Kerr v. Hickenlooper , 744 F.3d 1156 ( 2014 )

FILED
United States Court of Appeals
Tenth Circuit
PUBLISH
March 7, 2014
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
ANDY KERR, Colorado State
Representative; NORMA V.
ANDERSON; JANE M. BARNES,
member Jefferson County Board of
Education; ELAINE GANTZ BERMAN,
member State Board of Education;
ALEXANDER E. BRACKEN;
WILLIAM K. BREGAR, member Pueblo
District 70 Board of Education; BOB
BRIGGS, Westminster City Councilman;
BRUCE W. BRODERIUS, member Weld
County District 6 Board of Education;
TRUDY B. BROWN; JOHN C.
BUECHNER, Ph.D., Lafayette City
Councilman; STEPHEN A.
No. 12-1445
BURKHOLDER; RICHARD L. BYYNY,
M.D.; LOIS COURT, Colorado State
Representative; THERESA L. CRATER;
ROBIN CROSSAN, member Steamboat
Springs RE-2 Board of Education;
RICHARD E. FERDINANDSEN;
STEPHANIE GARCIA, member Pueblo
City Board of Education; KRISTI
HARGROVE; DICKEY LEE
HULLINGHORST, Colorado State
Representative; NANCY JACKSON,
Arapahoe County Commissioner;
WILLIAM G. KAUFMAN; CLAIRE
LEVY, Colorado State Representative;
MARGARET (MOLLY) MARKERT,
Aurora City Councilwoman; MEGAN J.
MASTEN; MICHAEL MERRIFIELD;
MARCELLA (MARCIE) L.
MORRISON; JOHN P. MORSE,
Colorado State Senator; PAT NOONAN;
BEN PEARLMAN, Boulder County
Commissioner; WALLACE PULLIAM;
PAUL WEISSMANN; JOSEPH W.
WHITE,
Plaintiffs - Appellees,
v.
JOHN HICKENLOOPER, Governor of
Colorado, in his official capacity,
Defendant - Appellant.
------------------------------
D’ARCY W. STRAUB;
INDEPENDENCE INSTITUTE; CATO
INSTITUTE; SEN. KEVIN
LUNDBERG; REP. JERRY
SONNENBERG; REP. JUSTIN
EVERETT; REP. SPENCER SWALM;
REP. JANAK JOSHI; REP. PERRY
BUCK; SEN. TED HARVEY; SEN.
KENT LAMBERT; SEN. MARK
SCHEFFEL; SEN. KEVIN
GRANTHAM; SEN VICKI MARBLE;
SEN. RANDY BAUMGARDNER; REP.
DAN NORDBERG; REP. FRANK
MCNULTY; REP. JARED WRIGHT;
REP. CHRIS HOLBERT; REP. KEVIN
PRIOLA; SEN. SCOTT RENFROE;
SEN. BILL CADMAN; COLORADO
UNION OF TAXPAYERS
FOUNDATION; NATIONAL
FEDERATION OF INDEPENDENT
BUSINESS; TABOR FOUNDATION;
OKLAHOMA COUNCIL FOR PUBLIC
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AFFAIRS; HOWARD JARVIES
TAXPAYERS FOUNDATION;
FREEDOM CENTER OF MISSOURI;
FREEDOM FOUNDATION;
GOLDWATER INSTITUTE; 1851
CENTER FOR CONSTITUTIONAL
LAW; COLORADO CHAPTER OF THE
AMERICAN ACADEMY OF
PEDIATRICS AND COLORADO
NONPROFIT ASSOCIATION;
COLORADO GENERAL ASSEMBLY;
BELL POLICY CENTER; COLORADO
FISCAL INSTITUTE; THE CENTER
ON BUDGET AND POLICY
PRIORITIES; COLORADO PARENT
TEACHER ASSOCIATION; ERWIN
CHEMERINSKY; HANS LINDE;
WILLIAM MARSHALL; GENE
NICHOL; WILLIAM WIECEK;
COLORADO ASSOCIATION OF
SCHOOL BOARDS; COLORADO
ASSOCIATION OF SCHOOL
EXECUTIVES,
Amici Curiae.
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:11-CV-01350-WJM-BNB)
Daniel D. Domenico, Solicitor General (John W. Suthers, Attorney General, Frederick R.
Yarger, Assistant Solicitor General, Bernie Buescher, Deputy Attorney General, Megan
Paris Rundlet, Assistant Attorney General, with him on the briefs), Office of the Attorney
General for the State of Colorado, Denver, Colorado, for the Defendant-Appellant.
David E. Skaggs (Lino S. Lipinsky de Orlov, Herbert Lawrence Fenster, McKenna Long
& Aldridge LLP; Michael F. Feeley, John A. Herrick, Geoffrey M. Williamson, and
Carrie E. Johnson, Brownstein Hyatt Farber Schreck LLP, with him on the briefs),
Denver, Colorado for the Plaintiffs-Appellees.
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Richard A. Westfall, Hale Westfall, LLP, Denver, Colorado and Karen R. Harned and
Luke A. Wake, NFIB Small Business Legal Center, Washington, DC, filed an amicus
curiae brief for National Federal of Independent Business, Tabor Foundation, Oklahoma
Council for Public Affairs, Howard Jarvies Taxpayers Foundation, Freedom Center of
Missouri, 1851 Center for Constitutional Law, Freedom Foundation, and Goldwater
Institute on behalf of Defendant-Appellant.
David B. Kopel, Independence Institute, Denver, Colorado, and Ilya Shapiro, Cato
Institute, Washington, DC, filed an amicus curiae brief for Independence Institute and
Cato Institute on behalf of Defendant-Appellant.
James M. Manley, Mountain States Legal Foundation, Lakewood, Colorado, filed an
amicus curiae brief for Sen. Kevin Lundberg, Rep. Jerry Sonnenberg, Rep. Justin Everett,
Rep. Spencer Swalm, Rep. Janak Joshi, Rep. Perry Buck, Sen. Ted Harvey, Sen. Kent
Lambert, Sen. Mark Scheffel, Sen. Kevin Grantham, Sen. Vicki Marble, Sen. Randy
Baumgardner, Rep. Dan Nordberg, Rep. Frank McNulty, Rep. Jared Wright, Rep. Chris
Holbert, Rep. Kevin Priola, Sen. Scott Renfroe, Sen. Bill Cadman, and Colorado Union
of Taxpayers Foundation on behalf of Defendant-Appellant.
D’Arcy W. Straub, Littleton, Colorado, filed an amicus curiae brief for D’arcy W. Straub,
on behalf of Defendant-Appellant.
Andrew M. Low, Emily L. Droll, and John M. Bowlin, Davis Graham & Stubbs LLP,
Denver, Colorado, filed an amicus curiae brief for Colorado Association of School
Boards and Colorado Association of School Executives on behalf of Plaintiffs-Appellees.
Melissa Hart, University of Colorado Law School, Boulder, Colorado, filed an amicus
curiae brief for Erwin Chemerinsky, Hans Linde, William Marshall, Gene Nichol, and
William Wiecek on behalf of Plaintiffs-Appellees.
Joseph R. Guerra and Kathleen Mueller, Sidley Austin LLP, Washington, DC, filed an
amicus curiae brief for The Center on Budget and Policy Priorities on behalf of Plaintiffs-
Appellees.
Stephen G. Masciocchi, Holland & Hart, Denver, Colorado, and Maureen Reidy Witt,
Holland & Hart, Greenwood Village, Colorado, filed an amicus curiae brief for The
Colorado General Assembly on behalf of Plaintiffs-Appellees.
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Matthew J. Douglas, Holly E. Sterrett, Paul W. Rodney, and Nathaniel J. Hake, Arnold &
Porter LLP, Denver, Colorado, filed an amicus curiae brief for the Bell Policy Center and
the Colorado Fiscal Institute on behalf of Plaintiffs-Appellees.
Catherine C. Engberg, Shute, Mihaly & Weinberger LLP, San Franscisco, California,
filed an amicus curiae brief for Colorado Parent Teacher Association on behalf of
Plaintiffs-Appellees.
Harold A. Haddon and Laura G. Kastetter, Haddon, Morgan and Foreman, P.C., Denver,
Colorado, filed an amicus curiae brief for Colorado Chapter of the American Academy of
Pediatrics and Colorado Nonprofit Association on behalf of Plaintiffs-Appellees.
Before BRISCOE, Chief Judge, SEYMOUR and LUCERO, Circuit Judges.
LUCERO, Circuit Judge.
Article IV, § 4 of the Constitution of the United States of America guarantees to
the State of Colorado a “Republican Form of Government.” It provides: “The United
States shall guarantee to every State in this Union a Republican Form of Government,
and shall protect each of them against Invasion; and on Application of the Legislature, or
of the Executive (when the Legislature cannot be convened) against domestic Violence.”
U.S. Const. art. IV, § 4. This right to a republican form of government is further assured
and mandated by the enabling act of Congress, Colorado Enabling Act, ch. 139, § 4, 18
Stat. 474, 474 (1875), under which the State was admitted to the Union in 1876.
Various groups, and in particular, several Colorado state legislators, brought an
action in the U.S. District Court for the District of Colorado. They claim that the so-
called Taxpayer’s Bill of Rights, TABOR, violates the Guarantee Clause of the federal
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Constitution, is in direct conflict with provisions of the Enabling Act, and impermissibly
amends the Colorado Constitution.
