maternal heritage.3 The family works hard to put food on the 
table, taking advantage of vast land holdings.4 Your father is a 
deacon who recognizes your potential to follow in his 
footsteps.5 Breaking the family’s long-standing maxim against 
selling land, he parts with ten of his seventy-five acres to send 
you to Harvard.6 You toil in books while others labor in the 
soil. While not exceedingly rich, the harvest provides a life of 
relative comfort. 

Thinking you “would make a better lawyer than 
preacher” leads to employment as a schoolmaster after 
graduation to save up for a legal apprenticeship.7 The work is 
exhausting and builds on a preexisting yearning for more 
prestige. Sociological research shows that periods of major 
societal upheaval lend to excellence.8 Later on, arguing as Vice 
President that President Washington should be referred to as 
“his excellency” may be a tacit early recognition of the time’s 
significance. There lies a desire to seal the prestige of the 
position in perpetuity. While ambition is externally viewed as 
vain, a fire burns within. 

Two years of legal training culminates in admission to 
the Massachusetts Bar. A cascade of success emerges, 
including moving your law office from Braintree to Boston, 
beginning to acquire land, and becoming “Boston’s busiest 
attorney.”9 Many newly minted law school graduates say 
they’ll put in their time with “white shoe” law and move on to 

9 McCullough, supra note 2 at 63. 
8 Malcolm Gladwell, Outliers: The Story of Success, 60 (2008).  
7 Id. at 37. 
6 Id. at 35. 
5 Id. at 34. 
4 Id. at 32. 
3 Id. at 30. 

 
 

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other work. You embody this modern ideal, yet you refuse to 
forgo the time’s iconic metal-clasped, black colonial shoes, 
appearing before the “superior court… in more than two 
hundred… cases” in a single year. 

Your public profile grows, serving as Braintree’s 
surveyor and selectman. Then, early in a soon-to-be storied 
career, a crossroads emerges. A dear friend, Jonathan Sewall, 
shares “an offer you cannot refuse” to lead the “office of 
advocate general in the Court of Admiralty,” a plush royal 
position and a massive career advancement.10 The thirst for 
prominence has never been closer to being satisfied. Yet, in the 
face of the Stamp Act, you begin a legal movement for national 
independence instead, halting the prospect of immediate 
ascendancy. You campaign with the historic phrase, “no 
taxation without representation,” building out ironclad 
revolutionary ideals.11 You have “no difficulty saying no” to 
Sewall.12 Having everything to lose, you inextricably tie your 
fate to a budding nation. Achieving the coveted societal status 
of a landowner warrants the conviction of expanding liberty to 
your countrymen through war. 

Soon after choosing a side, an opportunity arises to 
exercise your values. The people of Massachusetts are outraged 
at the events of the Boston Massacre. No lawyer will take the 
British soldier’s case until the one and only John Adams Esq. 
rises to the occasion. This choice leads to “public scorn… 
painful in the extreme.”13 Being extremely self-conscious and 
loathing criticism, the negative publicity scars your ego, which 
is a surprisingly grounding experience. Nevertheless, the 
“principle” that “no man in a free country should be denied the 
right to counsel” trumps all personal considerations. 
Unknowingly, this will aid political ambitions later.  

 

13 Id. at 66. 
12 Id. at 64. 
11 Id. at 61. 
10 Id. at 64. 

 
 

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The Government 
While some have the initial instinct to take up arms or 

aimlessly bash the present circumstances, you take a more 
calculated path, detailed in various publications. The 
instrumental ideas you authored in Thoughts on Government 
recognize that the “form of government which 
communicates… happiness… to the greatest number of 
persons… is the best.”14 The subject is a government with three 
branches: the executive, legislative, and judiciary. Each should 
be independent to serve as a check on the others. In the face of 
war, there is a release valve called “militia law,” where the 
executive takes the reins of the state to straighten out conflict.15 
You pride yourself in solutions, so deride Thomas Paine’s 
Common Sense, which identifies a problem without proposing 
an adequate fix. These seminal works, endowed with legal 
prowess, will constantly inform your activism. 

Congress is indecisive when debating independence. 
Some prefer a semi-autonomous status, others sovereign 
freedom.16 You leverage your oratorical skills to keenly apply 
procedural rules and ensure the effectiveness of the debates.17 
The first attempt at a declaration failed, leaving two more 
weeks for negotiations. You draw on your lawyering days to 
whip together a unanimous final vote.18 

Authoring the Declaration of Independence’s preamble 
is an honor. Modern readers can see that it alone can serve the 
document’s purpose. The document explains that government 
legitimacy lies upon the consent of the governed to provide the 
“unalienable rights” to “life, liberty, and the pursuit of 
happiness.”19 Since the British Crown was “destructive towards 

19 John Adams, Preamble to the Declaration of Independence, (1776). 
18 Id. at 129. 
17 Id. at 123. 
16 McCullough, supra note 2 at 126. 
15 Id. at 2. 

14 John Adams, Thoughts on Government, 1 (1776), 
http://founders.archives.gov/documents/Adams/06-04-02-0026-0004 (last 
visited Jan 2, 2025). 

 
 

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these ends[,] it is the Right of the People… to abolish it… and 
to institute [a] new Government.” The circumstances in the 
colonies were “reduced[ed to] despotism,” and it was the 
“duty” of Americans to “throw off such government.” 

As if signing the document is not a sufficient mortal 
risk, you double down by championing it with vigor. Leading 
up to the vote, you defended it in a speech that Thomas 
Jefferson describes as having “a power of thought and 
expression that moved us from our seats.”20 While 
unbeknownst at the time, McCullough will say it was “the most 
powerful and important speech heard in the Congress since it 
convened, and the greatest of [your] life.” Later, the British 
will write a list of founding fathers to pardon in the case of 
reunification. “Adams” is absent, corroborating the risk 
inherent in these choices.21 

The Statesman 
The precarious global circumstances make it 

abundantly clear that America needs global support, so you 
become its top statesman, liaising between France, Britain, and 
the Netherlands.22 A vital duty is to negotiate terms for peace 
with Britain, defense from France, and financing from the 
Dutch. The Treaty of Paris cements American independence, 
defense from France provides naval armaments in the war, 
Dutch loans finance the War of Independence, and the 
correspondence you spearhead with France leads to the 
conditions necessary for Jefferson’s Louisiana Purchase.23 Your 
spoken legal eloquence serves your pursuit of liberating 
America. 

The U.S. Constitution is modeled after the values you 
enshrined in authoring Massachusetts’, which will become “the 

23 Id. at 586. 
22 Id. at 384. 
21 Id. at 158. 
20 McCullough, supra note 2 at 127. 

 
 

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oldest functioning written constitution in the world.”24 The 
constitutional role of the vice president comes easily.25 You 
dutifully undertake your job and go above and beyond to 
preside over all the Senate’s sessions. 

As president, the law holds the fledgling republic 
together. With the nearing prospect of war with France, your 
long-term ambition of establishing a Navy to maintain the 
borders and reactionary measures of the Alien and Sedition 
Acts attempt to maintain unity in tumultuous times.26 The Navy 
is one of the most vital institutions for America’s 
independence. It critically aids Madison’s defense of the shore 
during the War of 1812. Though initially a critic of the branch, 
Jefferson will come to admit his mistake in judgment in 
personal correspondence.27 The Alien and Sedition Acts 
neglect the First Amendment, acutely policing speech. The 
administration does not prosecute anyone under the Alien Act 
but does police the Sedition Act by imprisoning Republicans 
who have slandered you. You judge these actions to be 
necessary as a temporary measure during times of war.28 While 
your heart may be in the right place to promote unity in a 
divided time, history will prove this measure wrong. The 
legacy of this mistake will perpetually cast a dark shadow over 
the period in the history books. 

As the nation’s second presidency is coming to a close 
and the government is becoming increasingly partisan, it seems 
a fruitful time to bolster the courts. You nominate justices that 
will be called the “midnight judges” despite being confirmed 
more than a week before leaving office.29 If you lived until the 
twenty-first century, you could take this historical inaccuracy 
up with its chief propagator, Lin-Manuel Miranda. Yet, among 

29 Id. at 563. 
28 Id. at 505–506. 
27 Id. at 606. 
26 Id. at 499, 504. 
25 Id. at 434. 
24 Id. at 225. 

 
 

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the judges is Justice John Marshall, who will become the most 
celebrated justice to have served on the Supreme Court.30 
Along with these appointments, you create six more circuit 
courts to protect against the despotism of unfettered power, as 
strengthening the courts by any means is among your central 
values. Nonetheless, these courts will not survive Jefferson’s 
impending presidency.31  

You believe parties are destructive to the government’s 
functioning, as factions definitionally cause more, not less, 
disagreement.32 This leads to the maintenance of Washington’s 
cabinet and the consideration of appointments void of partisan 
loyalties.33 At the cost of mental well-being, you endure the 
slander and subversion of the cabinet to sustain the people’s 
best interests. 

 
The Legacy 
 You question your self-worth on account of criticism 
from all angles yet stay wedded to your ideals. You are 
open-minded but remain resolute to acknowledge when you are 
right. When the odds are stacked against you, you double 
down. Time will count billions who ride the tide, but you break 
the current. Your project will become a force for good that lifts 
billions from poverty, serves as a model for governance, and 
flourishes for 248 years and counting. You could have been on 
that boat to London and reconstituted a law practice abroad. 
Watching your city recede into the horizon would have hurt, 
but the feelings would have been temporary. Instead, you will 
not give up on your freedom without a fight and will secure a 
seat in the annals of history for taking the road never traveled. 

33 Id. at 518. 
32 Id. at 422. 
31 Id. at 577. 
30 Id. at 560. 

 
 

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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 
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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. 

 
 

102 

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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State Responsibility for State Sponsors of Terror 
Koby Gottlieb1 

This article explores the international legal obligations of 
states to cease trading with state sponsors of terrorism, 
focusing on Article 16 of the Draft Articles on Responsibility of 
States for Internationally Wrongful Acts. Using the principles 
of customary international law, including the prohibition on the 
use of force and non-intervention, this article evaluates state 
accountability for aiding terrorism as applied to China. The 
paper asserts that international trade with state sponsors of 
terrorism, such as China’s trade with Iran, constitutes a breach 
of international law. 
 
Roadmap 
 This paper looks at the implications for Iran’s trading 
partners, particularly China, in light of Iran’s support for 
terrorism.2 It is important first to establish the theoretical 
framework underpinning this argument by analyzing the mens 
rea and actus rea elements of state responsibility. Throughout, 
the paper will apply relevant aspects of the elements of state 
responsibility to both Iran and China while also exploring 
international legal concepts on the use of force, 
non-intervention, and terrorism. In doing so, it will become 
clear that China’s trade with Iran is illegal under international 
law. 
 
