Republican Form of Government Clause
jeastman at chapman.edu
Wed May 12 09:10:34 PDT 2004
Last month, the California Court of Appeal ruled that California's right
to a republican form of government trumped any claim of sovereign
immunity by an Indian Tribe that had spent millions of dollars
influencing California elections but failed to report their
contributions as required by California law. See Agua Caliente Band of
Cahuilla Indians v. Superior Court, 116 Cal.App.4th 545 (March 26,
Justice O'Connor noted for the Court in New York v. United States "that
perhaps not all claims under the Guarantee Clause present nonjusticiable
political questions," 505 U.S. 144, 183 (1992). "Contemporary
commentators," she noted, "have likewise suggested that courts should
address the merits of such claims, at least in some circumstances. Id.
at 185 (citing L. Tribe, American Constitutional Law 398 (2d ed. 1988);
J. Ely, Democracy and Distrust: A Theory of Judicial Review 118, and n.,
122-123 (1980); W. Wiecek, The Guarantee Clause of the U.S. Constitution
287-289, 300 (1972); D. Merritt, 88 Colum. L. Rev. 1, 70-78 (Jan. 1988);
Bonfield, The Guarantee Clause of Article IV, Section 4: A Study in
Constitutional Desuetude, 46 Minn. L. Rev. 513, 560-565 (1962)).
Several courts have acknowledged that the Republican Guarantee clause
might present justiciable questions in the wake of New York v. United
States, but found that the Clause had not been violated in the
particular circumstances at issue in the cases. See Texas v. United
States, 106 F.3d 661, 667 (5th Cir. 1997); Adams v. Clinton, 90
F.Supp.2d 35 (D.D.C. 2000); New Jersey v. United States, 91 F.3d 463,
468-69 (3rd Cir. 1996); Padavan v. United States, 82 F.3d 23, 27-28 (2nd
Cir. 1996); Deer Park Ind. Sch. Dist. v. Harris Cty. Appraisal Dist.,
132 F.3d 1095, 1099-1100 (5th Cir. 1998); City of New York v. United
States, 179 F.3d 29 (2nd Cir. 1999); Kelley v. United States, 69 F.3d
1503, 1511 (10th Cir. 1995); but see State ex. rel. Huddleston v.
Sawyer, 932 P.2d 1145 (Or. 1997) (holding that Republican Guarantee
claim is nonjusticiable).
In New York v. United States itself, the Court dismissed the guarantee
clause claim because the statute in that case did not "pose any
realistic risk of altering the form or the method of functioning of New
York's government," 505 U.S. at 186, thus suggesting, as several lower
courts have now recognized, that actions that risk altering the form or
method by which a state government functions-such as, arguably, actions
that allow the judiciary to arrogate to itself determination of issues
that are explicitly left to the political branches-may be challenged
under the Republican Guaranty Clause.
By the way, in the Nevada litigation, it was not just those opposing the
violation of the 2/3 vote requirement for tax increases that pressed a
Republican Guaranty Clause claim (disclosure note: I represented those
folks). The Nevada State Education Association argued in its amicus
brief before the Ninth Circuit that the 2/3 vote provision itself
violated the Republican Guaranty Clause. Copies of the many briefs and
rulings in the several phases of that case are available at
Dr. John C. Eastman
Professor of Law, Chapman University School of Law
Director, The Claremont Institute Center for Constitutional
One University Dr.
Orange, CA 92866
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of JMHACLJ at aol.com
Sent: Wednesday, May 12, 2004 8:48 AM
To: conlawprof at lists.ucla.edu
Subject: Republican Form of Government Clause
As an attorney with an organization that did not file a Republican Form
of Government (RFOG) Clause challenge in a 11th hour effort to neuter
the judicial junta in Massachusetts, I understand Professor Parry's
point on such a challenge "sound[ing] frivolous to [him.]"
But ever the student, I am curious to know to whom you would send the
people of a State when the Legislature and the Executive have been
overrun by judicial fiat?
Take Nevada, for example, where the people of the State adopted a
constitutional amendment imposing a supermajority requirement for tax
revenue increases, alternatively either requiring that the legislature
approve such increases in supermajority amounts, or, upon approval by
simple majorities, that the legislation must be submitted for approval
to the people of the State. There, as learned moderator discussed on
his blog cite last year, the Nevada Supreme Court nullified a
constitutional amendment by its artificial, strained, and bass-ackwards
exercises in constitutional construction (ignoring, for example, the
rule that the specific governs the general, and that the latter-adopted
provision governs over the earlier-adopted one). The Legislature was,
in effect, compelled by injunction to go into further session in pursuit
of a solution that produced "appropriate" levels of funding for public
education (the constitutional right supposedly conflicted by the tax
revenue supermajority requirement).
Where the high court in a State arrogates authority over the executive
and the legislative branches, and subjects all their actions and
reactions to the potential of contempt, where are the people to turn?
To the very court that has crowned itself?
True enough to say that the RFOG Clause is best remembered as a wrong
answer whenever it appears on the multistate bar exam. True enough to
say that the Supreme Court has never met a RFOG Clause claim that it
liked, preferring to treat each case as presenting a nonjusticiable
political question rather than a redressable violation of the RFOG
Doubtless many questions exist on the RFOG Clause and its operation.
They exist, in part, perhaps, because the Court has spent what words it
has uttered about the Clause in finding its assertion in litigation not
to present justiciable issues.
But is the RFOG Clause a dead letter? Mere aspiration? A duty imposed
on the federal government for which there is no corresponding writ of
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