In order to avoid Eleventh Amendment sovereignty issues, the Governor of
Colorado, John Hickenlooper, was designated as the named defendant. Governor
Hickenlooper filed his Answer to the plaintiffs’ Complaint, and promptly followed with a
motion to dismiss, alleging that plaintiffs lacked Article III standing and prudential
standing, and that their claims were barred by the political question doctrine. This
motion was denied by the district court, and the Governor brings this appeal to us,
asserting error and asking us to dismiss the proceedings on the same bases that he
presented to the district court.
The merits of the case are not before us. We express no view on the substantive
issues and intend none. We consider solely standing and the political question doctrine:
whether these plaintiffs have suffered a particularized injury not widely shared by the
general populace that entitles them to have their case heard by the federal courts, and
whether the question presented is purely political in nature and should not be reached by
the courts. We conclude that these plaintiffs may bring their claims and that the political
question doctrine does not bar our consideration. Exercising jurisdiction under 28 U.S.C.
§ 1292(b), we affirm the district court’s ruling and remand for further proceedings.
I
Article X, § 20 of the Colorado Constitution—better known as the Taxpayer’s Bill
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of Rights or TABOR—was adopted by voter initiative in 1992.1 TABOR limits the
revenue-raising power of the state and local governments by requiring “voter approval in
advance for . . . any new tax, tax rate increase, mill levy above that for the prior year,
valuation for assessment ratio increase for a property class, or extension of an expiring
tax, or a tax policy change directly causing a new tax revenue gain.” Colo. Const. art. X,
§ 20, cl. 4(a). TABOR also limits state year-to-year spending increases to “inflation plus
the percentage change in state population in the prior calendar year,” id. cl. 7(a), requires
that revenue exceeding this limit “be refunded in the next fiscal year unless voters
approve a revenue change,” id. cl. 7(d), and bans any “new state real property tax or local
district income tax,” id. cl. 8(a). Like all provisions in Colorado’s Constitution, TABOR
may be revoked or amended only with voter approval. Id. art. XIX, § 2 (“[A]mendments
shall be submitted to the registered electors of the state for their approval or rejection, and
such as are approved by a majority of those voting thereon shall become part of this
constitution.”); id. § 1 (requiring voter approval to call constitutional convention).
More than thirty citizens of Colorado—including educators, parents of school-age
children, and current and former state legislators—brought this suit against Colorado
Governor John Hickenlooper in May 2011. The Second Amended Substitute Complaint
1
Like the district court, we take judicial notice of the provisions of the Colorado
Constitution at issue in this case. See Fed. R. Evid. 201(b).
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for Injunctive and Declaratory Relief (the “complaint”)2 alleges that TABOR
“undermines the fundamental nature of the state’s Republican Form of Government” in
violation of the Guarantee Clause, U.S. Const. art. IV, § 4. The complaint further alleges
that TABOR violates the Colorado Enabling Act, the Supremacy Clause, and the Equal
Protection Clause of the Fourteenth Amendment, and that it constitutes an impermissible
amendment to the state constitution under state constitutional law principles.
Governor Hickenlooper moved to dismiss the complaint. He argued that plaintiffs
lacked standing and that the political question doctrine required dismissal of all claims.
The Governor also argued that the plaintiffs failed to state a claim on which relief could
be granted as to their equal protection and impermissible amendment claims. The district
court concluded that the plaintiffs who were current state legislators possessed standing
and declined to assess the standing of the remaining plaintiffs. It ruled that the political
question doctrine did not bar the lawsuit, thereby allowing plaintiffs to proceed on their
Guarantee Clause and Enabling Act challenges to TABOR. The district court dismissed
2
The complaint in this case has gone through several iterations. Plaintiffs
originally intended to sue the state of Colorado, but following preliminary discussions
with attorneys in the Office of the Colorado Attorney General, both sides agreed that
Governor Hickenlooper should be named as the defendant in order to avoid possible
Eleventh Amendment issues. Thus, on June 16, 2011, plaintiffs filed what they styled a
“Substituted Complaint for Injunctive and Declaratory Relief.” The district court later
granted several motions to amend. Plaintiffs’ Second Amended Substitute Complaint for
Injunctive and Declaratory Relief is the operative complaint in this action. All references
and citations to the complaint herein refer to that document. See S. Utah Wilderness
Alliance v. Palma, 707 F.3d 1143, 1152 (10th Cir. 2013) (“Where . . . the original
complaint has been super[s]eded by an amended complaint, we examine the amended
complaint in assessing a plaintiff’s claims . . . .” (quotation omitted)).
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the equal protection challenge for failure to state a claim but refused to dismiss the
impermissible amendment claim, exercising supplemental jurisdiction under 28 U.S.C.
§ 1367(a).
Governor Hickenlooper then asked the district court to certify its order for
interlocutory appeal pursuant to 28 U.S.C. § 1292(b). The district court granted his
request for certification and stayed the proceedings. A previous panel of this court
granted permission to appeal. See 28 U.S.C. § 1292(b) (“The Court of Appeals which
would have jurisdiction of an appeal of such action may thereupon, in its discretion,
permit an appeal to be taken from such order [certified for interlocutory appeal].”).
II
We review de novo the district court’s rulings on standing. Petrella v. Brownback,
697 F.3d 1285, 1292 (10th Cir. 2012). The plaintiffs bear the burden of establishing each
element of standing. Id. In determining whether plaintiffs have met their burden, we
assume the allegations contained in the complaint are true and view them in the light
most favorable to the plaintiffs. S. Utah Wilderness Alliance, 707 F.3d at 1152. To
establish Article III standing, a plaintiff must show: (1) that it has suffered a concrete
and particular injury in fact that is either actual or imminent; (2) the injury is fairly
traceable to the alleged actions of the defendant; and (3) the injury will likely be
redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61
(1992).
The district court determined that the plaintiffs who are current state legislators
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(the “legislator-plaintiffs”) have standing and thus declined to assess the standing of any
of the other named plaintiffs. See Village of Arlington Heights v. Metro. Hous. Dev.
Corp., 429 U.S. 252, 264 & n.9 (1977) (allowing suit to proceed based on “one individual
plaintiff who has demonstrated standing” without considering standing of remaining
plaintiffs); see also Massachusetts v. Envtl. Prot. Agency, 549 U.S. 497, 518 (2007)
(“Only one of the petitioners needs to have standing to permit us to consider the petition
for review.”). We similarly limit our review to the standing of the legislator-plaintiffs.
A
Our analysis of standing begins with injury-in-fact. The legislator-plaintiffs
claim that TABOR deprives them of their ability to perform the “legislative core
functions of taxation and appropriation.” They say that TABOR prevents them from
doing their jobs. Several cases have held, in other contexts, that an inhibition on a
person’s ability to perform work constitutes an injury-in-fact. See Singleton v. Wulff,
428 U.S. 106, 112-13 (1976) (allowing physicians who perform abortions to challenge
law restricting Medicaid reimbursement); Ezell v. City of Chicago, 651 F.3d 684, 696
(7th Cir. 2011) (concluding “supplier of firing-range facilities” possessed standing to
challenge city’s ban on such facilities); Sammon v. N.J. Bd. of Med. Exam’rs, 66 F.3d
639, 642 (3d Cir. 1995) (aspiring midwives had standing to challenge statutory scheme
that made “it more difficult for [them] to practice their chosen profession”); see also
Pierce v. Soc’y of Sisters, 268 U.S. 510, 532, 535-36 (1925) (overturning state law
mandating public education characterized by plaintiffs as conflicting “with right of
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schools and teachers . . . to engage in a useful business or profession”). However,
standing in these cases was based in part on the harm, either financial or penal, that
plaintiffs would suffer as a result of legislation inhibiting their ability to work. TABOR
does not inflict either type of injury upon Colorado legislators. See Colo. Const. art. V,
§ 6 (fixing salary of members of the General Assembly); id. § 16 (providing legislative
immunity to members).
Nonetheless, the Supreme Court has held that members of a state legislature may
have standing to sue in order to vindicate the “plain, direct and adequate interest in
maintaining the effectiveness of their votes.” Coleman v. Miller, 307 U.S. 433, 438
(1939). We therefore consider the legislator-plaintiffs’ claimed injury under the Supreme
Court’s legislative standing framework, first articulated in Coleman and later refined by
Raines v. Byrd, 521 U.S. 811 (1997).
Coleman involved a challenge by state legislators to Kansas’ ratification of a
proposed federal constitutional amendment. 307 U.S. at 435. Twenty senators voted in
favor of the proposed amendment, and twenty voted against. Id. at 436. The Lieutenant
Governor, presiding over the state Senate, broke the tie in favor of ratification, and the
state House of Representatives later approved the amendment. Id. Twenty-one senators,
including the twenty who had opposed the amendment, sought a writ of mandamus in
state court. Id. After the state court denied mandamus relief, the Supreme Court granted
certiorari. Id. at 437.
The Court held that the legislators had standing to sue:
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[P]laintiffs include twenty senators, whose votes against ratification have
been overridden and virtually held for naught although if they are right in
their contentions their votes would have been sufficient to defeat
ratification. We think that these senators have a plain, direct and adequate
interest in maintaining the effectiveness of their votes. Petitioners come
directly within the provisions of the statute governing our appellate
jurisdiction. They have set up and claimed a right and privilege under the
Constitution of the United States to have their votes given effect and the
state court has denied that right and privilege.
Id. at 438. It reasoned perforce from two cases in which ordinary voters were permitted
to challenge state ratifications of federal constitutional amendments. Id. at 438-39 (citing
Leser v. Garnett, 258 U.S. 130 (1922) (entertaining citizen challenge to registration of
female voters) and Hawke v. Smith, 253 U.S. 221 (1920) (entertaining citizen challenge
to Ohio constitutional amendment requiring voter approval of federal constitutional
amendments)).
