Common Core legal challenge is ‘extremely puzzling’

Justice Louis Brandeis once said that “It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”  This idea of federalism is an essential component, and part-and-parcel, of the conservative movement.

So it is extremely puzzling that the recent legal challenge by some conservatives against Common Core and SBAC, Regan et al. v. Otter, hangs its hat on Congress’s supposed responsibility to pre-approve of arrangements between states such as the Common Core Standards or the Smarter Balanced Assessment Consortium.  If states are the “laboratories” of “novel social and economic experiments,” why would it be necessary for Congress in Washington, D.C., to approve of a novel agreement on ways to teach and test our school children?

But nevertheless, the Regan plaintiffs’ primary claim for relief against Common Core and SBAC is that “The United States Congress did not directly or indirectly consent, approve, ratify or authorize the creation of SBAC or its operations, and therefore its existence and operation violate the Compact Clause of Article I § 10, Cl. 3 of the U.S. Constitution.”  So let’s analyze this claim.

This provision states, “No state shall, without the Consent of Congress . . . enter into any Agreement or Compact with another State[.]”

This may sound clear enough, but not all agreements between States are subject to the Compact Clause.  As the Supreme Court has stated, “The Constitution did not purport to exhaust imagination and resourcefulness in devising fruitful interstate relationships.  It is not to be construed to limit the variety of arrangements which are possible through the voluntary and cooperative actions of individual States with a view to increasing harmony within the federalism created by the Constitution.”

So what agreements do violate the Compact Clause without Congressional approval?  According to the Supreme Court, only those that are “directed to the formation of any combination tending to the increase of political power in the States, which may encroach upon or interfere with the just supremacy of the United States.”  The relevant question is, how does the interstate agreement at issue interfere with the supremacy of the federal government?

The Founders were concerned that states could join forces in ways that would upset the balance of power between the states and the federal government, and thus threaten the supremacy of the United States.  This is not difficult to imagine given the time and circumstances within which the Constitution was drafted.  They feared that that states could create factions (such as, with an agreement to jointly form an interstate army) dangerous to the nation functioning within its proper powers under the Constitution.

Considering the Constitution, and this interpretation by our Supreme Court, how could the Common Core Standards or the SBAC test even possibly threaten the “just supremacy of the United States”?  Even the Regan plaintiffs admit that “Education policy is an area of core state competence and . . . therefore is reserved to the States and/or the people . . . .”

The Supreme Court has never found a state compact void for not getting congressional approval under the Compact Clause.  It’s a little difficult to imagine the courts would change their tune in Regan.

Sean Coletti is an attorney at Hopkins Roden in Idaho Falls. He serves on the Ammon City Council.