Background 
The Islamic Revolutionary Guards Corps (IRGC) is a terrorist 
organization that supports other terrorist organizations, 
including Hezbollah, the Houthis, and various additional 

2 NADER USKOWI, TEMPERATURE RISING: IRAN’S REVOLUTIONARY GUARDS AND 
WARS IN THE MIDDLE EAST xiv–xvi (2019). 

1 Brandeis University, Class of 2026, Brandeis University Law Journal, 
Copy Editor. 

 
 

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militias.3 The Iranian Office of the Supreme Leader controls 
and aids the IRGC, including subsidiary groups within it.4 
China was one of the largest importers of Iranian goods 
compared to other countries in 2022, substantially contributing 
to the Iranian economy.5 Since the IRGC and the Office of the 
Supreme Leader control over five hundred businesses, 
accounting for almost half of the Iranian economy, China’s 
contributions to the Iranian economy undoubtedly assist the 
IRGC.6  

Hezbollah causes significant human casualties to 
civilians and considerable destruction of property across the 
world. One notable case is the attack on a Jewish community 
center in Argentina in 1994 that killed eighty-five people, 
wounded three hundred, and leveled the recreation center.7 The 
Inter-American Court of Human Rights — a regional human 
rights-centered court represented by judges from across the 
Western Hemisphere — ruled in January 2024 that Hezbollah 
committed the attack with support from Iran; Iran is also likely 
to have ordered the attack.8 Notably, the Court held that this 
attack was an act of terrorism, likely due to civilians being the 
target of this attack.9  

 

9  Memoria Activa Vs. Argentina, supra note 6 at 1; Thomas Buergenthal, 
The Inter-American Court of Human Rights, 76 AM. J. INT. LAW 231, 
233–234, 242 (1982). 

8 Decisions by the Court are binding on states that accept the American 
Convention on Human Rights as binding. See American Convention on 
Human Rights, 33, 61-62 (1969). 

7 Memoria Activa Vs. Argentina, 43 (2024). 
6 USKOWI Supra note 2 at xiv–xvi. 

5 World Integrated Trade Solution, Iran, Islamic Rep. Trade Balance, 
Exports and Imports by Country 2022, (2022). 

4 See generally AUGUSTUS R. NORTON, HEZBOLLAH: A SHORT HISTORY (New 
paperback edition ed. 2014); TREVOR JOHNSTON ET AL., Could the Houthis Be 
the Next Hizballah? Iranian Proxy Development in Yemen and the Future of 
the Houthi Movement, 51–71 (2020). 

3 Id. 

 
 

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State Responsibility 
Since 1955, the International Law Commission (ILC), a 

group of thirty-four individuals elected by the United Nations 
General Assembly (UNGA), has developed the Draft Articles 
on Responsibility of States for Internationally Wrongful Acts, 
with Commentaries, determining the limits of state 
responsibility in international law.10 The Draft Articles, 
especially Article 16, serve as the backbone for this paper.11  

Article 16 concerns states aiding or assisting other 
states in committing internationally illegal acts.12 Since there is 
not a substantial contextual difference between “aiding” and 
“assisting,” these terms will be used interchangeably in line 
with the United Kingdom’s opinion.13 The Commentary sets 
forth three conditions that limit the scope of responsibility of 
states in aiding or assisting: 

First, the relevant State organ or agency providing aid 
or assistance must be aware of the circumstances 
making the conduct of the assisted State internationally 
wrongful; secondly, the aid or assistance must be given 
with a view to facilitating the commission of that act, 
and must actually do so; thirdly, the completed act must 
be such that it would have been wrongful had it been 
committed by the assisting State itself.14 

There is both a mens rea element and an actus reus 
element. The first condition and part of the second condition — 
“the aid or… of that act” —  touch on the mens rea element, 

14 UNITED NATIONS, supra note 11 at 66. 

13State Responsibility – Comments and Observations Received from 
Governments, 53rd Session, 52 (2001). 

12 Id. 

11 UNITED NATIONS, DRAFT ARTICLES ON RESPONSIBILITY OF STATES FOR 
INTERNATIONALLY WRONGFUL ACTS, WITH COMMENTARIES 66 (2001). 

10 James Crawford, The ILC’s Articles on Responsibility of States for 
Internationally Wrongful Acts: A Retrospect, 96 THE AMERICAN JOURNAL OF 
INTERNATIONAL LAW 874, 874 (2002); Stephen C. McCaffrey, The 
Thirty-Seventh Session of the International Law Commission, 80 AMERICAN 
JOURNAL OF INTERNATIONAL LAW 185, 185 (1986).  

 
 

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while part of the second condition — “must actually do so” — 
and the third condition touch on the actus reus element. As 
shown below, China meets each of these conditions for state 
responsibility.  

The Application of the Convention on the Prevention 
and Punishment of the Crime of Genocide (Bosnian Genocide 
Case) further elaborates on the case law surrounding state 
responsibility. The Bosnian Genocide Case was a case in the 
International Court of Justice (ICJ) that determined that the 
Bosnian Serb armed forces perpetrated genocide in the town of 
Srebrenica, Bosnia and Herzegovina, in July 1995.15 Decisions 
by the ICJ reflect international law.16 In this case, the ICJ 
regards Article 16 as customary international law which is 
binding, according to the ICJ Statute.17 The ICJ does not 
specifically regard the attached commentaries to Article 16 as 
part of the canon of customary law, but they may still be a 
source of customary law. 

Furthermore, the ICJ’s Statute recognizes “judicial 
decisions and teachings of the most highly qualified publicists” 
as a source of customary law.18 In 2001, the final presentation 
of the Draft Articles included commentaries by numerous 
respected international lawyers.19 These include Sir Ian 
Brownlie, James Crawford, and John Dugard — some of the 
leading international lawyers in scholarship and practice.20 

20 Philippe Sands, Sir Ian Brownlie Obituary, THE GUARDIAN, Jan. 11, 2010; 
Philippe Sands, James Crawford Obituary, THE GUARDIAN, Jun. 13, 2021; 
Curriculum Vitae and Publications of John Dugard, 20 LEIDEN JOURNAL OF 
INTERNATIONAL LAW 983 (2007). 

19 Summary Records of the First Part of the Fifty-Third Session, 1 (2001). 
18 Id. at 38(1)d. 

17 Application of the Convention on the Prevention and Punishment of the 
Crime of Genocide, International Court of Justice 420 (2007); Statute of the 
International Court of Justice, 38(b). 

16 ALAIN PELLET, DECISIONS OF THE ICJ AS SOURCES OF INTERNATIONAL LAW? 
56–57 (2018), http://crde.unitelmasapienza.it/it/pubblicazioni/gmls-2018 
(last visited Jan 20, 2025). 

15 Vojin Dimitrijević & Marko Milanović, The Strange Story of the Bosnian 
Genocide Case, 21 LEIDEN JOURNAL OF INTERNATIONAL LAW 65, 65 (2008). 

 
 

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Thus, these individuals fit the requirement of “most highly 
qualified publicists,” and as such, the Commentary to the Draft 
Articles carries an important weight in determining 
international law. Crawford suggests reading the Draft Articles 
with the Commentary and even the preparatory work of the 
ILC.21 For this article, the first important part of the Draft 
Articles is the mens rea element of Article 16. 

The Mens Rea Element 
In the Bosnian Genocide Case, the ICJ determined that 

for a state’s assistance of another state to constitute 
wrongdoing, the assisting state must do so “in full awareness 
that the aid supplied would be used to commit” a crime.22 The 
assisting state must also be aware of the “specific intent” of the 
perpetrating state.23 The International Criminal Tribunal for 
Rwanda was established by the United Nations Security 
Council (UNSC) in 1994 to prosecute those responsible for 
genocide in Rwanda.24 International legal terms used by the 
Tribunal clarify the meaning of the same terms because, 
according to the ICJ Statute, Tribunals help interpret 
international law.25 The Tribunal ruled that “specific intent” 
requires that the perpetrator of a crime intended the result of 
the crime.26 The ICJ in the Bosnian Genocide Case determined 
that states must have “at the least” this knowledge of intent, 
suggesting that the claim of responsibility necessitates some 
knowledge.27 

27 Georg Nolte & Helmut Philipp Aust, Equivocal Helpers—Complicit 
States, Mixed Messages and International Law, 58 ICLQ 1, 14 (2009). 

26 The Prosecutor Versus Georges Anderson Nderubumwe Rutaganda, 59 
(1999). 

25 Statute of the International Court of Justice, supra note 17 at 38(1)d. 

24 Resolution 955 Establishment of an International Tribunal and adoption 
of the Statute of the Tribunal, (1994). 

23 Id. at 421. 

22 Application of the Convention on the Prevention and Punishment of the 
Crime of Genocide, International Court of Justice 423 (2007).  

21 JAMES CRAWFORD, STATE RESPONSIBILITY: THE GENERAL PART 87 (2013). 

 
 

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Nevertheless, states do not need complete certainty; 
near-certain knowledge that assistance provided to one state 
will perpetuate a crime is sufficient for the assisting state to be 
responsible under Article 16.28 Professor John Quigley, a 
scholar of international law, confirms and further explains this 
idea in the European Journal of International Law.29 He 
regards the United States’ intervention in Lebanon in 1958 as 
unlawful and Germany as complicit because Germany intended 
to assist the United States by sending American airplanes to 
Lebanon.30 While Germany was not entirely certain that the 
United States would use these airplanes unlawfully, they were 
“practically certain” that the United States would use these 
airplanes unlawfully.31  The “practically certain” designation 
insinuates that while Germany was not aware of the United 
States’ “specific intent,” they still had significant knowledge of 
the United States’ intentions. 

Since the Inter-American Court of Human Rights has 
addressed Iran’s ties to Hezbollah, when applying the above 
principles to China, it is reasonable to conclude that China is 
aware of this ruling and its implications for trading with a state 
sponsor of terror.32 The challenge is determining whether China 
knows that the money it uses to buy Iranian goods will go to 
support terror. Researchers, journalists, and government 
institutions have all confirmed the IRGC’s hegemony over the 
Iranian economy by controlling about half of the entire 

32 Cecilia Medina, The Inter-American Commission on Human Rights and 
the Inter-American Court of Human Rights: Reflections on a Joint Venture, 
12 HUMAN RIGHTS QUARTERLY 439, 439 (1990). 

31 J. Quigley, Complicity in International Law: A New Direction in the Law 
of State Responsibility, 57 BRITISH YEARBOOK OF INTERNATIONAL LAW 77, 
112–113 (1987). 

30 The status of the US intervention is unrelated to the purpose of this paper. 

29 John Quigley, Karim Khan’s Dubious Characterization of the Gaza 
Hostilities, EUROPEAN JOURNAL OF INTERNATIONAL LAW: TALK! (May 28, 
2024). 

