Filed under: All Postings, TABOR, The Founding, supreme court
Three years ago, a group of primarily government plaintiffs sued in federal district court to void Colorado’s Taxpayers Bill of Rights (TABOR). TABOR allows the people, not just the legislature, to vote on most tax increases, most debt increases, and some spending hikes.
The plaintiffs argued that the 20-year old state constitutional provision violated the U.S. Constitution’s Guarantee Clause by putting Colorado out of compliance with its requirement that each state have a “republican form of government.”
In addition to its (very) late filing, the lawsuit faced a number of obstacles: It was doubtful whether, under U.S. Supreme Court case law, the plaintiffs had standing to sue. It was doubtful whether, under Supreme Court case law, any claim under the Guarantee Clause was justiciable. Previously, the Court had ruled that Guarantee Clause questions should be presented to Congress, not to the judiciary. In addition, for a case to be justiciable there have to be legal standards for deciding it, and the Plaintiffs’ legal papers were massively unclear about what the correct standards were.
Finally, the case had big problems on the merits: The evidence is crystal clear that the term “republican” as the Constitution uses the term, allows for direct public votes on policy matters. Nearly all states permit such voting to some extent, particularly on taxes, spending and debt.
That such an open-and-shut case was not dismissed immediately is a grave commentary on the efficiency of the federal judicial system. Three years later, the courts still have not reached the merits. Both the district judge and the U.S. Court of Appeals have allowed the case to proceed even though it still is unclear what legal standard of “republicanism” the plaintiffs propose to apply. Dissenting judges on the Court of Appeals argued, correctly, that enough is enough: Taxpayers should not be forced to endure additional time-wasting on a meritless case.
The Colorado Attorney General agrees with the dissent, and has filed a petition for certiorari with the Supreme Court. The term certiorari is Latin for “to make more certain,” and it is the traditional introductory wording for a court order (writ) demanding that a case be sent to it for review.
The Supreme Court, rightly, is sparing in how often it grants certiorari. This case, however, is a classic case not just for certioriari, but for summary reversal of the kind the Supreme Court ordered in 2012 in response to a baseless Montana state decision.
You can read the Attorney General’s petition for certiorari here. Most of this long document consists merely of appended documents. The argument itself is quickly read.
The U. S. Court of Appeals for the Tenth Circuit recently refused to dismiss the suit by various public sector interests to invalidate Colorado’s Taxpayer Bill of Rights (TABOR). The plaintiffs claim that TABOR violates Article IV, Section 4 of the U.S. Constitution. That provision is called the Guarantee Clause because it guarantees that the states will have republican forms of government.
The Guarantee Clause was designed to prevent states from becoming monarchies, dictatorships, or anarchies. It is totally inapplicable to TABOR, which simply requires that certain conditions—such as popular votes or legislative supermajorities—be met before the legislature can make designated increases in taxes, spending and debt. Although it is common in Colorado to claim TABOR is “unique,” in fact, it is only one of the stronger fiscal-restraint provisions that appear in the constitutions of 49 states. (The exception is Vermont.)
Restraints of this kind are called “TELs”—tax and expenditure limitations. Even the U.S. Constitution imposes such restraints on Congress. For example, it requires direct taxes, other than the income tax, to be apportioned among states by population, and it imposes a flat ban against taxes on exports.
The Independence Institute filed amicus briefs (Friend of the Court briefs) at the trial and appeals levels. Our briefs did not focus on the standing or justiciability issues—only the question of whether the Guarantee Clause invalidated TABOR. We focused on the Guarantee Clause because at the trial court (district court) level, the attorney general, while defending TABOR, did so almost exclusively on standing and justiciability grounds, and did not address the merits—i.e., whether TABOR violates the U.S. Constitution.
The attorney general did address the merits at the appeals level, but the court held that this was too late. The “republican form of government” question, therefore, will have to be dealt with in further proceedings.
It is unfortunate that this case has gone so far, because the claim that TABOR violates the Guarantee Clause is truly absurd. There is simply no conflict between the “republican form” and fiscal restraints or popular votes. As noted above, nearly all republican constitutions in the U.S. impose fiscal restraints on their legislatures. And popular votes on laws have been a major feature of republican government for thousands of years.
