Last week marked the first, still sketchy, indications that the COVID-19 pandemic may have begun to recede in the United States. We may also one day look back on last week as a fateful pivot in the way the states of our United States relate to each other.
Despite what might seem to be constitutional roadblocks, states over the years have entered into a variety of compacts, associations and alliances. Groups such as the Appalachian Regional Commission have partnered with the federal government. Others, such as the Southern States Energy Board, on which Georgia Rep. Lynn Smith is vice-chair, work with industry groups.
These associations usually are formed to address long-term problems or exploit long-term opportunities, and don’t attract much controversy.
Last week, a new kind of alliance leaped into existence. Almost simultaneously, the governors of the three West Coast states and the governors of seven Northeastern states announced that they would be coordinating on when and how to reopen their states for schools and business.
“COVID-19 has preyed on our interconnectedness,” California Gov. Gavin Newsome, Oregon Gov. Kate Brown and Washington Gov. Jay Inslee, said in a joint statement. “In the coming weeks, the West Coast will flip the script on COVID-19 — with our states acting in close coordination and collaboration to ensure the virus can never spread wildly in our communities.”
A few hours before the announcements, President Trump tweeted that the decision to reopen the states was “a decision of the president, and for many good reasons.” Afterwards, he said at the daily COVID-19 press briefing that his authority was “total.”
This got most of the media attention last week but in the long run may prove to be least relevant to what was really going on. The timing of the president’s tweets suggest he was attempting to preempt the upcoming announcements, not that the announcements were a reaction to his tweets. His claim to total authority after the pacts were announced swiftly dissolved into tweeted exhortations to protesters to “liberate” their states from their governors’ stay-at-home rules.
What is relevant is that the idea of regionalizing the crisis gained ground very quickly. On Thursday, the governors of seven Midwestern states announced they would be coordinating their reopening efforts as well. It was reported that Maryland, Virginia and the District of Columbia are working together, without having made a formal announcement.
By week’s end, the idea of regional coordination had even spread south into some of Trump’s most solid states. Georgia Gov. Brian Kemp said he spoke Saturday with the governors of Alabama, Florida, Mississippi, South Carolina and Tennessee about developing a broad plan to reopen the economy.
Last week’s joint statements were pretty general about the states’ intentions, clear of any direct conflict with the “compact clause” of the U.S. Constitution, contained in the closing words of Article I. They are worth quoting in full, for a better idea of what the framers were driving at:
“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.”
Over the years, courts have interpreted the meaning of “enter into any agreement or compact with another state” generously, giving states freedom to make agreements with each other, provided the associations don’t try to pass laws that supercede those of the states, and don’t “encroach upon or interfere with the just supremacy of the United States.”
These regional alliances seem to fall well within those bounds, but that’s under today’s conditions. The economic repercussions from the pandemic are likely to last far longer than the first wave of the virus, and the likelihood of a second wave is beginning to draw more attention. Will these compacts be dismantles after the first wave has passed or evolve into more long-term and far-reaching alliances? And how would that affect the union from which they sprang?
Tom Baxter is a veteran Georgia journalist who writes for The Saporta Report.