January | February 2017




by Carrie Abner
Ask anyone what a contract is and they likely will tell you. But ask what an interstate compact is, and it may be a different story. But that’s starting to change, said compact experts and administrators
who gathered at the National Center for Interstate Compacts’ Summit of the States on Interstate Collaboration, Dec. 12–13 in Colonial Williamsburg, Virginia.
According to Rick Masters, an attorney who specializes in interstate compacts and who serves as special counsel to CSG’s National Center for Interstate Compacts, compacts are simply contracts between states to solve interstate challenges.
It’s a solution that has its origins in the U.S. Constitution itself, which provides in Article I, Section 10 that, “No state shall, without the consent of Congress … enter into any agreement or compact with another state.”
Masters said the development of the Compacts Clause was intended by the founding fathers to limit the ability of states to work together to challenge the fledgling federal-­style government. “While the Compact Clause was written in the negative,” he said, “it restores the states to the sovereignty that they had but for the limitations placed on the states by the Constitution.”
And for much of the nation’s history, compacts remained a little-used tool for states to solve interstate issues. But increasingly states are turning to compacts as a mechanism to solve multistate, even national, issues—something The Council of State Governments’ National Center for Interstate Compacts, or NCIC, has helped to foster since 2004.
The Evolving Use of Compacts
From their humble beginnings as a means to resolve boundary disputes between the original colonies, interstate compacts are now in place to solve such complex issues as the interstate transfer and supervision of adults and juveniles on probation or parole, the interstate placement of children through adoption, emergency management and response efforts, and passenger rail improvements.
“We have more and more compacts and the subject matter of these compacts has expanded,” said Ann Bowman, professor at the Bush School of Government and Public Service at Texas A&M University and one of the few researchers across the country who studies interstate compacts. “If you can get more and more states to agree, you’re moving into national policy without getting the federal government involved.”
According to NCIC Director Colmon Elridge, there are more than 200 state-to-state, regional and national compacts in existence today, with most states belonging to on average a dozen compacts.
Attendees at the Summit of the States on Interstate Collaboration had the opportunity to hear from representatives of several compacts, who shared lessons learned at various stages of the process.
The Education Commission of the States, the operating body of the Compact for Education, was established in the mid-1960s to help states collaborate to strengthen education policy at the state level.
“We’re a 50-year-old interstate compact. We represent all the states,” said Matt Jordan, director of strategic initiatives for the Education Commission of the States.
The commission works to address complex issues in education policy by serving as a conduit to share resources and expertise with state education policymakers in the legislative and executive branches on issues such as teacher recruitment and retention, school choice, accountability, and financial aid and higher education.
“Our real value is … good, timely information, but more importantly (states) learning from each other,” Jordan said.
The power of learning from one another extends to compacts themselves. Take, for example, the Nurse Licensure Compact, administered by the National Council of State Boards of Nursing, which is currently working to replace its existing compact with a revised version, based on lessons learned along its own journey and from other compacts, as well.
“It’s not often you see a compact being replaced and improved,” said Jim Puente, director of the Nurse Licensure Compact, “but that’s precisely what we’re doing.”
The original compact, which provides reciprocity for the recognition of nursing licenses among its 25 member states, was first implemented in 2000. When the drafting of the compact was underway in the 1990s, very few states required criminal background checks for nurses, said Puente, and the compact established reciprocity without a requirement for background checks of nurses. Today, all but 10 states require criminal background checks, creating a serious hole in the compact’s framework, he said.
“The very nature of an interstate compact relies on uniformity,” said Puente. “You can’t have every state doing its own thing.”
In revising the compact, the National Council of State Boards of Nursing has solicited input from its entire membership—not just the current compact member states—and also has drawn on lessons learned from other compacts to draft what Puente called a “platinum model” for the revised Nurse Licensure Compact.
New Frontiers
Compacts, such as the Nurse Licensure Compact, represent a new frontier in the compacts world, according to Elridge.
“The push toward licensure portability and license reciprocity represents a new chapter in consumer-focused care as well as creates new opportunities for practitioners in a host of disciplines,” said Elridge. “In an era where federal decision-making is at a standstill, CSG is pleased to partner with health care providers, state policy and lawmakers, and others … using the interstate compact mechanism to meet the needs of the American people.”
Other occupational compacts include the EMS Licensing Compact, Medical Licensing Compact, and the Physical Therapy and Telepsychology Licensing Compacts, which are being assisted by the NCIC.
Jeff Litwak, adjunct professor at Lewis and Clark Law School in Oregon and counsel to the Columbia River Gorge Compact Commission, co-authored with Masters the second edition of The Evolving Use and Changing Role of Interstate Compacts, published in 2016, which explores emerging opportunities and challenges facing the compacts community.
According to Litwak and Masters, among the problems facing a number of compacts is a lack of clarity in their development. “Vagueness in compacts is a very bad idea,” said Masters, because it can result in disputes and litigation.
A lack of case law pertaining to compacts only compounds this problem. “Most compacts don’t have a body of law big enough for courts to know what the obligation is,” said Litwak. “What we’re seeing is that the U.S. Supreme Court is being much more focused on applying express terms to compact cases.”
National Challenges, State Solutions
For state policymakers, interstate compacts represent a mechanism that provides state, rather than federal, solutions to regional or even national problems.
“It’s simply a way for states to cooperate on an issue that crosses state lines without waiting for the federal government to jump in,” North Dakota state Rep. Kim Koppelman told attendees at the summit.
Bowman agreed, suggesting the notion of states as “laboratories of democracy” is often enhanced when they work together through compacts.
“Innovation works individually,” Bowman said, “but it also acts collectively.”