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Interstate compacts — A new tactic for challenging federal authority

Once employed for such mundane issues as inmate transfers, natural resource management and state boundary definitions, interstate compacts have suddenly become the latest tool for legislators looking to buck the federal government on a slew of controversial topics.

The interstate compact bills proposed this year address issues ranging from firearms regulation and endangered species protection to denying citizenship to the children of illegal immigrants and blocking the new federal health care mandates.

This year, nine bills propose interstate compacts, a stark contrast from only four interstate compact bills that were proposed during the four previous years. Only one of those became law. All of the current interstate compact bills are aimed at challenging the federal government’s authority in some arena.

If they’re passed in Arizona and signed into law, they’ll then need federal approval to go into effect.

For Arizona lawmakers like Sen. Sylvia Allen, a Republican from Snowflake, the formerly dry legal mechanism is a way to deftly maneuver around the normal constraints of state laws and strike at federal power from a new angle.

Allen is the primary sponsor of four of this year’s interstate compact bills.

She first became aware of the way to use interstate compacts during last year’s American Legislative Exchange Council (ALEC) conference. Allen said there were several conference workshops that labeled interstate compacts an effective tool for promoting federalist notions.

“We’re testing this 50 years of immensely growing federal power, to the point that there are no states’ rights,” Allen said. “Basically what these (bills) are all saying, is that the federal government has overstepped its enumerated powers.”

Allen said she has been in contact with legislators in other states who are drafting similar bills, and who would be potential partners for the interstate compacts.

One such bill Allen introduced this year proposes an interstate compact that duplicates a recently passed Arizona law barring federal regulation of firearms produced, sold and kept within a state. The proposed interstate compact adds the interstate recognition of a state’s right to do so.

Nick Dranias, a lead attorney at the Goldwater Institute, a libertarian government watchdog group, said he has in recent months given advice to eager lawmakers, like Allen, on how to use interstate compacts in nontraditional ways.

“We’re starting to look at interstate compacts not as a weird, scary idea, but as a way to consolidate states in resisting the growing over-reach of federal power,” Dranias said.

In attempts to wrest power away from the federal government and back into the hands of state lawmakers, interstate compacts are an effective way to “engage in a legal jujitsu with the federal government,” Dranias said.

Because Congress has to review and then either approve or reject the compact, a precedent can be set by the approval, giving clearer and more concrete division between federal and state authority.

“We thoroughly researched the idea and found it to be very powerful,” Dranias said.

Dranias said he has focused mainly on two legal interpretations of interstate compacts, which provide the basis for expanding how they can be used, and provide the legal basis for their equivalent standing with federal law.

First, Dranias highlighted the Colorado River Compact, which dates back to 1922. As legal challenges have come up, courts have recognized that the compact created vested rights that the federal government cannot violate.

The second, and more recent legal interpretation of interstate compacts that Dranias has focused on, is one that created unique liability standards among states sharing the transportation lines around Washington D.C.

“The feds said this created new laws that displaced the previous federal laws,” Dranias said.

If the current slew of bills brings about a recalculation of the balance between federal and state authority, Dranias said the impacts will be dramatic and far-reaching.

“This will enable a decentralization of power like we’ve never seen before,” Dranias said.

But state lawmakers shouldn’t be so quick to begin drafting interstate compacts in an attempt to take away federal authority, said John Mountjoy, director of policy and research at the Council of State Governments, a non-partisan think tank based in Kentucky.

“There seems to be some thought that by forming an interstate compact, that positions (party states) to better fend off some federal court action,” Mountjoy said. “But that’s simply not the case.”

Mountjoy warned that if interstate compacts are written in a way that does not align with their more traditional use, Congress may quickly reject the compact, and thus set a precedent against states’ using interstate compacts so liberally.

Mountjoy said Allen’s firearms bill is an example of how using an interstate compact can be problematic. The bill, he said, essentially criminalizes the U.S. Bureau of Alcohol, Tobacco and Firearms.