28 CRAWFORD, supra note 21 at 408. 

 
 

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economy.33 The wide range of sources confirming this fact 
reinforces the idea that China knows about the IRGC’s control 
over the Iranian economy. Accordingly, it is “practically 
certain” that China knows a significant portion of its trade with 
Iran finances terrorism around the world. 
 Another example to illustrate the standard for the 
necessary level of knowledge to hold an assisting state 
responsible is the Corfu Channel Case, where the ICJ issued a 
ruling after several British ships were damaged and several 
civilians were injured in 1946. This incident occurred after the 
British hit mines in Albanian territorial waters.34 Despite 
publicly saying it did not know about mines in its territorial 
waters, Albania “must have known” about this unlawful 
behavior.35 The Court considers knowledge as a state’s ability 
to recognize unlawful activities, making it responsible even if it 
publicly denies awareness. Since, as mentioned earlier, it is 
“practically certain” that China knows about its unlawful trade 
with Iran, China cannot avoid responsibility by denying 
awareness. 
 There are two additional considerations regarding the 
legal standards of due diligence and willful ignorance of the 
assisting state. Article 16 and the Commentaries do not refer to 
any duty of due diligence to investigate whether assistance 
might be used unlawfully. In addition, they do not mention how 
to treat an assisting state that is willfully ignorant. Instead, they 
stay neutral on both points.36 The Appeals Chamber of the 
International Criminal Tribunal for the Former Yugoslavia, in 

36 Harriet Moynihan, Aiding and Assisting: Challenges in Armed Conflict 
and Counterterrorism, 14–15. 

35 The Corfu Channel Case, International Court of Justice 19 (1949). 

34 Dafina Buçaj, The Obligation to Prevent Transboundary Cyber Harm: 
Expand the Regulatory Regime or Continue Deflecting Responsibility, 54 
THE GEORGE WASHINGTON INTERNATIONAL LAW REVIEW 219, 252 (2023). 

33 USKOWI, supra note 2 at xvi; Julian Borger & Robert Tait, The Financial 
Power of the Revolutionary Guards, THE GUARDIAN, Feb. 15, 2010; Treasury 
Targets Billion Dollar Foundations Controlled by Iran’s Supreme Leader, 
(2021). 

 
 

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interpreting the “had reason to know” standard of Article 7(3) 
of the Statute of the International Tribunal, provides further 
insight into the principles of due diligence and willful 
ignorance. 37 The Tribunal indicted Tihomir Blaškić for alleged 
violations of international law against Bosnian Muslims 
between May 1992 and January 1994. After being found guilty, 
Blaškić appealed.38 The Statute of the ICJ regards tribunals as a 
source of international law.39 The Appeals Chamber ruled “that 
the mental [mens rea] element ‘had reason to know’ as 
articulated in the Statute, does not automatically imply a duty 
to obtain information… [but] responsibility can be imposed for 
deliberately [sic] refraining from finding out but not for 
negligently failing to find out.”40 This decision indicates that 
under international law, states do not have an active duty to 
conduct due diligence on other countries, but if there is 
publicly recognized evidence and the assisting state 
intentionally ignores it, then the state should be held 
responsible. So, China does not have a duty of due diligence to 
investigate the details of how its trade with Iran aids terrorism. 
However, China cannot claim willful ignorance, especially if 
there is substantial and public evidence suggesting that Iranian 
terror benefits from Chinese trade. Since there is substantial 
public evidence showing China must be “practically certain” 
that Iranian terror benefits from Chinese trade, China cannot 
claim willful ignorance. 

The Commentary explicitly mentions the need for 
intent but does not clearly define it. Moreover, the 
Commentary’s use of the words “with a view to facilitate” 

40 Blaskic Case, supra note 37 at 406. 
39 Statute of the International Court of Justice, supra note 17 at 38(1)d. 

38 ANTONIO CASSESE, THE OXFORD COMPANION TO INTERNATIONAL CRIMINAL 
JUSTICE 610–611 (2009). 

37 Blaskic Case, The Appeals Chamber of the International Tribunal for the 
Prosecution of Persons Responsible for Serious Violations of International 
Humanitarian Law Committed in the Territory of the Former Yugoslavia 
Since 1991 406 (2004). 

 
 

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suggests that the assisting state must have intent in aiding.41 

Terms used in the Rome Statute can help elucidate the use of 
these terms in other circumstances, such as the concept of 
intent here, since the Statute is a document of international 
law.42 The Rome Statute of the International Criminal Court 
(ICC) concerns itself with crimes committed by individuals, as 
opposed to states.43 The Rome Statute defines intent as when 
“in relation to conduct, that person means to engage in the 
conduct; in relation to a consequence, that person means to 
cause that consequence or is aware that it will occur in the 
ordinary course of event.” 44 For China to meet the threshold of 
intent, it must purposefully trade with Iran while either 
meaning to support terrorism or knowing that trading with Iran 
will aid Iran’s terrorist activities.  

The ICC further developed the concept of intent in the 
Bemba Case. In the case, the ICC initially sentenced 
Jean-Pierre Bemba, a politician in the Democratic Republic of 
Congo, in 2016 for crimes against humanity and war crimes, 
but later acquitted him in 2018.45 The ICC further explains its 
definition of intent in two ways: first and second degree. The 
first degree is when an individual acts in a manner with the 
desire to bring about the elements of the crime. The second 
degree is when an individual knows that the elements of the 
crime will almost inevitably arise by the commission or 
omission of an act, even if there is no desire for the elements of 
the crime to arise.46 China’s intent is quite easy to prove based 

46 Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the 
Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 358–359 
(2009). 

45 The Prosecutor v. Jean-Pierre Bemba Gombo, 1, 752 (2016); The 
Prosecutor v. Jean-Pierre Bemba Gombo, 196–198 (2018). 

44 Rome Statute of the International Criminal Court, 30(2) (1998). 

43 The Rome Statute of the International Criminal Court, , in THE HANDBOOK 
OF COMPARATIVE CRIMINAL LAW 593, 595–596 (Kevin Jon Heller & Markus 
Dubber eds., 2020). 

42 Statute of the International Court of Justice, supra note 17 at 38(1)d. 
41 UNITED NATIONS, supra note 11 at 66. 

 
 

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on the second degree of intent. As explained above, China is 
“practically certain” that its trade with Iran aids Iran’s terror. 
Regardless of whether China wants to support terror, it still has 
intent based on the second degree. In summary, China has the 
requisite level of knowledge, under the mens rea element of 
Article 16, that its trade with Iran supports terror. 

 
The Actus Reus Element 
 While the previous section described the mens rea 
element, this section will evaluate the actus reus element by 
determining the legality of states aiding terror and ascertaining 
its universality. First, it is important to establish a definition of 
terrorism to understand why aid to the IRGC should be ceased 
immediately. Unfortunately, there is not one clear definition of 
terrorism under international law.47 The League of Nations, the 
UNGA, the Secretary-General of the United Nations (UN), the 
UNSC, and others have all passed their own, and sometimes 
contradictory, definitions of terrorism.48 Due to the variety of 
definitions, this paper will adopt the view of terrorism 
espoused by the Special Tribunal for Lebanon. Established by 
the UNSC in 2007, the Special Tribunal for Lebanon primarily 
prosecuted those responsible for the assassination of the former 
Lebanese Prime Minister Rafik Hariri.49 This definition works 
best because of the wide-ranging methodology taken by the 
Appeals Chamber in the Special Tribunal for Lebanon, 
whereby they consulted international treaties, UN resolutions, 
and domestic legislative and judicial practices to determine the 
customary law view of terrorism. The view of terrorism taken 
by the Special Tribunal has three key elements which must all 

49 Jan Erik Wetzel & Yvonne Mitri, The Special Tribunal for Lebanon: A 
Court “Off the Shelf” for a Divided Country, 7 LAW PRACT INT COURTS TRIB 
81, 81–82 (2008). 

48 Convention for the Prevention and Punishment of Terrorism, (1937); 
Resolution 49/60 Measures to Eliminate International Terrorism, (1995); 
Kofi Annan, Statement to the General Assembly, (2005); Resolution 1566, 
(2004). 

47 BEN SAUL, DEFINING TERRORISM IN INTERNATIONAL LAW 7 (2008). 

 
 

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be fulfilled: “the perpetration of a criminal act;… the intent to 
spread fear among the population… or directly or indirectly 
coerce a national or international authority to take some action, 
or to refrain from taking it; when the act involved a 
transnational element.”50 With this definition of terrorism, it is 
important to further investigate Iran’s terrorist actions by 
looking at the international legal principles of the use of force 
and non-intervention. 

Article 2(4) of the UN Charter expresses the fundamental 
principle on the use of force in saying: “All Members shall 
refrain in their international relations from the threat or use of 
force against the territorial integrity or political independence 
of any state, or in any other manner inconsistent with the 
Purposes of the United Nations.”51 According to the ILC in 
1966, the Charter’s view on using force is consistent with 
customary international law.52 UNGA Resolution 2625 further 
clarifies the principle of the use of force. The ICJ recognized 
this resolution as customary law in the Case Concerning the 
Military and Paramilitary Activities in and Against Nicaragua 
(Nicaragua Case). This case was brought to the ICJ by 
Nicaragua after the United States allegedly used military force 
against Nicaragua. Based on the principle of the use of force, 
the Court declared that “every State has the duty to refrain 
from organizing, instigating, assisting or participating in acts of 
civil strife or terrorist acts in another State.”53 The challenge 
with employing the principle of the use of force is that in the 

53 Case Concerning Military and Paramilitary Activities in and Against 
Nicaragua, ICJ 191 (1986); Resolution 2625  Declaration on Principles of 
International Law Concerning Friendly Relations and Co-operation Among 
States in Accordance with the Charter of the United Nations, (1970); 
Thomas J. Pax, Nicaragua v. United States in the International Court of 
Justice: Compulsory Jurisdiction or Just Compulsion?, 8 BOSTON COLLEGE 
INTERNATIONAL AND COMPARATIVE LAW REVIEW 471, 471 (1985). 

52 UNITED NATIONS, YEARBOOK OF THE INTERNATIONAL LAW COMMISSION 1966, 
VOL. II 20 (1966). 

51 United Nations Charter, 2(4) (1945). 
50 The Prosecutor v. Ayyash et al., 85 (2011). 

 
 

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Nicaragua Case, the ICJ determined that acts must be 
“classified as an armed attack rather than as a mere frontier 
incident” to be forbidden based on this approach.54 According 
to legal commentators, an armed attack can refer to the use of 
force when it causes “serious consequences… human 
casualties, or considerable destruction of property”.55 This 
limitation by the Court’s ruling means that arming and training 
terrorist forces violates the principle of the use of force, but 
simply funding these forces does not. Instead, funding may be 
a problem under the principle of non-intervention.56 Only a 
limited number of acts of aggression are considered armed 
attacks; the remainder are frontier incidents.57 The high number 
of civilian casualties and destruction of property in the attack 
on the Jewish community center show that Hezbollah’s attacks 
can be considered armed attacks.   By organizing, assisting, and 
participating in these attacks through Hezbollah and the IRGC, 
Iran violates the use of force principle.  

Based on the principle of non-intervention, UNGA 
Resolution 2625 declares that “no State shall organize, assist, 
foment, finance, incite or tolerate subversive, terrorist or armed 
activities directed towards the violent overthrow of the regime 
of another State, or interfere in civil strife in another State.”58 
The limitation of this principle is that for an entity to violate it, 
the terrorist activities must be conducted with the intention of 
bringing about change regarding “matters in which each State 
is permitted, by the principle of State sovereignty, to decide 
freely,” including “political, economic, social and cultural 

58 Resolution 2625  Declaration on Principles of International Law 
Concerning Friendly Relations and Co-operation Among States in 
Accordance with the Charter of the United Nations, supra note 53. 

