At the Excess of Democracy blog, Derek Muller (Pepperdine Law) has an interesting post on Kerr v. Hickenlooper, the case claiming that Colorado lacks a republican form of government, as required by Article 4, Section 4 (the guarantee clause). As he explains:
In 1992, Colorado voters, by initiative, enacted a “Taxpayer Bill of Rights” (TABOR) that prohibits the legislature from raising tax rates or imposing new taxes without voter approval. Plaintiffs recently sued and claimed that the legislature had a kind of inherent right as a republican form of government to control tax increases.
The district court rejected defendant’s argument (at least as an initial matter) that claims under the guarantee clause are non-justiciable. The Tenth Circuit heard oral argument last Monday.
Professor Muller thinks that the case is a non-justiciable political question. I agree, but on somewhat different grounds. He argues:
The second prong [of Baker v. Carr, a key political question precedent] … is salient: “a lack of judicially discoverable and manageable standards for resolving it.” Defining a “Republican Form of Government” is not an easy task, and certainly not one the judiciary has undertaken in over 200 years.
Further, the narrowness of the question weighs against examining the definition. The defendants who appealed note in their briefs that there are limited sit[u]ations in which it might be justiciable–such as if a state instituted a tyranny or a monarchy. But here, the question is whether the legislature has a right to raise taxes absent the popular vote of the people-and, perhaps as a prior question, whether the people can remove a delegated task of certain kinds of taxation from their representatives by initiative and restore it to themselves.
I disagree. The fact that a question is hard should not make it non-justiciable. Muller quotes a law professors’ amicus brief (written by some people with whom I often don’t agree, including Erwin Chemerinsky):Details