David Gans, civil rights director at the Constitutional Accountability Center, said the Oklahoma measure is "clearly unconstitutional." Unlike efforts to restrict abortions, he said, "This is not an attempt to regulate. It’s an attempt to flout Supreme Court precedent.”
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But even if the measure becomes law, it’s unlikely to withstand legal challenges, said David Gans, civil rights director at the Constitutional Accountability Center in Washington, D.C. Gans said the measure clearly violates the Constitution’s supremacy clause, which ensures the precedence of federal law over state law, as well as the due process clause of the 14th Amendment. “This bill is really flouting these fundamental principles that the Supreme Court has explained and that are the law of the land,” Gans said.
The reasons for the most recent slowdown “boiled down to a reluctance of the ideologically divided eight-member court to take on an issue in which it might not be able to provide a clear answer,” Robert Barnes wrote early this month about an expert panel convened by the Constitutional Accountability Center.
The Court’s decision in the case may have delayed final resolution of the question presented, but the Justices’ opinions in Spokeo make clear why Robins should ultimately get his day in court. They provide an important affirmation that Congress has the power to give consumers a right to sue when corporations violate their federal legal rights.
“They are doing their best to avoid splitting 4-4, but at the same time they are demonstrating how they are having a hard time grappling with the important issues presented to them in these very big cases,” Elizabeth Wydra, head of the Constitutional Accountability Center, said. Wydra said the justices’ action was really a “punt,” evidenced by the concurrence by Justice Sonia Sotomayor and joined by Justice Ruth Bader Ginsburg. “She noted the courts of appeals, after review, remain free to reach the same conclusions on the legal issues that they did before (overwhelmingly in favor of the government),” Wydra said. “I think today’s decision is much more about putting this off to another day.”