Go Lean Commentary
The United States of America is the richest, most powerful nation on the planet and yet …
… [for] the US Territories of Puerto Rico and the Virgin Islands, … American economic prosperity does not always extend to the islands. The emigration (brain & capital drain) for these islands has been acute for over 100 years and continues, unchecked today. The pattern of the US Territories is what the rest of the [Caribbean] region does not want: half abandoned; where the emigrated population exceeds the on-island population. These islands are paradise – there should be no reason to leave. – Book Go Lean…Caribbean Page 244
Of the 30 member-states that constitute the Caribbean, only these two – Puerto Rico (PR) and the US Virgin Islands (USVI) – gets American culture, commerce and systems of governance. So any plan to elevate the Caribbean region must also consider the legal and constitutional mandates of the US. The First Steps for these US Territories would be an Interstate Compact.
AM JOY Posted 10/14/17 – Puerto Rico and U.S. Virgin Islands: Part of U.S.
As Puerto Rico and the U.S. Virgin Islands struggle to recover, Joy Reid speaks with residents and political leaders about why hurricane relief has been slower in these American territories.
What is really sad is that these territories have no vote and therefore no voice in the process to find solutions. (Territories have no vote in Congress, only formal States).
This commentary is Part 3 of a 6-part series from the movement behind the book Go Lean … Caribbean in consideration of the First Steps for instituting a new regime in governance for the Caribbean homeland. The other commentaries in the series are cataloged as follows:
- First Steps: EU – Free European Money – To Start at Top
- First Steps: UK – Dignified and Efficient
- First Steps: US – Congressional Interstate Compacts – No Vote; No Voice
- First Steps: CariCom – One-Man-One-Vote Defects
- First Steps: Deputize ‘Me’!
- First Steps: A Powerful C.P.U.
All of these commentaries relate to “how” the Caribbean can finally get started with adapting the organizational structures to optimize the region’s societal engines. The Caribbean is in North America and the US is the Big Dog of the region. So any consideration for leading from the Top must partner with American stakeholders. Though these considerations only apply to the 2 US territories, there are lessons for all the Caribbean, as we can glean wisdom and insight on how a roadmap can reform and transform the Caribbean member-states so that they can be better places to live, work and play.
The book Go Lean…Caribbean – available to download for free – serves as a roadmap for the introduction and implementation of the technocratic Caribbean Union Trade Federation (CU), for the elevation of Caribbean society – for all 30 member-states, including the US Territories. This CU/Go Lean roadmap has these 3 prime directives:
- Optimization of the economic engines in order to grow the regional economy and create new jobs; (how about 2.2 million).
- Establishment of a security apparatus to ensure public safety and protect the resultant economic engines.
- Improve Caribbean governance to support these engines, including a separation-of-powers between the member-states and CU federal agencies. (CU federal is not to be confused with US federal; these are different entities).
The book stresses that reforming and transforming the Caribbean societal engines must be a regional pursuit. This was an early motivation for the roadmap, as pronounced in the opening Declaration of Interdependence (Pages 12 – 13):
xi. Whereas all men are entitled to the benefits of good governance in a free society, “new guards” must be enacted to dissuade the emergence of incompetence, corruption, nepotism and cronyism at the peril of the people’s best interest. The Federation must guarantee the executions of a social contract between government and the governed.
xvi. Whereas security of our homeland is inextricably linked to prosperity of the homeland, the economic and security interest of the region needs to be aligned under the same governance. Since economic crimes … can imperil the functioning of the wheels of commerce for all the citizenry, the accedence of this Federation must equip the security apparatus with the tools and techniques for predictive and proactive interdictions.
xxiii. Whereas many countries in our region are dependent Overseas Territory of imperial powers, the systems of governance can be instituted on a regional and local basis, rather than requiring oversight or accountability from distant masters far removed from their subjects of administration. The Federation must facilitate success in autonomous rule by sharing tools, systems and teamwork within the geographical region.
xxiv. Whereas a free market economy can be induced and spurred for continuous progress, the Federation must install the controls to better manage aspects of the economy: jobs, inflation, savings rate, investments and other economic principles. Thereby attracting direct foreign investment because of the stability and vibrancy of our economy.
