1.11 Rulemaking Authority of the Commission

     The commission’s rulemaking authority is one of the most distinctive and far-reaching of its powers. Article V of the ICAOS specifies that the rules established by the commission have “the force and effect of statutory law and shall be binding in the compacting states” s and Article XIV provides that “[a]ll lawful actions of the Interstate Commission, including all Rules and Bylaws promulgated by the Interstate Commission, are binding upon the Compacting States.” Courts recognize and enforce this principle of the ICAOS. E.g., Interstate Comm’n for Adult Offender Supervision v. Tenn. Bd. of Probation and Parole, No. 04-526-KSF (E.D. Ky. Apr. 1, 2005) (order granting preliminary injunction) (enforcing commission rule against state); Scott v. Commonwealth, 676 S.E.2d 343, 346 (Va. Ct. App. 2009) (“The Interstate Commission for Supervision of Adult Offenders (‘the Commission’ or ‘ICAOS’) was established by the Compact and has promulgated rules governing the transfer of supervision from a sending state to a receiving state as well as the return to or retaking by a sending state. See 2008 ICAOS Rules. The ICAOS Rules are binding in the compacting states and have the force and effect of law in Virginia and Ohio.”); Johnson v. State, 957 N.E.2d 660, 663 (Ind. Ct. App. 2011); Carmichael v. Pa. Parole Bd., 338 A.3d 275, 280 (Pa. Commw. Ct. 2025); State v. Zimmerman, No. 24-K-578, 2024 WL 5183218 (La. Ct. App. Dec. 20, 2024) (“Conflicts between compacting states’ laws and Commission rules are resolved in favor of rules of the Commission”). 

     Additionally, because the ICAOS has congressional consent, the compact has the force and effect of federal law and is binding on the states under both a Supremacy Clause analysis and a Contract Clause analysis, no state being able to impair the obligations of contracts including those entered into by the state itself. M.F. v. N.Y. Exec. Dep’t Div. of Parole, 640 F.3d 491, 492, 494 (2d Cir. 2011); State v. Brown, 140 A.3d 768, 776 (R.I. 2016) (following M.F.). See also Doe v. Pa. Bd. of Probation & Parole, 513 F.3d 95, 103 (2008)¹ (“[A]pplying the factors set forth in Cuyler v. Adams, 449 U.S. 433, 442 (1981),” the Court held that the prior Interstate Compact for the Supervision of Parolees and Probationers, “as a congressionally-sanctioned interstate Compact is federal law.”). . The federal law nature of the ICAOS may lend support to the enforceability of the commission’s rules under federal preemption or supremacy principles. E.g., Frontier Ditch Co. v. Se. Colo. Water Conservancy Dist., 761 P.2d 1117, 1123 (Colo. 1988); Lake Tahoe Watercraft Recreation Ass’n v. Tahoe Reg’l Planning Agency, 24 F. Supp. 2d 1062 (E.D. Cal. 1998).

     In adopting rules, Article VIII of the ICAOS requires the commission to substantially comply with the federal Administrative Procedure Act, 5. U.S.C. § 551, et seq., and specifically, the “Government in Sunshine Act,” 5 U.S.C. § 552(b). Note that the ICAOS only specifies that the commission’s rulemaking process must only substantially comply with the noted provision; the ICAOS does not specify that these laws directly apply to the commission, and these laws do not apply on their own terms because the commission is not a federal agency. See, e.g., Zimmerly v. Columbia River Gorge Comm’n, 663 F. Supp. 3d 1213, 1219 (W.D. Wash. 2023) (state Open Public Meetings Act does not apply to compact commission because the commission is not a state agency); ZP#5, LLC v. Columbia River Gorge Comm’n, No. 20-2-02402-06 (Clark Cty. Wash. Super. Ct. Mar. 24, 2023) (state’s Open Public Meetings Act does not directly apply to compact commission where the compact requires commission to enact rules consistent with the more restrictive of states’ laws). The Commission’s rulemaking authority is also limited by Article VIII, which provides that, if a majority of state legislatures rejects a Commission rule by enacting a statute to that effect, the rule has no force or effect in any member state. A single state may not unilaterally reject a rule even if it adopts legislation to that effect.

     The ICAOS specifically provides a mechanism by which a rule adopted by the Commission can be challenged. Under Article VIII, no later than sixty days after the promulgation of a rule, any interested party may file a petition in the United States District Court for the District of Columbia or the United States District Court in which the Commission has its principal offices (currently the United States District Court for the Eastern District of Kentucky) challenging the rule. Article VIII further specifies the standard of review—that the court can set aside a Commission rule if it is not supported by substantial evidence in the rulemaking record as defined by the Administrative Procedure Act, 5 U.S.C. § 551, et seq. (2004).

¹This decision interpreted the former Interstate Compact for Probation and Parole (ICPP). The ICAOS replaced the ICPP in 2002, but courts continue to look to ICPP case law where its reasoning is consistent with the current Compact’s structure and purpose.