Muller on The Compact Clause

Derek T. Muller, Notre Dame Law School, takes up the history of the Compact Clause in a new article, The Compact Clause and the National Popular Vote Interstate Compact. He has posted only the abstract. The article appeared in Election Law Journal (2007). Here's the abstract:

Despite previous historical failed attempts to abolish the Electoral College at the federal level, in the months following the 2000 election, several lawyers, politicians, and academics concocted a novel plan to abolish the College at the State level. The National Popular Vote Interstate Compact would be enacted State by State and require each enacting State to give its electoral votes to the winner of a plurality of the national popular vote.

This Article does not attempt to address the merits or drawbacks of the system as a matter of policy. Instead, Part I begins with a brief history of the Electoral College, how the Compact works, and the current state of affairs regarding the Interstate Compact. In Part II, the Article analyzes the Compact Clause in Article I section 10 clause 3 of the United States Constitution. It first explores the history of the Clause, with roots that can be found in the Articles of Confederation. It then looks to three different theories of interpretation of the Clause: the Boundary Compact Clause, the Non-Political Compact Clause, and the Political Consent Compact Clause, which are progressively more permissive and have been adopted sequentially in some fashion by the Court, most recently accepting the most expansive interpretation. In adopting the Political Consent Compact Clause theory, the Supreme Court has acknowledged that Congress must consent to a Compact that increases State political power at the expense of federal supremacy, but the Court and commentators have been less forthright when addressing the need for consent when a compact implicates the interests of non-compacting sister States. This Article concludes that non-compacting States are a fundamental concern of the Compact Clause alongside concerns of federal supremacy.

In Part III, the National Popular Vote Interstate Compact is examined and found constitutionally deficient. The Compact is actually a compact under the Compact Clause of the Constitution, because the Court has broadly construed what makes a compact. In particular, because the Compact is not effective until a critical mass of States have enacted it, and because States are constrained from withdrawing from the Compact too close to a presidential election, the Compact falls under constitutional scrutiny. Additionally, the Compact addresses a political matter that affects the interests of non-compacting sister States, and the compacting States enhance their political power at the expense of other States. The Article examines the various defenses of the Compact but finds that none of them overcome the political interests of sister States. Therefore, barring congressional consent, the Interstate Compact would fail.