Guest opinion: Meritless anti-TABOR lawsuit all but dead | PostIndependent.com

Guest opinion: Meritless anti-TABOR lawsuit all but dead

Rob Natelson

Rob Natelson
Staff Photo |

The 2011 federal lawsuit to void the Colorado Taxpayer’s Bill of Rights (TABOR) is finally all but over. The U.S. Court of Appeals had twice permitted the case of Kerr v. Hickenlooper to proceed — but felt compelled to modify its decision after the Supreme Court told it to reconsider.

This result was very long overdue.

The anti-TABOR case was brought by a group of more than 30 plaintiffs, including some state legislators. They contended that because TABOR subjects many tax, spending and debt increases to voter approval, it violates the U.S. Constitution’s mandate that each state have a “republican form of government.”

According to the plaintiffs, it is “unrepublican” to allow so much popular control. The “republican form,” they argued, means that each state must have a fully effective legislature. By that, they apparently meant a legislature with unlimited fiscal power.

From the very beginning, their lawsuit suffered from multiple defects. Specifically:

• The Supreme Court had ruled that people in plaintiffs’ positions generally have no “standing” to challenge a measure in federal court.

• The Supreme Court also had ruled that complaints about direct democracy being “unrepublican” should be addressed to Congress, not to federal judges.

• The plaintiffs apparently were unaware that restraints on the fiscal powers of the legislature appear in the constitution of almost every state, and in the U.S. Constitution as well. All these constitutions cannot be “unrepublican.”

• But if they are not all unrepublican, then plaintiffs had a duty to explain why some fiscal restraints were consistent with the “republican form” while others were not. They never did.

• There is a great deal of historical evidence on what the Constitution means by “Republican form of government.” Plaintiffs’ claims clashed with nearly all of that evidence. Fundamentally, their lawsuit was built on a canard, originating a half-century after the Constitution’s adoption, to the effect that voter initiatives and referenda convert a state from a republic into a democracy. But the canard has been thoroughly debunked: Those who wrote and ratified the Constitution repeatedly recognized that republican governments could feature direct democracy.

Incredibly, the U.S. District Court permitted the lawsuit to proceed despite its crippling legal defects. A divided Court of Appeals upheld the lower tribunal. Most of those decisions came only after very long delays. Did some of the judges understand the lawsuit’s weaknesses, but still hoped the plaintiffs could have the anti-TABOR public “show trial” they craved? We probably will never know.

Mercifully, on June 29, 2015, the U.S. Supreme Court interjected some reason into the process. The justices decided a case that, while dealing with Arizona parties, was decisive for the Colorado anti-TABOR suit. The justices held that a state legislature could have standing to challenge part of a state’s constitution, but that a random handful of disaffected state lawmakers usually could not. The justices also reaffirmed that allegations that direct democracy is somehow “unrepublican” should be addressed to Congress, not to the federal courts.

Just to be clear, however, the justices told us their own view of the matter: Voter initiatives are in “full harmony with the Constitution’s conception of the people as the font of governmental power” and with “republican liberty.”

The Supreme Court followed up the very next day by vacating the Court of Appeals’ anti-TABOR decision. The justices sent the case back to the lower tribunal for “further consideration.” It was their diplomatic way of saying, “Get rid of this lemon.”

Yet still the appeals court delayed. Nearly a full year passed before its latest order. Nor was the order issued in good grace. Instead of recognizing previous mistakes, the tribunal said it was forced to dismiss the claims of the plaintiff-lawmakers because the Supreme Court had “materially alter[ed] the jurisprudence on legislator standing.” This charge was debatable at best. The court also postponed resolution of several other issues central to the case.

Even now, the proceedings are not entirely over: In theory the courts could decide that one or more of the non-legislative plaintiffs have standing — although this is unlikely.

We should welcome the latest development. But we should also ask why after five years this meritless lawsuit is still on life support.

Rob Natelson, a former constitutional law professor, is a senior fellow in constitutional jurisprudence at the Independence Institute, a free market think tank in Denver.


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