The Go Lean book provides 370-pages of turn-by-turn instructions for a Way Forward, a guide on “how” to adopt new community ethos, plus the strategies, tactics, implementations and advocacies to execute so as to reboot, reform and transform the societal engines of Caribbean society. One advocacy in the book (Page 244) is entitled “10 Ways to Impact US Territories“; this allows for the delivery of best practices to introduce the new CU regime. Washington would be considered an “overseas master” for Caribbean stewardship. Though they do not need the CU to impact the US – notwithstanding the Diaspora living there – there is the need for this CU treaty to impact the efficiency of these American territories.
St Johns, US Virgin Islands
Forging change in the American Caribbean territories means starting at the Top (leaders) and starting at the Bottom (citizens). But the leaders in Puerto Rico and the USVI cannot engage any cross-border initiatives without the US Congress; this is the premise of Interstate Compacts; these are necessary to partner with American stakeholders across borders and State-lines. See the full details on these Compacts in the Appendix Reference below.
Imagine the irony …
The people of the American Caribbean cannot even vote on the empowerments necessary to assuage their own crises; they have no self-determination. Yes, each territories have a non-voting member in House of Representatives of the US Congress, but because the representative is non-voting makes him/her inconsequential to other voting representatives; their voice is muted. In addition, there is no representation at all in the US Senate; truly no voice.
The Action Plan in this new Caribbean regime, this Way Forward, wants to put the Caribbean destiny in the hands of Caribbean stakeholders. This is only fair … and just. This is not our opinion alone; none other than the United Nations have made this declaration. In a previous Go Lean blog-commentary, this fact was revealed, as follows:
Many others – including the United Nations, who have declared PR technically “a colony” – feel that the Puerto Rico-Washington relationship is dysfunctional, that there should be a friendly divorce.
Other blog-commentaries detailed the challenges and crises of life in Puerto Rico and the US Virgin Islands; see sample here:
|http://www.goleancaribbean.com/blog/?p=13391||After Maria, Destruction and Defection for Puerto Rico|
|http://www.goleancaribbean.com/blog/?p=12959||After Irma, America Should Scrap the ‘Jones Act’|
|http://www.goleancaribbean.com/blog/?p=12274||State of the Union – Spanish Caribbean|
|http://www.goleancaribbean.com/blog/?p=12126||Commerce of the Seas – Stupidity of the Jones Act|
|http://www.goleancaribbean.com/blog/?p=11963||Oscar López Rivera: The ‘Nelson Mandela’ of the Caribbean? Not!|
|http://www.goleancaribbean.com/blog/?p=11647||Righting a Wrong: Puerto Rico’s Bankruptcy|
|http://www.goleancaribbean.com/blog/?p=10771||Logical Addresses – ‘Life or Death’ Consequences|
|http://www.goleancaribbean.com/blog/?p=6867||How to address high consumer prices|
|http://www.goleancaribbean.com/blog/?p=6693||Ten Puerto Rico Police Accused of Criminal Network|
|http://www.goleancaribbean.com/blog/?p=4551||US Territories – Between a ‘rock and a hard place’|
|http://www.goleancaribbean.com/blog/?p=599||Ailing Puerto Rico open to radical economic fixes|
The US Territories of PR and the USVI should lean-in to this Go Lean roadmap – in fact all Caribbean stakeholders should lean-in – in order to be better, here in the Caribbean, to make our homeland better places to live, work and play. 🙂
Sign the petition to lean-in for this roadmap for the Caribbean Union Trade Federation.
Appendix: Congressional Consent and the Permission for States to Enter into Interstate Compacts
By: Steven Blevins
When our Founding Fathers wrote the Constitution, they included language that grants states the authority to enter into interstate agreements to achieve a common purpose. This directive, found in Article I, Section 10, Clause 3 of the Constitution, is known as the Compacts Clause. In it, the founders asserted, in part, that “no state shall, without the consent of Congress enter into any agreement or compact with another state, or with a foreign power.”1 This often-overlooked clause of the Constitution also grants Congress the power to approve or deny the validity of a compact—a concept called congressional consent.
The founders included the compact clause in the Constitution to protect the dual-sovereign nature of the democratic government structure, while also promoting the ability of the states to cooperatively solve problems. While the Founding Fathers believed interstate cooperation was an important and necessary feature of American democracy, they feared states would use this authority to enter into agreements that would alter the federal balance of power. To avoid such an event, the compact clause instructs states entering into interstate compacts to obtain congressional consent for the agreement to be valid.
