On 27 June 2018, Associate Justice Anthony Kennedy announced his intention to retire from the Supreme Court of the United States (SCOTUS), effective 31 July 2018. His decision to step down from the SCOTUS during the administration of President Donald Trump upends an already tense national political arena. Moreover, it exacerbates electoral polarization during a pivotal midterm election year.
The vacancy caused by Kennedy’s departure will allow Trump to have his second nomination to the SCOTUS, which will require confirmation by the United States Senate. As Senate filibusters against judicial nominees have been eliminated, even the slim Republican Senate majority of 51–49 is certainly enough to secure confirmation of a new Associate Justice. Since Kennedy’s announcement, there has been a deluge of concern and panic emanating from those opposed to Trump, including Democrats/liberals and Never Trump Republicans/conservatives.
Conversely, some within this diverse swathe of opposition have assured the public that this event is neither apocalyptic nor inalterable. Some have proclaimed that Chief Justice John Roberts will moderate, as he does not want to be a new Roger Taney, referring to the Chief Justice of historical infamy. Democrats have declared their intention to fight in the Senate and to count on pro-choice Republican Senators Susan Collins and Lisa Murkowski. This ignores so-called Red State Democrats that will feel pressure to support Trump’s nominee.
Others, absurdly, are hoping that Special Counsel Robert Mueller will save the day, with a damning report on Trump-Russia collusion or other criminal activities released just in time. Naturally, the usual “vote with the courts in mind” refrain is again being championed, as if that has made a difference hitherto among Democratic and independent voters, who are not single-issue motivated in the same way their Republican base counterparts are. Extreme voices have even recommended Court-packing, which would mean a future Democratic Congress passing legislation to increase the number of seats on the SCOTUS, to which a future Democratic President would appoint liberals to. This would set an extremely dangerous precedent that potentially has no endpoint.
All of these proclamations and measures are false hopes and reveal a lack of creative mobilization in the current era between both Democrats and pragmatic conservatives concerned about issues beyond just Kennedy’s retirement and the SCOTUS. Momentary fetishization of specificities like the SCOTUS or the Electoral College is counterproductive to confronting the larger problem of runaway dysfunction, which has been caused by the ever-increasing brinkmanship of the dominant factions in the Republican Party (GOP).
Dealing with this issue requires recognizing multiple endemic problems in American politics, which will remain for the foreseeable future. It requires developing innovative and pragmatic solutions using America’s own federalist state structure to effect meaningful policymaking that bypasses federal government dysfunction. One means for achieving this remains under-utilized and unnatural to many politicians beyond its typical use on single-issue coordination: the interstate compact.
It is necessary to first understand the problems at hand before understanding the reasons and nature of the interstate compact solution. It is logically the case that the larger and more diverse a country becomes, the more complex democratic governance tends to be. This is not necessarily a disruptive reality but merely a natural consequence of a democratic system. Commentators on American politics often declare, “We’re so divided!” as if that is something novel. What must be understood is not that the division is something new, but rather how the nature of the division has changed. It’s Even Worse Than it Looks, a book coauthored by the liberal Thomas Mann and the conservative Norman Ornstein, remains among the best works that fairly and empirically considers the causes of the present dysfunction within American politics.
The conclusions of the book are straightforward and unequivocal. Whereas historically the two parties were loose associations, based on a variety of socio-political relationships that included liberals and conservatives in each, they have now become adversarial parliamentary factions. Neither party is completely free from blame for current problems. However, the authors identify the GOP as undergoing a dramatic and asymmetrical turn towards brinkmanship and ideological extremism, destabilizing governance by manipulating parliamentary and administrative procedures. This ideological extremism has meant condemning legislative compromise, delegitimizing reasonable opposition, being unmoved by facts, and rejecting socio-economic governing norms on most policy matters.