57 JOHN H. CURRIE, PUBLIC INTERNATIONAL LAW 504 (2. ed ed. 2008). 

56 Case Concerning Military and Paramilitary Activities in and Against 
Nicaragua, supra note 53 at 228. 

55 YORAM DINSTEIN, WAR, AGGRESSION, AND SELF-DEFENCE 193 (Fourth 
edition ed. 2005). 

54 Case Concerning Military and Paramilitary Activities in and Against 
Nicaragua, supra note 53 at 195. 

 
 

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system, and the formulation of foreign policy” by the victim 
state.59 Terrorism, according to the Special Tribunal for 
Lebanon, includes cases where the terrorist organization 
intends to alter “matters in which a state is permitted to decide 
freely.” Therefore, the non-intervention principle encompasses 
most acts of support to a terror organization. The principles on 
the use of force and non-intervention are customary principles 
that have their ultimate authority in Article 2 of the UN Charter 
and are thus incumbent on all states.60  

The recent Houthi attacks on Israel also demonstrate 
Iran’s violation of international law. In December 2024, the 
Houthis fired rockets targeting Israel for several nights.61 These 
attacks may not be considered armed attacks because the 
Houthi strikes have only killed one Israeli and have only 
caused limited damage, thereby not fulfilling the criteria of 
“human casualties.”62 Therefore, these attacks do not 
necessarily violate the principle of the use of force but could 
violate the principle of non-intervention. The Houthis are firing 
these rockets to try to force Israel to end the war in Gaza, a 
highly political matter.63 Because the Houthi rebels are using 
Iranian funds and weapons to interfere with Israeli political 
matters, Iran has violated the principle of non-intervention by 
financing the rebels.64 Since these attacks are ongoing, Iran is 
currently in violation of this principle. 

64 USKOWI Supra note 2 at xiv–xvi 

63 Yemen’s Houthis ‘will not stop’ Red Sea Attacks Until Israel Ends Gaza 
War, AL JAZEERA, Dec. 19, 2023. 

62 Greg Myre & Daniel Estrin, Drone Strikes Tel Aviv, Killing One. Houthis 
Claim Responsibility, NPR, Jul. 19, 2024; Tia Goldenberg, Israel Struggles 
to Deter Escalating Attacks From Yemen’s Houthi Rebels as Other Fronts 
Calm, AP NEWS, Jan. 3, 2025. 

61 Stuart Winer & Emanuel Fabian, Houthis Fire Missile at Central Israel 
for 4th Night in Past Week; IDF Intercepts It, Dec. 25, 2024. 

60 United Nations Charter, supra note 51 at 2. 

59 Case Concerning Military and Paramilitary Activities in and Against 
Nicaragua, supra note 53 at 205. 

 
 

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Acts that violate both the principles of the use of force and 
non-intervention violate the key elements of terrorism.65 
However, that does not imply that all acts of terrorism 
necessarily fall under one of either the principles of the use of 
force or non-intervention. There could be a case where a state 
only provides funds to a terrorist organization, thereby possibly 
violating the principle of non-intervention. If the terrorist 
organization only commits attacks to spread fear and not to 
effect change concerning “matters in which each State is 
permitted,” then a state aiding terror would not necessarily be 
committing a crime. Nevertheless, this is not a concern because 
of the nature of state sponsors of terror who act with the intent 
to alter the political and security conditions of the victim state. 
Therefore, state sponsors of terror support terror organizations 
that have a goal of changing “matters in which each State is 
permitted.”66 

Conclusion 
 As demonstrated, trade with Iran violates international 
law. The only remedy is for states to cease all trade with Iran or 
violate international law. Another option would be for the 
UNSC to pass a resolution imposing economic sanctions on 
Iran, which would be incumbent on all states.67 Whether or not 
the UNSC passes a resolution, trade with Iran and other state 
sponsors of terror remains illegal, requiring all states to cease 
such activity. Although international law is not enforceable, 

67 Rebecca Barber, An Exploration of the General Assembly’s Troubled 
Relationship with Unilateral Sanctions, 70 ICLQ 343, 346–348 (2021); See 
Anne Van Aaken & Betül Simsek, Rewarding in International Law, 115 AM. 
J. INT. LAW 195 (2021). 

66 MAGDALENA KIRCHNER, WHY STATES REBEL: UNDERSTANDING STATE 
SPONSORSHIP OF TERRORISM 239–240 (2016). 

65 See The Prosecutor v. Ayyash et al. supra note 50 at 85 “The perpetration 
of a criminal act;… the intent to spread fear among the population… or 
directly or indirectly coerce a national or international authority to take 
some action, or to refrain from taking it; when the act involved a 
transnational element” 

 
 

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states may have a desire to comply with it and, therefore, 
should cease trade with Iran on their own accord.68 States must 
not assist other states in committing internationally unlawful 
acts. There are both mens rea and actus reus elements to this 
responsibility. Since support for terrorism is illegal under 
international law, it is illegal for states to support those who aid 
terrorist organizations or commit terror attacks themselves. 
Using China and Iran as a case study, this article demonstrates 
why all states, including China, must halt trade with Iran due to 
its support for terrorism. 

68 Anthony D’Amato, Is International Law Really Law, 79 NW. U. L. REV. 
1293, 1293 (1984). 

 
 

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The Sedition Act of 1798 as a Federalist Legal Instrument 
Jack Granahan1 

The Sedition Act of 1798, enacted alongside the other 
Federalist-proposed Alien and Sedition Acts, stands as the 
most egregious violation of the First Amendment’s Free Speech 
and Free Press Clauses in American history. This law, passed 
by a predominantly Federalist Congress and signed into law by 
President John Adams, criminalized the uttering and 
publishing of criticism of the federal government.2 This paper 
aims to demonstrate that the Sedition Act constituted more than 
just a national security measure that the Federalists supported 
on the grounds of empowering a strong, central government. 
Rather, as shown by the motives of the law described by 
Federalist politicians and the biased trial proceedings of those 
charged under the law, the Sedition Act was a calculated act of 
legal instrumentalism that sought to empower the Federalists 
by punishing anti-Federalist dissenters. 
 

I. Introduction 
 The American political climate of the late 1790s was 
defined by ideological conflict: Federalists supported a 
centralized federal government, while Democratic-Republicans 
supported a decentralized, agrarian vision.3 In 1797, Federalist 
John Adams was inaugurated as president, allowing the 
Federalists to aggressively pursue their agenda.4 This included 
pushing for a war with France in the wake of the XYZ Affair, 
which saw the French government extort bribes from American 
diplomats as a prerequisite for negotiation. The fiercely 
anti-authoritarian Democratic-Republicans, who largely 
sympathized with the French republican government, opposed 

4 Douglas Bradburn, A Clamor in the Public Mind: Opposition to the Alien 
and Sedition Acts, 65 Wm. & Mary Q. 565 (2008). 

3 Gérard Hugues, Norms for a Misuse of Authority: the Alien and Sedition 
Acts, 74 Rev. Fr. d'Études Am. 93, 95 (1997).  

2 An Act for the Punishment of Certain Crimes Against the United States, 
ch. 9, 1 Stat. 112 (1790). 

1 Brandeis University, Class of 2026. 

 
 

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this war. As a consequence of this anti-war sentiment and other 
criticisms of the Adams administration, Adams and the 
Federalist majority in both houses of Congress sought to 
reduce anti-Federalist political activity through legislative 
means.5  

In the summer of 1798, this effort came to fruition with 
the implementation of the Alien and Sedition Acts. In addition 
to three acts that regulated immigration and citizenship law, 
this collection of legislation concluded with the Sedition Act. 
Among other provisions, this statute made “writing, printing, 
uttering or publishing any false, scandalous and malicious 
writing or writings against the government of the United 
States” a crime punishable by a fine of up to $2,000 (equivalent 
to over $51,000 in 2024) and up to two years in prison.6 This 
paper argues that the Sedition Act was based on an 
instrumentalist interpretation of the First Amendment meant to 
empower the Federalists by suppressing political dissent by the 
Democratic-Republicans. 

Legal instrumentalism refers to the commandeering of 
specific interpretations and applications of legal texts as 
“instrument[s] of social change.”7 The Alien and Sedition Acts 
conform to this practice. The first three parts of the act, which 
pertain to immigration and naturalization, constitute a clear 
effort to combat the “French peril” alleged by many Federalists 
following the XYZ Affair.8 Meanwhile, the Sedition Act was 
designed to crack down on Democratic-Republican opposition 
to, among other policies, the Federalists’ march towards a war 
with France. The Sedition Act and its accompanying 
interpretation of the First Amendment was used by the 
Federalists as a legal instrument against the 
Democratic-Republicans. This use of legal instrumentalism can 

8 Hugues, supra note 3 at 95-96. 

7 Steven Quevedo, Formalist and Instrumentalist Legal Reasoning and 
Legal Theory, 73 Ca. Law Rev. 119, 125 (1985).  

6 An Act, supra note 2. 
5 Id. at 565-566. 

 
 

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be illustrated through Federalist attempts to justify the 
subversion of the Constitution, Democratic-Republican 
explanations of the law’s implications, and the individuals who 
would be prosecuted for sedition. 

 
II. Sedition and Freedom of Speech 

Democratic-Republicans slammed the Sedition Act as a 
blatant violation of the First Amendment to the Constitution, 
which states that “Congress shall make no law […] abridging 
the freedom of speech, or of the press.”9 New York 
Representative Edward Livingston declared that the Sedition 
Act was “an abridgement of the liberty of the press, which the 
Constitution has said shall not be abridged,” and that the proper 
constitutional response to defamatory criticism of the 
government is “to disprove the fact” rather than “to prosecute 
the man who makes the charge.”10 In other words, seditious 
content must be met with correction instead of prosecution. 