In Raines, the Supreme Court declined to extend Coleman. Raines dealt with a
challenge to the Line Item Veto Act (“LIVA”) brought by six Members of Congress who
had voted against it. 521 U.S. at 814. Holding that its “standing inquiry has been
especially rigorous when reaching the merits of the dispute would force us to decide
whether an action taken by one of the other two branches of the Federal Government was
unconstitutional,” id. at 819-20, it distinguished an earlier suit in which a legislator had
successfully asserted standing to challenge his exclusion from Congress. Id. at 820-21
(citing Powell v. McCormack, 395 U.S. 486 (1969)). Plaintiffs in Raines were not
“singled out for specially unfavorable treatment as opposed to other Members of their
respective bodies,” 521 U.S. at 821, and they failed to allege deprivation of something to
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which they were “personally . . . entitled.” Id. (emphasis omitted).
Raines also distinguished Coleman, concluding that
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), on the ground that their votes have been completely
nullified.
521 U.S. at 823 (footnote omitted). It ultimately ruled that the Raines plaintiffs lacked
standing. “[T]heir votes [against LIVA] were given full effect,” the Court stated; “[t]hey
simply lost that vote.” Id. at 824 (footnote omitted). The Supreme Court characterized
the Raines plaintiffs’ alleged injury as “the abstract dilution of institutional legislative
power.” Id. at 826.
It emphasized that the plaintiffs in that case used the word “effectiveness”
(describing their vote for appropriations bills) in a way that “pulls Coleman too far from
its moorings” and “stretches the word far beyond the sense in which the Coleman opinion
used it.” Raines, 521 U.S. at 825-26.
The argument goes as follows. Before [LIVA], Members of Congress
could be sure that when they voted for, and Congress passed, an
appropriations bill that included funds for Project X, one of two things
would happen: (i) the bill would become law and all of the projects listed
in the bill would go into effect, or (ii) the bill would not become law and
none of the projects listed in the bill would go into effect. Either way, a
vote for the appropriations bill meant a vote for a package of projects that
were inextricably linked. After [LIVA], however, a vote for an
appropriations bill that includes Project X means something different.
Now, in addition to the two possibilities listed above, there is a third option:
the bill will become law and then the President will “cancel” Project X.
Id. at 825 (footnote omitted). LIVA could not possibly “nullify [plaintiffs’] votes in the
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future in the same way that the votes of the Coleman legislators had been nullified”
because “a majority of Senators and Congressman can vote to repeal [LIVA], or to
exempt a given appropriations bill (or a given provision in an appropriations bill) from
[LIVA].” Id. at 824.
Neither Coleman nor Raines maps perfectly onto the alleged injury in this case.
Unlike those in Raines, the allegations before us go well beyond mere “abstract dilution.”
Plaintiffs claim that they have been deprived of their power over taxation and revenue.
Under TABOR, the state “must have voter approval in advance for . . . any new tax, tax
rate increase, . . . or a tax policy change directly causing a net tax revenue gain to any
district,” with narrow exceptions.3 Colo. Const. art. X, § 20, cl. 4(a). With respect to
taxing and revenue, which the plaintiffs describe as “legislative core functions,” the
General Assembly allegedly operates not as a legislature but as an advisory body,
empowered only to recommend changes in the law to the electorate.
These allegations fall closer to the theory of vote nullification espoused in
Coleman than to the abstract dilution theory rejected in Raines. Under TABOR, a vote
for a tax increase is completely ineffective because the end result of a successful
3
The exceptions permit “emergency taxes” when two-thirds of the legislature
“declares the emergency and imposes the tax by separate recorded roll call votes,” Colo.
Const. art. X, § 20, cl. 6, and permit the suspension of the prior approval requirement
“[w]hen annual district revenue is less than annual payments on general obligation bonds,
pensions, and final court judgments,” id. cl. 1. None of the parties suggests these
exceptions alter our analysis.
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legislative vote in favor of a tax increase is not a change in the law.4 A vote that is
advisory from the moment it is cast, regardless of how other legislators vote, is
“ineffective” in a way no vote envisioned by LIVA could be.
Moreover, the case at bar does not share other characteristics highlighted by the
Raines Court. Unlike LIVA, TABOR was not passed by, and cannot be repealed by, the
Colorado General Assembly. See Raines, 521 U.S. at 824; Colo. Const. art. XIX
(requiring voters to approve constitutional amendments or the calling of a constitutional
convention). In Schaffer v. Clinton, 240 F.3d 878 (10th Cir. 2001), we concluded that a
Congressman lacked standing to challenge a Congressional pay increase, noting that “as
in Raines, there has been no nullification of Congressman Schaffer’s ability to vote.” Id.
at 885-86. His pay was increased “simply because he lost [a] vote,” and to the extent he
found the pay increase objectionable, the Congressman was free “to press for a change in
the law setting Representatives’ salaries or for Congress to amend the COLA provisions
pursuant to the normal legislative process.” Id. at 886 (quotation omitted). In sharp
contrast, TABOR denies the Colorado General Assembly the “ability to vote” on
operative tax increases, and the legislator-plaintiffs cannot undo its provisions “pursuant
to the normal legislative process.” Id. at 885-86.
4
The governor may veto the result of a successful legislative vote in Colorado, but
the result of a veto is not analogous to what TABOR requires. Colo. Const. art. IV, § 11.
When the governor vetoes a bill, it does not become law but is returned to the legislature,
which may override the veto by a two-thirds vote. Id. Votes subject to a veto are not
advisory from the moment that they are cast in the same way as votes requiring “voter
approval in advance,” id. art. X, § 20, cl. 4, before a law is enacted.
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Several other courts have relied on this key distinction between Coleman and
Raines. In Russell v. DeJongh, 491 F.3d 130 (3d Cir. 2007), the Third Circuit considered
whether a member of the Legislature of the Virgin Islands possessed standing to assert a
claim that the governor had improperly appointed justices to the Supreme Court of the
Virgin Islands. Id. at 131. Claiming that the expiration of a statutory ninety-day deadline
extinguished the governor’s authority to submit nominations, and that the governor’s
decision to ignore the deadline nullified his vote in favor of the law creating the deadline,
the plaintiff sought a declaration that the nominations were void. Id. at 133-34. The
court explained that “legislators have a legally protected interest in their right to vote on
legislation and other matters committed to the legislature, which is sometimes phrased as
an interest in ‘maintaining the effectiveness of their votes.’” Id. at 134 (quoting
Coleman, 307 U.S. at 438). However, “[n]ot every affront to a legislator’s interest in the
effectiveness of his vote . . . is an injury in fact sufficient to confer standing.” Id.Although courts have “h[e]ld uniformly that an official’s mere disobedience or flawed
execution of a law for which a legislator voted . . . is not an injury in fact,” the Russell
court noted that “distortion of the process by which a bill becomes law by nullifying a
legislator’s vote or depriving a legislator of an opportunity to vote . . . is an injury in
fact.” Id. at 135 (quotation omitted). It rejected the plaintiff’s reliance on Coleman and
another case, Silver v. Pataki, 755 N.E.2d 842 (N.Y. 2001) (per curiam), because “the
challenged actions in those cases left the plaintiffs with no effective remedies in the
political process.” Russell, 491 F.3d at 135 (footnote omitted). In announcing that
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Russell was not a “vote nullification” case, the Third Circuit explained that “[t]he
consequence of the Governor’s late submission of the nominations was . . . not to
circumvent the Legislature, but to place the decision whether to confirm the nominees
directly in their hands.” Id. at 136. In the case at bar, the power to tax and spend is not
directly in the hands of the Colorado legislature.
The New York Court of Appeals drew a similar line in Silver, which dealt with a
challenge by the Speaker of the New York Assembly to the Governor’s line item veto
authority on non-appropriation bills.5 755 N.E.2d at 845. Considering both state and
federal cases on legislative standing, the court distinguished between alleged injuries
related to “lost political battles” and those concerning “nullification of votes.”6 Id. at
847. The Court characterized Coleman as involving vote nullification, and Raines as a
“lost vote” case. Id. It concluded that the plaintiff possessed standing in part because he
was “not seeking to obtain a result in a courtroom which he failed to gain in the halls of
the Legislature.” Id. at 848 (quotation omitted). In contrast, the court explained that the
Raines plaintiffs “lost their political battles when legislation was validly enacted over
their opposition.” Id. We are not confronted with claimants who complain of nothing
5
The New York State Constitution provides for line-item vetoes with respect to
bills that “contain several items of appropriation of money.” N.Y. Const. art. IV, § 7.
6
Although we recognize the Court of Appeals of New York is not bound by
Article III, the Silver decision applies the injury-in-fact test in terms essentially identical
to the federal requirement. Id. at 847, 848 (requiring an “injury in fact” that is “concrete
and particularized” (quotations omitted)). We cite Silver for its persuasive interpretation
of Coleman and Raines.
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more than a lack of success within the legislature; plaintiffs’ complaint alleges that
TABOR has stripped the legislature of its rightful power.
