I had two quick follow-ups, if you’re interested in exploring further. First, don’t you think that “the United States” might include the federal courts of the United States? That’s why I’m reluctant to peg nonjusticiability on the first Baker factor. Second, do you have any thoughts on Colorado’s claim that the Guarantee Clause cannot be enforced against the state governor, but must be enforced (if at all) against “the United States”?
My thoughts: (1) In my initial post, I argued that the phrasing of the guarantee clause (“The United States shall guarantee to every State in the Union a Republican Form of Government”) indicates a textual commitment to the political branches, thus making the Colorado case a non-justiciable political question. Professor Muller is right that the best response is that the federal courts are part of “the United States” and thus share the duty of enforcing the guarantee. I’m not persuaded for several reasons.
First, the reference to “the United States” seems like a direction to the United States as a whole, in its sovereign capacity, not a direction to each individual component of the U.S. government. That is similarly true of the word “guarantee”, which is not typically used to describe what courts do. And that conclusion seems particularly appropriate because the clause is potentially very intrusive on federalism; read broadly, it would make the federal courts overseers of the political systems of the states. This is not likely a role the framers envisioned for the federal courts; rather, it is much more likely that they designed the guarantee as a mechanism that required the participation of the states collectively (through the Senate).Details