2 State... Since the beginning of the twentieth century the interstate compact has been increasingly used, with the consent of Congress, as an instrument for state cooperation in dealing with common problems. F. Zimmerman and M. Wendell, The Law and Use of Interstate Compacts (Chicago, 1961). The use of this device for mutual law enforcement in general was expressly authorized by Congress in the Act of June 6, 1934, 48 Stat. 909 (1934), whereby consent was given in advance to interstate agreements for the control of crime. Section 1 of this measure reads as follows: "[T]he consent of Congress is hereby given to any two or more States to enter into agreements or compacts for cooperative effort and mutual assistance in the prevention of crime and in the enforcement of their respective criminal laws and policies, and to establish such agencies, joint or otherwise, as they may deem desirable for making effective such agreements and compacts." This statutory sanction was promptly followed by initiation of the Crime Compact of 1934, providing for the supervision of parolees and probationers, to which most of the states have agreed. Further, the Tenth Amendment to the Constitution, which may be said to provide support for state compacts in general, reads as follows: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The broad general effect of this addition to the Constitution was summarized by Mr. Justice Stone in United States v. Darby, 312 U.S. 100 (1941) in the following passage. "The amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers." 312 U.S. at p.124. As conceded by Mr. Justice Brandies in Hamilton v. Kentucky Distilleries Co.. 251 U.S. 146, (1919), the police power is one of the powers traditionally reserved to the states. But, this concession admitted, the Justice then continued, "it is none the less true that when the United States exerts any of the powers conferred upon it by the Constitution, no valid objection can be based upon the fact that such exercise may be attended by the same 3 incidents which attend the exercise by a State of its police power, or that it may tend to accomplish a similar purpose." Id. at p. 156. When these two delineations of federal-state prerogatives with respect to exercise of the police power are considered together, it would seem that neither prerogative is exclusionary but that the power is enjoyed independently by both federal and state authorities. To express the same principle in somewhat different terms, neither the national power nor the state power is a limitation on the other in this area, at least not unless there is a conflict of interest. Apart from the Tenth Amendment, a final comment is appropriate about the effect of section 10 of article I of the Constitution. As noted above, this provision by its terms seems to require the consent of Congress as a prerequisite for the conclusion of any interstate compact. However, this seemingly pervasive definitive terminology notwithstanding, the Supreme Court has limited the application of the restriction. In Virginia v. Tennessee, 148 U.S. 503 (1893), it was held that the unqualified prohibition of compacts and agreements between states without the consent of Congress does not apply to "minor" matters which do not tend to increase the political power of the contracting states or to encroach upon the supremacy of the United States. What, then, are the more exalted matters that come within the requirement for congressional consent? In the opinion of Mr. Justice Field such matters would include "treaties of a political character, such as treaties of alliance for purposes of peace and war; and treaties of confederation, in which the parties are leagued for mutual government, political cooperation, and the exercise of political sovereignty, and treaties of cession of sovereignty, or conferring internal political jurisdiction, or external political dependence, or general commercial privileges." Id. at p.519. Thus, under this interpretation, what is proscribed without prior congressional consent is any interstate compact that tends to enhance the political power of the states by encroaching upon the supremacy of the United States. Accordingly, the Supreme Court subsequently had no objection under this standard to an interstate compact dealing with various aspects of multistate taxation and compatibility of state tax systems. United States Steel Corp. v. Multistate Tax Commission, 434 U.S.C. 452 (1978). In light of the Supreme Court's interpretation of section 10 of article I that substantially limits the scope of the congressional consent clause of that provision, and especially in light of the express consent of Congress under the Act of June 6, 1934, to interstate agreements for the control of crime, it would seem that this provision of the Constitution is not a bar to the legal validity of the compact of the Southern Governors Association for cooperation and assistance by the participating states for law enforcement purposes across state boundaries. Further, the resulting exercise by the participating states of their police powers through the subject compact appears to be supported by In sum, it is our conclusion that neither chapter 15 of title 10 nor constitutional provisions prohibit consummation of the Southern Regional Emergency Management Assistance Compact unless implementation of that agreement is prejudicial in any given instance to the ability of the federal government to take action itself under the provisions of chapter 15. Under existing law the members of the compact and the federal government are empowered either separately or in concert to undertake law enforcement actions in the area of the states which are signatories of the compact. Therefore, formal approval by Congress of the Southern Governors Association compact does not seem to be necessary. The package you submitted is returned herewith. Polit Gellist Robert L. Gilliat Attachments |