Although our brief did not address the justiciability issue, it seems to me that there is at least one glaring weakness in the appeals court’s decision on that subject.
The Supreme Court says that for a case to be justiciable in federal court, there must be “judicially discoverable and manageable standards” for resolving the issues. Not only have the plaintiffs failed to enunciate any such standards, but their papers seem to shift positions without really settling on any of them. At different points, their papers imply that they think that (1) all voter initiatives violate the Guarantee Clause, or (2) only fiscal voter initiatives do so, or (3) the Guarantee Clause bans only voter initiatives that go too far (wherever that point may be), or (4) it bans only voter-approval requirements for new taxes, or (5) it bans only voter approval requirements for taxes and spending, or (6) it prohibits any voter approval requirements for taxes, spending, or debt.
No one really knows what they mean (including, I suspect, the plaintiffs) because their papers are largely incoherent on the subject. But there certainly are no manageable standards to apply to a case when not even the plaintiffs can enunciate any.
Colorado’s Amendment 66—the billion dollar tax hike—is a constitutional monstrosity.
Amendment 66 is, technically, not entirely a constitutional amendment. It is an unusual hybrid of constitutional amendment and change in the state tax law. The secretary of state refers to it as Initiative 22, and it is on the ballot this fall.
The constitutional change would lock in a hugely-disproportionate share of state spending for a single program at the expense of every other Colorado service, public or private. The statutory change would impose a big hike in the state income tax.
As explained below, the costs across a wide range of areas—including public health and safety—could be immense.
But before we get to that, just think of how unfair this measure is:
Under its rules, everything else would take a back seat to the demands of the school bureaucracy. Law enforcement would suffer. So would disaster relief, parks, the environment, services for the elderly, health care, our universities, not to mention economic investment and the taxpayers’ own needs.
Why? Because Amendment 66/Initiative 22 says that (with a sinister refinement explained below) the state school bureaucracy “shall, at a minimum, receive forty-three percent of sales, excise, and income tax revenue collected in the general fund.” In other words, it requires that we spend nearly half our state general fund for a single service before funding anything else!
And that 43% is only a floor. Amendment 66 demands even more. Here’s why:
* The 43% is in addition to what we pay in property taxes.
* The statutory part adds a steep income tax hike on top of that and gives all he revenue to the school bureaucracy.
* The 43% is calculated on what the older, lower tax rates would have brought in. But an income tax of, say, 20% yields less than 20% more revenue, because of disincentives and tax avoidance. So the 43% is calculated on the older, richer system, not on the newer, poorer one.
Now consider some of the other consequences:
* Because of the 43% strait jacket, the legislature couldn’t freely reallocate existing revenue to new needs. For example, the Denver Post has reported that due in part to funding limitations for supervision, inmates released on parole often commit new crimes, including murder. Yet Amendment 66 would make re-allocating funds to parole supervisions that much harder, thereby endangering the lives and safety of Colorado citizens.
* That means a primary way of allocating revenue would become more tax increases.
* We would be crippled in adjusting school costs to reflect changes in technology or to promote educational accountability. Even if schools don’t do the job or are using money wastefully, they still get their guaranteed cut. This violates a basic principle of Anglo-American constitutionalism: agencies are responsible to the legislature for what they do with appropriated funds.
* State income taxes would jump for everyone—by over 27% for everyone with a taxable income of more than $75,000, and 8% for everyone else.
* And the cost of living would rise for every family in the state—including and especially the poor. This is because tax increases–even they seem to hit only the “rich”—have a way of seeping through an economy like venom. Almost everyone pays in the form of higher prices, lower incomes, and fewer jobs. A tax hike, like water, runs downhill.
* Higher taxes also weaken the entire economy. Don’t be misled on this score: The studies show that the additional spending mandated by Amendment 66 is likely to harm much more than it helps.
* The state income tax hike could wound Colorado’s economic competitiveness and kill Colorado jobs—a serious concern right now. Remember that we are in economic competition with other states and other countries, and most of our neighbors either don’t have an income tax or are slashing, reducing, phasing out, or cutting the income taxes they have.
