Courtesy of The Automatic Earth.
I came across an interesting, yet disturbing article in the Atlantic today about a U.S. District Court case in the District of Colorado, Kerr v. Hickenlooper, that deals with the constitutionality of a Colorado law. On the surface, it all appears rather mundane and somewhat trivial, but I think it shows just how vulnerable the “sovereignty” of states and localities can be in a so-called federal system, especially during times of extreme desperation on the part of central authorities. Here are the opening sentences of the article:
If a Government Can’t Tax, Is It Really a Government?
Could Congress invalidate your state’s constitution and demand it be rewritten?
The answer — disconcertingly enough for those who regard the states as “sovereign,” as against the federal government — is almost certainly yes. It won’t happen, of course. But last month, a related question emerged that may have more practical importance: Could a federal court do the same thing?
I’m not as confident as Gary Epps that “it won’t happen”, but we can get back to that later. The plaintiffs in this case, Colorado state legislators, are alleging that a unique Colorado initiative enacted in 1992, called the Taxpayer’s Bill of Rights (“TABOR”), is unconstitutional because it disallows state and local governments from levying any taxes without prior approval from Colorado citizens via popular vote. One of their primary arguments in support of this complaint is that TABOR prevents Colorado from having a functional legislature and therefore from having a “republican form of government”, which is in violation of this obscure part of the Constitution:
Article IV, §4 – “The United States shall guarantee to every State in this Union a Republican Form of Government…”
Essentially, the plaintiffs are asking a federal court to interpret the above clause in a way that defines “republican form of government” as one in which legislatures can raise taxes without popular approval. In addition, the court must interpret “shall guarantee to every State in this Union” as giving federal courts the authority to override any State Constitution that fails to provide for a “republican form of government”. Gary Epps explains why these types of questions aren’t usually even considered by federal courts:
Guaranty Clause cases are routinely tossed on the grounds that they raise a “political question” that courts should not decide. Last week, however, Judge William Martinez rejected that argument and ruled that this case can proceed. The ruling breaks new ground.
Courts steer clear of the Guaranty Clause because no one quite agrees what a “republican form of government” is. Even today, we can rule out governments with kings, but Saddam Hussein’s Iraq was a “republic,” as is Kim Jong-un’s North Korea. James Madison, that font of wisdom, defined a republic in Federalist 10 as “a government in which the scheme of representation takes place,” as distinct from “a society consisting of a small number of citizens, who assemble and administer the government in person.” Direct democracy, by this definition, would be anti-republican. Sounds good, but it was Madison’s own notion, rather than a standard definition.
In 1849, when Rhode Island was in the middle of a small civil war, the Supreme Court refused to use the Clause to decide which of the two warring governments was valid. That duty, it said, fell to Congress, which would seat the representatives of the government it found legitimate. At the dawn of the twentieth century, many scholars argued that the so-called “Oregon system” of initiative, referendum, and recall was anti-republican. In 1911, the Supreme Court rejected a challenge to Oregon’s initiative system by a corporation that objected to paying taxes adopted by popular vote. The tax itself was a perfectly ordinary tax, the Court pointed out; the company’s argument was simply that it had to be adopted by a different mechanism. Congress might have a right to outlaw the initiative, the Court said, but the courts did not. “It follows that the case presented is not within our jurisdiction.”
Despite all of the above precedent against federal courts getting involved, Judge Martinez of the District Court has decided that it has the authority and jurisdiction to let the case proceed and make a definitive ruling on this Guarantee Clause question. He is basically giving credence to the plaintiff’s claim that TABOR is not simply a legislative initiative, but a fundamental alteration of Colorado’s system of government that may reduce it to an “anti-republican” and, therefore, unconstitutional setup.
But Judge Martinez, who was appointed to the bench in 2010, held that the Colorado case isn’t a challenge to the adoption of law by initiative. It is, rather, a challenge to a specific system of government — however adopted — wherein there is effectively no delegated power to tax. Thus, he said, the Oregon case did not bar the court from at least hearing the case. “This action . . . seeks not the invalidation of Colorado’s ballot initiative system. Plaintiffs, in fact, seek only to invalidate one particular measure passed via the Colorado voter initiative process: TABOR.” Invalidating that measure, if it happens, “will in no way affect Colorado voters’ power of initiative . . . .”
