The Constitution is full of inconvenient provisions. Gun-control advocates struggle to explain the Second Amendment; those favoring federal power must wrestle with the Tenth: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Here’s a puzzle for the "states’ rights" and "state sovereignty" crowd: the "Guaranty Clause," Article 4 § 4, which binds the federal government to "guarantee to every state ... a republican form of government."
That clause, like a dormant volcano, rumbled last week in a courtroom in Denver. The sound should worry those who think state prerogatives trump those of the nation.
Since the earliest days of the republic, this clause has been interpreted to mean that when Congress recognizes a state government and admits its members to Congress, it is implicitly finding the state’s government properly "republican." In fact, when admitting new states to the union, Congress has for more than a century placed in the statute wording finding that the people have adopted a "republican form of government."
The sobering implication is that Congress could decide at any point that a state’s constitution was not "republican," expel its members of Congress, and require its people to draft a new constitution.
It’s kind of hard to square that power with the claim that the states are "co-sovereigns" with the federal government. It’s an odd kind of "co-sovereign" that exists by grace of its "peer."
Congress has never voided a state government under the clause, and probably never will. The wording, however, doesn’t specifically refer to Congress, but to the entire "federal government." The 10th Circuit Court of Appeals decided that a group of Colorado legislators could bring suit against their own government, on the grounds that it is not "republican" in form.
I’ve written before (here and here) about the case, Kerr v. Hickenlooper. It’s an attack on a provision of the Colorado constitution called the Taxpayer Bill of Rights (TABOR). Adopted by popular initiative in 1992, it's the strictest tax-limitation measure passed by the voters in any state. Despite its name, it has nothing to do with rights of individual taxpayers and everything to do with hamstringing state government. Under TABOR, no unit of government, from the legislature to local boards, can raise taxes or approve a new tax without a vote of the people. In addition, if existing taxes bring in revenue greater than "inflation plus the percentage change in state population" for the year previous, that "surplus" must be refunded to the taxpayers. In short, TABOR froze state government in its existing shape as of 1992, and left the legislature to flounder helplessly.
In 2011, a group of taxpayers and legislatures brought suit in federal district court, arguing that a state in which no representative body has the power to tax is not a "republic" in any sense of the word.
Their quest seemed far-fetched at the time. First, citizens or even legislators who don’t like the way things are being run generally don’t have what’s called "standing to sue." Standing requires a plaintiff to show that a government action or policy—in this case TABOR—injures him or her in a way it doesn’t hurt everyone. Since TABOR affects everyone no one might have standing.
Second, the Supreme Court has for a century and a half refused to get into "republican form" disputes. In 1849, the Supreme Court refused to settle a full-scale civil war in Rhode Island by choosing one of the factions as the proper "republican" government. That was for Congress to decide, Chief Justice Roger B. Taney (later the author of Dred Scott) wrote, not for the courts. A century ago, the state of Oregon adopted the initiative system; the newly empowered citizenry promptly voted a tax on some corporate revenue. An aggrieved corporation sued, claiming that allowing government by popular vote was not "republican." No question of "standing" here, being taxed counts as "injury," but the Court held that the dispute was a "political question," beyond the jurisdiction of the courts. Chief Justice Edward White noted that the challenge was not simply "on the tax as a tax, but on the State as a State." Such a broad attack on a state was "not therefore within the reach of judicial power."
Last week, the 10th Circuit held that the plaintiffs in TABOR do have standing. Taxpayers may not, the court ruled, but members of the legislature are injured by TABOR. "With respect to taxing and revenue," the panel wrote, "the General Assembly allegedly operates not as a legislature but as an advisory body, empowered only to recommend changes in the law to the electorate." Some earlier cases have permitted legislators to challenge procedures that "nullify" their votes, and TABOR does that, the court reasoned.
As for the "republican" issue, the panel noted that the Oregon case is not the final word. The Supreme Court in 1962 decided that state apportionment rules are not "political questions"—thus opening the way for decisions requiring "one person one vote." The TABOR case doesn’t challenge the lawfulness of the existing government, and it doesn’t claim that all the state’s laws are void. The 1962 case, Baker v. Carr, laid out a list of factors for determining whether a case is "political"; most of those deal with relations between the courts and other branches of the federal government. For a federal court to interfere with state constitutions is far less unusual, and it is legitimate under the Supremacy Clause of Article VI § 2. In a 1992 case, Justice O’Connor dropped a broad hint that some members of the Court might be interested in exploring claims under the Guaranty Clause. For all these reasons, the 10th Circuit said, a federal court could decide whether TABOR is "republican."
The panel opinion didn’t decide that issue. In theory, what would follow is a trial in front of a district judge, where the plaintiffs could put on evidence of the damage TABOR is causing. However, state Attorney general John Suthers could ask the entire court to review the case "en banc," or he could petition the Supreme Court for immediate review—or both. (So far he hasn’t announced a decision.)
Either move might open the plaintiffs’ case to new critique. So far, by the luck of the draw, their claim hasn’t faced the scrutiny of a single Republican judicial appointee. GOP appointees tend to be more conservative, and more protective of states, than their Democratic-appointed counterparts. O’Connor is no longer on the Court, and her replacement, Samuel Alito, is quite sympathetic to state government.
As a con-law nerd, I’m rooting for a trial. A state whose legislature can never pass a tax strikes me as a kind of anarchy ruled by sporadic popular vote, rather than anything that qualifies as representative government. The Guaranty Clause must mean something; if the federal courts can invent a new, completely non-textual rule against the "individual mandate," I am not sure why they should ignore the specific words of the text. If you think that the states should be immune to federal interference, think again. Don’t blame me—blame the Framers.
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