Kerr v. Hickenlooper: Exploring the Tenth Circuit's Dubious Legal Reasoning Commentary
Kerr v. Hickenlooper: Exploring the Tenth Circuit's Dubious Legal Reasoning
Edited by: Kenneth Hall

JURIST Guest Columnist Derek Muller of the Pepperdine University School of Law discusses the shaky legal foundations of the Tenth Circuit’s recent decision in Kerr v. Hickenlooper

A novel judicial opinion written on dubious legal grounds can serve as an empty vessel into which hopeful litigants everywhere pour hope. The Tenth Circuit’s opinion in Kerr v. Hickenlooper—authorizing legislative standing and finding the Guarantee Clause justiciable—has done just that. But it is unlikely that its holdings will withstand further judicial scrutiny.

In 1992, the people of Colorado amended their state constitution by initiative to include a Taxpayer Bill of Rights (“TABOR”). TABOR required the people to approve of any legislatively enacted tax increase before it could take effect. Critiques of Colorado’s system have called this “a kind of anarchy.” Some Colorado legislators—wanting to enact tax increases unencumbered by the potential disapproval of their constituents—shared this sentiment and sued the governor, alleging a violation of the Guarantee Clause.

The Constitution provides that “the United States shall guarantee to every state in this union a republican form of government.” The legislators argued that a republican form of government demands that the taxing power reside in the legislature. The legislatures argued that because TABOR removed that power from its exclusive existence in the legislature, Colorado’s government was no longer republican in form.

Before proceeding, however, the legislators had to establish standing to sue. Under the Supreme Court’s test articulated in Lujan v. Defenders of Wildlife, plaintiffs must have an “injury in fact” —a “concrete and particularized” injury that is “actual or imminent, not ‘conjectural’ or ‘hypothetical.'” Otherwise, a federal court cannot hear the claim.

The legislators in this case suffered no actual injury: the legislature had not enacted a tax that the people refused to approve under TABOR. Nonetheless, the Tenth Circuit circumvented this requirement by recharacterizing the injury as “disempowerment.”

The last time legislators argued to the Supreme Court that their injury was a deprivation of political power, the court rejected the argument. In Raines v. Byrd, members of Congress challenged the Line Item Veto Act. The court found that they did not have standing because their claim was based on a “loss of political power,” which was not an injury in fact. It is not clear that Raines is meaningfully distinguishable in its injury-in-fact requirement from the injury alleged by the legislators in Kerr.

Nevertheless, the Tenth Circuit relied heavily on the 1939 case Coleman v. Miller, which permitted state legislators to sue when the governor deemed a constitutional amendment ratified that the legislators believed had not been ratified. The Raines Court explained that “our holding in Coleman stands [at most] for the proposition that legislators whose votes would have been sufficient to defeat [or enact] a specific legislative act have standing to sue if that legislative action goes into effect [or does not go into effect].”

Lacking a specific piece of legislation in this case, the Tenth Circuit again relied on the fact that this injury was a deprivation of the taxing power, a “core function.” The court repeatedly explained that because no tax goes into effect without popular approval, it renders voting ineffective.

That is not—I think—entirely accurate. Not until the public actually rejects a tax are legislators’ votes nullified. That is why the court has demanded a concrete injury in the form of an actually nullified vote. Given the Supreme Court’s abiding skepticism of broad notions of standing—as well as its express hostility to Coleman in Raines—it is unlikely that this logic will survive higher court review. Indeed, it might serve as an opportunity to overturn Coleman outright.

Of course, the possibilities flowing from generous standing for legislators abound. Some have even anticipated that the ruling might open an avenue for members of congress to sue President Obama on matters ranging from the Affordable Care Act to welfare reform. This is an important reason why standing demands a concrete injury in fact—rather than allowing disgruntled legislators to complain in court about laws that may impinge upon their previous freedom, Article III of the Constitution demands a case or controversy exist before a federal court may hear a complaint.

On an interesting side-note, David Skaggs represents the plaintiff-legislators in this case who also—while serving as a member of Congress—was a plaintiff-legislator in Raines when the Supreme Court determined legislators did not have standing for generalized disempowerment claims. For Mr. Skaggs, two-time’s the charm.

Getting back on track, however, passing the hurdle of standing was just the beginning. The legislators also needed to make the case that the Guarantee Clause is justiciable. That story begins almost 200 years ago in Rhode Island.
Rhode Island’s original Colonial Charter of 1663 controlled the state’s government until the nineteenth century. The charter was not terribly democratic and eventually a Thomas W. Dorr led a popular convention to draft a new constitution—the supporters of which were aptly named “Dorrites”—which became law after its approval by popular referendum in 1841. Competing governments established themselves within the state but Mr. Dorr was elected governor under the newly ratified 1841 Constitution the next year, upon which a mild military skirmish ensued.

