Tenth Circuit holds that Guarantee Clause claim is justiciable

The Guarantee Clause means that no monarchy can be established in the USA, but what else does it mean?
The Guarantee Clause means that no monarchy can be established in the USA, but what else does it mean?

The Guarantee Clause (or “Guaranty” Clause) is located in Article IV, Section 4, and provides that “The United States shall guarantee to every State in this Union a Republican Form of Government….”

It’s one of those clauses of the Constitution that receives little attention, mostly because of its uncertain meaning, and because there haven’t been many occasions on which it could be invoked. The Guarantee Clause could probably be invoked if a state were to install a hereditary monarchy, or abolish the right to vote, but aside from such examples, it’s difficult to say whether or how it could apply in litigation.

On Friday, however, the Tenth Circuit rocked the world of law nerds who are interested in the more obscure clauses of the Constitution, holding in Kerr v. Hickenlooper that a Guarantee Clause claim is justiciable. Judge Carlos Lucero wrote the unanimous panel opinion.

The case involves the Colorado Taxpayer’s Bill of Rights (known as TABOR), a part of the Colorado Constitution that was enacted in 1992, and which requires voter approval of any new tax or tax increase. Some plaintiffs, many of them politicians (who apparently don’t like the idea of any obstacle to sticking their hands in the taxpayer’s pocket) challenged the law on several grounds, including a claim that it has deprived our neighbors to the north (Colorado = New Mexico’s Canada) of their right to enjoy a republican form of government.

But despite acknowledging that several U.S. Supreme Court opinions “include language suggesting that Guarantee Clause litigation is categorically barred by the political question doctrine,” the Tenth Circuit held that the challenge to TABOR is not barred by that doctrine. The Tenth Circuit stressed that it was expressing no opinion on the merits.

I’m not an expert on the Guarantee Clause, but it doesn’t seem obvious to me that requiring voter approval of tax increases deprives Coloradans of a republican form of government.

If you have an opinion on this case, by all means please leave a comment. Was the Tenth Circuit right or wrong?

In addition, if you are interested in exploring this interesting issue further, here are some resources you might want to check out:

The TABOR Lawsuit page, which contains links to the pleadings, including some interesting amicus curiae briefs.

This commentary on the Guarantee Clause, from the Heritage Foundation’s Guide to the Constitution.

This law review article by Dean Erwin Chemerinsky: “Cases Under the Guarantee Clause Should Be Justiciable.”   Dean Chemerinsky filed an amicus brief in this case supporting the plaintiffs.

This series of posts by Rob Natelson of the Independent Institute, vigorously arguing that TABOR does not violate the Guarantee Clause.

Commentary here and here by Prof. Derek T. Muller of Pepperdine University Law School, at his Excess of Democracy blog, addressing Kerr v. Hickenlooper.

Commentary here and here by Prof. Michael Ramsey of the University of San Diego School of Law at the Originalism Blog.

(If you know of any other articles or blog posts about this case to which I should link, please e-mail me or leave a comment).




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