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Comment by wahern | Hacker News Reader

It's not necessarily as flexible as to encompass such sub-federal cooperation: "No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay." https://en.wikipedia.org/wiki/Article_One_of_the_United_Stat...

I'm curious if these recently announced state pacts will be challenged in court. But legal or illegal, it doesn't excuse the poor job of federal management.

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States make pacts all the time, without federal congressional oversight.

https://en.wikipedia.org/wiki/Interstate_compact

In Virgina v Tennessee, in 1893, the Supreme Court allows states to make compacts in all matters reserved to the states and the enforcement of which does not encumber federal rights.

And for the most part, at the consent of Congress, states keep armies and air forces (and many keep navies) as guaranteed by the second amendment.

At this point in time though, who's to say the courts won't just let the commerce clause creep in its scope? It'll be pretty easy to argue that these lockdowns interfere with interstate commerce.

That would prevent any such pact from being legally binding on the states. It doesn't necessarily prevent states from coordinating at all.

Exactly, this seems like an friendly handshake agreement to cooperate with an official name and press release.

OTOH, pacts like the popular vote compact signed by some states in the past few years is almost certainly unconstitutional.

Is it? They're each deciding, independently, to handle their electors in a certain fashion. They each have the right to independently change that decision, without any penalty for doing so. It's not a binding agreement with another state in any fashion.

> OTOH, pacts like the popular vote compact signed by some states in the past few years is almost certainly unconstitutional.

Why would that be the case? Electors are not bound by any particular (federal) rules in how they cast their votes. If we look at the popular vote compact as a friendly handshake agreement (to which electors are not legally bound), they are free to fulfill the handshake agreement and vote along with the national popular vote.

Of course, if a signatory decides last-minute to betray that agreement, there perhaps would be no legal remedy.

AFAIU whether the agreement is expressly legally binding is not dispositive. See, e.g., https://www.law.cornell.edu/constitution-conan/article-1/sec.... Thus even if it's likely to pass muster (and I'm sure it was drafted with that in mind) there still could be colorable arguments that permit a legitimate challenge, especially if politically expedient. But I'm not that familiar with this area of law so I welcome corrections accompanied with citations.

These kinds of pacts between States to coordinate on specific issues that are under of the umbrella of their sovereignty are quite common and perfectly legal. The whole point of sovereignty is that they have the freedom to deal with the issue as they wish as long as it doesn't abrogate one of the narrow powers delegated to the Federal government, such as this case. There are even pacts between States to coordinate action directly against Federal policy e.g. the Sagebrush Rebellion.

In other cases where the Federal government does have jurisdiction, such as interstate treaties regarding shared resource rights, the Federal government can delegate the issue to a group of affected States to sort out amongst themselves e.g. the Colorado River Compact of 1922.

Yes, I'm curious about the way they're intending to handling this legally as well. A bit of searching shows a Supreme Court case Virginia v. Tennessee, 148 U.S. 503 (1893) [1]. This restricts the application of that clause somewhat, but it isn't 100% clear to me that this Pact is a perfect match for the facts in that case.

It also sounds like [2] things are rather flexible in what approval is and when it is obtained. It's plausible that they expect to ask for approval, or rely on it being unlikely that congress explicitly disapproves, or perhaps they expect to obtain approval in the future.

[note: I've linked to a point in the opinion discussing Congressional approval]

1: https://scholar.google.com/scholar_case?case=103881997639573...

2: https://www.gsgp.org/media/1313/understanding_interstate_com...

I would imagine this is like the AASHTO or the UCC lobbying groups where the agreements don't force any states to do anything, the states just independently do the same thing together. And in some cases like with the UCC they don't even do that.

> or in such imminent Danger as will not admit of delay

It'd be nice to think that the largest pandemic of the last century would allow for this, but given the current supreme court bench I guess I wouldn't really bet on it

> unless actually invaded

I mean, Trump is calling himself a "Wartime President"[1]. And the virus technically is on American soil....

[1]: https://www.nytimes.com/2020/03/22/us/politics/coronavirus-t...

His insistence on calling it the "chinese virus" was a very intentional move to frame it as the work of a foreign power, even if he never explicitly said it was made in a chinese laboratory. Plenty of conspiracy theorists did though (some of them on national TV).

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