In addition, Martinez noted that the “political question” doctrine almost never bars courts from hearing statutory cases — and one of the issues in Kerr is whether TABOR violates not just the Constitution but the 1875 Colorado Enabling Act, under which Congress admitted the state to the Union on condition that its state constitution should be “republican in form.” Just last term, the Supreme Court brushed aside the federal government’s argument that a federal statutory case raised a “political question.”
It is one thing for a state court to decide whether state laws are in violation of the state constitution (or perhaps the U.S. Constitution), but here we have a federal court potentially determining whether both a state law AND a state constitution is in violation of the U.S. Constitution based on a vaguely defined “guarantee” of “republican” government for the states, using some 19th century statute to skirt the “political question” doctrine. It is a dangerous road to travel, which means that our federal institutions will almost certainly decide to travel down it as far as they can.
TAE has recently discussed the counterfeit virtues of federal systems, in which decentralization is nothing more than a slogan for radical centralization of wealth/power, and the non-existent rule of law in “civilized” countries such as the U.S. We should not be fooled into thinking that the federal courts, U.S. Congress or the federal executive/administrative agencies are relying on the “historical and true” meaning of the U.S. Constitution in these types of situations. They are simply manipulating the Constitution to achieve their corrupt, short-term goals and combat the storm surge of decentralization.
“I believe the trial in this case may be the first time a federal court will have to take a good look at the history and meaning of the Guarantee Clause,” Skaggs said. Colorado Attorney General John Suthers replied in an interview that “republican form of government” means only three things: (1) ultimate vesting of power in the people; (2) a politically accountable executive; and (3) the basic rule of law. Because Colorado has all three, he argues, “I don’t think the United States Supreme Court will have any appetite” for this case.
He may be right. If Judge Martinez were to strike down TABOR, and the Tenth Circuit agreed, the case would be bound to go to The Show. A powerful line of precedent there would suggest plaintiffs can’t win.
But underlying the plaintiffs’ case in Kerr is a question that has wide relevance in today’s polarized politics: If one side of a political debate succeeds in smashing the political controls so it can never lose, is the resulting system really a self-governing one?
Defenders of TABOR ridicule the case as “frivolous.” But some people suggested that the challenge to the Affordable Care Act was frivolous too. Those challengers lost most of the case. They also educated the nation on libertarian doctrine, transformed the political debate, and moved Supreme Court precedent well to the right. The opponents of TABOR are doing much the same thing. Win or lose, their enterprise is deadly serious.
Remember the infamous Citizens United Case of 2010? There, the Supreme Court also had a “powerful line of precedent” upholding federal campaign funding laws. But that didn’t stop the Court from interpreting the protection of “free speech” in the First Amendment to broadly include any corporate expenditure on political campaigns. So what’s to stop the Court from arbitrarily defining “republican form of government” to exclude any legislative system in which the people have a direct say over certain policies, such as tax measures? Absolutely nothing.
The Court may not have much of an “appetite” to hear these issues now, but that just means lower federal courts will be able to take it upon themselves to override the voices of individuals, communities and states in favor of the corrupt interests of state and federal legislators. If it gets to the point where a few federal circuits are resisting this transition, then the Supreme Court will suddenly find the issue very appetizing and completely within its jurisdiction to decide.
It turns out that any form of direct democracy these days poses an existential threat to the corporatist powers that be, especially when that democracy involves matters of extracting taxable wealth from the people. We are at the point where state legislators will challenge their state’s own constitution as unconstitutional because it prevents them from enacting policies in contravention of the popular will. And this is just one potential strategy in a whole host of other strategies that have been, and will continue to be, used by central authorities against the people.
We must continue to keep our guard up, because the threat is very real and it is at our doorstep.
