On last night’s episode of Tenther Radio, Health Care Compacts were the primary discussion. (listen to the show here). There was a constitutional issue that was a sticking point – how do Interstate Compacts become valid?

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…”

Our guest, Ralph Weber, was pointing out that efforts to use a Health Care Compact to stop Obamacare were a bad choice because Congress and the President would have to approve. Later in the show, I made the point that only congress would have to consent and the President was not needed to approve a state compact.

A listener commented during the show, and Ralph also emailed something similar, backing up the first view:

“Article 1 section 7 clause 3 says Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitation prescribed in the Case of a Bill.”

The view? That “article 1, section 7 clauses 2 and 3 are VERY clear, the president must sign.”

I checked with Rob Natelson after the show. Rob’s one of the nation’s leading constitutional scholars. His meticulous studies of the Constitution’s original meaning have been published or cited by many top law journals. And, he’s the author of the book, “The Original Constitution.” Here’s what he had to say about this question:

I don’t think there is a Supreme Court case on the issue, but I think most who have opined on the subject believe that Presidential consent is not necessary.

Despite the wording of the ORV Clause, it has long been recognized that “Congress” in the Constitution may refer in some cases to that body acting without the President (e.g., in the amendment process), just as state “legislature” may refer to action without the governor (e.g., in the amendment process and, historically, in the election of U.S. Senators).

One argument in favor of this position is that congressional approval is really in the nature of a check on the states rather than in the nature of legislation, much as the Senate checks the President in reviewing treaties or the state legislature checks Congress under the Enclave Clause of I-8-17. A mere check would not seem to require presidential approval.

The argument on the other side, though, is that a compact has legislative consequences, and that with congressional approval it becomes the equivalent of federal law (a consequence I don’t think the Founders had in mind). If that is so, the argument goes, the President’s approval should be necessary, just as it is necessary for congressional action under I-4 (election law) or III-2-2 (exceptions to appellate jurisdiction).

My guess is that the courts would follow historical practice here, and not require presidential approval. The Founders themselves recognized subsequent usage as a justifiable interpretative technique for resolving issues otherwise unclear.

So there you have it. Both sides are right. But if I were out with just friends instead of discussing something of such importance, I would jokingly say “yeah, but I was more right!”

Michael Boldin

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