In recent months, there has been interest in states forming compacts with each other to opt out of ObamaCare or other federal programs. The idea is that because such compacts have the effect of federal law, they will supersede earlier federal laws (such as ObamaCare).
The strategy is apparently being driven by one or more enthusiastic financiers. But I’d like to offer a few words of caution—not just as a constitutional/legal scholar but also as a former businessman and successful political activist.
Although the compact strategy is not a complete waste of time (see below), ultimately I think it is less cost-effective than other state “push-back” methods, such as local health care freedom laws, coordinated legal challenges, and (especially) applying for an Article V amendments convention.
Why so? Well, let’s begin with the Constitution—Article I, Section 10:
“No State shall, without the Consent of Congress . . . enter into any Agreement or Compact with another State. . . . ”
As this section says directly, the states can negotiate all they want, but nothing is effective unless Congress approves. Now what do you think the chances are of Congress approving states opting out of Congress’s own laws?
True, in some cases the states can reach agreement under a federal statute that gives pre-approval to state criminal law compacts. But there is no assurance the courts will approve using a criminal law statute as a device for opting-out of federal law in areas like health care or education.
It gets worse: Even if those hurdles are overcome, any future Congress may override the compact any time it wishes, for any reason or no reason.
It seems pretty obvious to me that the best ways of challenging Congress are ways that do not require the approval of Congress. State Health Care Freedom Acts require no such approval. Neither do state lawsuits. Neither does an amendments convention, because when two thirds of states have applied for one, Congress is required to call it.
There’s more: As anyone can tell you who has been involved in negotiating interstate compacts, they are notoriously time-consuming and difficult to work out—and as the number of states increases, the difficulties become exponentially greater. True, if the authorizing legislation in each state is precisely the same, this can speed the negotiations—assuming no unforeseen differences, which of course is a very optimistic assumption.
If everything goes perfectly, the interstate compact strategy may have some benefit, so I would not fault anyone committed to the process who decides to remain committed. Personally, though, I’d prefer to put my time and effort into strategies that involve less effort and more assurance of success.
In private life, Rob Natelson is a long-time conservative/free market activist, but professionally he is a constitutional scholar whose meticulous studies of the Constitution’s original meaning have been repeatedly cited in U.S. Supreme Court opinions and published or cited by many top law journals (See: www.constitution.i2i.org/about/) He co-authored The Origins of the Necessary and Proper Clause (Cambridge University Press) and The Original Constitution (Tenth Amendment Center). He was a law professor for 25 years and taught constitutional law and related courses. He is the Senior Fellow in Constitutional Jurisprudence at Colorado’s Independence Institute.