While partisan wrangling kicked off the hearings for Judge Neil Gorsuch’s Supreme Court nomination, an interesting sidebar is Gorsuch’s take in a case followed closely on this site that ultimately could affect California’s oft-used initiative power.
A little refresher: A case out of Colorado has been kicking around for years that challenges a successful initiative in that state that requires voters confirm tax increases. Passed in 1992, the Taxpayer Bill of Rights or TABOR law, as it is known, was challenged by government officials among others saying that such a law violates the United States Constitution’s Guarantee Clause, which guarantees states a Republican form of government. Allowing the people to vote on tax issues violates the premise of a Republican form of government, plaintiffs allege.
I have written or mentioned the case, Kerr vs. Hickenlooper, a number of times in 2013, 2014, and 2015.
Historically, courts have dismissed challenges on the basis of the Guarantee Clause deciding that the question of how a state chooses to operate its government is non-justiciable—in other words, it is a political question the court chooses not to deal with.
But in the case of Kerr vs. Hicklooper, the 10th Circuit Court of Appeals took a different stance. The Appeals Court determined, initially, that a court could decide if the Colorado TABOR law violated the Guarantee Clause of the United States Constitution.
While the case subsequently got thrown back to a lower court over the issue of standing—whether the government officials could bring this action—the case is still alive.
The obvious interest in California is what effect would a decision in favor of the plaintiff upholding the Guarantee Clause and knocking out TABOR would have on California’s direct democracy. Would some past initiatives be in jeopardy? Could the initiative process be used going forward? It would take a surprise ruling to reach either of these conclusions.
However, many legal experts were surprised that the 10th Circuit initially allowed the case to continue. An attempt to have all the judges of the 10th Circuit (called an en banc session) to reconsider the decision to keep the case alive was defeated. One of the judges on the 10th Circuit who dissented on the majority decision not to go en banc to decide if the case should remain active was Neil Gorsuch.
With a tip of the hat to Pepperdine law professor Derek Muller, his blog of July 2014 recounted some of Gorsuch’s reasoning, which focused on the court challenge to the Republican form of government centering specifically on the issue of popular votes on taxes.
Where are the judicially manageable standards for deciding this case? The burden of showing such standards exist usually presents a plaintiff with little trouble. Most cases in federal court — whether arising under congressional legislation or the common law or sounding in equity — come with ample principles and precedents for us to apply in a reasoned way, even if those principles and precedents don’t always dictate a single right answer. But in our case the plaintiffs make a rather novel claim: they contend that Colorado’s government is not a republican one — and so violates the Guarantee Clause — because tax increases proposed by the legislature must also be approved by the public. Where are the legal principles for deciding a claim like that?
Where are the legal principles for deciding a claim like that? The plaintiffs don’t say. They don’t suggest, for example, that the Clause requires all decisions about legislation to be made by elected representatives rather than the public. Neither do they contend that the Clause is offended only when all legislative decisions are made by direct democracy. If the Constitution could be said to contain one or the other of these rules — either forbidding any experiment with direct democracy or forbidding only the total loss of a representative legislature — we might have a principled basis for deciding the case. The former rule of decision might require judgment for the plaintiffs; the latter, for the defendants. But the plaintiffs in our case disclaim either such standard. They seem to acknowledge that some direct democracy is consistent with republican government, insisting only and instead that the kind here runs afoul of the Constitution.
And this is where we run into trouble. To date, the plaintiffs have declined to advance any test for determining when a state constitutional provision requiring direct democracy on one subject (here, taxes) does or doesn’t offend the Clause. No doubt, the task the plaintiffs face is a formidable one: they enter a field in which the Supreme Court has already dismissed for lack of judicially manageable standards a case challenging a state constitutional provision that allowed citizens to overturn by direct vote any state legislative enactment (not just enactments raising taxes). The plaintiffs enter a field, too, where the Supreme Court has more recently chosen to derive a multi-part justiciability test from its preexisting Guarantee Clause jurisprudence — in the process expressly reaffirming the idea that the Clause lacks judicially manageable standards for cases like ours.