If a Government Can't Tax, Is It Really a Government?

A ground-breaking Colorado case tests a constitutional guarantee.

Daniel Padavona/Shutterstock

Could Congress invalidate your state's constitution and demand it be rewritten?

The answer -- disconcertingly enough for those who regard the states as "sovereign," as against the federal government -- is almost certainly yes. It won't happen, of course. But last month, a related question emerged that may have more practical importance: Could a federal court do the same thing?

The clause that raises this question is called the Guaranty, or "Republican Form of Government," Clause of Article IV, § 4. It provides that "[t]he United States shall guarantee to every State in this Union a Republican Form of Government . . . ."  The clause, usually obscure, is relevant now because of a preliminary district court decision on July 30 in Kerr v. Hickenlooper, a case in which members of Colorado's legislature have gone to court to argue that the state's own constitution is unconstitutional.

The target is Colorado's so-called "Taxpayer's Bill of Rights," enacted by initiative in 1992, which essentially bars both the state and local governments from raising any tax without a prior approval by popular vote. The plaintiffs' complaint in Kerr contends that "[a]n effective legislative branch must have the power to raise and appropriate funds."  Removing this power entirely, the argument goes, in essence leaves the state without a functioning legislature. In turn, a state without a legislature cannot have a "republican form of government."

Guaranty Clause cases are routinely tossed on the grounds that they raise a "political question" that courts should not decide. Last week,  however, Judge William Martinez rejected that argument and ruled that this case can proceed. The ruling breaks new ground.

Courts steer clear of the Guaranty Clause because no one quite agrees what a "republican form of government" is. Even today, we can rule out governments with kings, but Saddam Hussein's Iraq was a "republic," as is Kim Jong-un's North Korea. James Madison, that font of wisdom, defined a republic in Federalist 10 as "a government in which the scheme of representation takes place," as distinct from "a society consisting of a small number of citizens, who assemble and administer the government in person." Direct democracy, by this definition, would be anti-republican. Sounds good, but it was Madison's own notion, rather than a standard definition.

In 1849, when Rhode Island was in the middle of a small civil war, the Supreme Court refused to use the Clause to decide which of the two warring governments was valid. That duty, it said, fell to Congress, which would seat the representatives of the government it found legitimate. At the dawn of the twentieth century, many scholars argued that the so-called "Oregon system" of initiative, referendum, and recall was anti-republican. In 1911, the Supreme Court rejected a challenge to Oregon's initiative system by a corporation that objected to paying taxes adopted by popular vote. The tax itself was a perfectly ordinary tax, the Court pointed out; the company's argument was simply that it had to be adopted by a different mechanism. Congress might have a right to outlaw the initiative, the Court said, but the courts did not. "It follows that the case presented is not within our jurisdiction."

Perhaps for that reason, the state of Colorado responded to the latest lawsuit as if it were a frontal assault on the initiative itself. "[T]his case is an effort to have the courts remove what [plaintiffs] see as an obstacle to their policy agenda: direct citizen participation in lawmaking," the state's motion to dismiss argued. Robert Natelson, a former constitutional law professor at the University of Montana, bolstered the state's arguments in an amicus brief for the conservative Independence Institute. The brief argued that the term "republic" at the time of the Founding embraced many ancient systems -- such as Athens and Sparta -- where citizens directly made the laws.

But Judge Martinez, who was appointed to the bench in 2010, held that the Colorado case isn't a challenge to the adoption of law by initiative. It is, rather, a challenge to a specific system of government -- however adopted -- wherein there is effectively no delegated power to tax. Thus, he said, the Oregon case did not bar the court from at least hearing the case. "This action . . . seeks not the invalidation of Colorado's ballot initiative system. Plaintiffs, in fact, seek only to invalidate one particular measure passed via the Colorado voter initiative process: TABOR." Invalidating that measure, if it happens, "will in no way affect Colorado voters' power of initiative . . . ."

In addition, Martinez noted that the "political question" doctrine almost never bars courts from hearing statutory cases -- and one of the issues in Kerr is whether TABOR violates not just the Constitution but the 1875 Colorado Enabling Act, under which Congress admitted the state to the Union on condition that its state constitution should be "republican in form."  Just last term, the Supreme Court brushed aside the federal government's argument that a federal statutory case raised a "political question."

Denver attorney David Skaggs, who is part of the plaintiffs' legal team, said in an interview that Colorado "is the only state that has completely removed the authority [to tax] from the legislature and all other subordinate levels of government." After 20 years of TABOR, he said, the state has "exhausted all the work-arounds" that would allow adequate funding of state services. In fact, in a major case pending in state court, a trial judge last year held that Colorado's school-funding system violates the state constitution's guarantee of a "thorough and uniform system" of public education. The state cannot plead TABOR as a defense to its violation of the uniform-system requirement, the state judge ruled.

"I believe the trial in this case may be the first time a federal court will have to take a good look at the history and meaning of the Guarantee Clause," Skaggs said. Colorado Attorney General John Suthers replied in an interview that "republican form of government" means only  three things: (1) ultimate vesting of power in the people; (2) a politically accountable executive; and (3) the basic rule of law. Because Colorado has all three, he argues, "I don't think the United States Supreme Court will have any appetite" for this case.

He may be right. If Judge Martinez were to strike down TABOR, and the Tenth Circuit agreed, the case would be bound to go to The Show.  A powerful line of precedent there would suggest plaintiffs can't win.

But underlying the plaintiffs' case in Kerr is a question that has wide relevance in today's polarized politics: If one side of a political debate succeeds in smashing the political controls so it can never lose, is the resulting system really a self-governing one?

Defenders of TABOR ridicule the case as "frivolous." But some people suggested that the challenge to the Affordable Care Act was frivolous too. Those challengers lost most of the case. They also educated the nation on libertarian doctrine, transformed the political debate, and moved Supreme Court precedent well to the right. The opponents of TABOR are doing much the same thing. Win or lose, their enterprise is deadly serious.