THE COMPACT CLAUSE AND CYBERWAR

Authors

Josie Laing

Abstract

This article seeks to bring attention to the potential modern utility of Article 1, Section 10, Clause 3: the Compact Clause. This section of the Constitution has historically been archived. However, given cyberspace’s ever-growing prominence, the Compact Clause should be reconsidered as cyber warfare presents a novel opportunity for states to exercise their sovereign rights.

Section 10 restricts states’ powers to engage with foreign entities. Without the consent of Congress, states cannot enter into agreements with foreign powers or engage in war. These restrictions on states were necessary when the Constitution was drafted. To navigate foreign affairs nimbly, the United States needed to act as a unified force. Given that individual states' interests can and will vary from national interests, there was a need for the states to be explicitly bound together. The internet has complicated this understanding of federalism. States are being hacked by foreign entities and the federal government is late to act. As a result, states are beginning to take matters into their own hands, disturbing the traditional balance of power between the states and the federal government.

This challenge of tradition prompts a review of history. States did not sacrifice their voices for free. In exchange for foreign influence, states were guaranteed protection by the federal military in the case of invasion or military threat. States were promised that they need not fight stronger forces alone and were assured that the federal government would “wage defensive war” if a state was invaded. Historically, the United States has honored this promise by developing itself as a military superpower. As a country, the United States has prepared itself for threats arising from land, sea, or air. However, cyberspace presents a new landscape in which the United States is not prepared, leaving room for states to advance their reserved war powers.

This article examines whether states can defend themselves and their constituents against cyberattacks while remaining consistent with the spirit of the Constitution. Part 1 will examine the historical backdrop of Section 10 and provide an overview of the past and present interpretations of invasion, imminent danger, and other related concepts. Part II will argue that warfare is becoming less kinetic and increasingly digital. Such digitization has led to states being attacked by foreign adversaries and other actors without organized federal aid. Part III points out the constitutional leeway permitting states to act during this cyber-era. While Montana’s attempt to ban TikTok, a popular social media platform, may not be constitutionally feasible, states may be able to take cyber matters into their own hands until the federal government can protect the United States in cyberspace.

Recommended Citation

Josie Laing, THE COMPACT CLAUSE AND CYBERWAR, 20 Wash. J. L. Tech. & Arts (2025).
Available at: https://digitalcommons.law.uw.edu/wjlta/vol20/iss1/2