Baird v. Norton, 266 F.3d 408 (6th Cir. 2001), illustrates the difference between
legislators who allege unconstitutional state action and legislators who merely seek to
reverse the results of a lost vote. In Baird, two state legislators who were on the losing
side of a concurrent resolution approving gaming compacts complained that the approval
was improper. Id. at 409-10. Unlike the action in Coleman, the court observed, the suit
was not joined by a sufficient number of legislators to defeat the concurrent resolution
and thus the plaintiffs lacked standing. Id. at 412. The rule from Raines applied because
the plaintiffs were not arguing “that the compacts themselves [were] unconstitutional”
but instead alleged that “the compacts would have been defeated[] had the
constitutionally required procedures been followed.” Id. at 413. Baird therefore stands
for the proposition that legislators seeking standing arising from a lost vote must
demonstrate that they would have won had proper procedures been followed. Allegations
before us go beyond those in Baird; the plaintiff-legislators in this case challenge a
provision that, they allege, deprives them of the ability to cast meaningful votes at all.
Other circuits, the D.C. Circuit in particular, have interpreted Raines in a similar
manner. In Campbell v. Clinton, 203 F.3d 19 (D.C. Cir. 2000), the court held that a
number of congressmen lacked standing to challenge U.S. participation in the NATO
campaign in Yugoslavia. Id. at 19. It wrote that Supreme Court precedent cannot be read
to suggest “that the President ‘nullifies’ a congressional vote and thus legislators have
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standing whenever the government does something Congress voted against.” Id. at 22.
The majority concluded that Judge Randolph, who concurred in the judgment and wrote
separately, did “not give sufficient attention to Raines’ focus on the political self-help
available to congressmen. . . . [T]he [Raines] Court denied them standing as
congressmen because they possessed political tools with which to remedy their purported
injury.” Id. at 24; see also Chenoweth v. Clinton, 181 F.3d 112, 116 (D.C. Cir. 1999)
(concluding House members lacked standing to challenge the President’s implementation
of a program through executive order, in part because “[i]t is uncontested that the
Congress could terminate the [program] were a sufficient number in each House so
inclined”); Kucinich v. Obama, 821 F. Supp. 2d 110, 120 (D.D.C. 2011) (successful use
of vote nullification theory “necessitates the absence of a legislative remedy”). We agree
with these cases that Raines rested in large measure on the plaintiffs’ ability to correct the
alleged injury through ordinary legislation, an ability the legislator-plaintiffs in this case
lack. A legislator who complains of nothing more than dissatisfaction with the actions, or
inaction, of his colleagues does not state an injury to a judicially cognizable interest.
Furthermore, because the present suit deals with the relationship between a state
legislature and its citizenry, we are not presented with the separation-of-powers concerns
that were present in Raines. See 521 U.S. at 819-20 (“[O]ur standing inquiry has been
especially rigorous when reaching the merits of the dispute would force us to decide
whether an action taken by one of the other two branches of the Federal Government was
unconstitutional.”). The Raines decision has been characterized as “standing informed—
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and indeed virtually controlled—by political-question concerns.” 13B Charles Alan
Wright et al., Federal Practice & Procedure, § 3531.11.2, at 135 (3d ed. 2008). In
Tachiona v. United States, 386 F.3d 205 (2d Cir. 2004), the Second Circuit similarly
concluded that Raines was “distinguishable in crucial respects” because it did not
“involve[] a constitutional challenge to an action taken by one of the other two branches
of the Federal Government—a fact that the Court believed merited an ‘especially
rigorous’ standing inquiry.” Id. at 213 (quoting Raines, 521 U.S. at 819-20); see also
Chenoweth, 181 F.3d at 116 (stating that Raines may “require [the court] to merge [its]
separation of powers and standing analyses”).
Notably, the Colorado General Assembly, through its Committee on Legal
Services, has chosen to participate as an amicus curiae in favor of legislative standing in
this appeal.7 The General Assembly’s participation further distinguishes this case from
Raines, in which the Court “attach[ed] some importance to the fact that appellees ha[d]
not been authorized to represent their respective Houses of Congress in this action, and
indeed both Houses actively oppose[d] their suit.” 521 U.S. at 829.
The legislator-plaintiffs’ allegations in the case before us differ in some respects
from those at issue in Coleman. Nevertheless, we must reject Governor Hickenlooper’s
argument that plaintiffs’ failure to identify a “specific legislative act” that TABOR has
7
The General Assembly’s amicus brief does not imply “authorization” of the
legislator-plaintiffs.
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precluded is fatal to their claim. See Raines, 521 U.S. at 823. He argues that the
legislator-plaintiffs must refer a tax increase to the voters, and have that measure rejected,
before they bring suit.8 This argument misunderstands the alleged injury. Legislator-
plaintiffs contend they have been injured because they are denied the authority to
legislate with respect to tax and spending increases.9 They cannot point to a specific act
that would have resulted in a tax increase because any revenue-raising bill passed by both
houses of the General Assembly and signed by the governor, instead of becoming law,
8
Both parties have provided supplemental authority to this court noting that
Colorado voters recently approved “Proposition AA,” which imposes a new tax on
marijuana and was referred for a referendum, but rejected “Amendment 66,” a citizen
initiative that would have raised taxes to fund certain public school reforms. However,
“standing is determined at the time the action is brought, and we generally look to when
the complaint was first filed, not to subsequent events.” Mink v. Suthers, 482 F.3d 1244,
1253-54 (10th Cir. 2007) (citation omitted). We accordingly do not consider these
November 2013 events.
9
We recognize that legislatures may permissibly be deprived of authority to
legislate in certain arenas. The First Amendment, to take an obvious example, says that
“Congress shall make no law” in a variety of fields. U.S. Const. amend. I. We
distinguish the sorts of substantive prohibitions found in the Bill of Rights and
elsewhere—“Congress shall make no law” means “there shall be no federal law”—from
TABOR’s alleged transformation of the state legislature from a body that makes laws to a
body that recommends to the public laws increasing taxes or spending. So construed, the
injury allegedly caused by TABOR is unique and unlikely to cause the federal courts to
be flooded with legislators on the losing side of a vote. We are aware of a few Supreme
Court cases involving requirements of municipal referenda before a decision made by a
city council could go into effect. See City of Eastlake v. Forest City Enters., Inc., 426
U.S. 668, 670 (1976) (changes in land use required 55% citizen approval in referendum);
James v. Valtierra, 402 U.S. 137, 139, 142 (1971) (construction of low-cost housing
could not occur without voter referendum, noting other referenda requirements in
California Constitution). In neither case was standing a contested issue, nor did any
plaintiff rest a claim on the Guarantee Clause.
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would merely be placed on the ballot at the next election. In other words, the legislator-
plaintiffs’ injury is their disempowerment rather than the failure of any specific tax
increase.
The extent and type of disempowerment distinguishes the case before us from
Alaska Legislative Council v. Babbitt, 181 F.3d 1333 (D.C. Cir. 1999). In that case, the
D.C. Circuit concluded that members of the Alaska State Legislature and a legislative
committee lacked standing to challenge a federal statute that established a priority for
subsistence hunting and fishing on federal lands in the state. Id. at 1335-36. Plaintiffs’
theory that the federal statute “render[ed] the Alaska Legislature unable to control
hunting and fishing on federal lands within the State” was rejected because “there is not
the slightest suggestion here that these particular legislators had the votes to enact a
particular measure, that they cast those votes or that the federal statute or the federal
defendants did something to nullify their votes.” Id. at 1338. The court expressed
skepticism that the federal statute undermined state prerogatives, noting that federal
regulations promulgated pursuant to the challenged statute expressly incorporated state
game and fishing rules. Id. Much like the plaintiffs in Raines, the Alaska legislators
therefore retained some legislative control and were not without a legislative remedy.
This led the D.C. Circuit to conclude that the “supposed injury is nothing more
than an abstract dilution of institutional legislative power to regulate and manage fish and
wildlife resources, and we are not sure it amounts to even this much.” Id. (quotation
omitted). The state legislators in Alaska Legislative Council complained only that they
- 22 -
lost some control over federal lands, a power the Constitution expressly grants to
Congress. See U.S. Const. art. IV, § 3, cl. 2 (“The Congress shall have Power to dispose
of and make all needful Rules and Regulations respecting the Territory or other Property
belonging to the United States . . . .”). By contrast, the state legislators before us have
alleged that TABOR strips them of all power to conduct a “legislative core function” that
is not constitutionally committed to another legislative body.
In light of the actual injury alleged, Governor Hickenlooper’s “specific legislative
act” argument does not carry the day. TABOR plainly bars the General Assembly from
instituting a new tax through legislative action. Our standing jurisprudence does not
demand that plaintiffs engage in an obviously futile gesture. In United States v.
Hardman, 297 F.3d 1116 (10th Cir. 2002) (en banc), we considered a challenge to 16
U.S.C. §§ 703 and 668(a), which prohibit possession of certain eagle feathers absent a
permit. Hardman, 297 F.3d at 1122-23. Only members of federally recognized tribes
were eligible for such permits. Id. at 1121. We rejected the government’s argument that
the non-member claimants in the case lacked standing because they had not applied for
permits, noting that “the application itself requires certification of membership.” Id.“Because it would have been futile for these individuals to apply for permits, we find that
they have standing to challenge the statutory and regulatory scheme.” Id. A similar
principle applies here: The legislator-plaintiffs were not required to pass a law
purporting to independently increase taxes in violation of TABOR before filing this
action.
- 23 -
That both Coleman and Raines involved allegations concerning a single vote does
not imply that only single-vote matters may give rise to an injury in fact. If plaintiffs
seek legislative standing based on the nullification of a particular vote, Raines requires
that they identify “a specific legislative act . . . [that] goes into effect (or does not go into
effect)” as a result. 521 U.S. at 823; see also Baird, 266 F.3d at 412. But we do not read
Raines to require legislators seeking standing to plead facts substantially identical to
Coleman’s. Were that the case, the discussion of various other elements militating
against legislative standing in Raines would be dicta. See 521 U.S. at 819-20, 825-26.
