[EL] CA's law requiring presidential candidates to disclose tax returns

[Marty Lederman]

On the topic of extra-constitutional "qualifications," it's probably worth
flagging that in the series of new cases challenging the House's efforts to
obtain Trump's tax/financial/bank records (which I discuss here
<https://balkin.blogspot.com/2019/07/can-congress-investigate-whether.html>),
Trump is arguing that the House doesn't have a legitimate basis for seeking
such information because it doesn't have any constitutional authority to
impose regulations upon the President respecting conflicts of interests,
financial disclosures, foreign influence, and the like--and the
support for *that
*(absurd) idea is principally a passing suggestion in an old opinion by
Acting AG Larry Silberman (see bottom of page 4
<https://fas.org/irp/agency/doj/olc/092074.pdf>) that if the federal
conflicts statute (prohibiting officials from participating in matters in
which they have a financial interest) applied to the POTUS, it might impose
an unconstitutional "qualification" for serving in the office.



On Wed, Jul 31, 2019 at 11:07 AM Pildes, Rick <rick.pildes at nyu.edu> wrote:

> While I think the major constitutional issue confronting CA’s
> tax-disclosure requirement for presidential primaries will be based on the
> First Amendment, I noticed that Rick Hasen has suggested the requirement
> might violate Art. II of the Constitution, on the theory that it imposes an
> additional “qualification” presidential candidates must meet beyond those
> specified in Art. II.
>
>
>
> If courts do strike this requirement down, I want to flag one thing that’s
> at stake in whether they do so on First Amendment or Art. II grounds.
> Let’s suppose Congress, rather than a single state, were to impose a
> general requirement that all presidential primary candidates had to
> disclose their taxes in order to be listed on primary ballots.  If the CA
> requirement is struck down as an effort to impose an additional
> “qualification” on who can be President, then it is just as
> unconstitutional for Congress to impose such a “qualification” as it is for
> any one state.
>
>
>
> In contrast, if the courts strike down CA’s law based on the First
> Amendment, as reflected in the analysis I quoted earlier from *Anderson
> v. Celebrezze*, that could easily leave open the possibility that a
> congressional-imposed requirement would still be upheld.  *Anderson *is
> based heavily on the distinct problems created when individual states try
> to control what is essentially a national election process.  *Anderson * can
> be thought of as a dormant commerce clause doctrine for national
> elections.  In various contexts, the Court has recognized limits on the
> power of individual states to interfere with national election processes
> (and has viewed presidential primaries as such a process).  Individual
> states face limits in trying to interfere with what is essentially a
> national market.  But Congress might have power to impose a national rule
> (to be sure, there would still be plenty of constitutional questions about
> even Congress doing so).
>
>
>
> Also, I am skeptical about whether CA’s law should or would be treated as
> imposing a “qualification” on presidential candidates.  In the term-limits
> case, *U.S. Term Limits v. Thornton*, on which this “qualification”
> argument is mainly based, the law there barred candidates from being on the
> ballot if they had already served three terms in the House or two in the
> Senate.  One can readily see why the Court would view that as imposing a
> “qualification” for office:  you are not qualified if you have served “too
> long.”  But states impose all sorts of regulations on access to the ballot,
> and not every regulation is tantamount to a “qualification” for office.
> Otherwise, all these regulations on ballot access would be constitutional.
> I tend to think courts would view a requirement for disclosure of tax
> returns as a regulation on ballot access, not an additional “qualification”
> on who is eligible to be President.
>
>
>
> But in any event, the larger point still holds:  there is no doubt the CA
> law presents serious constitutional issues.
>
>
>
> Best,
>
> Rick
>
>
>
> Richard H. Pildes
>
> Sudler Family Professor of Constitutional Law
>
> NYU School of Law
>
> 40 Washington Sq. So.
>
> NYC, NY 10012
>
> 212 998-6377
>
>
>
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-- 
Marty Lederman
Georgetown University Law Center
600 New Jersey Avenue, NW
Washington, DC 20001
202-662-9937
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