The U. S. Court of Appeals for the Tenth Circuit recently refused to dismiss the suit by various public sector interests to invalidate Colorado’s Taxpayer Bill of Rights (TABOR). The plaintiffs claim that TABOR violates Article IV, Section 4 of the U.S. Constitution. That provision is called the Guarantee Clause because it guarantees that the states will have republican forms of government.
The Guarantee Clause was designed to prevent states from becoming monarchies, dictatorships, or anarchies. It is totally inapplicable to TABOR,which simply requires that certain conditions—such as popular votes or legislative supermajorities—be met before the legislature can make designated increases in taxes, spending and debt. Although it is common in Colorado to claim TABOR is “unique,” in fact, it is only one of the stronger fiscal-restraint provisions that appear in the constitutions of 49 states. (The exception is Vermont.)
Restraints of this kind are called “TELs”—tax and expenditure limitations. Even the U.S. Constitution imposes such restraints on Congress. For example, it requires direct taxes, other than the income tax, to be apportioned among states by population, and it imposes a flat ban against taxes on exports.
The Independence Institute filed amicus briefs (Friend of the Court briefs) at the trial and appeals levels. Our briefs did not focus on the standing or justiciability issues—only the question of whether the Guarantee Clause invalidated TABOR. We focused on the Guarantee Clause because at the trial court (district court) level, the attorney general, while defending TABOR, did so almost exclusively on standing and justiciability grounds, and did not address the merits—i.e., whether TABOR violates the U.S. Constitution.
The attorney general did address the merits at the appeals level, but the court held that this was too late. The “republican form of government” question, therefore, will have to be dealt with in further proceedings.
It is unfortunate that this case has gone so far, because the claim that TABOR violates the Guarantee Clause is truly absurd. There is simply no conflict between the “republican form” and fiscal restraints or popular votes. As noted above, nearly all republican constitutions in the U.S. impose fiscal restraints on their legislatures. And popular votes on laws have been a major feature of republican government for thousands of years.
Although our brief did not address the justiciability issue, it seems to me that there is at least one glaring weakness in the appeals court’s decision on that subject.
The Supreme Court says that for a case to be justiciable in federal court, there must be “judicially discoverable and manageable standards” for resolving the issues. Not only have the plaintiffs failed to enunciate any such standards, but their papers seem to shift positions without really settling on any of them. At different points, their papers imply that they think that (1) all voter initiatives violate the Guarantee Clause, or (2) only fiscal voter initiatives do so, or (3) the Guarantee Clause bans only voter initiatives that go too far (wherever that point may be), or (4) it bans only voter-approval requirements for new taxes, or (5) it bans only voter approval requirements for taxes and spending, or (6) it prohibits any voter approval requirements for taxes, spending, or debt.
No one really knows what they mean (including, I suspect, the plaintiffs) because their papers are largely incoherent on the subject. But there certainly are no manageable standards to apply to a case when not even the plaintiffs can enunciate any.