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Indiana Law Journal

Document Type

Article

Publication Date

Spring 2023

Publication Citation

98 Indiana Law Journal 863 (2023)

Abstract

Those committed to addressing the political, economic, and moral crises of the day— voting rights, racial justice, reproductive autonomy, gaping inequality, LGBTQ rights, and public health and safety—don’t know where to turn. Federal legislative and regulatory pathways are choked off by senators quick to filibuster and by judges eager to strike down agency rules and orders. State pathways, in turn, are compromised by limited capacity, collective action problems, externalities, scant economies of scale, and—in many jurisdictions—a toxic political culture hostile to even the most anodyne government interventions. Recognizing the limited options available on a binary (that is, federal or state) governance roadmap, this Article prescribes charting a third pathway: interstate agreements and compacts. Such arrangements—largely unnecessary when Washington is not pathologically dysfunctional—have a long and venerable constitutional pedigree and provide a legally sound and politically expedient “just-right” solution. Grouping clusters of states along the Pacific Ocean, the Amtrak Corridor, and the Upper Midwest, we propose and briefly sketch four major compacts as cornerstones of a Blue New Deal. Beyond detailing the four strategic interventions designed principally to work around the instant federal and state roadblocks (and recognizing similar opportunities for purple and, possibly, red states, too), this Article makes the affirmative, normative case for interstate agreements and compacts playing a long term, regular, and prominent role in twenty-first-century American governance—a case that sounds in democratic theory, administrative law, and political economy.

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