It was also evident to the Democratic-Republicans even 
before passage that the Sedition Act was an explicit attempt by 
the Federalists to clamp down on Democratic-Republican 
speech and presses. While the law worked its way through 
Congress, Vice President Thomas Jefferson, an unabashed 
Democratic-Republican, stated that “the object of [the Sedition 
Act] is the suppression of the [Democratic-Republican] 
presses.”11 North Carolina Representative Nathaniel Macon 
attacked the bill on the House floor, proclaiming that it would 
“produce more uneasiness, more irritation, than any act which 
ever passed the Legislature of the Union.”12 Several counties in 
northern Virginia, a Democratic-Republican stronghold known 
for its frequent public meetings at which citizens freely 

12 Walter Berns, Freedom of the Press and the Alien and Sedition Laws, 
1970 Sup. Ct. Rev. 109, 121 (1970). 

11 Id. at 18. 

10 Wendell Bird, Criminal Dissent: Prosecutions Under the Alien and 
Sedition Acts of 1798 (2020). 

9 U.S. Const. amend. I.  

 
 

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criticized the federal government, issued official resolutions 
condemning the Sedition Act. Some of these resolutions 
“mimicked the laudatory petitions of the Federalists and sent 
their complaints directly to Adams.”13 

Federalists took different stances on the applicability of 
the First Amendment to the Sedition Act. Many Federalist legal 
scholars asserted that, due to the importance of the journalistic 
integrity of newspapers in the revolutionary effort for 
American independence, government officials were entitled to 
freedom against “slanderous commentary in the press.”14 Some 
Federalist judges argued that the Constitution did not apply to 
wartime legislation and that English common law could be 
used as a precedent for American law without the First 
Amendment. This led some to turn towards the lengthy history 
of English common law statutes prohibiting “seditious libels” 
and “any dangerous or offensive writings” to preserve, in the 
words of Sir William Blackstone, “peace and good order, […] 
government and religion.”15 

Additionally, a common Federalist argument supporting 
the law postulated that defaming the government during a 
period of such fierce hostilities with France was akin to aiding 
the enemy during wartime.16 Meanwhile, Connecticut 
Representative Samuel Dana focused primarily on the 
defamatory nature of seditious speech, arguing that “the liberty 
of uttering malicious falsehood” does not exist in the 
Constitution.17 

These arguments may initially suggest that the impetus 
for the passage of the Sedition Act was grounded in sensible 
governance. However, even some arguments posed by 
supporters of the law challenge this interpretation, as they 

17 Bird, supra note 10 at 46. 

16 Ralph Frasca, “Treasonable Expressions”: James Bell and the Emerging 
Legal Right to Criticize, 86 Pa. Hist. 67, 73 (2019). 

15 Bird, supra note 10 at 42. 
14 Hugues, supra note 3 at 94. 
13 Bradburn, supra note 4 at 569. 

 
 

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demonstrate that the law was an attempt to suppress 
Democratic-Republican newspapers. Connecticut 
Representative John Allen gave the first speech in favor of the 
Sedition Act while it was still in Congress. He referred to the 
Democratic-Republicans as “the Jacobins of our country” who 
sought to use “all the presses in the nation” as a means of 
overthrowing the federal government, urging the Federalists to 
“wrest it away from them.”18 Numerous Federalist supporters 
of the law also referenced President George Washington’s 1793 
statement that partisan newspapers (particularly those 
associated with Democratic-Republicans) were “stuffing their 
papers with scurrility and malignant declamation.”19  

The Gazette of the United States, a prominent Federalist 
newspaper, regularly characterized Democratic-Republican 
newspapers as “nest[s] of traitors” and “set[s] of revolters to 
France,” calling for those running these newspapers to be 
prosecuted to the fullest extent of the law.20 These Federalist 
condemnations of Democratic-Republican newspapers are 
indicative of the Sedition Act’s purpose as a vehicle for the 
suppression of the Democratic-Republican press. 

 
III. Common Law Sedition Prosecutions 

Even more damning against the Federalists, however, 
was the political affiliation of the individuals who were 
charged and prosecuted under the Sedition Act. The accused 
were all associated with Democratic-Republican publications 
or were prominent political dissidents who opposed the Adams 
administration.21 Before the passage of the Sedition Act, 
several Democratic-Republican dissidents had been charged 
with seditious libel under the common law. This followed the 
aforementioned trend of Federalist judges adhering to 
Blackstone’s common law rather than the Constitution during 

21 Bird, supra note 10 at 385. 
20 Id. at 33. 
19 Id. at 18. 
18 Id. at 45. 

 
 

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times of war. The most notable of these common law sedition 
prosecutions was that of Benjamin Franklin Bache, the 
grandson of the eponymous founding father, as well as the 
founder and editor-in-chief of the Philadelphia-based Aurora 
General Advertiser.22  

After its establishment, the Aurora quickly became a 
prominent dissident newspaper. Vice President Jefferson had 
previously stated that Bache’s newspaper had the potential to 
become the primary “[Democratic-]Republican vehicle of news 
established between the seat of government and all it’s [sic] 
parts.”23A relentless advocate of a free press, Bache criticized 
attempts by the Federalist-dominated Congress to “muzzle the 
press” by restricting reports of a physical attack on Vermont 
representative Matthew Lyon, a Democratic-Republican, by 
Connecticut representative Roger Griswold, a Federalist.24 This 
advocacy on Lyon’s behalf made Bache a key target of the 
Federalist crackdown on Democratic-Republican speech.  

One source of Bache’s contempt for President Adams 
came from his continued support of the Jay Treaty, signed in 
1795 by President Washington, which strengthened ties 
between the U.S. and monarchist Great Britain at the expense 
of relations with republican France. Bache slammed President 
Adams in the Aurora for his support of the treaty, rhetorically 
asking: “How has [Adams] protected liberty? By writing in 
favor of monarchy and encouraging the suppression of the right 
of free opinion. How has he patronized religion? By promoting 
war.”25 After the Aurora repudiated Adams, Bache was charged 
at the behest of Secretary of State Timothy Pickering, a devout 
Federalist, with “libeling the President and the Executive 
Government, in a manner tending to excite sedition and 
opposition to the laws, by sundry publication and 

25 Frasca, supra note 16 at 68. 
24 Id. at 71. 
23 Bird, supra note 10 at 58. 
22 Frasca, supra note 16 at 68. 

 
 

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re-publication.”26 Mere days before his case was set to go to 
trial, Bache fell victim to Philadelphia’s yellow fever epidemic; 
he died prematurely, denying Federalist judge John Sloss 
Hobart the ability to try him for speaking out against the 
Federalist government.27 

 
IV. The Lyon Trial 

The first individual to be criminally charged under the 
Sedition Act was Congressman Lyon of Vermont in the 
summer of 1798.28 Lyon, an Irish-born immigrant, had 
previously faced fierce xenophobia from Federalists in 
Congress on account of his ethnic background, culminating in 
the cane attack on Lyon by Congressman Griswold.29 Lyon was 
also the editor-in-chief of The Scourge of Aristocracy, a 
newspaper intended to promote “the [Democratic-]Republican 
interest.”30 This put a target on Lyon’s back, and in July of 
1798, the Federalists found their excuse to charge Lyon with 
seditious libel.  

During this time, Spooner’s Vermont Journal published 
a letter written by Lyon that lambasted President Adams for 
maladministration. This letter was written and sent to the press 
two weeks before the passage of the Sedition Act, so charging 
Lyon with seditious libel would arguably violate the 
constitutional prohibition of ex post facto criminal charges (that 
is, a criminal charge levied against a defendant for actions 
committed prior to the criminalization of said act).31 
Nevertheless, Lyon was indicted under the Sedition Act in 
October of 1798. The indictment accused Lyon of attempting to 
“stir up sedition, and to bring the president and government of 
the United States into contempt,” citing Lyon’s statement that 

31 Id. at 91. 
30 Bird, supra note 10 at 89. 
29 Id. at 580. 
28 Bradburn, supra note 4 at 580. 
27 Hugues, supra note 3 at 97. 
26 Bird, supra note 10 at 67. 

 
 

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condemned the President’s “continual grasp for power, […] 
unbounded thirst for ridiculous pomp, foolish adulation, and 
selfish avarice.”32 

Lyon’s trial exemplified a kangaroo court. 
Federalist-influenced Supreme Court associate justice William 
Paterson presided over the trial, and his conduct was fraught 
with judicial irregularities. Paterson personally disqualified 
jurors whom he believed viewed the Sedition Act as an 
unconstitutional statute, and even instructed the jury to convict 
Lyon on the grounds that the defendant had admitted to writing 
the supposedly seditious letter.33 Paterson’s instructions to the 
jury required them to convict Lyon if it was determined that 
Lyon’s letter portrayed President Adams “ odious or 
contemptible,” prohibiting the jury from assessing the validity 
of Lyon’s criticisms.34 Most glaringly, Paterson specifically 
invalidated Lyon’s defense that the law he was being charged 
under violated the First Amendment. According to Paterson, 
the constitutionality of the Sedition Act had already been 
settled by Congress, and “the guilt consists in the publication” 
and the publication exclusively.35 Therefore, it was no surprise 
when Lyon was found guilty of seditious libel. He was ordered 
to pay a fine and legal costs totaling $1,060.96 (equivalent to 
over $27,000 in 2024) and sentenced to four months in prison, 
with this incarceration to continue until the fine and legal fees 
were paid.36 

In November of 1798, Lyon ran for reelection and 
became the first and only individual to win a congressional 
election while imprisoned.37 Lyon was accordingly designated 
by a Democratic-Republican newspaper from Connecticut as 
“the first martyr to the cause of liberty, under this law [the 

37 Bradburn, supra note 4 at 580. 
36 Id. at 95. 
35 Bird, supra note 10 at 94. 
34 Lyon’s Case, supra note 32. 
33 Hugues, supra note 3 at  98. 
32 Lyon’s Case, 15 F. Cas. 1183, (C.C.D. Vt. 1798). 

 
 

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Sedition Act].”38 Lyon’s reelection was hailed as a victory for 
the Democratic-Republican Party, but it was perhaps even 
more important as a demonstration of backlash against the 
draconian Sedition Act and the dubiously impartial prosecution 
of Lyon. From the blatant hatred faced by Lyon for his Irish 
heritage (coupled with endemic anti-French xenophobia), to the 
ex post facto indictment of Lyon, to Justice Paterson’s 
politically biased charge of the jury without consideration for 
Lyon’s argument of constitutionality, the congressman’s show 
trial was indicative of the Sedition Act’s role as an instrument 
designed to infringe upon the freedoms of speech and the press 
held by Democratic-Republicans. 
 

V. The Final Wave of Sedition Prosecutions 
Following a lengthy hiatus in enforcing the Sedition 

Act, a new wave of prosecutions took place between 1799 and 
1800, this time focusing almost exclusively on 
Democratic-Republican newspaper editors. Due to 
Congressman Lyon’s continued Democratic-Republican 
advocacy as editor of The Scourge of Aristocracy, he would 
once again be charged during this campaign of indictments, 
though the charges against him would never be served, as he 
left Vermont after his retirement from Congress.39 Another 
victim of this return of the Sedition Act was 
Democratic-Republican stalwart Anthony Haswell, the 
editor-in-chief of the Vermont Gazette. Haswell was charged 
with seditious libel in October of 1799, with his indictment 
citing his self-published defense of the previously imprisoned 
Lyon, in which Haswell stated that Lyon was being held “by 
the oppressive hand of usurped power in a loathsome prison, 
deprived almost of the right of reason, and suffering all the 
indignities which can be heaped upon him by a hard-hearted 

39 Id. at 284-285. 
38 Bird, supra note 10 at 97. 

 
 

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savage.”40 In essence, Haswell described Lyon as a political 
prisoner of a tyrannical Federalist regime. 

