Why ACF is working for a General Convention
ACF is the only Article V advocacy organization that has given any thought to what efforts may be necessary to get the states to Convention beyond securing 34 valid applications. It is our hope that Congress discharges its constitutional duty to call the Convention once the requisite number of valid applications have been submitted.
However, Congress has a history of ignoring Article V applications. It wasn’t until just a few years ago, as a result of citizen backlash, that they’d even implemented a procedure for tracking and counting applications. Additionally, Congressional Research Service Reports question whether Congress has any obligation to call the Convention, and posit a Congressional role in a Convention the very purpose of which is to circumvent Congress. In light of these facts, ACF believes it prudent to assume Congress will look for excuses to avoid calling this Convention or interfere with its proceedings. This will require the states to be prepared to defend their rights in federal court. There are four possible scenarios, and the type of applications submitted by the states (limited vs. general) figure prominently in the outcomes.
(1) The states file 34 or more limited applications. As has happened in the past, they are ignored, forcing the states to take action in federal court. Consistent with scholars including Dellinger & Caplan, Congress argues that they have no constitutional authority to call a limited convention. Whether the court hearing the case is composed of strict constructionists or jurists inclined to protect an expanded role for the federal government, the states would most likely lose.
(2) The states file 34 or more limited applications. Congress calls the Convention, but as suggested by the CRS report, attempts to control it. In this scenario, the states would be forced to sue Congress for attempting to assume powers not specifically granted to it in Article V.
For the foreseeable future, strict constructionists will hold the majority in the Supreme Court, so the Court would most likely rule Congress’ grab for authority does not comply with Article V; however, a court so composed would also likely hold that that Congress has no authority to call a limited convention. Both the states and Congress lose this case, but the states are the ultimate loser because there is no Convention.
(3) The states file 34 or more general applications. Congress ignores them, and the states sue in federal court. Because there is no limiting language providing Congress with a constitutional escape hatch, and because, for the foreseeable future, strict constructionists will hold the majority in the Supreme Court, the states would most likely prevail.
(4) The states file 34 or more applications for a general convention. Congress calls the Convention but attempts to control it in some way. Because the majority of the Justices are strict constructionists, the court would support the general convention and throw out Congress’ demand for extra-constitutional power over the convention and the states would prevail.
In light of the historical record and a careful assessment of the full range of scholarly opinions, ACF has concluded that the most effective strategy to prevent Congress from evading its responsibility to call the Convention and/or to control its proceedings is to (a) focus its efforts and attention exclusively on applications for a general convention, and (b) lay the foundation to prepare the states to be successful in litigation.