Types of Compacts Requiring Congressional Approval
A literal interpretation of the compact clause would conclude all interstate agreements must obtain the approval of Congress before they take effect and carry the weight of law. The Supreme Court, however, has ruled that “any” does not mean “all” in the context of interstate compacts and congressional consent. To clear up the ambiguity of the compact clause, the U.S. Supreme Court in Virginia v. Tennessee held that Congress must approve only two types of compacts:
- Those compacts that alter the balance of political power between the state and federal government; or
- Those compacts that intrude on a power reserved to Congress.
Thus, when a compact does not touch on either of those two items, the courts have ruled the federal government does not have a direct interest in the compact and congressional consent is not technically required.2 Essentially, if federal supremacy is threatened, then congressional consent is required for the compact to be valid. On the other hand, if federal supremacy is not threatened, then an absence of congressional consent will not render the compact invalid.
Categories of Congressional Consent
Noticeably absent from the compact clause are specific procedures the states must follow to obtain consent and Congress must follow when granting it. Although the text of the Constitution is void of any specific direction, it is generally understood that Congress specifies consent in one of three ways:
Most frequently seen in compacts that resolve boundary disputes, this type of consent is granted after the compact has been adopted by the requisite number of state legislatures and is submitted by the member states to Congress for approval. In these instances, Congress is able to review, amend and/or revise the agreement and, as a result, is able to provide a clear determination of approval or disapproval. Therefore, explicit congressional consent is sometimes considered desirable, even if it is not strictly required at the time the compact is created.
Most notably seen in the form of border compacts, which establish or alter the boundaries of a state as result of conflicting territorial claims, congressional consent may be implied when actions by the states and federal government demonstrate approval of the compact.3Such actions usually include federal legislation supporting the terms of a compact or legislation that strengthens the objective of a specific compact. Given its uncertain nature, implied consent should not be assumed by compacting states.
Congress may give its approval in advance by adopting legislation encouraging states to enter into an interstate compact for a specific purpose.4In these instances, Congress grants consent before the compact reaches critical mass, meaning that once the required number of states adopts the compact, it becomes enforceable. While pre-emptive consent deprives Congress the opportunity to review the compact and its objectives once it is drafted, it often encourages states to cooperatively resolve a policy challenge they otherwise might not have addressed.
There are also several recent examples of Congress pre-emptively granting states consent to explore the use of interstate compacts. Notable examples include the Environmental Protection Act of 2005, which granted three or more contiguous states the right to enter into an electric transmission line siting compact, and the Nonadmitted Insurance and Reinsurance Act contained in the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, which encouraged states to explore the use of interstate compacts to create uniformity in the surplus lines insurance industry. The Council of State Governments, through its National Center for Interstate Compacts, has assisted states in exploring the appropriateness of an interstate compact to address each of the challenges highlighted above.
The process of congressional approval mirrors that of the legislative approval process of any other federal statute. The House or Senate introduces compact bills, but both congressional bodies must approve it, and the president must sign the compact into law.
Congressional consent is a political judgment rather than a legal judgment —essentially a gratuitous action by Congress.5 With this notion in mind, Congress may withhold consent when it feels approval may lead to “imprudent combinations, dangerous joint action or intrusion on traditional federal matters” or “has the potential to alter the balance of power between the states and federal government.”6 Congress faces essentially no limitations in its authority to grant or withhold consent.
