How many angels can dance on the head of a pin?
by James A. Bacon
Is it possible to create an interstate compact when one of the “states” is the District of Columbia, which, in fact, is not a state? To be more specific, is the agreement between the Commonwealth of Virginia and the District of Columbia that creates the Metropolitan Washington Airports Authority a true “interstate” compact, and should it be governed by the same rules as compacts between two actual states?
Dan Scandling, chief of staff for Rep. Frank Wolf, R-10, concedes that the issue is arcane. But the questions have come to the fore in the power struggle over the composition of the Metropolitan Washington Airports Authority (MWAA) board of directors.
Last year Congress passed a law, signed by President Obama, that would expand the MWAA board from 13 members to 17, including two appointees from Virginia. The law also required board members whose terms had expired to step down. (Two board members are currently serving even though their appointments have expired, and that number could increase to three by the end of this month.) The law also empowers appointing executives like Governor Bob McDonnell to remove board members with cause. If enacted, the provisions could lead to a major shake-up of the board.
MWAA has argued that it could not comply until both Virginia and D.C. amended their interstate compact. The United States Constitution gives power to Congress to review and approve compacts between two more states, MWAA contends. But the Constitution is silent on Congress’ authority to amend an interstate compact. The issue has never been addressed by a court, so the MWAA board contends, in effect, that it is exempt from the dictates of Congress.
Scandling disagrees. “It is the law. Period.”
When asked to elaborate, he added, “This. Is. The. Law. The authority knows it.”
The District is a federal entity, he continues, so the agreement between Virginia and D.C. is not an “interstate compact.” Dulles airport sits on federal land. The airport was created by the federal government. There are three federal appointees on the MWAA board. Therefore, MWAA is subject to the power of the federal government.
MWAA was opposed to the governance legislation as it worked its way through Congress. And the very same day Obama signed it into law, Scandling says, MWAA hired an outside law firm to advise the board on how it could avoid complying with the bipartisan law. That firm, Jenner & Block, duly obliged.
Furthermore, Scandling pokes a hole in Jenner & Block’s case. In its 24-page memo, the law firm stated:
In the entire history of interstate compacts, we are unaware of a single instance in which Congress purported to amend or rescind a compact that it had approved. Had Congress intended such path-breaking legislation, it likely would have provided some sign in the legislation or its accompanying materials indicating as such. … No such sign is present. Instead, the Legislation consists of a series of small changes in 49106 that were adopted as part of larger appropriations legislation and that contain no explanatory language indicating an intent to change the terms of the Authority substantially.
But the law firm got it wrong, Scandling maintains. A document accompanying the legislation, referred to as a “report,” does, in fact, provide explanatory language that summarizes the major changes of the law.
However, in possible contradiction of Scandling’s position, the report’s language also includes the following: “The conferees expect the jurisdictions to expeditiously implement these modifications.” That wording that could be interpreted as meaning that some other action from the jurisdictions/states was required to implement the law.
So, who’s right? I’m no lawyer. I checked with the state Attorney General’s office. Here is the response I got from the communications office: “We don’t have anything we can share right now, but I will get back to you as soon as we do.”
Murk alert: It gets even more complicated. A friend offers another twist on this issue. Under the U.S. Constitution, Congress exercises exclusive jurisdiction over the District in “all cases whatsoever.” Although it delegated much of its authority in 1973 to elected city officials under home rule, Congress can revoke that authority at any time. Thus, even if the District refuses to amend the interstate compact, Congress can overrule the mayor and city council.
by James A. Bacon
