June 21

A new twist to the dairy compact debate has been raised by two university constitutional law experts: dairy compacts may violate a basic constitutional principle -- the establishment of a unified national market. If compacts are made permanent and expanded, the arguments could give impetus to court challenges from compact opponents.

In testimony last week before the House Judiciary Subcommittee on Commercial and Administrative Law, Steven Rosenbaum, outside counsel to the International Dairy Foods Association, cited William Van Alstyne of Duke University and Burt Neuborne of the New York University Law School who submitted papers describing constitutional problems with interstate dairy compacts. A primary objection is the issue of "economic protectionism," the establishment of trade barriers by a state or group of states.

"Economic protectionism has been fought ever since the constitution was adopted in 1789," Rosenbaum said. "The Supreme Court time after time has struck down state laws and regulations that attempted to achieve the same protectionistic goals as would the proposed dairy compacts."

He said the use of interstate compacts -- normally used for interstate transportation or public products -- is unprecedented. "Other than its temporary approval of the Northeast Dairy Compact, Congress has never...approved a compact that would engage in economic protectionism...Congress would be going down a path it has wisely chosen not to tread."

The subcommittee was considering legislation to make the Northeast Dairy Compact permanent and extend compact authority throughout the southern states.