Sunday, March 16, 2014

Epps on the Guaranty Clause and Kerr

Garrett Epps (U. Balt.) asked last week in The Atlantic: Can the U.S. Government Declare a State Constitution "Un-Republican"?

Epps's question comes on the heels of the Tenth Circuit ruling last week in Kerr v. Hickenlooper.  The Tenth Circuit ruled that a group of elected state office-holders have standing to challenge the state constitutional Taxpayer's Bill of Rights, or TABOR, under the Guaranty Clause, and that the suit isn't a political question.  Unless and until it's appealed, the ruling means that the plaintiffs' case can go forward.

TABOR is a Colorado state constitutional provision, adopted by popular initiative in 1992, that says that no governmental unit can raise taxes or approve a new tax without a vote of the people.  State office-holders argued in Kerr that this provision violates the U.S. constitutional provision, the Guaranty Clause, that says that the federal government "shall guaranty to every State in this Union a Republican Form of Government."  The governor, defendant in the case, argued that the plaintiffs lacked standing and that the case posed a non-justiciable political question.  A three-judge panel of the Tenth Circuit disagreed.

Epps's interest goes beyond the case, however.  He argues in his piece that the Guaranty Clause poses a "puzzle" for states' righters:

That clause, like a dormant volcano, rumbled last week in a courtroom in Denver [in the Kerr case].  The sound should worry those who think state prerogatives trump those of the nation.

. . .

The sobering implication [of the Guaranty Clause] is that Congress could decide at any point that a state's constitution was not "republican," expel its members from Congress, and require its people to draft a new constitution.

It's kind of hard to square that power with the claim that the state's are "co-sovereigns" with the federal government.  It's an odd kind of "co-sovereign" that exists by grace of its "peer."

http://lawprofessors.typepad.com/conlaw/2014/03/epps-on-the-guaranty-clause-and-kerr.html

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