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COLUMN: TABOR finally survives another attack

By: Scott Weiser
May 9, 2017 Updated: May 19, 2017 at 7:54 am
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One of the most egregious examples of Democrat arrogance in Colorado history is finally over, maybe. Back in 2011 a small cabal of Democrat legislators and various liberal local government minions filed a lawsuit to overturn TABOR, which they have loathed since it passed in 1992. Their argument was both novel and offensive to the concept of government by the consent of the governed.

The suit claimed that by requiring government to ask permission to impose any new taxes, government officials were unconstitutionally denied their "inherent power" to tax and spend. TABOR, they argued, denied Coloradans a "republican form of government," a requirement of the Constitution placed in the Enabling Act that created the state.

But what they meant was that TABOR denies government officials the power to tax and spend without having to ask permission of taxpayers, and that was an intolerable affront to their quest for unbridled taxing authority and power.

But in six years they couldn't come up with a rational legal standard the courts could use in deciding the case. In a brief to the United States Supreme Court begging that the case not be dismissed, former Democrat Colorado Congressman and attorney of record for the plaintiffs David Skaggs wrote "The Petitioner readily admits that there is no accepted legal view of what constitutes a 'Republican Form of Government.'"

And yet Skaggs tried for years to get the courts to produce a standard for him, something courts aren't supposed to do. Courts rule on the law, they don't make it up. If Skaggs can't come up with a rational legal argument why should the courts do so?

With his typical clarity and candor, now Supreme Court Justice Neil Gorsuch, who sat on the 10th Circuit at the time, characterized the case as "a multi-year scavenger hunt up and down the federal court system" in search of a legal reason to allow the plaintiffs to sue in the first place.

He wrote "The plaintiffs . contend that Colorado's government is not a republican one . 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?"

The Supreme Court eventually sent the case back to the 10th Circuit Court for reconsideration based on a case it decided while this case wandered like Moses in the wilderness. Judge Raymond Moore dismissed the case May 4 because the legislators and government officials who filed it did not have the right to do so.

The legal reasoning is complex, but can be reduced down to the fact that in order for a political subdivision of the state like Boulder County or the Gunnison County Metropolitan Recreation District, or some small group of disgruntled Democrat legislators at the statehouse to sue the state on a claim of a constitutional violation by TABOR they must have a right to do so that was explicitly granted to them by Colorado's Enabling Act. They didn't.

The case never actually reached the core issue of whether TABOR's constraint of absolute legislative discretion on taxing and spending constitutes an unconstitutional destruction of a "republican form of government."

So, it's possible that the case will arise like a zombie to eat our brains once again, but hopefully a large enough stake has been driven through it to prevent that.

Many other states permit constitutional amendment by citizen initiative to one degree or another. Various courts involved in this case took the opportunity to point out that some degree of "direct democracy" fits comfortably within the confines of a "republican form of government" without actually ruling on the core complaint.

While it is possible for citizen initiatives amending state constitutions to go too far and therefore be ruled unconstitutional, as Colorado's law against same-sex marriage was, the courts accept a certain leavening of direct democracy as an appropriate check and balance on legislative imperialism and as an affirmation of the right of the people to consent to how they are governed by amending the power they grant to their government representatives.


Readers can contact Scott Weiser at

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