The Resurgence of Sectionalism
Beyond these conclusions from Mann and Ornstein, geo-sectional divides between Blue States and Red States and between urban/metropolitan and rural areas have also worsened the asymmetrical polarization and ideological extremism. With these geo-sectional divides comes a particularly intransigent American social conservatism on issues like abortion and gay marriage, which is often regionally amalgamated with Southern Baptist and neo-Confederate identity politics. The social conservative imperative on these cultural issues creates a zero-sum game in which any dealings with liberals and moderates, regardless of the issues at hand, are not treated as chances for joint accomplishment but as chances to “own the libs.” This spiteful, zero-sum game has had ugly consequences, even in moments during which common citizenship should have taken precedence over all other concerns.
In late 2012, Hurricane Sandy hit the eastern United States, affecting many areas but most severely damaging New York and New Jersey, both of which are considered Blue States but have significant Republican minorities. Whereas the aid bill for Hurricane Katrina, which hit the Southern States of the Gulf, was passed by the Congress in just ten days, the first aid bill for Sandy took over two months to pass, with many Republicans calling it pork-barrel spending. When it was finally passed, 66 House Republicans voted against it. A second appropriations bill was later passed with 179 House and 36 Senate Republicans voting against it. Congressional Democrats have never en masse opposed relief bills affecting Red States, nor declared them to be unnecessary spending. Furthermore, the tax reform passed last year by the GOP Congress also disproportionately increased the tax burden on populations in large Blue States as well as on groups that are key constituencies of the Democratic base.
The Liberal Ethos and its Discontents
Opponents of the Democratic Party and of political liberals have often dismissed them as “big government” bureaucracy lovers. Although this is an unfair generalization, it is true that Democrats and liberals often start policy discussions at the level of the federal government rather than immediately considering alternative federalist policymaking. Ever since President Franklin Roosevelt’s New Deal, Democrats have equated federal-level policymaking as inherently holistic and comprehensive. There may also be an aversion to State-level solutions because of the Dixiecratic legacy of Jim Crow segregation in the South.
This federal, nationalist disposition is admirable. Yet it also limits the creativity of liberal policymaking within the American Constitutional framework, which per the 10th Amendment affirms States’/reserved rights. States thus have the power to determine their own form of government and to assume powers not exclusive to the Federal Government. Considering policymaking from the level of the States is increasingly essential. This is because of the extremism of the Congressional GOP and because what is left of the moderate GOP is increasingly beholden to vanguardist primary voters, who do not believe in compromise.
Accepting the Limits of the National
Embracing State-level policymaking within and between Blue States and perhaps some Purple States inherently means accepting the limits of liberal and pragmatist conservative power in the current national political environment. Some state-level Republicans and independent conservatives certainly still adhere to governing norms. Obviously, those opposed to the extremism of the national GOP should not surrender politicking at the Federal level, but the priority there must be on limiting damage already done and stopping damage yet to be done, rather than assuming to be able to create healthy national policy for the near future.
Pragmatists must recognize that regionalism and sectionalism are here to stay and will continue to distort national politics. Democrats and pragmatic conservatives must embrace this for their own good. Politics in pragmatic States, especially Blue States, must now be based on protecting State and regional interests, notwithstanding the differences that will always reasonably remain between State Democrats and Republicans on specific policies.
Democrats should emphasize this in the public discourse, asserting that State Republicans can and should be partners against harmful and spiteful Republican actions emanating from the Federal Government and other States. The tax reform is already a prime example of this and something many Blue State Republicans were furious over. Forming State and regional fronts against national GOP extremism will also help embolden an intellectual and governing conservatism that still exists but that has been purged at the national level and some State levels.
It is an unavoidable fact that the United States now exists within a de facto state of cold civil war. It is one that the national GOP has fully embraced but that many liberal and conservative pragmatists have pretended does not exist. This truth must be acknowledged so what is left of good policymaking can still be done within States and between them. It is thus appropriate and necessary to now consider interstate compacts as essential for the future of policymaking.
Experiences in Interstate Compacts
Despite being used since the beginning of the Republic, interstate compacts do not often enter popular public discourse and thus must be explained. Compacts can be formed between two or more States for reasons that typically fall within three categories: Border Compacts, Advisory Compacts, and Regulatory/Administrative Compacts. Compacts naturally provide more tailored, contingent arrangements that are more open to dynamic change, certainly as compared to Federal Government arrangements that are harder or slower to implement and change once imposed.
