Over the past couple of years, I’ve been working on a number of fronts to try to change the dysfunctional US political system from one that is governed by a Ruling Elite to one that is self-governed by the citizens

The biggest impediment to self-governance today is our bloated, debt-fueled, over-reaching Federal Government. We have got to reverse the growth of its power, and shrink it back to a sustainable size. Washington DC spends more than $10 billion each day, and it has put future generations at risk with its profligacy. It has also intruded on many areas of life where it has no business. It is a big, bad bully.

The problem with taking on a bully is that you need to find someone stronger than the bully to help you fight. And in the case of the US Government, there doesn’t appear to be anyone stronger. It is immense, powerful, and virtually without rival.

However, there is one force on the planet that is strong enough to fight the Federal Government: the combined efforts of some, or all, of the State Governments.

The issue, then, is how to organize the states. That’s where the use of Interstate Compacts (ICs) come in.

ICs are basically agreements between states. Each state that participates in an IC passes legislation that “opts-in.” The IC is then taken to Congress, which ratifies it. There is a specific section of the US Constitution that deals with Compacts (Article I, Section 10):

No State shall, without the Consent of Congress … enter into any Agreement or Compact with another State.

So, the basic process is for a group of states to get together, reach agreement on something, and then get Congressional approval.

Now, there are a lot of ICs already out there. Some have just two states (e.g. The Port Authority of New York and New Jersey), and others have many states (e.g. the Driver License Compact, which includes 45 states). So the basic framework for ICs has been in place and tested, and was fully contemplated by the Framers of the Constitution.

What do ICs have to do with the issue of reining in the Federal Government? Just this: Interstate Compacts are a legal, constitutional mechanism for states to organize themselves and take back power from Washington.

Let’s take, for example, Obamacare. It is very unpopular, and there is strong support for its repeal. However, how can repeal actually occur? The President will certainly veto any explicit repeal, and there are not enough votes in Congress to override the veto. Certainly elements can be defunded, or contested in court, but this process is inherently a defensive strategy, and will create – in the best case scenario – years of uncertainty before any eventual victory.

The IC route offers an alternative. States can get together and set up their own healthcare regulatory framework, and codify it in an IC. Let’s say, for example, that a group of states got together and decided to fully implement a market-based system: a high-deductible catastrophic insurance program, medical savings accounts, price transparency, etc. Each state would have the option to join the Compact for Market-Based Healthcare (CMBH), a compact that would provide significant flexibility to states as to the details of their legislation, but pooled risk for the catastrophic insurance program.

Now, for the first time, there would be an alternative to Obamacare on offer. States can decide to stay within the Federal Obamacare system, or join the State-driven CMBH. There might be some states that don’t like either, and decide to create a third alternative. The more the merrier.

Anyway, let’s say half the states decide to join the CMBH. At this point, the States would present the CMBH to Congress for its ratification. Included in the CMBH would be an explicit statement that with regard to healthcare regulation in the member states, the CMBH would pre-empt Federal regulation. Essentially, this is like creating charter schools in the education sector; they are exempt from many of the normal regulations that apply to school districts.

Also, when presenting the CMBH to Congress, there is an interesting political dynamic at work. The group coming to Congress are not private citizens; they are elected representatives of their respective states. They can speak, therefore, with formal authority on behalf of their constituents.

Additionally, there is an even more important aspect to the ratification process. Each Congressional delegation will be confronted by state legislators who want to be carved out of the Obamacare system. This fact – that state legislators are delivering the message – puts Congress in an awkward spot. If they defy the state legislators and the citizens of their state, they are alienating voters and aiding their potential political rivals: the state legislators themselves. Most state legislators would love to run for Congress. If Congress rejects the CMBH, they are handing their future opponents the issue to beat them with.