And it would be a bizarre result if the nullification of a single vote supported legislative
standing, but the nullification of a legislator’s authority to cast a large number of votes
did not.
We recognize that the legislator-plaintiffs’ alleged injury shares certain
characteristics with that asserted in Raines. Just as the legislator-plaintiffs in this case,
the Raines plaintiffs did not assert a claim that they were “personally entitled” to cast an
effective vote on revenue-raising measures in the sense that the authority at issue
“runs . . . with the Member’s seat, a seat which the Member holds (it may quite arguably
be said) as trustee for his constituents, not as a prerogative of personal power.” Id. at
821. But the same was true in Coleman, which the court declined to overrule despite a
clear opportunity to do so. See id. at 825-26. If an elected official cannot sue on his own
behalf to assert legislative prerogatives on the theory that his power properly belongs to
his constituents, legislative standing would cease to exist outside the narrow category of
- 24 -
particularly unfair treatment exemplified by Powell. This factor alone thus cannot be
sufficient to defeat standing.
Some legislative standing cases have relied in part on the fact that a claimed injury
impacted all members of a legislature in denying standing to a sub-group of legislators.
In Schaffer, for example, the injuries alleged “necessarily damage[d] all Members of
Congress equally.” 240 F.3d at 885 (quoting Raines, 521 U.S. at 821) (alterations
omitted). And in Kucinich, the court held that a group of House members lacked
standing to challenge alleged violations of the War Powers resolution partially on the
basis that the claimed injury “impacts the whole of Congress—not solely the ten
plaintiffs[] before the Court.” 821 F. Supp. 2d at 117-18. But both of these cases also
rested in part on the “lost vote” rationale, the availability of internal legislative remedies,
or separation-of-powers concerns, none of which are present in this case. See Schaffer,
240 F.3d at 886 (plaintiffs received objectionable pay raise because they lost a vote, and
could cure any injury “pursuant to the normal legislative process”); Kucinich, 821 F.
Supp. 2d at 120 (plaintiffs “overlook the important role political remedies have in the
standing analysis” by arguing their votes were nullified while “acknowledging that they
retain legislative remedies”).
In sum, the case under review differs from both Coleman and Raines—and the
cases interpreting those decisions—in important respects. We ultimately agree with the
district court that the legislator-plaintiffs have sufficiently alleged an injury to the “plain,
direct and adequate interest in maintaining the effectiveness of their votes,” Coleman,
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407 U.S. at 438, rather than relying only on an “abstract dilution of institutional
legislative power,” Raines, 521 U.S. at 826. On remand, the plaintiffs will be required to
prove their allegations. But at this stage, assuming the truth of all well-pled allegations
contained in the complaint, we conclude that the legislator-plaintiffs have satisfied
Coleman’s requirements for legislative standing. We therefore hold that plaintiffs have
suffered an injury in fact, and thus proceed to a brief discussion of causation and
redressability.
B
To satisfy causation for standing purposes, plaintiffs must demonstrate that their
injury is “fairly traceable to the challenged action of the defendant.” Defenders of
Wildlife, 504 U.S. at 560 (quotation and alterations omitted). And an injury is
redressable if a court concludes it is “likely, as opposed to merely speculative, that the
injury will be redressed by a favorable decision.” Id. at 561 (quotations omitted).
The Governor suggests that we construe the alleged injury as broadly as possible
for purposes of analyzing causation. He selects two phrases from the operative
complaint, arguing that plaintiffs’ alleged injuries are a claimed slide into fiscal
dysfunction and inadequate education funding. Neither injury, he suggests, is caused by
TABOR or redressable by a decision invalidating it. As explained supra, however, the
legislator-plaintiffs’ alleged injury is not a lack of revenue flowing into state coffers but
the elimination of their authority to make laws raising taxes or increasing spending. This
injury is directly attributable to TABOR’s requirement that any tax increase be approved
- 26 -
by Colorado voters. Plaintiffs seek a declaratory judgment that TABOR is null and void
and an order prohibiting any state officer from enforcing TABOR’s provisions. Such a
judgment would allow the legislator-plaintiffs to vote directly for increased taxes, thereby
redressing their alleged injury.10
C
In addition to the Article III requirements for standing, we also consider prudential
standing considerations. See Sac & Fox Nation of Mo. v. Pierce, 213 F.3d 566, 573 (10th
Cir. 2000) (listing prudential standing principles). Governor Hickenlooper suggests that
plaintiffs assert only a “generalized grievance shared in substantially equal measure by all
or a large class of citizens.” Warth v. Seldin, 422 U.S. 490, 499 (1975) (quotation
omitted). We disagree. The Governor’s argument again rests on the premise that the
legislator-plaintiffs’ claimed injury is nothing more than a decrease in the amount of tax
revenue collected by the state. Such an alleged injury would constitute a generalized
grievance. Courts should generally decline to hear cases based on nothing more than a
plaintiff’s disagreement with budgetary policies. See Valley Forge Christian Coll. v.
10
To the extent that Governor Hickenlooper argues that the plaintiffs’ Guarantee
Clause claim is not redressable because it cannot be enforced against him, this assertion
is contradicted by the Supreme Court’s decision in Minor v. Happersett, 88 U.S. 162(1875). There, the Court held that the Guarantee Clause “necessarily implies a duty on
the part of the States themselves to provide such a government.” Id. at 175. As
Colorado’s chief executive, Governor Hickenlooper bears responsibility for enforcing
that guarantee on the state’s behalf. See Developmental Pathways v. Ritter, 178 P.3d
524, 529-30 (Colo. 2008) (governor is generally proper defendant in suit challenging
state constitutional amendment).
- 27 -
Ams. United for Separation of Church & State, 454 U.S. 464, 476-78 (1982).
We do not doubt that TABOR has a substantial effect on the state of Colorado and
its citizens. But the injury the legislator-plaintiffs seek to redress, as explained in Parts
II.A & B, supra, is particular to their positions as state legislators and is not “shared in
substantially equal measure by all or a large class of citizens.” Warth, 422 U.S. at 499.
Only the one hundred members of the Colorado General Assembly can claim the
disempowerment injury alleged here. Denying prudential standing in this case would be
particularly problematic given our instruction that parties harmed by “generalized
grievances should normally be directed to the legislative, as opposed to judicial, branches
of government.” Bd. of Cnty. Comm’rs v. Geringer, 297 F.3d 1108, 1112 (10th Cir.
2002). As we have discussed, the legislator-plaintiffs cannot obtain a remedy through the
legislative process.
Moreover, the Supreme Court has stressed that its prudential standing limitation
on widely dispersed injuries “invariably appears in cases where the harm at issue is not
only widely shared, but is also of an abstract and indefinite nature—for example, harm to
the common concern for obedience to law.” FEC v. Akins, 524 U.S. 11, 23 (1998)
(quotation omitted). “Often the fact that an interest is abstract and the fact that it is
widely shared go hand in hand. But their association is not invariable, and where a harm
is concrete, though widely shared, the Court has found injury in fact.” Id. at 24(quotation omitted); see also Pub. Citizen v. U.S. Dep’t of Justice, 491 U.S. 440, 449-50
(1989) (“The fact that other citizens or groups of citizens might make the same complaint
- 28 -
. . . does not lessen appellants’ asserted injury . . . .”). As discussed in Part II.A, supra,
we conclude that the legislator-plaintiffs have alleged a concrete injury.
Because neither the Article III standing requirements nor the asserted doctrine of
prudential standing bars the legislator-plaintiffs’ suit, we affirm the district court’s rulings
on legislative standing.
III
We turn to another justiciability hurdle, the political question doctrine. “The
political question doctrine excludes from judicial review those controversies which
revolve around policy choices and value determinations constitutionally committed for
resolution to the halls of Congress or the confines of the Executive Branch.” Japan
Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230 (1986). Applicability of the
political question doctrine is a question of law that we review de novo. Custer Cnty.
Action Ass’n v. Garvey, 256 F.3d 1024, 1031-32 (10th Cir. 2001).
A
As a threshold matter, we must decide if the political question doctrine
categorically precludes Guarantee Clause challenges against state constitutional
amendments adopted by popular vote. There is some support for this position in
Supreme Court cases predating the modern articulation of the political question doctrine
in Baker v. Carr, 369 U.S. 186 (1962). But we conclude that neither Luther v. Borden, 48
U.S. (7 How.) 1 (1849), nor Pacific States Telephone & Telegraph Co. v. Oregon, 223
U.S. 118 (1912), precludes merits consideration in this case.
- 29 -
In Luther, the Supreme Court was asked to resolve a dispute that would have
required it to determine which of two putative governments legitimately controlled
Rhode Island at the time. On the basis that the issue “ha[d] been already decided by the
courts of Rhode Island,” the Court held that “[u]pon such a question the courts of the
United States are bound to follow the decisions of the State tribunals.” 48 U.S. at 40.
The Court also discussed the Guarantee Clause, labeling the issue of which government
was valid as “political in its nature,” vested not in the judiciary but in Congress. Id. at 42.
“Under [the Guarantee Clause] it rests with Congress to decide what government is the
established one in a State.” Id.
Pacific States involved a fact pattern similar to the one before us, but a much
broader legal challenge. Shortly after Oregon amended its state constitution to permit
lawmaking by initiative and referendum, the people enacted “a law taxing certain classes
of corporations.” Pac. States, 223 U.S. at 135. A corporation affected by the new tax
challenged its legitimacy, alleging that “by the adoption of the initiative and referendum,
the State violates the right to a republican form of government.” Id. at 140 (quotation
omitted). “In other words,” said the Court, “the propositions [of error in the complaint]
each and all proceed alone upon the theory that the adoption of the initiative and
referendum destroyed all government republican in form in Oregon.” Id. at 141.
