Recently, there was some news from the state of Colorado. Voters there had passed a Taxpayers’ Bill of Rights, or TBOR, as an amendment to the Colorado Constitution.
Under the TBOR, tax increases and significant government borrowing had to be presented to the voters before they could take effect. Some of the Colorado legislators, however, sued in federal court. Their argument was that the U.S. Constitution guarantees Colorado a “republican form of government,” and because the voters severely limited the power of the legislature to tax and spend, in areas of “core functions” of government, Colorado now falls short of that standard.
The key defendant in that suit, Governor Hickenlooper, asked the court to toss out the suit. The court thought the case worthy of a trial, and let the suit go forward. The governor went to the 10th Circuit Court of Appeals, which came to the same conclusion.
Other federal courts, including the 9th Circuit Court of Appeals that hears cases from Hawaii, said that this kind of case involves a “political question” and deserves to be thrown out of court. Typically, the courts hear cases where someone or some company is accused of breaching some duty or some contract. Rules of law are applied, and those rules give rise to the outcome.
Political question suits are those in an area where there are few or no rules, so the question presented for decision is a policy choice. Generally, legislators make policy choices, and judges apply rules of law. Legislators vote on policy choices and aren’t supposed to come crying to the court system when their votes are not with the majority. Here, we really don’t know details of what a “republican form of government” is. We do know that a monarchy, which is what we used to have in Hawaii, doesn’t qualify but we’re not sure how republican the government has to be.
In particular, there aren’t established rules about how much freedom to tax and spend a legislature needs to have. In any event, we now have different federal appeals courts reaching different conclusions, so it may be time for the U.S. Supreme Court to step in.
To me the underlying question is simpler: Who’s the boss? Does the government exist to serve the people, or do the people exist to serve the government? One hallmark of the government we have in the United States is that there are limitations so government doesn’t run roughshod over the people. We have courts to uphold these limits and strike down any attempts by our government to seize too much power.
Think of the federal Bill of Rights. Those amendments to the U.S. Constitution contain limits on governmental power that must be respected by federal and all state governments. TBOR in Colorado is aptly named because it also is a limitation on governmental power.
Here in Hawaii, we haven’t gone as far as Colorado voters have gone, but our constitution contains a balanced budget requirement, as well as a spending limit.
Our legislators are certainly not free to tax and spend as much as they want. If the Supreme Court comes out and rules against the TBOR, then those limitations may be invalid; but the question remains: Who’s the boss?
The 10th Amendment to the U.S. Constitution says, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” Article I, section 1 of the Hawaii Constitution says: “All political power of this state is inherent in the people and the responsibility for the exercise thereof rests with the people. All government is founded on this authority.”
If we believe these statements, then we know who the boss is.
Tom Yamachika is president of the Tax Foundation of Hawaii.