* Colorado’s current tax may look like a flat rate, but because of the base on which it is calculated it is actually somewhat punitive as to income. Amendment 66 would make it much more so. Tax hikes like that have been shown to be particularly damaging to prosperity.
* Because the 43% guarantee is based on revenue from former, lower tax rates, the Amendment 66 insulates the school bureaucracy from the economic damage imposed by the tax hike.
A good constitution protects individual rights and structures government to serve the interests of all. But Amendment 66 mutilates our state constitution to privilege the greedy few. It transfers more money to the bureaucracy to do things that will hurt the general welfare, including the welfare of our children.
This violates every principle of good constitution-writing.
* * * *
P.S.: Here’s the ultimate irony: For years advocates of this money-grab have attacked Colorado’s Taxpayer Bill of Rights (TABOR), claiming it unduly restricts the legislature. Yet now they want to constrict the legislature far more than TABOR does. Hypocrisy, anyone?
Veteran Denver Post (and former Rocky Mountain News) columnist Vincent Carroll writes here about the overweaning ambition of those who support the anti-TABOR lawsuit. That lawsuit claims that because Colorado’s Taxpayer Bill of Rights (TABOR) imposes fiscal limits on the power of the state legislature—that is, restricts lawmakers’ power to tax, spend, and borrow— it violates the U.S. Constitution’s guarantee to each state of a “republican form of government.”
Mr. Carroll thereby indirectly supports a point made earlier in this blog, and supported by an II study: Because almost every state restricts the legislature’s financial powers in some way, the theory of the anti-TABOR lawsuit would threaten clauses in the constitutions of almost every state.
Mr. Carroll doesn’t say so, but if you were to take the batty anti-TABOR theory seriously, the U.S. Constitution isn’t “republican,” either, because it also limits the fiscal powers of the legislature. Specifically, the Constitution requires that Congress apportion most direct taxes, that it pass only uniform indirect taxes, and that Congress impose taxes only for “general Welfare” purposes. The Constitution also bans Congress from taxing exports.
So by the reasoning of the anti-TABOR folks, the Constitution itself did not set up a “republican form of government!”
Kudos to Vincent Carroll for a fine analysis.
II has filed an amicus curiae (”friend of the court”) brief with the U.S. Court of Appeals, shooting holes in the plaintiffs’ claim that allowing the people to check the state legislature’s financial powers is somehow “unrepublican.” The national think tank, the Cato Institute, also signed on.
In addition, the National Federation of Independent Business (NFIB) filed its own amicus brief utilizing the kind of information presented by II in its Issue Paper on the lawsuit, The Attack on Colorado’s TABOR: The Threat to Other States.
As regular readers of this site know, a group of plaintiffs representing government interests has sued the State of Colorado, claiming that the Taxpayer Bill of Rights (TABOR) in the state constitution violates the U.S. Constitution. Even though the claim is an exceptionally weak one, last year a federal district court allowed it to proceed.
That ruling is now on appeal to the U.S. Court of Appeals for the Tenth Circuit.
Although the plaintiffs’ immediate attack is on Colorado’s TABOR, the underlying theory of their lawsuit is far broader. Their theory is that in order for a state to comply with the U.S. Constitution’s requirement that a state have a “republican form of government,” its legislature must have unrestricted power to tax, spend, and borrow.
However, nearly every state constitution restricts its legislature’s power to tax, spend, or borrow. So the plaintiffs’ theory, if victorious, would lead to legal challenges to almost every state constitution. States like Oklahoma, Michigan, and South Dakota, which permit the people to vote on tax increases, would be vulnerable—but so would states like Montana and Texas, which permit the people to vote on new state debt. Even balanced budget rules, which restrict short-term debt, would be vulnerable. So also would be state constitutions that permit popular votes or impose other controls on purely local taxes.
In a new Independence Institute Issue Paper, I team up with former intern (and CU law student) Zak Kessler to document the extent of the potential damage. The title of the paper is The Attack on Colorado’s TABOR and the Threat to Other States.
If you are exposed to enough politics, sooner or later you’ll hear the old saw that the U.S. is “a republic and not a democracy.” Along with that saying goes the following claim: Allowing voter initiatives and referenda is unconstitutional: If a state lets voters enact laws or veto tax hikes, the state is too democratic to meet the Constitution’s mandate that it have a “republican form of government.”