Construing the plaintiff’s complaint as an attempt to overturn “not only . . . the particular
statute which is before us, but . . . every other statute passed in Oregon since the adoption
of the initiative and referendum,” id., the Justices held “the issues presented, in their very
- 30 -
essence, [to be] . . . political and governmental, and embraced within the scope of powers
conferred upon Congress,” id. at 151.
Both the Luther and Pacific States claims differ from those at bar. Importantly,
both cases involved wholesale attacks on the validity of a state’s government rather than,
as before us, a challenge to a single provision of a state constitution. See Pac. States, 223
U.S. at 150 (the “essentially political nature” of the question presented “is at once made
manifest by understanding that the assault which the contention here advanced makes it
not on the tax as a tax, but on the State as a State”);11 Luther, 48 U.S. at 47 (whether the
people of a state “abolish[ed] an old government, and establish[ed] a new one in its place,
is a question to be settled by the political power”). There can nevertheless be little doubt
that these cases include language suggesting that Guarantee Clause litigation is
categorically barred by the political question doctrine. In Luther, the Court stated that
11
Contrary to the Governor’s position, Pacific States did not involve an issue
“identical to the one presented here.” We are confronted with an allegation that one
provision of the Colorado Constitution brings it below a constitutionally mandated
threshold. Governor Hickenlooper directs us to the plaintiff’s brief in Pacific States in
support of his argument that the issues presented in the two cases are identical.
According to that brief, the people of Oregon passed in 1910 an amendment similar in
relevant respects to TABOR that required voter approval via referendum before certain
taxes could be enacted. We note that the amendment was passed after the Oregon
Supreme Court rendered the decision reviewed by the Pacific States Court, see Oregon v.
Pac. States Tel. & Tel. Co., 99 P. 427 (Or. 1909), and it is therefore unclear whether that
amendment was formally before the Court in Pacific States. In any event, the Court’s
opinion in Pacific States does not mention Oregon’s prior approval amendment, which
was repealed by the people in November 1912. We are unpersuaded that an argument
briefed by one party but never addressed by the Court requires us to read Pacific States
more narrowly than its framing of the issues suggests.
- 31 -
“Congress must necessarily decide what government is established in the State before it
can determine whether it is republican or not.” 48 U.S. at 42. And when the Pacific
States Court faced the question of “whether it is the duty of the courts or the province of
Congress to determine when a State has ceased to be republican in form, and to enforce
the guaranty of the Constitution on that subject,” it declared that the issue was “political
in character, and therefore not cognizable by the judicial power, but solely committed by
the Constitution to the judgment of Congress.” 223 U.S. at 133.
Had those been the Supreme Court’s final words on the justiciability of the
Guarantee Clause, a categorical approach might be proper. However, the Court in Baker
highlighted the proposition that its prior political question cases turned on a number of
“attributes which, in various settings, diverge, combine, appear, and disappear in seeming
disorderliness” and that much confusion had resulted “from the capacity of the ‘political
question’ label to obscure the need for case-by-case inquiry.” 369 U.S. at 210-11. After
reviewing its prior cases applying the political question doctrine, the Court explained that
“several formulations which vary slightly according to the settings in which the questions
arise may describe a political question.” Id. at 217.
Baker then announced six factors that render a case non-justiciable under the
political question doctrine:
[A] textually demonstrable constitutional commitment of the issue to a
coordinate political department; or a lack of judicially discoverable and
manageable standards for resolving it; or the impossibility of deciding
without an initial policy determination of a kind clearly for nonjudicial
discretion; or the impossibility of a court’s undertaking independent
- 32 -
resolution without expressing lack of the respect due coordinate branches of
government; or an unusual need for unquestioning adherence to a political
decision already made; or the potentiality of embarrassment from
multifarious pronouncements by various departments on one question.
Id. “Unless one of these formulations is inextricable from the case at bar, there should be
no dismissal for nonjusticiability on the ground of a political question’s presence.” Id.(emphasis added).
Given the clarity of this holding, we must agree with the plaintiffs that the six tests
identified in Baker are the exclusive bases for dismissing a case under the political
question doctrine. Furthermore, the Baker Court explicitly rejected a categorical
Guarantee Clause bar. Immediately after announcing the six political question factors,
the Court addressed the argument that the case under its consideration “shares the
characteristics of decisions that constitute a category not yet considered, cases concerning
the Constitution’s guaranty, in Art. IV, § 4, of a republican form of government.” Baker,
369 U.S. at 217-18. It determined that the prior cases in which the Court had considered
“Guaranty Clause claims involve those elements which define a ‘political question,’”
referencing the aforementioned six factors, “and for that reason and no other, they are
nonjusticiable.” Id. at 218 (emphasis added). “[N]onjusticiability of such claims has
nothing to do with their touching upon matters of state governmental organization.” Id.The Baker opinion includes a lengthy discussion of Luther, ultimately concluding
that the decision rested on four of the six previously identified factors:
the commitment to the other branches of the decision as to which is the
lawful state government; the unambiguous action by the President, in
- 33 -
recognizing the charter government as the lawful authority; the need for
finality in the executive’s decision; and the lack of criteria by which a court
could determine which form of government was republican.
Id. at 222. A reading of Luther under which “the political question barrier was . . .
absolute” was rejected, with the Court continuing that in some circumstances a court
could determine “the limits of the meaning of ‘republican form,’ and thus the factor of
lack of criteria might fall away.” Id. at 222 n.48. Even then, however, “there would
remain other possible barriers to decision because of primary commitment to another
branch, which would have to be considered in the particular fact setting presented.” Id.In recognizing Luther as standing solely for the proposition that “the Guaranty Clause is
not a repository of judicially manageable standards which a court could utilize
independently in order to identify a State’s lawful government,” it clarified that it had
consistently declined to resort to the clause as a “standard for invalidating state action.”
Id. at 223.
More recently, the Supreme Court has continued to decline interpretation of its
political question doctrine precedent as categorically barring Guarantee Clause litigation.
In New York v. United States, 505 U.S. 144 (1992), the Court expressed displeasure that
Luther’s “limited holding metamorphosed into the sweeping assertion that violation of
the great guaranty of a republican form of government in States cannot be challenged in
the courts.” Id. at 184 (quotation omitted). The Supreme Court stressed that it has
“addressed the merits of claims founded on the Guarantee Clause without any suggestion
that the claims were not justiciable.” Id. (citing Att’y Gen. of Mich. ex rel. Kies v.
- 34 -
Lowrey, 199 U.S. 233, 239 (1905); Forsyth v. Hammond, 166 U.S. 506, 519 (1897); In re
Duncan, 139 U.S. 449, 461-62 (1891); Minor, 88 U.S. at 175-76). And although the
Court did not address the issue directly, it noted that modern decisions have “suggested
that perhaps not all claims under the Guarantee Clause present nonjusticiable political
questions,” id. at 185, quoting the statement in Reynolds v. Sims, 377 U.S. 533, 582
(1964) that “[s]ome questions raised under the Guarantee Clause are nonjusticiable.”
Relying on the Court’s directive in Baker that “there should be no dismissal for
non-justiciability on the ground of a political question’s presence” absent one of the
specifically identified factors, 369 U.S. at 217, we reject the proposition that Luther and
Pacific States brand all Guarantee Clause claims as per se non-justiciable.
B
We must yet apply the six-factor test announced in Baker. For the convenience of
the reader, we restate the Baker factors, inserting in brackets an Arabic number before
each of the six tests, and proceed to a discussion of those factors.
[1] a textually demonstrable constitutional commitment of the issue to a
coordinate political department; or [2] a lack of judicially discoverable and
manageable standards for resolving it; or [3] the impossibility of deciding
without an initial policy determination of a kind clearly for nonjudicial
discretion; or [4] the impossibility of a court’s undertaking independent
resolution without expressing lack of the respect due coordinate branches of
government; or [5] an unusual need for unquestioning adherence to a
political decision already made; or [6] the potentiality of embarrassment
from multifarious pronouncements by various departments on one question.
Baker, 369 U.S. at 217.
- 35 -
1
Initially, we consider whether the Guarantee Clause manifests “a textually
demonstrable constitutional commitment of the issue to a coordinate political
department.” Id. The Guarantee Clause provides: “The United States shall guarantee to
every State in this Union a Republican Form of Government, and shall protect each of
them against Invasion; and on Application of the Legislature, or of the Executive (when
the Legislature cannot be convened) against domestic Violence.” U.S. Const. art. IV, § 4.
The text of the Guarantee Clause does not mention any branch of the federal
government. It commits the “United States”—which would normally be read as
including the Article III courts—to the preservation of republican government in the
states. The Guarantee Clause is found not in Article I or Article II, where we would
expect to find it if its provisions were textually committed to another branch, but in
Article IV. Moreover, two other provisions of Article IV specifically empower Congress
to act, but the Guarantee Clause does not. See id. § 1 (“[T]he Congress may by general
Laws prescribe the Manner in which [public] Acts, Records, and Proceedings shall be
proved, and the Effect thereof.”); id. § 3 (“New states may be admitted by Congress into
this Union . . . Congress shall have Power to dispose of and make all needful Rules and
Regulations respecting the Territory or other Property belonging to the United States.”).
