Professor Duncan Hollis discusses the relationship between foreign-state agreements (FSAs) and the Constitution’s Compact Clause. The Compact Clause plainly prohibits states from entering “into any Agreement or Compact with another State, or with a foreign Power” absent congressional consent. Nevertheless, states have entered into hundreds of such FSAs over the years. Professor Hollis explores the reasons underlying this contradiction and argues that the federal government should exercise more oversight over FSAs.

The Supreme Court has interpreted the interstate-agreement portion of the Compact Clause loosely, allowing states to enter into a number of agreements without congressional approval. A similarly lax standard has been applied to FSAs, although no authority has addressed whether such treatment is appropriate. Professor Hollis suggests that the Constitution actually contains two Compact Clauses: one for interstate agreements and one for FSAs. Functionally, distinct justifications exist for foreign and interstate compacts that, in turn, support differing treatment. Accordingly, Professor Hollis concludes that substantial arguments exist for subjecting FSAs to supervision by the federal political branches.