A new Independence Institute Issue Paper, which I authored, examines those assertions in detail. The Paper shows that both are essentially myths.
The nation’s best-known measure requiring voter approval of most tax hikes is Colorado’s Taxpayer Bill of Rights (TABOR), adopted by the voters in 1992. This Issue Paper is published in response to a legal attack on TABOR: A group of government apologists has sued in federal court claiming that by limiting legislative control over fiscal measures, Colorado has violated the U.S. Constitution.
In a nutshell, the new Issue Paper finds:
* The American Founders did not firmly distinguish between a “republic” and a “democracy.” Some used the two words as if they were synonymous. Some adopted the view of Montesquieu that there were two kinds of republics: (1) Those controlled by a few (aristocracies) and (2) those controlled by the many (democracies).
* Dictionaries of the time defined “republic” as merely a popular government, as opposed to a monarchy. One encyclopedia-type dictionary included an article tracking Montesquieu’s definitions.
* In drafting and debating the Constitution, the Founders talked a lot about republics. In most of the governments they identified as republics (like the Athenian and Roman), citizens voted on all laws.
* Various Founders stated explicitly that in republics the people could make laws directly as well as through representatives.
* The only kind of democracy the Founders thought “unrepublican” was what Madison (following Aristotle) labeled “pure democracy.” This was a theoretical form of government without officials, and where the mob ran everything in defiance of the rule of law. Other terms for the same thing are “mob rule,” “mobocracy” and “ochlocracy.”
* The dominant purpose of the Constitution’s mandate that states have republican forms of government was not to prevent popular votes at the state and local level. (In fact, referenda already were being used in some states.) The dominant purpose was to prevent any state from becoming a monarchy.
* The twin myths—that the Founders drew a sharp line between “republics” and “democracies” and that citizen lawmaking is unrepublican—did not arise until the 1840s, when conservatives invented and promoted them in response to disturbances in Rhode Island. In fact, until about 40 years ago, it was mostly conservatives who made such arguments. Beginning in the 1970s, liberals adopted them while opposing measures that give the voters “a say in what they pay.”
Opponents of popular government, such as those now challenging Colorado’s Taxpayer Bill of Rights (TABOR), argue that when a state allows the people to vote directly on laws or taxes it violates the U.S. Constitution’s mandate that every state have a “Republican Form of Government.”
They claim their view comes from the American Founders. In fact, it comes from those who opposed, and probably would have hanged, the Founders. In other words, from the Tories who opposed the creation of our country.
At the outset, please understand that the claim that initiatives and referenda are “unrepublican” is complete constitutional malarkey. When the words “Republican Form” were written, most of the republics in history had featured direct citizen lawmaking. Some Founders didn’t care for that sort of lawmaking, but none suggested it was unrepublican. On the contrary, several Founders spoke of a republic as a government in which the people made laws directly or through representatives—so long as they honored the rule of law. The Founders often referred to governments with direct citizen lawmaking as “republics”, among them ancient Athens and the Roman Republic.
Dictionaries of the time defined “republic” as a popular government or a non-monarchy. None excluded governments with direct citizen lawmaking. True, the Founding-Era record includes rare references to “pure democracy” (direct mob rule without magistrates) being unrepublican, but that was because it violated the rule of law. Technically, “democracy” was one of the two forms of republicanism (the other being aristocracy). Many Founders used the words “republic” and “democracy” interchangeably.
So where did the story arise that the people could not retain for themselves power to vote on laws directly?
Answer: In the months leading up to the American Revolution, it was part of the Tory attack on the patriot cause.
For example, in January, 1775, Samuel Seabury, a clergyman deeply opposed to the assertion of American rights, published a pamphlet called, “An Alarm to the Legislature of the Province of New-York.” On page 4, wrote:
It is the happiness of the British Government, and of all the British Colonies, that the people have a right to share in the legislature. This right they exercise by choosing representatives; and thereby constituting one branch of the legislative authority. But when they have chosen their representatives, that right, which was before diffused through the whole people, centers in their Representatives alone; and can legally be exercised by none but them.
