That may sound like a wacky theory. All right, let’s face it—it is a wacky theory. But it’s a common thread in lawsuits filed against all four governors in recent weeks challenging the virus shutdowns. Moreover, claims that the governors have violated the Constitution’s Guarantee Clause have been circulating in some populist corners of Trumpland for weeks, sometimes helping to furnish a scenario under which the president might have an inherent power to give direct orders to state governors, as the current White House occupant briefly seemed to imagine he had the constitutional power to do.
There’s little prospect any of these notions will convince a judge to enjoin a shutdown anytime soon. Since the 1849 case Luther v. Borden, involving a Rhode Island dispute, the U.S. Supreme Court has consistently held that the Guarantee Clause does not create any rights that can be enforced in federal court—as a nonjusticiable “political question,” it is instead entrusted to the elected branches. Just last year, in the gerrymandering case of Rucho v. Common Cause, Chief Justice John Roberts reminded everyone that the clause creates no rights that can be sued over. Ironically, while there has been no shortage of legal commentators yearning to breathe life into the clause as a means for courts to reshape state government, such interest has come above all from progressives. Conservatives have a lot to lose policy-wise should the courts ever decide to rouse the Guarantee Clause from its slumber—and even more ironically, Trump fans may have more to lose than do conservatives.