The lawsuit, which revolves around Georgetown Law Professor Randy Barnett’s argument that the inaction is not covered by the all-powerful commerce clause, has gained ground in recent months. The number of states suing the national government ought not to matter, as Ilya Somin points out:
Legally speaking, it doesn’t matter whether the number of states challenging the law is twenty-six or two. Indeed, it should not even matter whether any states oppose the law at all, so long as there is at least one private plaintiff with standing (and there are in fact many such). The arguments for and against the law will be the same.
Though, Somin continues:
The Supreme Court is unlikely to strike down the law…However…[W]idespread popular and elite opposition gives the Court the political cover that it would need to strike down the law. If the political winds continue to blow against the law, the justices can be confident that a decision to strike it down won’t create a dangerous backlash against the Court.
This point was recently echoed by Richard Epstein in an interview with Reason Magazine.
An interesting note: only 7 more states would have to join the constitutional challenge to open up a Constitutional Convention.Published in