Supreme Court kicks TABOR challenge back to 10th Circuit Court of Appeals

The Supreme Court of the United States (SCOTUS) kicked back a challenge to Colorado’s Taxpayer Bill of Rights (TABOR) constitutional amendment (Article X, Section 20) to the 10th Circuit Court of Appeals, vacating the 10th Circuit’s previous judgment and remanding the case for further consideration in light of the Supreme Court’s recent ruling in Arizona State Legislature v. Arizona Independent Redistricting Commission, 576 U. S. (2015).

The frivolous, groundless, and politically-motivated lawsuit attempting to overturn a Colorado Constitutional Amendment (the Taxpayer’s Bill of Rights, colloquially known as “TABOR”) was initially filed in Federal court in May 2011 – and, after several rounds of motions and counter-motions, allowed to proceed to trial in July 2012 (despite clear constitutional precedent disallowing challenges based on the “Guarantee Clause”) prior to the interlocutory appeal filed with the 10th Circuit.  After a 3-judge panel on the 10th Circuit ruled that the case could proceed, and a requested en banc hearing was rejected, albeit with several strong dissents) by the court, the case was appealed to the U.S. Supreme Court before being sent back earlier today.

The Arizona case (Arizona State Legislature v. Arizona Independent Redistricting Commission) adds to the already strong precedent unambiguously holding the “Guarantee Clause” and its “Republican form of government” language to be non-justiciable, and upholding constitutional constraints on government and adoption of laws and constitutional amendments by ballot initiative.  Specifically, the Arizona case upheld the state constitution against a similar challenge based on the federal “Elections Clause” and affirmed that

the electorate shares lawmaking authority on equal footing with the Arizona Legislature. The voters may adopt laws and constitutional amendments by ballot initiative, and they may approve or disapprove, by referendum, measures passed by the Legislature. Ariz. Const., Art. IV, pt. 1, §1. “Any law which may be enacted by the Legislature . . . may be enacted by the people under the Initiative.” Art. XXII, §14.

As Clear The Bench Colorado noted at the very outset of this litigation, the two relevant SCOTUS cases on the “Guarantee Clause” have held the “Republican form of government” language to be non-justiciable.

In Luther v. Borden, 48 U.S. 1 (1849), the Supreme Court rejected an attempt to put the “republican character” of state government subject to judicial review, holding that “it rests with Congress to decide what government is the established one in a State … as well as its republican character.”  The court, properly exercising judicial restraint, held the “Guarantee Clause” to be a political question, not a judicial one – and therefore not subject to review by the courts (i.e. non-justiciable).

A more recent case, Pacific States Telephone and Telegraph Company v. Oregon, 223 U.S. 118 (1912) dealt specifically with a challenge to the use of citizen initiatives in states (such as Colorado’s TABOR Amendment). In that case, the Court also held that challenges to a state’s “republican character” are non-justiciable political questions:

The enforcement of the provision in § 4 of Art. IV of the Constitution that the United States shall guarantee to every State a republican form of government is of a political character, and exclusively committed to Congress, and as such is beyond the jurisdiction of the courts.

More importantly, as noted in the amicus curiae brief filed by several Colorado legislators and the Colorado Union of Taxpayers (CUT), various legislative powers (including, as here, the power to impose taxes) have always been subject to limitations, qualifications, exemptions, or other constitutional constraints; indeed, such constraints are inherent in the nature of constitutional governance.  The Colorado Constitution specifically outlines the fact that the people retain ultimate veto authority over all acts of the General Assembly, and specifically authorizes the initiative and referendum process in the state constitution:

Id. art. V, § 1 (“The legislative power of the state shall be vested in the general assembly . . . but the people reserve to themselves the power . . . at their own option to approve or reject at the polls any act or item, section, or part of any act of the general assembly.”).

Numerous other states and organizations also filed amici curiae briefs, mostly in support of Colorado’s right to impose constitutional constraints on legislative powers, whether by initiative and referendum or other means.  As noted in today’s Colorado Statesman (Supreme Court sends TABOR challenge back to appeals court):

The attorneys general of Texas, Idaho, Arizona, Indiana, Ohio and Wyoming submitted an amicus brief to the Supreme Court in support of Colorado’s defense against the lawsuit.

“At its core, the plaintiffs’ case challenges a longstanding method of governance (constitutional amendment via the ballot box) employed nationwide,” the brief filed by the attorneys general reads. “This lawsuit is especially offensive to the Guarantee Clause because it is a suit against a State seeking to overturn a vote by the people of Colorado.”

If “We The People” cannot set constitutional limits on government power, then the very founding principles of this nation – indeed, the foundations of Liberty itself – are at risk.

Additional references:

A more detailed (and highly informative) discussion of the constitutionality of the citizen initiative and referendum processes may be found in the Texas Law Review article, “A Republic, Not a Democracy?  Initiative, Referendum, and the Constitution’s Guarantee Clause” by Professor Robert G. Natelson.

Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts.  We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.

However, we can’t do it alone –  we need your continued support; via your comments (Sound Off!) and, yes, your contributions.  Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.

Ultimately, though – it’s worth the effort.

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