BREAKING: Over four dissents, 10th Circuit denies en banc hearing in Guarantee Clause case

This post has been updated.

The Tenth Circuit has denied the petition for rehearing en banc in Kerr v. Hickenlooper, the case that found the Guarantee Clause justiciable. The PDF is here. Four judges dissented in three opinions. Rick Hasen calls it "potentially a huge case."

I wrote about this case in JURIST last March, and I've blogged about the case, the Tenth Circuit's decision, and the en banc petition. It inspired Elizabeth Price Foley and David Rivkin to write that it may invigorate legal challenges to the scope of President Obama's executive power, carried out at the moment by Speaker of the House John Boehner. Michael Ramsay had two posts earlier about the issue, too.

Briefly, Colorado voters in 1992 passed a Taxpayer Bill of Rights that requires all tax increases be approved by a popular vote of the people. Some legislators sued, claiming that the law deprived them of their legislative power. The district court, affirmed by the Tenth Circuit, found that the parties had standing to sue and that the Guarantee Clause claim was justiciable, and that the case should go to trial.

Judges Hartz, Tymkovich, Gorsuch and Holmes all voted for rehearing--all four of George W. Bush's nominees to the Tenth Circuit. They penned three dissents.

Judge Hartz emphasized that the Supreme Court's decision in Pacific States Telephone & Telegraph Company v. Oregon was essentially indistinguishable, and that existing Court precedent finds the Guarantee Clause nonjusticiable. He writes, "But I am at a loss to find a principled basis on which to hold that the challenge in Pacific States was a political question while the challenge here is not." He explained that some, like Professor Lawrence Tribe, have disputed the validity of that case, but it is precedent that binds the Tenth Circuit.

Judge Tymkovich, joined by Judge Holmes, emphasized that the doctrine of legislative standing and the nonjusticiability of the Guarantee Clause were important issues that the panel got wrong. He explains, "The net result of the panel's decision ratifying standing is that just about any policy provision codified in the state constitution would be subject to legislative standing and attack on the theory of vote dilution"--including marijuana laws, school funding, casino gambling proceeds, and so on.

Judge Gorsuch had a different, fundamental problem:

Where are the judicially manageable standards for deciding this case? The burden of showing such standards exist usually presents a plaintiff with little trouble. Most cases in federal court — whether arising under congressional legislation or the common law or sounding in equity — come with ample principles and precedents for us to apply in a reasoned way, even if those principles and precedents don’t always dictate a single right answer. But in our case the plaintiffs make a rather novel claim: they contend that Colorado’s government is not a republican one — and so violates the Guarantee Clause — because tax increases proposed by the legislature must also be approved by the public. Where are the legal principles for deciding a claim like that?

Where are the legal principles for deciding a claim like that? The plaintiffs don’t say. They don’t suggest, for example, that the Clause requires all decisions about legislation to be made by elected representatives rather than the public. Neither do they contend that the Clause is offended only when all legislative decisions are made by direct democracy. If the Constitution could be said to contain one or the other of these rules — either forbidding any experiment with direct democracy or forbidding only the total loss of a representative legislature — we might have a principled basis for deciding the case. The former rule of decision might require judgment for the plaintiffs; the latter, for the defendants. But the plaintiffs in our case disclaim either such standard. They seem to acknowledge that some direct democracy is consistent with republican government, insisting only and instead that the kind here runs afoul of the Constitution.
And this is where we run into trouble. To date, the plaintiffs have declined to advance any test for determining when a state constitutional provision requiring direct democracy on one subject (here, taxes) does or doesn’t offend the Clause. No doubt, the task the plaintiffs face is a formidable one: they enter a field in which the Supreme Court has already dismissed for lack of judicially manageable standards a case challenging a state constitutional provision that allowed citizens to overturn by direct vote any state legislative enactment (not just enactments raising taxes). The plaintiffs enter a field, too, where the Supreme Court has more recently chosen to derive a multi-part justiciability test from its preexisting Guarantee Clause jurisprudence — in the process expressly reaffirming the idea that the Clause lacks judicially manageable standards for cases like ours.

The case seems likely to head to the Supreme Court. Whether it's the best vehicle to address the Guarantee Clause is another question--there's still the legislative standing issue that needs to be surmounted. But the case, as it stands, leaves much litigation to the imagination of enterprising legislators.