The Collective-Action Constitution
Neil S. Siegel
Published:
2024
Online ISBN:
9780197760994
Print ISBN:
9780197760963
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The Collective-Action Constitution
Neil S. Siegel
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Neil S. Siegel
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97–130
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Published:
April 2024
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Siegel, Neil S., 'The Roles of the States and the Interstate Compacts Clause', The Collective-Action Constitution, Theoretical Perspectives in Law (
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Abstract
Chapter 3 of The Collective-Action Constitution examines the states’ potential role in solving collective-action problems that arise for them by forming interstate compacts and other agreements. The chapter also explains, however, why the constitutional text (if not the Court’s doctrine to date) presumptively bars interstate compacts and requires congressional consent to overcome the presumption. Proposed compacts may undermine federal supremacy or harm sister states, and different groups of states may disagree about whether a compact solves or causes a collective-action problem. The Constitution does not compel one answer to such questions, which are also historically contingent and normative, not just scientific or technical. Rather, the Constitution assigns main responsibility for deciding them to Congress, where, as Chief Justice Marshall explained in McCulloch v. Maryland (1819), the interests of all states and people are represented. In addition to potentially raising normative concerns, interstate compacts are difficult to form. Many parties within a compacting state must approve, and compacts require unanimous agreement among the compacting states. Moreover, impediments to collective action tend to increase sharply with the number of states that must act together. In general, if the proposed compact must encompass many states to accomplish its purposes, free rider, holdout, and disagreement problems are likely to paralyze it. This is a lesson of early American history and subsequent experience, and it helps explain why, according to this book’s arithmetic, compacts usually involve few states and why only around two hundred exist today.
Keywords: values of federalism, federalism, interstate compacts, Compacts Clause, Section 10, collective action, free rider, holdout, congressional consent, coordination problem
Subject
Constitutional and Administrative Law
Collection: Oxford Scholarship Online
The Collective-Action Constitution. Neil S. Siegel, Oxford University Press. © Neil S. Siegel 2024. DOI: 10.1093/oso/9780197760963.003.0004
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