New Issue Paper on the Interstate Threat of the anti-TABOR Lawsuit

March 5, 2013 by Rob Natelson
Filed under: All Postings, TABOR 

RGN Montpelier '07

As regular readers of this site know, a group of plaintiffs representing government interests has sued the State of Colorado, claiming that the Taxpayer Bill of Rights (TABOR) in the state constitution violates the U.S. Constitution. Even though the claim is an exceptionally weak one, last year a federal district court allowed it to proceed.

That ruling is now on appeal to the U.S. Court of Appeals for the Tenth Circuit.

Although the plaintiffs’ immediate attack is on Colorado’s TABOR, the underlying theory of their lawsuit is far broader. Their theory is that in order for a state to comply with the U.S. Constitution’s requirement that a state have a “republican form of government,” its legislature must have unrestricted power to tax, spend, and borrow.

However, nearly every state constitution restricts its legislature’s power to tax, spend, or borrow. So the plaintiffs’ theory, if victorious, would lead to legal challenges to almost every state constitution. States like Oklahoma, Michigan, and South Dakota, which permit the people to vote on tax increases, would be vulnerable—but so would states like Montana and Texas, which permit the people to vote on new state debt. Even balanced budget rules, which restrict short-term debt, would be vulnerable. So also would be state constitutions that permit popular votes or impose other controls on purely local taxes.

In a new Independence Institute Issue Paper, I team up with former intern (and CU law student) Zak Kessler to document the extent of the potential damage. The title of the paper is The Attack on Colorado’s TABOR and the Threat to Other States.

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