In other words, when the people elect legislators, they can retain no lawmaking power for themselves. This argument was an integral part of the Tory message. (See Gordon Wood, The Creation of the American Republic, 1776-1787 [1969, 1998], pp. 314-15.)
The American Revolution discredited arguments like this for a while, but they re-surfaced in the 1840s. Early in that decade, a popular and generally peaceful uprising under the leadership of Thomas Wilson Dorr broke out in Rhode Island. The protesters elected their own state officials and demanded reform of Rhode Island’s archaic constitution.
Dorr’s opponents argued that his methods of direct democracy violated the republican form of government. This argument, although historically flawed, showed staying power. In 1847, the Delaware Supreme Court decided Rice v. Foster, the only significant case to rule that direct citizen lawmaking violated the republican form. Consciously or not, the court’s reasoning came straight from Samuel Seabury:
The sovereign power therefore, of this State, resides with the legislative, executive, and judicial departments. Having thus transferred the sovereign power, the people cannot resume or exercise any portion of it. To do so, would be an infraction of the constitution, and a dissolution of the government.
And just in case it might occur to the people of Delaware to amend the Constitution to reserve for themselves the right to vote on laws, the Delaware court warned them that it would strike down any such effort:
And although the people have the power, in conformity with its provisions, to alter the constitution; under no circumstances can they, so long as the Constitution of the United States remains the paramount law of the land, establish a democracy, or any other than a republican form of government.
To this day, Delaware remains the state where the people have the least direct lawmaking power—although even Delaware now permits the legislature to refer proposed statutes to the voters.
Those opposing TABOR claim their argument is based on the views of the American Founders. But it really derives from Tory zealots deeply opposed to the creation of the United States of America.
Die-hards attacking Coloradans’ constitutional right to personally vote on tax increases won an unexpected victory in federal court when Judge William J. Martinez found that their lawsuit is justiciable. That means the case can proceed to the merits.
Colorado’s Taxpayer Bill of Rights (TABOR) was adopted in 1992, and has been tattered by hostile lawsuit after hostile lawsuit. Yet the core of the measure still stands, and a group of government apologists have decided to take out the rest. Their claim is that by limiting the state legislature’s power to raise taxes, TABOR violates Article IV, Section 4 of the U.S. Constitution, the “Guarantee Clause.” That’s the clause by which the United States guarantees to every state a “Republican Form of Government.”
There are four things wrong with the lawsuit—besides, of course, its elitist arrogance. The first is that the Supreme Court already has told us that such suits are not justiciable because “Republican Form of Government” cases are for Congress, not the states. In working around this precedent, Judge Martinez relied on the 1962 Supreme Court case of Baker v. Carr, which listed six categories of non-justiciable disputes and found that none of the categories applied. However, Judge Martinez erred in handling two of those categories. He found that Congress had not spoken on the issue of whether Colorado has a “republican Form”—a mistake, since the Supreme Court has told us that when Congress admits a state’s representatives and Senators Congress is approving its form of government. The judge also held that upending TABOR would not require re-visiting established law because TABOR is used to block, not create, taxes. This was a mistake because upending TABOR could resurrect all the tax increases blocked under it.
The second thing wrong with this lawsuit is the way it turns the Guarantee Clause on its head. The Clause was established to uphold popular government—to ensure that no American state became a monarchy that might seek to aggrandize itself at the expense of the other states and of the federal government. The plaintiffs are trying to use the Clause to undermine popular government.
The third problem with this lawsuit is its claim that to be “republican” a state must have a legislature with the unchecked ability to raise money.
But that is not the Constitution’s definition of “republican.” Founding-Era dictionaries all described a “republic” as a commonwealth, a “government of more than one” (i.e., not a monarchy), or a government where the people rule. There is no hint that there even need be a legislature other than the people themselves. Consistently with these definitions, the Founders repeatedly referred to past governments as “republics” in which (as the Founders remarked) the people made laws, including tax laws, directly (i.e, ancient Athens, ancient Rome, various Swiss cantons, and others). For a survey of the evidence, including the single-out-of-context Madison quotation cited by the Plaintiffs, see my article on the constitutional meaning of “republic.”
