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.

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...

Highly unlikely. Republicans are for state's rights, and the current president and administration seems especially in favor of it. He basically told the states to get their acts together and put the feds into a mainly supportive role, which is as it should be.

Republicans might claim to support state's rights, but they certainly aren't principled consistent supporters of it.

Just take a drug legalization. Many Republicans have been vehemently opposed to it. Take a look at the Supreme Court decision Gonzalez v. Raich, where Steve Scalia no less, wrote that the feds could interfere with your growing some plants inside your own home for your own personal use.

Remember that the "states rights" movement started as a response to federal action to end segregation. In my personal opinion, Republicans are just for whatever will push their agenda forward, without regard to the moral or ethical depravity involved in doing so.

Democrats, in contrast, are a bit more principled (in my opinion), especially when it comes to protecting the human rights, civil rights, voting rights, and other rights of the non-dominant groups in this country.

My claim on this issue was mainly due to the current administration's relatively pro-state stance in this regard (COVID). I am not insisting that the GOP is universally pro-state. You are right that they are not when it comes to marijuana legalization and some other things (and shame on them for it).

The current administration's position isn't relatively pro-state here though: Trump is on record insisting he can "reopen" the economy over the heads of state governments.

The position on "closing down" (that it was up to states) doesn't tell us anything about the administration's principle in regard to COVID because the administration is willing to change those "principles" very quickly, as evidenced by their current statements (among other actions taken by Republicans)

It's arguable that the position on closing down was based on the desire of the admin that the country remain "open", but was faced with legal/political difficulties in directly applying their desire to the country as a whole. What ever tactic is taken with respect to this Pact, we should be unsurprised if it ignores any "principles" and instead looks to effect the policy that Trump desires to put into place, or the effect on Trump's perception of his authority.

That's true that we can't predict what they'll do in the future.

The current administration is only pro-state inasmuch as it allows Trump to disclaim responsibility for failures while taking credit for successes.

For example, he knew that getting hold of medical supplies and PPE would be difficult, and that the federal government would fail at it, so he put it in the states' hands. He didn't want to be blamed for shutting down the economy and forcing people to isolate themselves, so he allowed the states to decide. But now he wants us to believe that the "heroic" decision to open things back up again will be his, and his alone.

> Remember that the "states rights" movement started as a response to federal action to end segregation.

It's way older and more sinister than that. States' rights was first used to justify the continuation and expansion of the institution of slavery.

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

States Rights go back to even before that, to the original Articles of Confederation and Constitution. Until the US Constitution was ratified the behavior of the union was closer to the EU than the current US government, and the bigger, more powerful states (NY, VA) didn't like giving up their sovereignty.

States Rights was dug up before the Civil War as a continuation of that argument, this time in the context of slavery.

> States Rights go back to even before that, to the original Articles of Confederation and Constitution.

Ah right, I'd forgotten about that. IIRC "What can the federal government do?" was a key question that divided Jeffersonians and Federalists.

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).

It is a great system, but our founding fathers encouraged us to continually tinker with it :) It is never perfect. Remember, they were rebels !

Err... you know, these states are taking about autonomy because the United States now has one third of the world's COVID19 patients...

Yeah ... it's a great system unless you live in a part of the country that is not trying a smart approach; a place where "best ideas" are routinely dismissed as partisan politics.

Is it, though? Run your states the way you want to. Maybe your comrades in Texas prefer a running economy to lives. This is a good thing that you can make that choice.

I don’t see how not having states would change that.

We have a federal government that has the power to take action. Republicans are stopping that from happening and so some states are choosing to fix it for themselves.

You get what you vote for.

In this case it works well. In other areas...

In any sufficiently high dimensional system with resource constraints it's inevitable there will be tradeoffs. Or more simply, no system is perfect.