Lovers of legal lacunae will this week be perusing the orders of the Supreme Court for what it might, or might not, say in respect of the fate of the Waterfront Commission of New York Harbor. The Nine have before them New York’s request to stop New Jersey’s attempt to destroy the compact that the states created, with help from Congress, in 1953 and after The New York Sun’s exposé of corruption on the docks.New York has asked the justices to intervene by March 28, when New Jersey plans to pull its commissioner. The thing to remember amid this dispute is that everything about the waterfront commission would have been unconstitutional absent the approval of Congress — and we don’t see why that wouldn’t include the ambition of New Jersey to get out of it. It’s all in Article One, Section Ten of the parchment.That’s where the Framers enjoined the states from intruding on federal authority. Among the things absolutely prohibited to any state is to “grant any Title of Nobility,” “enter into any Treaty,” “coin Money,” or, on point here, “enter into any Agreement or Compact with another State.” The way things worked out with the Waterfront Commission, it’s easy to see why the Founders were wary of these interstate entanglements.The Waterfront Commission began with such high hopes that few appear to have anticipated that it might ever close up shop. When the Congress agreed to the formation of the commission, it allowed for amendment to the compact only by consent of both states. Yet no provision was offered for terminating the agency. The Nine has so far avoided the dispute, denying the commission’s suit seeking to block New Jersey from quitting.The commission lacked, the Justices saw, standing to sue one of its members. Once New York filed, though, constitutional questions moved to the forefront. The Empire State calls New Jersey’s effort to kill the commission a “violation of federal law.” That evokes The Great Scalia’s observation in a dispute between Alabama and North Carolina that “an interstate compact is not just a contract; it is a federal statute enacted by Congress.”As such, New York reckons, the Constitution’s Supremacy Clause — the primacy of federal over state law — is at stake in today’s waterfront dispute, and it’s hard to see the Nine ignoring the question. Bowing to New Jersey in this case would call into question the future of the more than 200 interstate compacts in place across the country, Jeffrey Litwak of Lewis & Clark Law School has warned.Similarly, Ronald Goldstock, an erstwhile commissioner on the waterfront agency here, has warned that the Port Authority of New York and New Jersey could be endangered if the Garden State has its way in the current dispute. What would stop New Jersey from seizing the airfield at Newark or the Lincoln or Holland tunnels? Would the George Washington Bridge itself be subject to Trenton’s grasp?The waterfront dispute serves as an apt moment to question the enthusiasm for these blasted interstate compacts. As Mr. Litwak notes, such agreements were initially used mainly to settle border disputes between states. We would have preferred the military option but for the prohibition that forbids any state from engaging in war. It was only in the 20th century that interstate agreements sprouted like constitutional skunkweeds.One proposed interstate compact even seeks a constitutional end-run around current practice, by which states would cut side deals in respect of the Electoral College. Member states of the National Popular Vote Interstate Compact undertake to vote for whomever wins the national popular vote — regardless of the choice of their own state’s voters. So far, 15 states, with 195 electoral votes, have signed on.The National Popular Vote Interstate Compact’s audacity to contravene the Constitution shows why the Founders were wise to place limits on agreements between the states. The interstate squabble over the future of the Waterfront Commission Compact also suggests the need for Congress to police these creations lest they become runaway agencies undermining federal authority. So all eyes are on the Nine.