The fourth thing wrong with the lawsuit is that the plaintiffs offered no measurable standard for their novel definition of republic. Their “fully effective legislature” phrase raises a host of unanswered and unanswerable questions: Is a legislature less than “fully effective” if the the people can vote on any measures at all? Does that purported standard ban all voter initiatives? All referenda? If not, which ones? Must the executive be “fully effective,” too? If so, then how many checks and balances are permissible? Etc. Etc.
Judge Martinez’s decision is wrong, but when you read his opinion you come away with the impression that one reason he decided as he did was the state attorney-general’s weak defense of the case. For example, the A-G’s brief simply blew off the “Republican Form” issue by refusing to address it and falsely suggesting that this issue was a topic for serious debate.
The A-G’s omission forced us at the Independence Institute to file an amicus curiae (friend of the court) brief on what the Constitution actually means when it refers to the “Republican Form.”
That issue now becomes the next focus of the case.
True, there are serious moral and political issues inherent in requiring religious institutions to offer “treatments” they find theologically offensive. But, despite the claims of many Catholic and conservative commentators, the U.S. Department of Health and Human Services (HHS) rule probably doesn’t violate the freedom of religion clauses of the First Amendment, at least as currently interpreted.
[By the way, when claiming a First Amendment violation, some commentators also have said the First Amendment is “first” because of its primary importance. Actually it is first by historical accident: It was originally the third amendment, but became the first when the states failed to ratify the original first and second; the original second later became the 27th.]
The HHS rule applies to employers as a class (except churches per se). It does not single out institutions affiliated with religion. In the words of the Supreme Court, it is a “neutral and generally applicable” rule.
In the 1990 case of Employment Division v. Smith, the Supreme Court upheld “neutral and generally applicable” rules, even when they substantially burden religious practice. As the Court said in that case, “the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’” Note that both prohibitions and mandates are included in the court’s language.
This year, the Court issued Hosannah-Tabor v. Equal Employment Opp’y Comm’n, which blocked the Obama administration from interfering with how a church staffed its own ministry. Some might cite Hosannah-Tabor as evidencing a more friendly judicial attitude toward religion. Unlike Smith (and unlike the latest HHS rule), however, Hosannah-Tabor dealt with ministers in churches, not lay personnel in non-church institutions such as hospitals.
Hosannah-Tabor did include some language that might give hope to those claiming the HHS regulation violates the First Amendment:
“It is true that the ADA’s prohibition on retaliation, like Oregon’s prohibition on peyote use, is a valid and neutral law of general applicability. But a church’s selection of its ministers is unlike an individual’s ingestion of peyote. Smith involved government regulation of only outward physical acts. The present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself.”
You can argue that forcing a Catholic hospital to offer abortifacients is “government interference with an internal church decision that affects the faith and mission of the church itself.” But since hospitals are not churches and insurance policies are not ministers, chances are the Hosannah-Tabor holding would not void the HHS rule.
Another possible source of hope for religious groups is the federal Religious Freedom Restoration Act, passed in the wake of the Smith decision. It provides that even neutral and generally-applicable rules substantially burdening religion are valid only if “the least restrictive means of furthering [a] compelling governmental interest.” But that statute is useful only if not contradicted by Obamacare. And last year, in Mead v. Holder, a federal district judge held that Obamacare does serve the “compelling governmental interest” of “reforming the health care market by increasing coverage.”
So the real legal problem here is Obamacare and the mindset behind it. Obamacare’s profound interference into American life has already triggered many thorny constitutional and moral problems, and will trigger more.
As for the mindset, consider:
* A recent Fox News poll shows that “By a 61-34 percent margin, those surveyed this week approve of the Obama administration requiring all employee health plans to provide birth control coverage as part of health care for women.”
* The D.C. federal judge’s conclusion that increasing third party payments is a “compelling governmental interest”—when the third party payment system is actually the primary culprit in the health care crisis.
* Those in the Catholic hierarchy who actively supported Obamacare, thereby throwing the beliefs of other religious sects (such as Christian Scientists) under the bus.
Too late, liberal Catholics are learning that when you lie down with snakes, you get bitten.