The omission of any mention of Congress from the Guarantee Clause, despite Congress’
prominence elsewhere in Article IV, indicates there is no “textually demonstrable
commitment”—certainly not an inextricable one—barring our review or district court
- 36 -
consideration of this case. Baker’s refusal to bar Guarantee Clause claims on an
“absolute” basis would be rendered a nullity if the clause itself contained a textual
commitment to the coordinate political branches. 369 U.S. at 222 & n.48.
As part of its discussion of Luther, the Baker opinion stated that “Chief Justice
Taney . . . found further textual and practical reasons for concluding that, if any
department of the United States was empowered by the Guaranty Clause to resolve the
issue, it was not the judiciary.” 369 U.S. at 220. Note that the “issue” referenced was not
whether a state government had fallen below a minimum constitutional threshold, but
“what government is the established one in a State.” Id. (quoting Luther, 48 U.S. at 42).
The quoted passage explains that “when the senators and representatives of a State are
admitted into the councils of the Union, the authority of the government under which
they are appointed, as well as its republican character, is recognized by the proper
constitutional authority.” Id. (quoting Luther, 48 U.S. at 42).
Inexorably, the Baker Court concluded that Congress was the appropriate
authority for determining “which is the lawful state government.” 369 U.S. at 222. This
conclusion follows logically from the Constitution’s text, which makes Congress the
arbiter of congressional elections. See U.S. Const. art. I, § 5, cl. 1 (“Each House shall be
the Judge of the Elections, Returns and Qualifications of its own Members . . . .”). Yet,
possibility of congressional action does not preclude a judicial determination regarding
whether an admittedly established state government has later adopted an impermissibly
un-republican state constitutional provision. The Pacific States opinion does not identify
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any textual commitment of authority, but it too dealt with a claim that “assail[ed] . . . the
rightful existence of the State.” 223 U.S. at 141-42; see also id. at 151 (plaintiffs
“demand of the State that it establish its right to exist as a State”).12 We must read
Luther’s statement regarding recognition of congressional delegates, 48 U.S. at 42, in that
context: When choosing between slates of representatives from two competing
governments, congressional admission of one slate over the other would seem to imply
recognition of one putative government as the proper (and republican) representatives of
the citizenry. And given the textually demonstrable commitment to Congress the role of
determining the “Elections, Returns and Qualifications of its own Members,” U.S. Const.
art. I, § 5, cl. 1, we would not hesitate to conclude that the first Baker test would forbid
the judiciary from choosing between two putative state governments. That is not this
case, however; the legislator-plaintiffs do not challenge the representative legitimacy of
Colorado’s current government or the authority of its congressional delegation to serve in
Washington. Looking to the “particular fact setting presented,” as Baker directed, 369
U.S. at 222 n.28, we discern no textual commitment of the narrow issue raised by the
plaintiffs to a coordinate political branch.
12
Similarly, in Hanson v. Flower Mound, 679 F.2d 497 (5th Cir. 1982) (per
curiam), the court summarily rejected a pro se litigant’s claim that “the government of the
Town of Flower Mound is a nullity” based on a violation of the Guarantee Clause. Id. at
499, 502. Assuming the Clause applied to municipalities, the Court concluded that “the
question whether a government is a nullity because its form violates the Clause is a
nonjusticiable political question.” Id. at 502 (citing Luther, 48 U.S. at 42).
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2
We are similarly unpersuaded that a “lack of judicially discoverable and
manageable standards,” id. at 217, precludes judicial review of this lawsuit. As construed
by Baker, the Luther decision rested in part on the lack of criteria for determining which
government was legitimately republican. See 369 U.S. at 222. We reiterate that this
holding rests on the impossibility of applying judicial standards to choose between two
governments that each claim to be valid, rather than any extraordinary vagueness in the
text of the Guarantee Clause itself. The Luther Court asked “by what rule could it have
determined the qualification of voters upon the adoption or rejection of the proposed
constitution, unless there was some previous law of the State to guide it,” and answered:
The Court lacks “the right to determine what political privileges the citizens of a State are
entitled to, unless there is an established constitution or law to govern its decision.” 48
U.S. at 41. That is not this case.
There is sparse judicial precedent interpreting the Guarantee Clause to aid our
analysis. Even Guarantee Clause cases in which the Supreme Court declined to invoke
the political question doctrine do not provide much meaningful guidance in this case.
See Kies, 199 U.S. at 239 (“If the legislature of the State has the power to create and alter
school districts and divide and apportion the property of such districts . . . the action of
the legislature is compatible with a republican form of government . . . .”); Minor, 88
U.S. at 175-76 (depriving women of the franchise did not violate Guarantee Clause
because none of the original thirteen states nor any state admitted to that point “save
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perhaps New Jersey” allowed women to vote). “Judicially manageable standards” must
include—but cannot be limited to—precedent. We must not “hold[] a case nonjusticiable
under the second Baker test without first undertaking an exhaustive search for applicable
standards.” Alperin v. Vatican Bank, 410 F.3d 532, 552 (9th Cir. 2005).
Before the Supreme Court’s decision in District of Columbia v. Heller, 554 U.S.
570 (2008), there was similarly sparse judicial interpretation of the Second Amendment
at both the state and federal levels. Precedent that did exist included a Supreme Court
case that had long been understood as foreclosing the suggestion that the Second
Amendment protects an individual right. See United States v. Miller, 307 U.S. 174, 178
(1939). Outside the judiciary, historians and law professors studied the meaning of the
Amendment, relying on sources typically used to aid constitutional interpretation:
dictionaries, ratification history, contemporary treatises, and the like. Meanwhile, states
and localities had developed various provisions regulating firearms. Such legislative
enactments became relevant because courts, including the Heller Court, were willing to
consider the rarity of state enactments in determining whether they are constitutionally
permissible. 554 U.S. at 629 (“Few laws in the history of our Nation have come close to
the severe restriction of the District’s handgun ban.”). There is no evidence that the
Court in Heller even considered the possibility that the sources available to it could be
insufficient for developing judicially discoverable and manageable standards.
As it was with the Second Amendment, so it is with the Guarantee Clause. We are
directed, by both parties and by various amici, to sources that courts have relied on for
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centuries to aid them in constitutional interpretation. Briefing directs us to several of the
Federalist Papers, founding-era dictionaries, records of the Constitutional Convention,
and other papers of the founders. We have the authority to take judicial notice of other
state constitutional provisions regulating the legislature’s power to tax and spend. See
Fed. R. Evid. 201(b). At this stage of the litigation, we must strike a delicate balance
between acknowledging that repositories of judicially manageable standards exist and
allowing further record development in the district court before the merits of the case are
adjudicated. See Largess v. Supreme Judicial Court for the State of Mass., 373 F.3d 219,
225 (1st Cir. 2004) (per curiam) (“[R]esolving the issue of justiciability in the Guarantee
Clause context may also turn on the resolution of the merits of the underlying claim.”).
Without reaching or considering the merits, we note the ready availability of sources
providing judicially manageable guidance on the meaning of the Guarantee Clause. We
are unwilling to allow dicta suggesting that the Guarantee Clause is per se nonjusticiable
to become a self-fulfilling prophecy; in order to develop judicially manageable standards,
courts must be permitted to reach the stage of litigation where such standards are
developed.
Our holding comports with the holdings of other circuits that have applied the
second prong of Baker. We are not asked to second-guess military decisions, see Aktepe
v. United States, 105 F.3d 1400, 1404 (11th Cir. 1997) (“[C]ourts lack standards with
which to assess whether reasonable care was taken to achieve military objectives while
minimizing injury and loss of life.”), nor must we consider sensitive foreign policy
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issues, see Schneider v. Kissinger, 412 F.3d 190, 196 (D.C. Cir. 2005) (declining to
determine whether “it was proper for an Executive Branch official . . . to support covert
actions against” a foreign official (quotation omitted)).
In Wang v. Masaitis, 416 F.3d 992 (9th Cir. 2005), the Ninth Circuit applied the
Baker factors to a case that would have required it to “decide whether, under the Treaty
Clause of the Constitution, the United States may enter into a ‘treaty’ with a non-
sovereign entity.” Id. at 993. It discussed “Baker’s distinction between discerning a
nation’s sovereignty (a political question) and interpreting the impact of that status on the
law (a judicial one).” Id. at 995. Considering the second and third Baker factors
together, the Ninth Circuit held: “‘Resolution of the question may not be easy, but it only
requires us to apply normal principles of interpretation to the constitutional provisions at
issue.’” Id. at 996 (quoting Goldwater v. Carter, 444 U.S. 996, 999 (1979) (Powell, J.,
concurring)). The same is true in this case. We cannot identify any feature of the
Guarantee Clause that makes it unamenable to “normal principles of interpretation.”
Under Fed. R. Civ. P. 8(a)(2), a plaintiff must provide “a short and plain statement
of the claim showing that the pleader is entitled to relief.” The Governor notes that we
relied on the plaintiffs’ initial pleadings to apply the Baker test in Schroeder v. Bush, 263
F.3d 1169 (10th Cir. 2001). But we did not hold that plaintiffs must incorporate into their
complaint every legal source relevant to the applicable standard. Our review of the
record and briefing in this case satisfies us that judicially discoverable and manageable
standards for Guarantee Clause litigation exist. An attempt to define those standards
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thoroughly would necessarily implicate adjudication on the merits not appropriate for
interlocutory appeal.
3
With respect to the third Baker test, we conclude that resolving this case will not
require the making of a “policy determination of a kind clearly for nonjudicial
discretion.” Baker, 369 U.S. at 217. TABOR is a hotly contested issue in Colorado that
has had a wide-ranging influence on the state’s fiscal policy. But the interpretation of
constitutional text—even vague constitutional text—is central to the judicial role. See
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (“It is emphatically the province
and duty of the judiciary to say what the law is.”). We “cannot avoid [our] responsibility
merely because the issues have political implications.” Zivotofsky ex rel. Zivotofsky v.
