Does Colorado Have a Republican Form of Government?

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):

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Oregon County Takes First Step Toward Nullifying Indefinite Detention

Earlier this week, Klamath County, Oregon, took the first step toward nullifying indefinite detention.

Congress codified indefinite detention into law in sections 1021 and 1022 of the 2012 National Defense Authorization Act. Despite assurances from administration officials and members of Congress that it applies “only to the terrorists,” a federal judge ruled it unconstitutional because of broad language that could apply to pretty much anybody. And the Obama administration has fought hard to overturn that ruling. (Read more about indefinite detention HERE and HERE.)

The Klamath County Board of Commissioners passed a resolution condemning indefinite detention under not only the NDAA, but also under “an authorization for use of military force or any similar law or authority claimed by Congress or the Office of the President,” calling it “unconstitutional and therefore unlawful.” The resolution also calls on the Oregon legislature to interpose on behalf of the citizens.

Klamath County requests the Oregon State Legislature recognize the duty of the state of Oregon to interpose itself between unconstitutional usurpations by the federal government or its agents and the people of this state, as well as the duty to defend the unalienable natural rights of the people, all of which is consistent with out oaths to defend the Constitution of the United States and the constitution of Oregon against all enemies, foreign and domestic.

Klamath County joins Coos County in condemning federal kidnapping and calling on Salem to act against it. These Oregon counties  join a chorus of local governments across the U.S. opposing indefinite detention.

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Sen. Mike Lee: Supreme Court ObamaCare Ruling a “Lawless Act”

Minutes after midnight on Wednesday, Senator Mike Lee (R-Utah) rose to give his colleague Senator Ted Cruz (R-Texas) a breather from what was already a marathon speech warning of the “train wreck” that is resulting from the collision of the American economy with the oppression of ObamaCare.

While the remarks delivered by both men were eloquent, engaging, and educational, Senator Lee’s impromptu descant on the unconstitutionality of the Supreme Court’s rewriting of the original healthcare legislation was particularly noteworthy.

For nearly an hour and without a teleprompter, Senator Lee rightly accused the Supreme Court of having “rewritten” ObamaCare, converting it from a penalty into a tax, thus placing it, as Senator Cruz said, “in a different stream of jurisprudence.”

Parenthetically, one wonders if “former law professor” Barack Obama could have stood for nearly an hour in the middle of the night and delivered an unrehearsed lecture on the Constitution without the use of a teleprompter.

Speaking of the court’s ruling last year on the constitutionality of the Affordable Care Act, Senator Lee said, “Those five lawyers wearing black robes, who we call justices, were no more empowered than the queen of England to impose a tax on the American people.”

“This was a lawless act,” he added.

It was indisputably a lawless act of unconstitutional lawmaking on the part of the black-robed oligarchy.

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California Defies Federal Education Mandates, Still Takes Steps Towards Common Core

California AB 484, a popular bill among state officials, educators, and schools alike, marks a major step forward in the state’s transition to the Common Core State Standards (CCSS). But it does thumb its nose at federal testing standards along the way, asserting California prerogative to chart its own educational path, even while adopting centralized standards.

Unfortunately, this bill has nothing to do with whether or not California will accept Common Core: the state has accepted it, and it is here to stay.  Rather, this bill merely irons out a few logistical wrinkles, including how best to transition from the old federal assessment instrument (the “STAR” test) to the new, Common-Core related one (“MAPP”).

The plan laid out in AB 484 allows for the 2013-2014 school year to be one of transition relative to the federal assessment requirements.  During this time, a field sample of students (rather than all students) would be tested using the new on-line Common Core-related federal assessment instrument called MAPP.

This new limited testing program flies in the face of mandates from the 2005 No Child Left Behind Act. To do this, California would need a federal waiver, but it’s not asking for one. The California legislature determined the federal test makes no sense in transitioning to new standards and determined to ignore it.

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