Just-Right Government: Interstate Compacts and Multistate Governance in an Era of Political Polarization, Policy Paralysis, and Bad-Faith Partisanship

Abstract

Those committed to addressing the political, economic, and moral crises of the day—voting rights, racial justice, climate change, gaping inequality, and the ongoing effects of the Covid pandemic—don’t know where to turn. Federal legislative and regulatory pathways are choked off by senators quick to filibuster and by judges eager to strike down agency rules and orders. State pathways, in turn, are compromised by limited capacity, collective action problems, externalities, scant economies of scale, and—in many jurisdictions—a toxic political culture hostile to even the most anodyne government interventions.

Recognizing the limited options available on a binary (that is, federal or state) governance roadmap, this Article prescribes charting a third pathway: interstate agreements and compacts. Such arrangements—largely unnecessary when Washington is not pathologically dysfunctional—have a long and venerable constitutional pedigree and provide a legally sound and politically expedient “just-right” solution. Grouping clusters of states along the Pacific Coast Highway, the Amtrak Corridor, and the Rust Belt, we proffer four major compacts as cornerstones of a Blue New Deal.

Beyond detailing these four strategic interventions to work around the instant federal and state roadblocks (and recognizing similar opportunities for Purple and Red states, too), this Article makes the affirmative, normative case for interstate agreements and compacts playing a long-term, regular, and prominent role in twenty-first century American governance—a case that sounds in democratic theory, administrative law, and political economy.

Keywords: Constitutional Law, Administrative Law, federalism, political dysfunction, public administration, interstate compacts, interstate governance, public health, climate change

JEL Classification: l33, l51, l50, k23, k32, H11, h7, h77, h73