Does a State Have the Right to Self-Destruct?

[octoberlib]

One skirmish in that long war is being fought out in the Tenth Circuit Court of Appeals in Denver. It presents the question of whether a state's voters can amend its constitution to deprive the legislature permanently of the power to tax. That we are even debating this issue teaches us something about the state of American law and politics; the way it is being debated teaches some interesting lessons about the states, their supposed "rights," and the true scheme of the U.S. Constitution.Though the far right often talks about their reverence for state governments, another part of their program is disabling state governments from stepping into the void left by the gradual starvation of the federal government.

That's where Kerr v. Hickenlooper comes in. It raises the question of whether a state whose government has no power to tax is a "state" at all within the meaning of the U.S. Constitution. The case is a challenge by a group of taxpayers and state legislators to Colorado's so-called "Taxpayer Bill of Rights," approved by initiative in 1992. TABOR, as it is called, bars any level of state government from raising taxes or tax rates without a referendum. Beyond that, government can't even spend the money it collects under existing taxes if tax collections rise faster than the rate of inflation or population growth. The "excess" revenue must be returned to taxpayers, no matter how dire the state's needs, unless a referendum approves the "tax hike."



In other words, the controls are now smashed. Colorado's legislature can no longer effectively govern, and can't even effectively ask for authority to do so. This is the most radical limitation on state taxing authority anywhere in the country.

The plaintiffs in Kerr, a group of present and former legislators and officials, argue that this radical change violates the Guaranty Clause of the U.S. Constitution, Article IV § 4. The Clause requires the United States to "guarantee to every state in this union a republican form of government." Whatever a "republic" is, the plaintiffs argue, it must have power to tax and spend funds for the public benefit. TABOR, in effect, takes Colorado out of its status as a state.

http://www.theatlantic.com/national/archive/2013/06/does-a-state-have-the-right-to-self-destruct/276430/

[1StrongBlackMan]

1. That seems like a novel argument ...

But how is the federal government's promise/guarantee, to the individual states, of a republican form of government affected by a state's refusal to tax itself? The federal government still offers the states a republican form of government.

[octoberlib]

2. Further down in the article the author said that if the state wins it could

set a dangerous precedent.

If the Guaranty Clause is a promise to the federal government, then nothing would stop the Justice Department from bringing a suit to void all or part of a state's constitution as not "republican" -- or, for that matter, stop a majority in Congress from repealing a state's constitution that displeased it. In our time, as in the years before the Civil War, we hear voices insisting that the "true" meaning of the Constitution involves state sovereignty and state dominance over federal power. It's a curious notion. What sort of "sovereign" can be overthrown at will by its "creature?"

It's an interesting case , that's for sure.