Can a state surrender some of its sovereignty?

Of course. It’s how our current federal government came into existence.

But can a state still surrender more now that the Constitution itself has been ratified? The Constitution’s Compact Clause certainly seems to contemplate it, so long as Congress consents.

But how much sovereignty can a state give away—especially in areas involving core police powers—and more importantly, when and how can a state get its sovereign powers back?!

These issues are front and center in a dispute between New York and New Jersey involving one of their compacts, which created the Waterfront Commission of New York Harbor.

New York and New Jersey created the Waterfront Commission to combat crime at the Port of New York Harbor. Organized crime, racketeering, and corruption pervaded the Port’s operations at that time.

But due to the Commission’s structure (any action requires consent from each state’s commissioner), it has been generally ineffective and has itself been criticized. Even a New York Inspector General’s report flagged issues with its operations and raised concerns about its abusive work environment.

It’s little wonder that New Jersey now wants to withdraw.

But here’s the problem: New York doesn’t want New Jersey to withdraw. And the compact creating the Waterfront Commission doesn’t explicitly address withdrawal. It says that any amendment requires unanimous consent of both states. And Congress, when it approved the compact, explicitly retained the authority to dissolve it.

So what does this silence mean? New York says it means unanimous consent of both states is required for withdrawal. New Jersey, though, says it means either state can unilaterally withdraw.

Because the states cannot agree, they invoked the Supreme Court’s original jurisdiction so that the Justices must now resolve this dispute.

It’s clear from the briefing and arguments that while this case might masquerade simply as a procedural dispute involving withdrawal, it’s not. The issues implicate key concepts about when and how background principles should be used in interpreting the text—or lack thereof—of a written document, something Prof. Will Baude has talked about recently.

And as importantly, the issues in the case implicate core aspects of a state’s sovereignty.

Texas filed an amicus brief, joined by several other states, arguing that the “Reserved-Powers Doctrine” prevents states from giving away certain core police powers. But even if the Justices think that states can give away certain core police powers, with Congress’s consent, Texas argues that they must do so unmistakably. They cannot do so by silence or implication.

At oral argument, Justices Elena Kagan and Ketanji Brown Jackson seemed hesitant to wade into the thorny issues involving a state’s sovereignty. They both seemed willing to decide the case based on contract principles, which cut in favor of New Jersey. The U.S. Government also weighed in, in favor of New Jersey’s ability to withdraw.

Interestingly, in response to several probing questions by Justice Amy Coney Barrett, New Jersey’s counsel suggested the court might adopt different rules for different types of compacts. He suggested that those involving water rights or boundary disputes might be irrevocable if the compact is silent while those involving continuing obligations, like this one, might not be.

In any event, it does seem odd that a state could enter into a compact with another state to form a new entity to exercise certain police powers in perpetuity. After all, a basic tenet of our representative government is that important decisions should be made by the people’s elected representatives who are accountable to them—not an unelected, unaccountable body that continues indefinitely.


Although making predictions about the outcome of Supreme Court cases is a risky endeavor, based on the questions at oral argument, it seems like most Justices agree with that. The only question will be on what grounds New Jersey will win the right to reclaim its sovereign authority over its side of the Port of New York Harbor and withdraw from the Waterfront Commission Compact.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].