The key here is that the use of ICs in this manner is a political strategy, not a legal strategy. But it is nevertheless a mechanism that allows for states to take power back from the Federal Government, one that stops short of calling an Article V Constitutional Convention. And, if for some reason the Supreme Court strikes down an IC as unconstitutional, the states and Congress can amend the Constitution to allow for the compact. After all, if there is political support for the IC, there will be political support for an Amendment.

Why not use an Amendment process then? Well, for one thing Amendments really are driven by Congress, not the states.

Another thing about ICs: they don’t require Presidential approval. The Constitution says only that Congressional approval is required.

However, because a Presidential signature is not required, we should go ahead and seek one. The message would be “If you don’t sign this, we will move forward without you. So you really should sign, for the sake of your Presidency.” Such a signature would be the symbolic surrender of the Ruling Elite to the people. It would be like Shigemitsu surrendering to MacArthur on the deck of the USS Missouri.

In any event, ICs are a pretty radical approach to change, especially since they have broad applicability. For instance, environmental regulation could be done via an IC; offshore drilling rights; food and drug regulation; practically any Commerce Clause regulation could be carved out and delegated to an IC.

An important final point: this approach is not like nullification or secession. Those approaches involve rejection of Federal authority. Interstate Compacts, on the other hand, explicitly accept Federal supremacy by virtue of their seeking Congressional approval – after all, you only go to your superiors to seek approval, right?

So, the use of Interstate Compacts may be radical, but they are not seditious. They are a mechanism for the will of the sovereign citizens to be expressed through their elected state legislators for the purpose of reining in the power of the Federal Government. Even Hamilton, strong proponent that he was of a powerful central government, maintained that the final check on the power of the Federal Government was the states:

It may safely be received as an axiom in our political system, that the State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority. Projects of usurpation cannot be masked under pretenses so likely to escape the penetration of select bodies of men, as of the people at large. The legislatures will have better means of information. They can discover the danger at a distance; and possessing all the organs of civil power, and the confidence of the people, they can at once adopt a regular plan of opposition, in which they can combine all the resources of the community. They can readily communicate with each other in the different States, and unite their common forces for the protection of their common liberty.

Madison, as well, looked to the states to protect the people against an out-of-control Federal Government:

But ambitious encroachments of the federal government, on the authority of the State governments, would not excite the opposition of a single State, or of a few States only. They would be signals of general alarm. Every government would espouse the common cause. A correspondence would be opened. Plans of resistance would be concerted. One spirit would animate and conduct the whole. The same combinations, in short, would result from an apprehension of the federal, as was produced by the dread of a foreign, yoke; and unless the projected innovations should be voluntarily renounced, the same appeal to a trial of force would be made in the one case as was made in the other. But what degree of madness could ever drive the federal government to such an extremity…But what would be the contest in the case we are supposing? Who would be the parties? A few representatives of the people would be opposed to the people themselves; or rather one set of representatives would be contending against thirteen sets of representatives, with the whole body of their common constituents on the side of the latter…

I think the use of Interstate Compacts, then, represent an innovation that has its roots in the Constitution, and the spirit of self-governance from whence sprung the United States of America. This use is radical in the same way that the Declaration of Independence and Constitution were radical; the notion that “We the People” might form a Government that derives its “just powers from the consent of the governed.”

I am working with a multi-state group that is drafting a variety of interstate compacts and model legislation for enabling them. We plan to have these materials ready to go after the election.

In the mean time, reach out to your local Tea Party or other local citizens group, and together contact your state legislators/candidates, and let them know that you expect them to stand for your state against the intrusions of the Federal Government, and that interstate compacts are a powerful tool for that purpose. Put them on notice that if they don’t stand up against Washington, you will work to run candidates against them in their next primary election.

The Tea Parties have demonstrated that primaries are the Achilles’ Heel of the incumbent Ruling Elite. Use this fact against them.

The choice before all incumbents, then, will be to surf the tsunami of political devolution, or get swept aside by it. And the surfboard is the use of Interstate Compacts to take power back from the Federal Government.

Spread the word. The times, they are a changin’