Border Compacts have been in use since before the adoption of the United States Constitution, when the country was still operating under the Articles of Confederation. The Treaty of Beaufort settled the border between South Carolina and Georgia in 1787 and was later grandfathered into the Constitutional legal system as an interstate compact. The most recent Border Compact was in 1998, settling the border between Virginia and West Virginia.
Advisory Compacts typically establish specialized commissions to investigate issues common to two or more States. Issues are investigated cooperatively based on shared information and expertise and reports are produced with assessments and recommendations to the States within the compact. The States may choose to further legislate on the issues depending on the findings, but Advisory Compacts themselves do not change borders or establish permanent new agencies. An example of this type of compact is the Atlantic States Marine Fisheries Commission, which allows for coordinative management of fishery resources for all States on the East Coast.
Regulatory/Administrative Compacts have mostly been a post-World War Two phenomenon, though some were created in the earlier 20th Century. These compacts create permanent agencies that typically administer services for, and bindingly enforce rules on, the States that take part. Compacts in this category deal with issues as diverse as education, flood control, juvenile delinquency, agriculture, and regional planning. The most well known Regulatory Compact is probably the Port Authority of New York and New Jersey, which jointly regulates the seaports, tunnels, bridges, and airports in the common areas of the two States.
More than 200 interstate compacts exist today among these three broad categories. Article I, Section 10 of the Constitution reads that “No State shall, without the Consent of Congress… enter into any Agreement of Compact with another State.” Traditionally, there were three ways of achieving consent. The first saw Congress develop a compact that States then join with automatic approval. The second saw States submit their own draft compact to Congress for approval prior to entering it. The third saw States immediately enter their own compact and seek approval after the fact. These norms shifted after 1893 because of the SCOTUS case Virginia v. Tennessee. The SCOTUS ruled that compacts do not need explicit Congressional approval as long as they do not increase State power at the expense of the Federal Government.
The Future of Interstate Compacts
Interstate compacts often take time to draft and put into effect, because even between two States there are numerous stakeholders and governmental bodies that must be involved and provide their approvals. This is and will continue to be the case for ever-more complex compacts in the future. For example, since 2006, there has been a draft compact known as the National Popular Vote Interstate Compact (NPVIC), which has yet to come into force because it lacks the requisite number of States to be effectual.
The development of the NPVIC is directly related to the Electoral College, which is the legal entity responsible for electing the President and the Vice President. The Electors within the College do not necessarily vote according to the national popular vote, since their vote is based on the popular vote of their individual State. This has led to great dissatisfaction and calls to abolish the Electoral College. Five American Presidents have been elected despite losing the national popular vote. However, abolishing the Electoral College would require a Constitutional amendment. This is a long and arduous process in the American system and now likely made worse by the ideological extremism of the GOP.
Thus, a collection of States has drafted the NPVIC as a way of overcoming the flaws of the Electoral College. If the NPVIC were to include enough States to be effectual, the States taking part would automatically award their Electoral votes to the winner of the national popular vote, even if that ticket did not win the States’ popular votes. Therefore, even with the Electoral College still in effect, the winner of the national popular vote would consequently win the election every time. So far, 11 States and the District of Columbia are signatories to the NPVIC and it is no accident that they are all considered Blue States. In just the last 16 years, the Democratic ticket has lost the Presidency/Vice Presidency twice despite winning the national popular vote. These 12 States comprise 32% of the Electoral College and 63.7% of the Electoral votes required to be effectual.
Moving forward, American pragmatists, Democratic and Republican, ought to be considering more interstate compacts as potential anchors of meaningful and reasoned policy for States, regions, and the nation. There are many policy areas that can be explored and experimented with. This will be important because if the SCOTUS reverses itself on key issues, including but not limited to abortion, anti-discrimination protections, regulations, voting rights, and gun control, Blue States and pragmatic Republicans must be prepared for domestic interstate migrations to occur, as populations may flee State-level reactionary agendas within Red States.
