Congressional consent is not required for the National Popular Vote compact under prevailing U.S. Supreme Court rulings. However, because there would undoubtedly be time-consuming litigation about this aspect of the compact, National Popular Vote is working to introduce a bill in Congress for congressional consent.
The U.S. Constitution provides:
“No state shall, without the consent of Congress,… enter into any agreement or compact with another state….”
Although this language may seem straight forward, the U.S. Supreme Court has method, in 1893 and again in 1978, that the Compacts Clause can “not be read literally.” In deciding the 1978 case of U.S. Steel Corporation v. Multistate Tax Commission, the Court wrote:
“Read literally, the Compact Clause would require the States to obtain congressional approval before entering into any agreement among themselves, irrespective of form, subject, duration, or interest to the United States.
“The difficulties with such an interpretation were identified by Mr. Justice Field in his opinion for the Court in [the 1893 case] Virginia v. Tennessee. His conclusion [was] that the Clause could not be read literally [and this 1893 conclusion has been] approved in subsequent dicta.”
Specifically, the Court’s 1893 ruling in Virginia v. Tennessee stated:
“Looking at the clause in which the terms ‘compact’ or ‘agreement’ appear, it is evident that the prohibition is directed to the formation of any combination tending to the increase of political power in the states, which may encroach upon or interfere with the just supremacy of the United States.”
The state power involved in the National Popular Vote compact is specified in Article II, Section 1, Clause 2 the U.S. Constitution:
“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors….”
In the 1892 case of McPherson v. Blacker (146 U.S. 1), the Court wrote:
“The appointment and mode of appointment of electors belong exclusively to the states under the constitution of the United States”
The National Popular Vote compact would not “encroach upon or interfere with the just supremacy of the United States” because there is simply no federal power — much less federal supremacy — in the area of awarding of electoral votes in the first place.
And as I've pointed out before, each state can do that now without participating in a compact. Why don't they do that now? Why wait for the compact before this is in effect?
I'm glad to hear that they are planning for a Congressional vote, because this compact is not like the others.
This compact also affects the states that are NOT a part of the compact, which other "commerce" compacts do not.
-PJ
That’s it – keep drinking the Kool-Aid. The Supreme Court has NEVER decided that Congressional consent IS NOT required of the NPV compact.
First, why don’t you READ the citations you list?
United States Steel Corporation v. Multistate Tax Commission decided that the creation of the commission DID NOT assert any new powers that the states involved DID NOT already have.
Virginia v. Tennessee concerned a boundary line between the states. This case was a technical determination of the original boundary line, so as NOT to involve any interest of the United States.
Second, DO NOT “cherry-pick” your quotations.
In Virginia v. Tennessee:
“Looking at the clause in which the terms ‘compact’ or ‘agreement’ appear, it is evident that the prohibition is directed to the formation of any combination tending to the increase of political power in the states, which may encroach upon or interfere with the just supremacy of the United States.”
We now need to look further at the decision:
”The terms 'agreement' or 'compact,' taken by themselves, are sufficiently comprehensive to embrace all forms of stipulation, written or verbal, and relating to all kinds of subjects; to those to which the United States can have no possible objection or have any interest in interfering with, as well as to those which may tend to increase and build up the political influence of the contracting states, so as to encroach upon or impair the supremacy of the United States, or interfere with their rightful management of particular subjects placed under their entire control.”
Still more:
Looking at the clause in which the terms 'compact' or 'agreement' appear, it is evident that the prohibition is directed to the formation of any combination tending to the increase of political power in the states, which may encroach upon or interfere with the just supremacy of the United States. Story, in his Commentaries, (section 1403,) referring to a previous part of the same section of the constitution in which the clause in question appears, observes that its language 'may be more plausibly interpreted from the terms used, 'treaty, alliance, or confederation,' and upon the ground that the sense of each is best known by its association ('noscitur a sociis') to apply to 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 co-operation, 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;' and that 'the latter clause, 'compacts and agreement,' might then very properly apply to such as regarded what might be deemed mere private rights of sovereignty; such as questions of boundary, interests in land situate in the territory of each other, and other internal regulations for the mutual comfort and convenience of states bordering on each other.' And he adds: 'In such cases the consent of congress may be properly required, in order to check any infringement of the rights of the national government; and, at the same time, a total prohibition to enter into any compact or agreement might be attended with permanent inconvenience or public mischief.”
The question [which the Supreme Court has NEVER answered] is whether a compact such as the NPV is a “political compact”, as described, above.
It may well be determined [at a future date] that it is …
Additionally, the Court may likely conclude that [vis-a-vis the Constitution] the "United States" referred to in the quote means the States - or rather, the PEOPLE of the United States.
If so, the NPV DIMINISHES the political power of states [and their citizens] that DO NOT participate in the NPV, as well as those that do, since it PREVENTS participating states from rescinding their agreement “at any time” [after the blackout date].