Colorado Attorney General Appeals TABOR Challenge to U.S. Supreme Court

A few weeks ago the Attorney General of Colorado, John Suthers, asked the U.S. Supreme Court to hear a case challenging the constitutionality of Colorado’s Taxpayer Bill of Rights (TABOR). The 1992 amendment to Colorado’s Constitution creates spending limits for every level of Colorado government that increase automatically by a formula of inflation plus population growth. Any tax revenue collected beyond these spending limits is returned to taxpayers as a refund. In addition, any effort to raise taxes, suspend refunds, or further increase spending limits must be approved by a vote of the people. These protections have kept Colorado’s budget in check and state taxes low, both of which have contributed to the state’s strong economic growth over the past two decades.

Despite this, those who believe in higher taxes and bigger government have been working to defeat TABOR for years. Unable to convince the people of Colorado to repeal the amendment, they are now trying to use the courts to have it ruled unconstitutional. The case, Kerr v. Hickenlooper, is notable because of its novel legal argument. The plaintiffs in the case, a few liberal legislators and their allies, are arguing that TABOR violates the U.S. Constitution’s Guarantee Clause, which states “[t]he United States shall guarantee to every State in this Union a Republican Form of Government.” These legislators actually contend Colorado does not have a republican form of government because TABOR removes their right as legislators to tax and spend without any restraints. They argue that taxes and appropriations are core legislative powers, and as such can never be restricted by the people in a republic.

So far, both the federal district court and 10th Circuit Court of Appeals have ruled this may be a justiciable claim. This has surprised many because the Supreme Court has long held that Guarantee Clause claims are not justiciable on account of the political question doctrine. The political question doctrine is a policy of the Supreme Court not to hear cases that require the Court to make political decisions, such as, in this case, engaging in the political philosophy of determining what qualifies as a republican form of government. If there are no judicially manageable, impartial standards for courts to use to decide questions like this, and none have been offered by the plaintiffs so far, then the courts will abstain from hearing such cases and refer parties to one of the other branches of government to address their claims. This political question, like others before it, should be left for the legislative branch to decide.

In addition, the case is without merit because it misunderstands the Guarantee Clause. As constitutional professor Rob Natelson and others have pointed out, this clause was not meant to keep people from restraining their own legislature’s tax and spending powers or outlawing the use of referendums and ballot initiatives. This provision was meant to prevent any state from establishing something like the monarchies that existed in Europe when the Constitution was drafted. There is no indication that the Founders understanding of a “Republican Form of Government” meant that the legislature must have complete authority to raise taxes and increase spending without any need for voter approval.

The lower courts have made a mistake by ruling that the legislators may have a legitimate claim. The Supreme Court should agree to review this case and make it clear that the Guarantee Clause cannot be used to invalidate taxpayer protections and give more power to state governments at the expense of their citizens. If they don’t, the case will return to the federal district court for a trial on the merits and a dangerous precedent will be set allowing legislators across the country to start using the Guarantee Clause to challenge the right of the people to restrain their own government.