These dueling governments prompted litigation. In 1849, the Supreme Court rendered a decision on the matter in Luther v. Borden, declining to intervene in the dispute. The court concluded that “it rests with Congress to decide what government is the established one in a State.” It explained that “the right to decide is placed there, and not in the courts.”

It is hard to think of a more dramatic dispute over governance within a state than the Dorr rebellion. But it is precisely the situation in which the court refused to intervene. The court later explained the contours of the “political question doctrine” in the infamous 1962 decision of Baker v. Carr. Here, the court held that instances where the dispute is committed to another branch of government, there is a lack of judicially manageable standards, the case demands non-judicial discretion or other factors are met, the courts will find such cases to be “political questions” and refuse to hear the matter.

In Nixon v. United States, the court explained that it would not review the impeachment of a federal judge because it was left to the houses of congress to impeach and remove judges. As such, a strong argument can be made concluding that the evaluation of each state’s form of government is left within the purview of non-judicial branches in each state. Indeed, in Pacific States Telephone & Telegraph Co. v. Oregon, the court refused to adjudicate a Guarantee Clause claim as to tax increases levied by popular initiative. In the words of Professor Michael Ramsey, “an open-ended commission to review all state governments to assure they are sufficiently ‘republican’—surely an imprecise term—is a hugely important power.” Appropriately, the court has expressed reluctance to enter such a political thicket.

In Kerr, however, the Tenth Circuit had little hesitation in finding the Guarantee Clause justiciable—despite 170 years of Supreme Court precedent to the contrary. It relied primarily on the 1992 case of New York v. United States for the court’s cursory analysis dismissing a Guarantee Clause claim on the merits when it assumed,arguendo, that the claim was justiciable.

Perhaps there is some universe of cases in which a federal court should agree to adjudicate a Guarantee Clause claim. For instance, maybe there is some set of allegations in which the court will review an impeachment proceeding—perhaps in accordance with Justice Souter’s Nixon concurrence—and the proceeding occurred by coin toss or something similarly irrational. Moreover, assume a state instituted a monarchy—and, upon appeal, Congress failed to act—the judiciary might very well undertake a Guarantee Clause analysis. Yet, even with such an extraordinary precedent, the peoples’ review of the legislative taxing power through initiative is hardly the stuff of monarchy. If competing constitutions and militia intervention are insufficient for the court to inject itself into a Guarantee Clause dispute—such as during the Dorrite rebellion—it seems improbable that it will do so here.

For the Tenth Circuit, however, the case was readily justiciable. It went on to note that even in the face of little precedent interpreting the Guarantee Clause, courts have no difficulty interpreting the constitution. It explained that in District of Columbia v. Heller, the court interpreted the Second Amendment to include an individual right to bear arms, which it had not done in centuries.

This analysis is not terribly persuasive, however. Heller was certainly a new articulation of the Second Amendment by the court, but it was not because the court had historically dismissed Second Amendment claims as beyond the purview of judicial review. The Guarantee Clause, by contrast, is a political question—something essentially committed to the political branches.

One final procedural note: the district court judge in this case is preparing a trial, but a trial is extremely unusual for a case like this. There are only questions of law—there are no questions of fact. Yes, there are questions of legal history concerning what a “republican form of government” is, but such are inquiries into definitions of the law, which are typically reserved to briefing, not a trial. Yet, given the nature of the claims thus far, perhaps a trial on legal history would not be the most absurd part of this litigation.

The Tenth Circuit’s analysis—if affirmed on appeal—would have extraordinary consequences. It would create many more opportunities for individual legislators in each state—and perhaps those in both houses of congress—to sue on generalized grounds of political disempowerment, or even compel the executive to act pursuant to legislative demands. Such would bring about serious judicial inquiries into the validity of the initiative and referendum processes themselves—which has been a large part of most states’ governance for the past hundred years. Moreover, it would focus judicial scrutiny on the manner in which each state governs themselves—effectively ushering in a power shift away from the people—and their ability to enact policy objectives via popular vote—and towards the federal court system.

It might very well be that evaluating TABOR under the Guarantee Clause results in a finding of their compatibility with one another. However, I suspect we will not even see a trial, that a reviewing court will merely revisit the holdings in this case and be done with it. The consequences are not simply dramatic but unsupported by the constitutional constraints over the federal judiciary.

Derek Muller is an Associate Professor of Law at Pepperdine University School of Law where he teaches civil procedure, complex civil litigation, election law and evidence. Professor Muller received his J.D. from the University of Notre Dame Law School in 2007, where he graduated summa cum laude and was a note editor on the Notre Dame Law Review. His primary area of research is election law, particularly federalism and the role of states in federal elections. He regularly blogs at Excess of Democracy.

Suggested Citation: Derek Muller, Kerr v. Hickenlooper, JURIST – Forum, Mar. 31, 2014,

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