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10/02/2013

A Follow-up on the Guarantee Clause
Michael Ramsey

Regarding this post on the guarantee clause challenge to Colorado's anti-tax initiative, Derek Muller writes:

I had two quick follow-ups, if you’re interested in exploring further. First, don’t you think that “the United States” might include the federal courts of the United States? That’s why I’m reluctant to peg nonjusticiability on the first Baker factor. Second, do you have any thoughts on Colorado’s claim that the Guarantee Clause cannot be enforced against the state governor, but must be enforced (if at all) against “the United States”?

My thoughts:  (1) In my initial post, I argued that the phrasing of the guarantee clause ("The United States shall guarantee to every State in the Union a Republican Form of Government") indicates a textual commitment to the political branches, thus making the Colorado case a non-justiciable political question.  Professor Muller is right that the best response is that the federal courts are part of "the United States" and thus share the duty of enforcing the guarantee.  I'm not persuaded for several reasons. 

First, the reference to "the United States" seems like a direction to the United States as a whole, in its sovereign capacity, not a direction to each individual component of the U.S. government.  That is similarly true of the word "guarantee", which is not typically used to describe what courts do. And that conclusion seems particularly appropriate because the clause is potentially very intrusive on federalism; read broadly, it would make the federal courts overseers of the political systems of the states.  This is not likely a role the framers envisioned for the federal courts; rather, it is much more likely that they designed the guarantee as a mechanism that required the participation of the states collectively (through the Senate).

Another way to think about it is that the guarantee clause is, in the language of treaty law, non-self-executing.  If a treaty said what the guarantee clause said ("The United States shall guarantee..."), it would very likely (and rightly) be found non-self-executing (meaning that it would be interpreted as a direction to the legislature, not something that could be acted upon by directly by the courts).

Further, the rest of Article IV, Section 4, in which the guarantee clause appears, is clearly not directed to the courts: "The United States ... shall protect each of them [the States] against invasion; and Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence."

A third reason to think the clause isn't a direction to courts is that it obviously isn't a direction to state courts.  As it was not clear that there would be lower federal courts, or that they would have jurisdiction over constitutional matters, the constitutional system needed to have its judicially enforceable provisions enforceable in state courts (as Article VI, in general, assured that it would).  That would have been the case if the Constitution had simply said that each state shall have a republican form of government.  Again, the fact that the Constitution did not use a direct command to the states, but instead used the indirect formulation of the guarantee, indicates something other than direct judicial enforcement.

(2) As to the claim that the clause can only be enforced against the United States (and not against Colorado), I think it depends on what you think of the first argument.  If you think the clause is a direction to the United States as a political entity, then it's right (but also irrelevant as a judicial matter, because the case isn't justiciable in any event).  On the other hand, if you think the guarantee clause is in part a direction to the federal courts, I suppose the courts could invoke it in a suit against Colorado as giving them a duty overturn non-republican measures.