If it passes, presenting Congress with the paradox of letting state laws criminalize federal agents, it could result in an out-of-hand dismissal and establish a legal precedent that prevents any similar compact from being used in the future by any state.

Rep. John Kavanagh, whose bill aimed at denying citizenship to the children born to illegal immigrants uses the interstate compact mechanism, said he sees the whole issue of congressional consent as moot.

“Look, how they were supposed to work is one thing,” said Kavanagh, a Scottsdale Republican. “Here the question is: Are they legal? If it’s legal to use them in a certain way, I’m not overly concerned by the fact that somebody a hundred years ago didn’t envision this, as long as it’s legal.”

All Kavanagh seeks is the passage of the bill and then an anticipated lawsuit, which would then immediately trigger judicial clarification of where the federal government’s authority ends and a state’s authority begins.

Kavanagh said he doubts there will ever be congressional review for his bill, but thinks using interstate compacts to spur lawsuits to get the U.S. Supreme Court to clarify the boundaries of federal authority will be an increasingly used tool.

“If Washington wants to continue to usurp state power,” he said, “then it’s a logical recourse for states to band together to resist.”

2011 bills pursuing interstate compacts

SB1392: MEXICAN GRAY WOLF; INTERSTATE COMPACT

Authorizes the governor to enter into a compact with any state bordering Arizona in order to manage the Mexican Gray Wolf, taking that authority away from the federal government.

S1395: ENDANGERED SPECIES ACT; INTERSTATE COMPACT

Authorizes the governor to enter into a compact with any state in order to manage any endangered species, taking that authority away from the federal government.

S1406: INTERSTATE COMPACT; BORDER FENCE

Authorizes the governor to enter into an interstate compact to provide for the construction and maintenance, along the Arizona-Mexico border, of a secure fence on private property, if the landowners consent.

S1214: HEALTH CARE; INTERSTATE COMPACT

Authorizes and directs the governor to enter into a compact with any other state or states that have enacted health care freedom statutes to make it a crime for anyone to interfere with their residents’ exercising their freedoms granted by their respective health care freedom laws. Because the enforcement of the recently passed federal health care reform act falls to the IRS, this would criminalize IRS agents pursuing violations of the new federal law.

S1391: INTERSTATE FIREARM FREEDOM COMPACT

Authorizes and directs the governor to enter into an interstate compact for the party states to prohibit any governmental agent from depriving residents of rights and freedoms guaranteed under their firearm freedom laws, to cooperate with each other in the prevention of crimes under the firearm freedom criminal laws, and to cooperate with each other in the criminal prosecution of anyone who violates the firearm freedom laws. Because the enforcement of federal firearms laws falls to the ATF, this would criminalize ATF agents pursuing any violation of those federal regulations.

S1308: BIRTH CERTIFICATES; CITIZENSHIP; INTERSTATE COMPACT

Authorizes and directs the governor to enter into an interstate birth certificate compact, drawing a distinction in the birth certificates between a person born to at least one parent with U.S. citizenship, and a person who is born to parents with no U.S. citizenship.

H2562: BIRTH CERTIFICATES; CITIZENSHIP; INTERSTATE COMPACT

Authorizes and directs the governor to enter into an interstate birth certificate compact, drawing a distinction in the birth certificates between a person born to at least one parent with U.S. citizenship, and a person who is born to parents with no U.S. citizenship.

S1592: HEALTH CARE COMPACT; FUNDING

Authorizes and directs the governor to enter into an interstate compact pledging that the member states will take joint and separate action to secure the consent of the U.S. Congress to return the authority to regulate health care to the member states. The compact also establishes a formula to be used for federal monies appropriated to member states as mandatory spending.

H2688: HEALTH CARE COMPACT; FUNDING

Authorizes and directs the governor to enter into an interstate compact pledging that the member states will take joint and separate action to secure the consent of the U.S. Congress to return the authority to regulate health care to the member states. The compact also establishes a formula to be used for federal monies appropriated to member states as mandatory spending.

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