In the same publication, Haswell castigated President 
Adams for supporting the pro-British Jay Treaty, claiming that 
“the administration publicly notified that Tories, men who had 
fought against our independence, who had shared in the 
desolation of our homes, and the abuse of our wives and 
daughters, were men who were worthy of the confidence of the 
government.”41 The demonstrably prejudiced Justice Paterson 
presided over Haswell’s trial, refusing to accommodate the 
time necessary for the defendant to call witnesses and even 
referring to him as “a seditious libeller of your government, a 
convict justly suffering the penalty of a mild law” in the 
presence of the jury.42 Needless to say, Haswell was found 
guilty and sentenced to two months in prison and a $200 fine 
(equivalent to over $5,000 in 2024). 

 Despite the relatively short length of the sentence, it 
still took its toll on Haswell; two months of inactivity left the 
Vermont Gazette bankrupt, and nine months after his release 
from prison, Haswell stated, “I have been reduced to distress, 
and almost to penury.”43 This was far from an accident. The 
prosecution of a Democratic-Republican newspaper editor for 
criticizing a government agent’s treatment of an imprisoned 
congressperson, especially before a judge as politically skewed 
as Paterson, likely had a specific intended impact: the 
elimination of that individual as a threat to the Federalist 
administration in power. 

The Federalist strategy of targeting outspoken 
Democratic-Republican figures continued with the prosecution 
of Democratic-Republican lawyer Thomas Cooper in 
Pennsylvania. Cooper had previously fled England due to 

43 Id. at 281. 
42 Bird, supra note 10 at 280. 
41 Id. 
40 United States v. Haswell, 26 F. Cas. 218 (C.C.D. Vt. 1800). 

 
 

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unresolved sedition charges.44 Cooper’s experience with 
newspaper editing started and ended with a two-month-long 
stint as an editor for the Sunbury and Northumberland 
Gazette.45 Still, this was more than enough time for Cooper to 
find himself in hot water with the Federalists. In a leaflet 
distributed in Northumberland County, Pennsylvania in 
November of 1799, Cooper lamented how the Adams 
administration had left the US “saddled with the expense of a 
permanent navy” and “threatened [...] with the existence of a 
standing army,” and commented that the nation’s credit was 
“reduced so low as to borrow money at eight percent in time of 
peace, while the unnecessary violence of official expressions 
might justly have provoked a war.”46 Arguably the most 
innocuous statement to result in a criminal charge under the 
Sedition Act, Cooper’s criticism of President Adams was 
nevertheless deemed libelous enough to have the lawyer 
indicted. In a trial heard by Supreme Court Associate Justice 
and staunch Federalist Samuel Chase, Cooper was forbidden 
from having the appropriate witnesses for his argument 
subpoenaed, leaving him unable to call any witnesses in his 
defense.47 Additionally, Chase told the jury that the 
criminalization of supposedly seditious press “is necessary to 
the peace and welfare of this country,” ordering the jurors to 
render a guilty verdict if Cooper had published the pamphlet 
and did so with the intent to defame (both of which Cooper had 
admitted to).48 Cooper was convicted of seditious libel, 
receiving an unusually harsh sentence of six months in prison 
and a $400 fine (equivalent to over $10,000 in 2024). This 
egregious punishment, along with the fierce repudiation of 
jurors who did not follow his strict procedural guidelines, was 

48 Id. at 298-299. 
47 Bird, supra note 10 at 296. 
46 United States v. Cooper, 25 F. Cas. 631 (C.C.D. Pa. 1800). 
45 Id. at 293. 
44 Id. at 291-292. 

 
 

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one of many demonstrations of Justice Chase’s explicit 
Federalist bias–a staple of Sedition Act prosecutions.49 

The penultimate indictment under the Sedition Act was 
that of James T. Callender, a prominent 
Democratic-Republican writer and contributor to the Richmond 
Examiner. In early 1800, Callender published The Prospect 
Before Us, a book in which he wrote that the “reign of Mr. 
Adams has been one continued tempest of malignant passions,” 
describing the “grand object” of the Adams administration as 
“to exasperate the rage of contending parties” and “to 
calumniate and destroy every man who differs from his 
opinions.”50 Callender had previously drawn criticism from 
Federalist publications for referring to President Adams as a 
“hoary headed incendiary” and former President Washington as 
a “venal poltroon” (a combination of archaic terms describing a 
coward who is susceptible to corruption and bribery).51 
Consequently, Callender was indicted on seditious libel 
charges, and once again, presiding Justice Chase issued a 
warrant for the writer’s arrest.52  

As in previous trials heard by Chase, the defendant was 
railroaded. Utilizing common law libel standards, Chase 
charged that Callender could only be acquitted if he proved his 
condemnation of Adams as an aristocrat and an actor for 
British interests to be factual. In the judge’s words, “You must 
prove both these points, or you prove nothing.”53 When 
Callender’s attorney attempted to argue that the Sedition Act 
infringed upon the defendant’s First Amendment rights, Chase 
reportedly said that “it is not competent to the jury to decide on 
this point.”54 Yet again, a guilty verdict for seditious libel was 
produced; Callender received a nine-month prison sentence and 

54 Bird, supra note 10 at 308. 
53 United States v. Callender, supra note 50.  
52 Bird, supra note 10 at 306. 
51 Berns, supra note 12 at 121. 
50 United States v. Callender, 25 F. Cas. 239 (C.C.D. Va. 1800). 
49 United States v. Cooper, supra note 46. 

 
 

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a $200 fine. Following the Democratic-Republican takeover of 
Congress, Chase would be unsuccessfully impeached in 1804 
for showing bias during jury selection and courtroom 
procedure, even after his repeated instances of prejudiced 
conduct in seditious libel cases.55 

 

VI. Conclusion 
In total, thirty-nine individuals, all 

Democratic-Republicans, were criminally indicted for violating 
the Sedition Act between 1798 and 1800.56 These defendants 
included newspaper editors, members of Congress, and other 
prominent Democratic-Republican figures. Virtually all of 
these cases shared common features. The vast majority were 
presided over by Federalist-appointed judges, often with 
political biases too severe to overlook. Most of these judges 
rejected any arguments questioning the constitutionality of the 
law itself. Many were also arguably tainted by xenophobic 
sentiments, be they against the Irish, the French, or other 
groups. It is difficult to ignore the evidence that the Sedition 
Act was a legal instrument of the Federalists, with the specific 
goal of using either a misinterpretation or an outright rejection 
of the First Amendment to disenfranchise their political 
opponents. 

Yet, the repugnance of the Sedition Act still succeeded 
as an exercise of what happens when the unalienable is 
alienated; that is, when an erroneous interpretation of 
constitutional rights is weaponized by a political faction as a 
legal tool. Following the historic Democratic-Republican 
victory in the 1800 presidential and congressional elections, the 
federal government allowed the Sedition Act to expire.57 This 
raises the question: did the Democratic-Republican revolution 
in Congress usher in the demise of the Sedition Act? Or 
alternatively, did Democratic-Republican commitment to the 

57 Id. at 368. 
56 Id. at 385. 
55 Id. at 308-312. 

 
 

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First Amendment in the face of Federalist revisionism cause 
the meteoric rise of the former’s party? If the latter answer is 
the case, then surely a similar fall from political power would 
occur among any group that were to create a similar restriction 
of freedom of speech and press today. 

 
 

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A Debate Decided: Civil Liberties for Guantanamo Bay 
Detainees 

Lanie Hymowitz1 
As of January 2025, the infamous detention camp at the 
Guantanamo Bay Naval Base remains open and operational. 
This article provides a historical overview of how “Gitmo” and 
its unique jurisdictional standing came to be. Particular 
attention is paid to statutory and judicial developments 
following the 9/11 attacks during George W. Bush’s presidency 
and the launching of the Administration’s War on Terror. These 
measures sanctioned the detention of individuals at 
Guantanamo Bay, with few opportunities to pursue legal 
recourse for the potentially extralegal circumstances of their 
imprisonment. 
 
Introduction 
The legal tug-of-war between ensuring national security and 
the free exercise of civil liberties in the United States is as old 
as American jurisprudence itself. This debate reached a degree 
of unparalleled vigor in light of the September 11th attacks, 
when the promise of domestic safety seemed especially 
uncertain. In response to this uncertainty and fear, a military 
prison in Guantanamo Bay, Cuba, opened for the purpose of 
detaining suspected terrorists. The prison would ultimately 
cause the three branches of the federal government to confront 
the quintessential American debate over national security and 
civil liberties time and again throughout the 2000s. 

The Guantanamo Bay detention camp was, and 
remains, an embodiment of the forceful stance the United 
States government takes to combat perceived international 
threats in the prolonged “War on Terror.”2 It is the very 

2 The “Global War on Terrorism” is an international military campaign by 
the United States against militant Islamist groups, primarily from 2001 to 
2021, with the U.S. withdrawal from Afghanistan. This article will focus on 

1 Brandeis University, Class of 2026. 

 
 

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foundations of the Guantanamo Bay Naval Base and 
subsequent military prison that engorge the executive branch 
with expansive powers over national security. The 1934 
Cuban-American Relations Treaty and the Authorization for 
Use of Military Force Resolution blur the lines of both 
Guantanamo’s sovereignty and the limitations on executive 
power respectively. The Supreme Court heard multiple cases 
concerning detainee rights during the administration of 
President George W. Bush. Though the Supreme Court 
generally ruled in favor of protected legal rights for 
Guantanamo detainees, the response from Congress tended to 
assert vigorous security measures, even if such actions 
countered the views of the Supreme Court. The disagreements 
between the executive and legislative branch against the 
judicial branch represents limited effectual justice for 
Guantanamo detainees. Post-9/11 America’s proclivity for 
fervent executive action devalued the civil liberties of 
detainees, which I argue allowed for abuses of justice. 

 
Cuba-United States Relations in the Early 20th Century 

The origins of Guantanamo Bay precede 9/11, dating 
back to the era of early American imperialism. Following the 
Spanish-American War in 1898, Cuba was subject to American 
military occupation. Under these colonial pressures, the Cuban 
government incorporated the Platt Amendment into the Cuban 
constitution in 1901.3 The Platt Amendment functioned as an 
exchange between the United States and Cuba, with the United 
States affording Cuba a greater degree of sovereignty in 
exchange for provisions that would permit continued American 
presence. Section VII of Platt mandated that the Cuban 
government “sell or lease to the United States lands necessary 
for coaling or naval stations…to be agreed upon with the 

3 Jana K. Lipman, Guantanamo: A Working-Class History Between Empire 
& Revolution, 23 (2008). 

the War on Terror as it unfolded during the presidency of George W. Bush 
(2001-2009). 

 
 

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President of the United States,” giving the United States 
President oversight over a portion of Cuban territory, to be 
used at their discretion.4 This stipulation was fortified by a 
1903 treaty, which was accompanied by a lease agreement 
between the two countries. Article III of the 1903 lease states 
that the, “United States recognizes the continuance of the 
ultimate sovereignty of the Republic of Cuba,” yet, “the United 
States shall exercise complete jurisdiction and control” over the 
naval base.5 The idea of what “ultimate sovereignty” means for 
Cuba is unclear, as it seems to stand in direct contradiction to 
the United States exerting complete control over the same 
portion of land. The “legal invention” of ultimate sovereignty 
illustrates that actual Cuban authority over Guantanamo Bay 
was weak in comparison to the robust power of the United 
States in the region.6 Effectively, Platt and the 1903 agreements 
fundamentally entangled the two states thenceforth. 