Clinton, 132 S. Ct. 1421, 1428 (2012) (quotation omitted).
We agree with the district court that this lawsuit is distinguishable from others in
which courts have invoked the “policy determination” prong in Baker. See, e.g.,
Schroeder, 263 F.3d at 1175 (“Courts are ill-equipped to make highly technical, complex,
and on-going decisions regarding how to maintain market conditions, negotiate trade
agreements, and control currency.”); Ad Hoc Comm. on Judicial Admin. v.
Massachusetts, 488 F.2d 1241, 1245 (1st Cir. 1973) (concluding that “the financing and,
to an important extent, the organization of the judicial branches” requires a policy
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determination);13 Orlando v. Laird, 443 F.2d 1039, 1043 (2d Cir. 1971) (“[D]ecisions
regarding the form and substance of congressional enactments authorizing hostilities are
determined by highly complex considerations of diplomacy, foreign policy, and military
strategy inappropriate to judicial inquiry.”). Plaintiffs do not ask the court to balance
delicate policy matters similar to market conditions, budgeting priorities, or foreign
policy concerns. Instead, they seek a ruling as to whether state government under
TABOR is republican in form.
If adjudicating this case required us or the district court to determine the wisdom
of allocating certain traditionally legislative powers to the people, the third Baker factor
would dictate dismissal. But deciding whether a state’s form of government meets a
constitutionally mandated threshold does not require any sort of “policy determination”
as courts applying the Baker tests have understood that phrase. The case before us
requires that we determine the meaning of a piece of constitutional text and then decide
whether a state constitutional provision contravenes the federal command. See
Goldwater, 444 U.S. at 999 (“Resolution of the question . . . requires us to apply normal
principles of interpretation to the constitutional provisions at issue.”).
13
Ad Hoc Committee also includes the following language: “[I]t would be both
unprecedented and unseemly for a federal judge to attempt a reordering of state
priorities.” 488 F.2d at 1245-46. We note that “priorities,” as used in that case, refers
directly to budget priorities. Plaintiffs alleged that the state’s inadequate judicial
financing violated their constitutional rights and requested as a remedy the “enlargement
and restructuring of the entire state court system.” Id. at 1243. The plaintiffs in this case
seek no similar relief and do not ask the federal courts to become involved in the
minutiae of Colorado’s budget.
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4
We dispense briefly with the remaining three Baker factors: “[4] the impossibility
of a court’s undertaking independent resolution without expressing lack of the respect
due coordinate branches of government; or [5] an unusual need for unquestioning
adherence to a political decision already made; or [6] the potentiality of embarrassment
from multifarious pronouncements by various departments on one question.” 369 U.S. at
217. These factors are best understood as promoting separation-of-powers principles in
cases featuring prior action on an issue by a coordinate branch. See Goldwater, 444 U.S.
at 1000 (Powell, J., concurring) (“[T]he political-question doctrine rests in part on
prudential concerns calling for mutual respect among the three branches of
Government.”).
We are aware of no action taken by either Congress or the executive with respect
to this litigation specifically or TABOR generally. Both the people and courts of
Colorado have made pronouncements on TABOR. However, the possibility that federal
judicial decisions will conflict with a state referendum or a state court decision does not
implicate the political question doctrine. Such conflicts are an ordinary part of the
judicial process. See, e.g., Romer v. Evans, 517 U.S. 620 (1996) (striking down
Colorado’s popularly enacted Amendment 2 as unconstitutional); Gallegos v. Colorado,
370 U.S. 49 (1962) (reversing decision of Colorado Supreme Court). TABOR’s
ratification by the people of Colorado was a “political decision,” Baker, 369 U.S. at 217,
but it was not a decision of the sort that we must adhere to unquestioningly. See Gross v.
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German Found. Indus. Initiative, 456 F.3d 363, 390 (3d Cir. 2006) (“As Baker makes
clear, the fifth factor contemplates cases of an ‘emergency[] nature’ that require ‘finality
in the political determination,’ such as the cessation of armed conflict.” (quoting Baker,
369 U.S. at 213-14 (alteration in Gross))).
We thus affirm the district court’s conclusion that the specific Guarantee Clause
claim asserted in this case is not barred by the political question doctrine.
IV
Governor Hickenlooper argues that the operative complaint fails to state a claim
upon which relief can be granted because Colorado’s government remains republican in
form after the passage of TABOR. The Governor did not assert this traditional Fed. R.
Civ. P. 12(b)(6) argument to the district court with respect to the Guarantee Clause claim;
he sought dismissal of that claim only on standing, prudential standing, and political
question grounds. And the district court order over which we exercise interlocutory
review decided only the questions properly presented. Although we may exercise our
discretion in certain circumstances to reach issues “fairly included” in an order subject to
interlocutory review, we “may not reach beyond the certified order.” Rural Water Dist.
No. 4 v. City of Eudora, 720 F.3d 1269, 1278 (10th Cir. 2013) (citations omitted); see
also Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 205 (1996) (“The court of
appeals may not reach beyond the certified order . . . .”); Moore v. Liberty Nat’l Life Ins.
Co., 267 F.3d 1209, 1219-20 (11th Cir. 2001) (declining to consider statute of limitations
claim on interlocutory appeal because of insufficient development of claim at district
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court level); 16 Charles Alan Wright et al., Federal Practice & Procedure, § 3929, at 456-
57 (3d ed. 2012) (“[T]he court of appeals will not consider matters not yet ruled upon by
the district court.”). Because the order at issue in this limited interlocutory appeal does
not include a decision as to whether the Guarantee Clause claim asserted by plaintiffs
plausibly states a basis for relief under Fed. R. Civ. P. 12(b)(6), we cannot address that
question. We stress that our decision on plaintiffs’ Guarantee Clause claim is quite
limited, leaving all issues other than standing, prudential standing, and the political
question doctrine to the district court.
V
Plaintiffs also allege that TABOR violates § 4 of the Colorado Enabling Act,
which requires “[t]hat the constitution [of Colorado] shall be republican in form.”
Colorado Enabling Act, ch. 139, § 4, 18 Stat. 474, 474 (1875). The district court
concluded that even if the Guarantee Clause claim were found non-justiciable on political
question grounds, plaintiffs could proceed with their statutory Enabling Act claim. The
Governor raises the same standing and political question challenges to the Enabling Act
claim as to the Guarantee Clause claim. We do not need to conduct a separate Article III
standing inquiry for the Enabling Act claim because the injury, causation, and
redressability analyses are identical regardless of whether the claim for relief is statutory
or constitutional. See Parts II.A & B, supra. Similarly, our prudential standing analysis
above applies with equal force to the Enabling Act claim—we have already decided that
the legislator-plaintiffs’ particular claim does not constitute a generalized grievance. See
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Part II.C, supra.
We agree with the district court that the political question analysis is not identical
for statutory and constitutional claims. In Japan Whaling, the Supreme Court held that “it
goes without saying that interpreting congressional legislation is a recurring and accepted
task for the federal courts.” 478 U.S. at 230. To be sure, the mere fact that a claim is
statutory does not automatically obviate political question concerns. See Spectrum
Stores, Inc. v. Citgo Petroleum Corp., 632 F.3d 938, 943 (5th Cir. 2011) (declining to
adjudicate “challenge [to] the structure of OPEC and its relation to the worldwide
production of petroleum”); Lin v. United States, 561 F.3d 502, 504 (D.C. Cir. 2009)
(invoking political question doctrine where issue would have required determining “who
exercises sovereignty over Taiwan”); Crockett v. Reagan, 720 F.2d 1355, 1356 (D.C. Cir.
1983) (per curiam) (political question doctrine barred challenge to U.S. military presence
in Ecuador notwithstanding statutory War Powers Resolution). In each of these cases,
the court could not address the question presented without rendering a decision on a
question of foreign policy, thereby risking either “expressing lack of the respect due
coordinate branches of government” or “potentiality of embarrassment from multifarious
pronouncements by various departments on one question.” Baker, 369 U.S. at 217.
Neither danger is present in the case before us.
The Supreme Court’s recent decision in Zivotofsky elucidates the difference
between the judiciary “being asked to supplant a foreign policy decision of the political
branches with the courts’ own unmoored determination” of foreign policy, 132 S. Ct. at
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1427, and “enforc[ing] a specific statutory right,” id. In the instant case, we are asked to
decide “if [plaintiffs’] interpretation of the [Colorado Enabling Act] is correct.” Id. And
at this stage of litigation, we must determine only if federal courts are empowered to
make that decision. We hold that they are, and that the Enabling Act claim is
independently justiciable for reasons that do not apply to the Guarantee Clause claim.
See El-Shifa Pharm. Indus. Co. v. United States, 607 F.3d 836, 856 (D.C. Cir. 2010) (en
banc) (Kavanaugh, J., concurring) (“This is a statutory case. The Supreme Court has
never applied the political question doctrine in a case involving alleged statutory
violations. Never.”).
VI
We emphasize once again that this interlocutory appeal allows us to consider only
whether the legislator-plaintiffs have established Article III standing and whether
prudential standing jurisprudence or the political question doctrine precludes
consideration of their Guarantee Clause and Enabling Act claims. Our answer to those
questions completes our role at this stage of the proceedings.
We AFFIRM the standing and political question rulings of the district court and
REMAND for further proceedings.
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