When presented with a compact seeking adoption, Congress has the authority to either deny approval or alter the compact as presented by the states by imposing various limitations and conditions on the compact or the member states. If Congress does amend the compact, however, member states are not required to adopt the revised compact. If the member states choose to adopt the amended legislation, they concede to Congress’ changes to the compact.7
Congress’ Ability to Amend, Withdraw or Repeal Congressional Consent
If Congress so chooses, it may amend or “change the landscape” of a compact via legislation.8 In fact, “the granting of congressional consent in no way limits Congress’s right to exercise its legislative prerogatives, even to the extent that such an exercise significantly impacts or impairs the workings of an interstate compact.”9 Additionally, the binding authority of interstate compacts approved by Congress is important. Once Congress grants consent, all compacting states are bound to the terms of the agreement. “While congressional consent may transform an interstate compact into federal law, consent does not transform a compact into a binding agreement between the states and Congress.”10
Two federal court decisions provide guidance about whether Congress may withdraw consent. In Tobin v. United States11 and Mineo v. Port Authority of New York-New Jersey,12 the court held that once congressional consent was given, Congress could not withdraw consent nor place additional stipulations on the compact. Congress can, however, work around this legal requirement by amending the proposed compact in a way that specifically enables it to withdraw consent at a future date. The judiciary has not made any declaration on whether such a maneuver is legal.13 The courts have, however, noted that withdrawing consent after the fact “would be damaging to the very concept of interstate compacts.”14
Federalization of Interstate Compacts
Once Congress grants consent, a compact then becomes federal law. In the case of Cuyler v. Adams,15 the court articulated congressional consent “transforms the States’ agreement into federal law under the Compact Clause.”16 Thus, “once Congress gives consent, the compact is presumptively transformed into the law of the United States absent compelling evidence that consent was not required.”17
This transformation from state-created agreement into federal law is unique. In no other context does a state law become “federalized” with such miniscule influence by the federal government than in the congressional approval of interstate compacts. This “transformation” effect also places the compact within the scope of federal jurisdiction while insulating the compact from constitutional attack.18
For more information about congressional consent of interstate compacts, when it is appropriate and how to go about seeking it, please visit NCIC’s website at www.csg.org/compacts.
1 U.S. Constitution, Art. I, Sec. 10, Cl. 3.
2 U.S. Steel Corp. v. Multistate Tax Commission, 434 U.S. 452 (1978).
3 See , e.g., Georgia v. South Carolina, 4 97 U.S. 376 (1990), wherein Georgia brought suit against South Carolina over the location of their boundary along the Savannah River; Michigan v. Wisconsin, 270 U.S. 295, 308 (1926), wherein suit was brought to determine the boundary between Michigan and Wisconsin from the mouth of the Montreal river at Lake Superior to this ship channel entrance from Lake Michigan into Green Bay; Vermont v. New Hampshire, 289 U.S. 593 (1933), wherein Vermont brought suit against New Hampshire over the determination of the boundary line with involving the Connecticut River.
4 Petty v. Tennessee-Missouri Bridge Commission, 359 U.S. 275, 281-82 (1959).
5 College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 527 U.S. 666 (1999) “Granting of consent is a gratuity on the part of Congress not a right that the states possess under the Constitution.”
6 Broun, Caroline N., Buenger, Michael L., McCabe, Michael H., & Masters, Richard L. (2006) p. 41. “The Evolving Use and the Changing Role of Interstate Compacts: A Practitioner’s Guide.” Chicago: American Bar Association.
7 Broun, et al. p. 43-7. Also see Arizona v. California, 373 U.S. 546 (1963).
8 Broun, et al. p. 43. Also see Arizona v. California, 373 U.S. 546 (1963). Also see Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 148 (1982) “Contractual arrangements remain subject to subsequent legislation by the presiding sovereign.”
9 Broun, et al. p. 43. Also see, Arizona v. California, 373 U.S. 546 (1963) wherein the Supreme Court held Congress acted within its realm of authority when it created a plan to manage and operate the Colorado River even though it had previously granted consent to the Colorado River Compact whose purpose was to assist in the management and operation of the body of water.
10 Broun, et al. p. 44.
11 Tobin v. United States, 306 F.2d 270, 273 (D.C. Cir. 1962).
12 Mineo v. Port Authority of New York-New Jersey, 779 F.2d 939 (3d Cir. 1985).
13 Broun, et al. p. 43.
14 Tobin v. United States, 306 F.2d 270, 273 (D.C. Cir. 1962).
15 Cuyler v. Adams, 449 U.S. 433 (1981).
17 Broun, et al. p. 43. Also see Old Town Trolley Tours of Wash. V. Wash. Metro. Area Transit Commission,129 F.3d 201, 204 (D.C. Cir.1997); Reed v. Farley, 512 U.S. 339 (1994).
18 Broun, et al. p. 56.
Source: The Council of State Governments; posted July 5, 2011; retrieved January 20, 2018 from: http://knowledgecenter.csg.org/kc/content/congressional-consent-and-permission-states-enter-interstate-compacts