The Platt Amendment was repealed by President 
Franklin Delano Roosevelt in 1934 as part of Roosevelt’s 
“Good Neighbor” international policies, framed as a departure 
from colonialism in Latin America.7 Platt, as well as the 1903 
treaty, were replaced with the Cuban-American Treaty of 
Relations in 1934. While other provisions of Platt were 
nullified, the new treaty fortified the guarantee of a naval base 
through a lease agreement which remains the governing 
language regarding the status of Guantanamo Bay.8 The treaty 
prohibited Cuba from interfering with the base, stating “[s]o 
long as the United States of America shall not abandon the said 
naval station of Guantanamo…the station shall continue to 
have the territorial area that it now has.”9 In effect, the treaty 

9 Cuban-American Treaty of Relations, 48 Stat. 1682 (1934) § III. 
8 Id.  

7 President Franklin D. Roosevelt, First Inaugural Address (Mar. 4, 1933), 
transcript available at The Avalon Project. 

6 Lipman, supra note 3 at 24. 

5 Agreement Between the United States and Cuba for the Lease of Lands for 
Coaling and Naval stations (1903) § III. 

4 Platt Amendment, 31 Stat. 895 (1901) § VII; Lipman, supra note 3 at 23. 

 
 

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gave the United States military the power to continue its 
activities in Guantanamo Bay, irrespective of the desires of the 
Cuban government. While the United States ostensibly 
recognized Cuba had “ultimate sovereignty” over Guantanamo 
Bay, it was evident that the United States could freely use the 
base for its own purposes. 

The Cuban-American Treaty of 1934 carved out a legal 
loophole for American presidents and the military. Despite the 
letter of the law holding that Cuba was leasing the land to the 
United States, America effectively owned Guantanamo Bay.10 
As such, the United States could reasonably deny having 
sovereignty over the area while simultaneously carrying out 
any government operations deemed necessary. The lack of a 
formal “check” on American actions in the Guantanamo Bay 
Naval Base would thus ensnare the territory in what legal 
scholars have dubbed a “legal black hole.”11 
 
Cuba-United States Relations in the Early 20th Century 

The legal foundation for using the base as a detention 
camp began with the Authorization of Use of Military Force of 
2001 (AUMF), a joint resolution passed by Congress within a 
week of the September 11th attacks.12 The resolution conferred 
upon the President the authority to “use all necessary and 
appropriate force against those nations, organizations, or 
persons he determines planned, authorized, committed, or 
aided the terrorist attacks that occurred on September 11, 
2001” to ensure national security to the utmost degree.13 The 
broad language of the resolution, which vaguely defined 
“force,” gave President George W. Bush and subsequent 
presidents an immeasurable arsenal of powers to thwart 
suspected terrorist threats. 

13 Authorization for Use of Military Force, 115 Stat. 224 (2001) § II. 

12 Michael C. Dorf, The Detention and Trial of Enemy Combatants: A 
Drama in Three Branches, 122 Pol. Sci. Q. 47 (2007). 

11 Amy Kaplan, Where Is Guantánamo?, 57 Am. Q. 831, 831–58 (2005). 
10 Lipman, supra note 3 at 28.  

 
 

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The AUMF and the Cuban-American Treaty of 
Relations of 1934 work in synchrony to diminish the boundary 
between the free exercise of civil liberties and the exertion of 
government authority. Acting as the launching pad for 
authoritative government action to fight the War on Terror, the 
AUMF, is amplified by the 1934 Treaty. As discussed earlier, 
the sovereignty of Guantanamo Bay outlined in the 1934 
Treaty allowed the United States to deny legal responsibility 
through a supposed lack of jurisdiction over the naval base. 
This prospect was made all the more perilous by an executive 
endowed with nearly unchecked wartime powers by the 
AUMF.14 

The robustness of executive power during the “War on 
Terror” was further exacerbated by President Bush’s military 
order, “Detention, Treatment and Trial of Certain Non-Citizens 
in the War Against Terrorism,” issued in November of 2001.15 
President Bush declared that if “there is reason to believe” a 
captured individual has acted with or aided a terrorist cause, 
the individual would be detained in a location selected by the 
Secretary of Defense and tried by a military commission.16 The 
order neglects to require a thorough review before an 
individual is detained, as grounds for detention can be based 
upon mere suspicion. Moreover, the order begins by stating 
that the authority to make such an order is found in “the 
Constitution and…the Authorization for Use of Military Force 
Joint Resolution.”17 This military order extended the AUMF to 
apply to operations in Guantanamo Bay, as “necessary force” 
meant that government authorities (in their view) did not need 
to provide a solid rationale for an individual’s detention in the 

17 Id. 

16 Detention, Treatment, and Trial of Certain Non-Citizens in the War 
Against Terrorism, 66 Fed. Reg. 57,833 (Nov. 13, 2001). 

15A military order, similar to an executive order, is a directive by the 
President of the United States that dictates actions of armed forces 
personnel. 

14 Lisa Hajjar, Guantánamo’s Legacy, 19 Ann. Rev. L. & Soc. Sci. 58 
(2023). 

 
 

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prison. Thus, the government created an avenue to sweepingly 
deny the Fifth Amendment right of due process to detainees. 

The first prisoners detained at Guantanamo Bay arrived 
at the base in January 2002. These prisoners were described by 
General Michael R. Lenhert, the first commandant of the 
prison, as the “worst of the worst,” perhaps to justify the 
treatment that was to follow.18 The Bush administration aimed 
to treat Guantanamo Bay as a “battle lab”; information would 
be extracted from these detainees that would inform the 
American government’s strategy in the War on Terror.19 
Potential obstacles to the process of extracting information 
from prisoners–—such as prohibitions on torture–—were 
rebuffed by President Bush in a confidential memo the 
following February. The memorandum, titled “Humane 
Treatment of Taliban and al-Qaeda Detainees,” stated that, 
“none of the provisions of [The Geneva Conventions] apply to 
our conflict with al-Qaeda.”20 The Bush administration’s 
rationale was that the Geneva Conventions of 1949 applied to 
“high contracting parties,” or countries that agreed to Geneva 
protocols. Press Secretary Ari Fleischer claimed that as an 
international organization that is not recognized as a governing 
authority, al-Qaeda members, “are not covered by the Geneva 
Convention, and are not entitled to POW [Prisoner of War] 
status.”21 Per the Third Geneva Convention, POW status 
affords an individual the right to be “treated humanely in all 
circumstances.”22 By this reasoning, even if a person’s 

22 Protected Persons: Prisoners of War and Detainees, Int’l Comm. of the 
Red Cross, 

21 Statement by the Press Secretary on the Geneva Convention (Feb. 7, 
2003) (statement of Ari Fleischer). 

20 Memorandum from President George W. Bush to the Vice Pres., Sec. of 
State and Def., Att’y Gen., Chief of Staff to the Pres., Dir. of Central 
Intelligence, Ass’t to the Pres. for Nat. Sec. Aff’s, and Chair of the Joint 
Chefs of Staff, regarding the Humane Treatment of Taliban and al-Qaeda 
Detainees, § 2(a) (Feb. 7, 2002). 

19 Id.  
18 Hajjar, supra note 14 at 58. 

 
 

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detention in Guantanamo Bay proves gravely unjust, and 
therefore inhumane, a detainee was not protected by Geneva 
and had little standing to challenge their detention. This 
assertion functions as a way for Guantanamo Bay detainees to 
have as little legal protection as possible.  
 
The Fight for Due Process for Guantanamo Bay Detainees 

The central infractions of this newly applied “law of 
war” concerned the right of detainees to question their 
detention, and to assert their rights of due process, rights that 
could feasibly be overridden based on the Cuban-American 
Treaty and the AUMF. Changes regarding the legal process of 
Guantanamo Bay would be primarily derived from a 
back-and-forth between the Supreme Court and Congress. The 
first challenges to Guantanamo would come before the 
Supreme Court in 2004 from Hamdi v. Rumsfeld and Rasul v. 
Bush, concerning the plaintiffs’ right to habeas corpus, the 
right to challenge their imprisonment.23 

Yaser Hamdi, the plaintiff in Hamdi v. Rumsfeld, was an 
American citizen captured in Afghanistan in 2001. Due to his 
citizenship, Hamdi had the explicit right to question his 
detention under the Fifth Amendment and thus, the question 
squarely before the Supreme Court was whether his detention 
violated his right to due process. The plurality decision 
authored by Associate Justice Sandra Day O’Connor would 
hold that despite his status as an “enemy combatant,” the Fifth 
Amendment gave Hamdi the right to be heard by a neutral 
decision-maker.24 The provisions of the AUMF, and the 
subsequent military order that authorized the detention camp, 
had been the legal basis to deny procedural due process for 
detainees. Although the plurality disagreed with this reasoning, 

24 Hamdi v. Rumsfeld, 542 U.S. 507 (2004).  

23 Jonathan Hafetz, Habeas Corpus after 9/11: Confronting America’s New 
Global Detention System, 4 (2011). 

https://www.icrc.org/en/law-and-policy/protected-persons-prisoners-war-an
d-detainees.  

 
 

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the opinion did not challenge the legality of the AUMF; 
instead, it prescribed additional actions to be taken, with the 
AUMF’s framework remaining in place. 

Associate Justice David Souter, however, challenged 
the ethics of the AUMF in a concurring opinion. Souter 
claimed that “the World War II internment was thus ordered 
under the same Presidential power invoked here and the intent 
to bar a repetition goes to the action taken and authority 
claimed here.”25 In making the damning comparison of the 
powers of the AUMF to the military orders that called for the 
internment of Japanese-Americans during World War II, Souter 
shed light on the profound scope of presidential power under 
the resolution. So long as the AUMF remains in place, as the 
plurality opinion asserted, egregious deprivations of civil 
liberties, akin to those that occurred during Japanese 
internment, are enabled at Guantanamo Bay.  

While Hamdi concerned constitutional interpretation, in 
Rasul v. Bush, Guantanamo’s complex sovereignty and 
governing documents also played a key role. The case’s 
numerous plaintiffs held citizenship from England, Australia, 
and Kuwait, and filed federal suits stating that they were not 
granted a hearing or access to counsel before their detainment. 
The District Court for the District of Columbia, and the 
appellate court, held that the plaintiffs were effectively filing 
writs of habeas corpus.26 The District Court drew upon the 
1950 case Johnson v. Eisentrager for its reasoning, a case that 
concerned German war criminals held in an American-operated 
prison in Germany. The majority in Eisentrager held that, 
“nonresident enemy aliens, captured and imprisoned abroad, 
have no right to a writ of habeas corpus in a court of the United 
States.”27 Thus, the District Court’s ruling was based on the 
assumption that Guantanamo Bay is “abroad” relative to the 

27 Johnson v. Eisentrager, 339 U.S. 763 (1950). 
26 Rasul v. Bush, 542 U.S. 466 (2004). 

25 Id., at 600 (Souter, J., concurring in part, dissenting in part, and 
concurring in judgment). 

 
 

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United States, and therefore non-American citizens detained at 
Guantanamo Bay did not have a right to habeas corpus.  

