A three-judge panel of the U.S. Court of Appeals for the Tenth Circuit held that Colorado legislators have standing to challenge the state’s Taxpayer’s Bill of Rights (TABOR) because it limits their ability to vote on tax proposals. The court also rejected the state’s argument that only Congress—not the federal courts—can decide whether a state has a “Republican Form of Government.” The court got it wrong in both respects.
The case stems from the 1992 enactment through the state initiative process of TABOR, a state constitutional amendment limiting the government’s ability to raise taxes without the electorate’s prior approval. This ushered in an era of fiscal responsibility and economic growth in Colorado. Believing that TABOR was an affront to their rights, some Colorado legislators sued, claiming TABOR deprives Colorado of “a Republican Form of Government” in violation of the Guarantee Clause of the U.S. Constitution.
In order to bring a suit in court, a party must establish “standing” to sue. That means a party must demonstrate that he or she has suffered a concrete and particular injury, that the injury is fairly traceable to the defendant’s alleged actions, and that a favorable court decision is likely to redress that injury. The legislators claim that they are injured by TABOR because it prevents them from doing their jobs by depriving them of power over taxation and revenue. The Tenth Circuit agreed, stating:
Under TABOR, a vote for a tax increase is completely ineffective because the end result of a successful legislative vote in favor of a tax increase is not a change in the law. A vote that is advisory from the moment it is cast, regardless of how other legislators vote, is “ineffective.”
The court mistakenly assumed that state legislators have unlimited freedom to select whatever tax policy they find appropriate. Colorado law (including the state constitution) creates and defines whatever powers state legislators may possess. Accordingly, a constitutional amendment limiting the subjects on which a legislator may act does not deprive him of any alleged right to cast a ballot; the amendment just limits the effect of those votes.
After all, a Colorado legislator has no authority to vote to affirm or reverse a judgment of the lower state courts; under Colorado law, that power resides with Colorado Supreme Court judges. The legislators’ complaint, therefore, is not that they cannot vote on tax bills; they can still vote. What bugs them is the fact that their votes now have no legal effect unless the state electorate has preapproved them.
That irritation, however, is not an injury that is cognizable in federal court. The U.S. Supreme Court made clear in 1997 in Raines v. Byrd that federal legislators do not have an unlimited right to be “masters of the universe.” State legislators are not in a better position.
The Tenth Circuit also erred on the Guarantee Clause issue. Article IV of the U.S. Constitution guarantees every state “a Republican Form of Government.” In 1912, the Supreme Court held in Pacific States Telephone & Telegraph Co. v. Oregon that only Congress may decide whether a state government satisfies or violates that clause.
Interestingly, the issue in Pacific States is remarkably similar to the TABOR case. In Pacific States, the Pacific States company refused to pay a tax that was enacted by state initiative, arguing that the initiative process improperly transferred legislative authority to the public, thereby violating the Guarantee Clause. The Supreme Court gave that claim the back of the hand, saying:
[T]he issues presented, in their very essence, are, and have long since by this court been, definitively determined to be political and governmental, and embraced within the scope of powers conferred upon Congress, and not, therefore, within the reach of judicial power.
Thus, the political question doctrine is meant to keep the federal courts from becoming referees in disagreements over policy choices and matters committed by the Constitution to the other branches of government. The Tenth Circuit agreed with that reading of Pacific States but went on to say that the Supreme Court has defined the political question doctrine differently in cases after Pacific States. Even if that were true (and it’s not), it’s beside the point. The Supreme Court has never overruled its Pacific States decision, and it has made clear that the lower courts have no authority to overrule its precedents.
The Supreme Court doesn’t take kindly to lower courts that disregard its precedents, as demonstrated by the recent public dressing down of the Ninth Circuit and Montana Supreme Court. The Tenth Circuit may soon face the same fate.
