This month, Virginia became the 18th state to join the National Popular Vote Interstate Compact (NPVIC). This provoked an agitated response because, if the agreement ever goes live, it will deliver all the state’s Electoral College votes to the presidential candidate who wins the most votes nationwide, rather than the person Virginia voters selected.
With a war to cover, the news cycle moved on. While the country breezes past the question of whether states can compact away the Electoral College, the same loophole is being used to build compacts arguably more invasive.
A network of professional licensing agreements that would govern not just how Americans vote, but how they work, what they’re taught, and what ideological commitments they must demonstrate to keep their careers. In states where professional compacts have been enacted, there’s no need to ask for further consent.
The Constitution’s framers must have eyed compacts with suspicion, because they limited state authority to enter such agreements without congressional approval unless they were being actively invaded. Looking at the NPVIC, their concerns were justified. The Supreme Court relaxed those restrictions to facilitate states solving shared problems, such as coordinating water supplies or managing forest fires. But the risks remain.
The NPVIC isn’t an agreement to solve a shared problem. It is a mechanism for accomplishing, via compact, what Article V reserves for the amendment process. And professional licensing compacts are exploiting that same loophole to achieve a quiet revolution in governance.
Private Rules with the Force of Law
Professional licensure compacts achieve the worst of their outcomes by distributing rulemaking authority to private industry bodies through required exams or accreditation. This is how privately crafted codes of ethics or educational standards now bind practitioners on a national level with the force of law. Should one of these private bodies require professionals to understand the pervasive impact of white supremacy, or affirm gender identity, that sticks.
There is no pathway to adjust these compacts through elections or legal accountability. This is rule without consent, delivered through one’s licensed career.
The details of how these compacts function are a significant part of the problem. The American social contract is based on consent, but these compacts destroy it on three levels.
First, they’re run by unelected industry insiders. Second, they hand rulemaking to professional associations and private bodies. Third, they give those private bodies’ codes and standards the weight of law. The result is a parallel government structure that sidesteps the Constitution to govern practitioner behavior.
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