A Follow-up on the Guarantee Clause

Regarding this post on the guarantee clause challenge to Colorado’s anti-tax initiative, Derek Muller writes:

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).


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):