Many Red States in Middle America are solidly Republican because of social conservatism that makes voters distrustful of Democrats, even if voting for Democrats is in their economic interest. Thus, even when Republicans implement disastrous agendas, there is little to no political price paid at the hands of voters, who continue to vote Republican. Kansas exemplifies this in the worst way. Its former Governor, Sam Brownback, treated his first term as a Red State “experiment.” The subsequent tax cuts he championed, which shifted the burden from wealthy Kansans to moderate-income and low-income workers, proved disastrous for the State’s budget as well as its bond and credit ratings. Schools and infrastructure were left so vulnerable that the Kansas Legislature eventually passed a reversal of the tax cuts and overrode Brownback’s veto. Brownback, nonetheless, was reelected to a second term, despite countless moderate Republican endorsements for his Democratic opponent.
As the GOP has become more ideologically extreme in Congress and in some States, and with irrelevant Democratic opposition in many cases, SCOTUS reversals on key issues could lead to more disastrous Red State experiments like Kansas on all the aforementioned issues and more. Pragmatists, especially Democrats in Blue States, must be prepared for this and for populations wanting to migrate out of Red States. Establishing interstate compacts that create regulatory bodies, with common funds, will socially and fiscally facilitate this migration, as well as protecting the issues and policies that matter to publics within Blue States.
These bodies and common funds may be related to abortion access and women’s health more broadly, to sovereign funds providing capital for businesses wanting to move or invest in pragmatic States, to even disaster preparation so that Blue States are self-reliant if the Congressional GOP proves to be even more spiteful in the future. Incidentally, this hybridized federalist-statist-market approach is what most governments need to be doing anyway in the new economy and it matches with the pragmatic concerns that are currently specific to the United States. If the GOP pays a price in the future for its extremism in the Congress and some Red States, it will be in the form of migration and business flight that will cause social and economic implosions. Perhaps, unfortunately, that is the only price that will carry any weight.
Flipping the Script
Mainstream Democrats have governing instincts and inclinations they must necessarily alter if they wish to have a meaningful impact on policymaking moving forward. On both foreign policy and many domestic matters, the political fight against GOP extremism must continue on the Federal level, but that cannot be the end-all for American policymaking. If there is any great advantage against extremism and authoritarianism in the American system, it is well-developed federalism. Democrats in Blue States and Purple States must use this to their advantage, flipping the script on ideological Republicans who are not expecting State-level actions like interstate compacts to be in the Democratic and pragmatist playbook.
Whether future interstate compacts, such as the ones mentioned and imagined here or otherwise, withstand Constitutional checks by the Congress or the SCOTUS remains to be seen. Whether a compact is Constitutional depends wholly on the issue it is dealing with and if that issue is related to Federal powers or laws. The irony of this strategy, and possible Congressional GOP and conservative SCOTUS checks on it, is that GOP politicians and conservative judges will have to use the Commerce Clause or other liberal arguments to argue against interstate compacts, undermining their own default ideological position. How this plays out, thus, is something that has no precedent and is hard to fathom from an analytical standpoint. In any case, Democrats and pragmatic conservatives will be forcing the ideologues into a Constitutional trap.
What has been described here may come off as alarmist. Granted, this is the worst-case scenario. However, given the regression of American politics hitherto, it is not an unrealistic scenario. Individuals who have placed their bets on a GOP re-centering itself and remaining intellectually focused have often been pragmatic conservatives and Republicans themselves. Those same individuals have now been driven from the GOP or remain registered but virtually excluded from Party and movement activities.
This is not something Democrats should be celebrating. The country depends on having two healthy political parties that can check themselves and each other. Until that norm returns, though, Democrats do have a leadership role to play and they must seize it creatively and fairly beyond just the level of the Federal Government. Leadership must involve including pragmatic Republicans, interested in working together for the common good, in order to maintain agile governance and a healthy political order in this new frontier of Constitutional experimentation.