As opposed to Eisentrager, the Supreme Court’s 
majority opinion in Rasul relied on Braden v. 30th Judicial 
Circuit Court of Kentucky (1973). This case extended writs of 
habeas corpus to individuals, should their legal custodian be 
under the jurisdiction of the United States.28 The majority 
reasoned that because the Department of Defense was under 
United States jurisdiction, claims made by foreign nationals on 
their detention could be heard, though the Court held that Cuba 
still retained “ultimate sovereignty” over Guantanamo.29 While 
the majority simply looked at laws in place surrounding 
Guantanamo’s sovereignty, Justice Antonin Scalia’s dissent 
demonstrated how ideas of sovereignty put forth in the 
Cuban-American Treaty of 1934 remained up for 
interpretation.  

Justice Scalia was a proponent of originalism, a legal 
philosophy concerned with understanding the original intention 
and text of law. Scalia concluded that the 1934 treaty did not 
“render Guantanamo Bay the sovereign territory of the United 
States” and that Guantanamo had “never before been thought 
to be within [American] jurisdiction.”30 Despite the United 
States exercising significant control over the territory in the 
2000s, on the basis of the Cuban-American Treaty, Scalia 
adamantly denied American jurisdiction over Cuba. Scalia 
seemed to recognize the “legal black hole” the treaty created, 
suggesting the United States could avoid this predicament by 
creating a separate district court for Guantanamo Bay, as was 
done with the Panama Canal Zone.31 The government’s 
avoidance of confronting the treaty’s loophole indicates that the 
treaty was perceived as a tool for enabling more aggressive 

31 Id.  
30 Id., at 502 (Scalia, J., dissenting).  
29 Rasul v. Bush, supra note 26. 
28 Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484 (1973). 

 
 

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security measures by denying jurisdiction, and thus detainee 
rights. 

Scalia’s reasoning would lend legal credence for 
Congress to pass the Detainee Treatment Act in 2005.32 The 
original text of the Detainee Treatment Act (DTA) stated that 
except in certain circumstances (left undefined), “no court, 
justice, or judge shall have jurisdiction to hear or consider…an 
application for a writ of habeas corpus filed by or on behalf of 
an alien detained by the Department of Defense at Guantanamo 
Bay.”33 The DTA appeared to circumvent the Rasul ruling, 
reflecting on the question of jurisdiction for Guantanamo Bay, 
which in part relied on the interpretation of the 
Cuban-American Treaty. As the passage of the AUMF 
illuminated, increasing executive authority was viewed as a 
reliable countermeasure against terror in the 2000s. The DTA’s 
passage illustrates how ambiguity over Guantanamo’s 
sovereignty was leveraged to deny habeas corpus and 
strengthen executive power, even amid calls for individual 
rights, as seen in Rasul. 

 
Congressional and Judicial Disagreements over 
Guantanamo Continue 

The Supreme Court would hear two more high-profile 
cases, Hamdan v. Rumsfeld (2006) and Boumediene v. Bush 
(2008), both concerning the right to question one’s detention 
status at Guantanamo Bay. Both cases further exemplified the 
battle between the Supreme Court and the executive and 
legislative branches, first demonstrated by Rasul and the 
subsequent passage of the DTA. A pattern emerged wherein 
Congress would pass a law regarding the legal processes of 
Guantanamo Bay, the President would support and sign the bill 
into law, and the Supreme Court would partially reject the law. 

33 Detainee Treatment Act, Pub. L. No. 109–148, §§ 1001–1006, 119 Stat. 
2680, 2739–44 (2005) (codified in scattered sections of 10, 28, & 42 
U.S.C.). 

32 Hajjar, supra note 14 at 60. 

 
 

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This would then cause Congress to respond with a different 
bill, thereby perpetuating a cycle in the name of national 
security. 
         In Hamdan, the Supreme Court reviewed the Detainee 
Treatment Act and addressed the military commissions being 
used to try suspected terrorists.34 These commissions were first 
discussed in President Bush’s military order in November of 
2001 before being more concretely defined by Military 
Commission Order No. 1 in March of 2002.35 These 
commissions differed from ordinary courts of law in the United 
States, as they permitted hearsay testimony and evidence 
obtained through coercion; all in the effort to gather higher 
volumes of evidence.36 Salim Ahmed Hamdan’s legal team 
argued that his military commission violated both the Uniform 
Code of Military Justice, an American code, and the Geneva 
Conventions.37 

Hamdan split the court, with Justice Stevens’ majority 
opinion joined only by the liberal wing of the court, and only in 
part. The majority rejected the government’s argument that 
Guantanamo Bay existed outside of the scope of Geneva, 
preventing further legal insulation of the territory. Crucially, 
the majority also held that “neither the AUMF nor the DTA can 
be read to provide specific, overriding authorization for the 
commission convened to try Hamdan.”38 In doing so, the 
majority defined a clear limit on the AUMF, something that 
had not been done in their earlier decisions. While this limit 
applies to the trials of detainees, it did not include a limitation 
on the circumstances or grounds of a detainee’s detention. In 
this area, the AUMF continued to provide room for 
exploitation. Additionally, Stevens’ opinion stated that the 

38 Id.  
37 Hamdan v. Rumsfeld, supra note 34. 
36 Id.  

35 Ida L. Bostian, One Step Forward, Two Steps Back: Hamdan v. Rumsfeld 
and the Military Commissions Act of 2006, 5 Santa Clara J. Int’l L. 219 
(2006).  

34 Hamdan v. Rumsfeld, 548 U.S. 557 (2006). 

 
 

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AUMF “acknowledge[s] a general Presidential authority to 
convene military commissions,” acknowledging an inherent 
legitimacy to military commissions and leaving open the 
possibility for an altered form of these commissions to 
continue.39 

With the publication of the Hamdan decision, a familiar 
pattern reemerged; Congress passed the Military Commissions 
Act of 2006 (MCA) as a circumvention of the Supreme Court’s 
stance.40 The MCA both forbid any detainees subject to a 
military commission from “[invoking] the Geneva Conventions 
as a source of rights” and precluded legal actors in the United 
States from asserting jurisdiction “to hear or consider an 
application for a writ of habeas corpus filed by or on behalf of 
an alien detained by the United States.”41 

The MCA would be challenged in Boumediene v. Bush, 
the last notable Guantanamo case adjudicated under the Bush 
administration. Boumediene had multiple “moving parts”; the 
constitutionality of the MCA, as well as continued 
considerations of the application of the Fifth Amendment and 
the Geneva Conventions in military commissions.42 Despite its 
many legal complexities, Boumediene would ultimately boil 
down to a simple conclusion: the majority held that Section 7 
of the MCA, which denied a court’s ability to hear a writ of 
habeas corpus, was an unconstitutional suspension. The 
majority unequivocally held that “Petitioners have the 
constitutional privilege of habeas corpus.”43 Boumediene 
addressed the two-pronged issue of sovereignty and criminal 
rights by upholding the right of habeas corpus in the face of 
encroachment by the executive branch, even while 

43 Id. 
42 Boumediene v. Bush, 553 U.S. 723 (2008). 

41 U.S. Congress, House, Military Commissions Act of 2006, H.R. 6166, 
109th Cong. (2006). 

40 Lisa Hajjar, The Counterterrorism War Paradigm versus International 
Humanitarian Law: The Legal Contradictions and Global Consequences of 
the US ‘War on Terror’, 44 Law & Soc. Inquiry 935 (2019). 

39 Id.  

 
 

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acknowledging that Guantanamo is “outside sovereign U.S. 
territory.”44 Despite the Boumediene holding, habeas corpus 
cases continued to face challenges. Under the Obama 
administration, “the DC Circuit Court overturned every 
[detainee] victory and instructed lower-court judges to accept 
the reliability and accuracy of government evidence.”45 The 
“debate” over national security measures was firmly decided, 
as it had been for years. From the passage of the AUMF to the 
persistent obstacles against habeas corpus cases, the United 
States government views Guantanamo Bay prisoners as a mere 
tool for asserting executive and military power, rather than 
human beings entitled to basic legal rights. 
 
Concluding Thoughts 

The continued denial of detainee rights lies in the 
structural integrity of Guantanamo. The AUMF carved out 
broad warmaking powers to fight the War on Terror, which the 
executive and legislative branch was unwilling to relinquish. 
The story of Guantanamo Bay is not necessarily unique, but an 
example of how the branches of government may interplay in a 
battle between civil liberties and national security. The 
September 11 attacks prompted the legislative and executive 
branches to create and execute measures to bolster national 
security, such as the AUMF and the military orders authorizing 
Guantanamo’s creation. The Supreme Court then “checked” the 
power of these branches and the powers they exercised, first 
through Hamdi and up to Boumediene. There is a clear 
separation of powers in the reactionary nature of Congress to 
the decisions of the Supreme Court, but I argue that the 
tug-of-war surrounding Guantanamo Bay resulted in power 
that was divided unequally among the branches. The rulings of 
Hamdi, Rasul, Hamdan, and Boumediene all supported a 
bolstering of detainee rights to a certain extent, but in each 
instance, Congress was able to usurp, at least in part, these 

45 Hajjar, supra note 14 at 65.  
44 Id.  

 
 

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decisions. The firm commitment to the interest of national 
security left detainees without justice. 

  The lesson to be learned from the early years of 
Guantanamo Bay is that the mechanisms that enable injustice 
may not be discernible from a surface level viewing. The lack 
of civil rights for detainees was not just a matter of the 
presidential administration, as habeas petitions were 
consistently denied under a Democratic president. The 
problems that must be addressed is that the framework of 
Guantanamo itself must be reexamined in today’s context, but 
perhaps even more significant, is the imbalance of power that 
exists particularly with an engorged executive branch. 

 
 

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	CONTENTS 
	 
	 
	 
	Letter from the Editor-in-Chief  
	The Canary in the West Virginia Coal Mine: How the Major Questions Doctrine Led to the Demise Of Chevron 
	I.​ Roadmap 
	II.​ Chevron as Law 
	III.​ The Fall of Chevron 
	 
	III.A The Canary’s First Warning 
	 
	III.B The Canary’s Coughing Fit 
	 
	III.C The Canary’s Last Gasps 
	III.C.1 Federalist Values 
	III.C.2 Nondelegation Values 

	IV.​ The End of Chevron 
	​IV.A The Canary’s Death 
	 
	IV.B The (A)Textual Justification 
	 
	IV.C The Political Instruction 
	 
	IV.D The Canary Dies 

	V.​ Conclusion 

	Second to One: Walking in the Shoes of a Giant 
	The Time 
	 
	The Man 
	The Government 
	The Statesman 
	The Legacy 

	State Responsibility for State Sponsors of Terror 
	Roadmap 
	 
	Background 
	State Responsibility 
	The Mens Rea Element 
	The Actus Reus Element 
	Conclusion 


