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At the end of July, California Governor Gavin Newsom signed SB 27, the Presidential Tax Transparency and Accountability Act, which requires candidates for president and governor to release their tax returns to appear on the California primary ballot. So naturally, Trump is suing to keep his skeevy finances private.

As The Root so aptly put it:

President Donald Trump once claimed that if he wasn't being audited he'd have no problem showing his tax returns. While tax-return flashing isn't a requirement to be president, it's been the unspoken norm that all presidents since Richard Nixon have adhered to. As it stands, Trump is the only modern president not to release his tax returns, and most likely that's because he listed Russian prostitute urine as a write-off.

Spurred by Trump's refusal to release his tax returns -- including to the House Ways and Means Committee -- states around the country have sprung into action. New York passed a law that would allow its Department of Taxation and Finance to give Ways and Means an individual's state tax returns upon request. Trump already filed a batshit insane lawsuit to try to stop that one. So add in California, and the president is involved in lawsuits on both coasts to try to stop people from seeing his taxes. Troubling, you say? Pshaw.

But Trump isn't the only one suing. A handful of suits have been filed over SB 27, by Trump, the RNC and California Republican Party, and our buddies over at Judicial Watch. As you might imagine, the complaints are chock full of little gold nuggets.

But with regard to the constitutionality of this new law ... *takes deep breath* ... Donald Trump, the GOP, and Judicial watch might actually have a point, here.

(No, I can't believe I just typed those words, either.)


Say what?!

Okay, let's just take a step back and calm down for a minute.

This new law would require gubernatorial and presidential candidates to disclose their last five years' worth of tax returns to get on the California primary ballot. (And in California, winning a primary is how party-affiliated candidates get on the ballot for the general election.) This is totally fine for gubernatorial candidates -- each state gets to set its own rules about ballot access for state elections. But for president? Ehhh ...

Each state administers its own elections, including federal elections. This means states get to decide things like voter registration, the timing of their primaries, and things like paper ballots versus electronic voting machines.

The problem? States aren't allowed to make up their own requirements for federal officeholders.

Article II of the US Constitution (which, according to the president, says he can do whatever he wants) lays out the requirements for President:

  1. Natural born US citizen.
  2. At least 35.
  3. US resident for at least 14 years.

That's it. And states aren't allowed to add to those requirements, for good reason. Think about what a clusterfuck it would be if every single state got to come up with its own nutso requirements to get on the ballot for president? West Virginia would make you submit proof of gun ownership and Oregon would make you face a tarot card reader to determine your suitability for office.

Let's get into the weeds

Arkansas and 22 other states had laws setting term limits for congressmen and senators from their states. That is, until the Supreme Court said "nope."

In US Term Limits v. Thornton, the Court said these term limits are unconstitutional. Why? Because states were trying to add to the requirements laid out in the Constitution. And that's a big no-no. In that case, SCOTUS noted that "the Framers intended the qualifications listed in the Constitution to be exclusive." This means states don't get to add to them.

To be honest, I was surprised to see some big names in the legal world say they thought the new California law was constitutional. And big names, they are. Well, at least for the super-cool-and-not-at-all-totally-nerdy-and-insufferable people on #AppellateTwitter, anyway.

When he signed SB 27, Governor Newsom included statements from three notable attorneys who vouched for its constitutionality: constitutional expert Erwin Chemerinksy (the guy who literally wrote the book on conlaw for first year law students), Theodore Boutrous (a fancy biglaw partner), and David Boies (of marriage equality/fighting with Alan Dershowitz fame). Harvard Law Professor Laurence Tribe agrees.

So, listen. Professor Chemerinksy is a lot smarter than I am. He's the reason I got through 1L conlaw. And he says:

SB 27, which requires that presidential candidates disclose tax returns, is constitutional. It does not keep any candidate from being on the ballot so long as he or she complies with a simple requirement that is meant to provide California voters crucial information. This is the state acting to make sure that its voters have information that might be very important to them when they cast their ballots as to who they want to be President of the United States.

I totally agree that it's important for presidential candidates to disclose their tax returns to voters. But I just don't see any possible way the Supreme Court upholds this.

Basically, I agree with this analysis from Professor Tribe's colleague Laurence Lessig.

Some are convinced to the contrary because they believe this is a generally applicable law, applied to all candidates and all parties. It is that, of course, but the cases this authority is drawn from are all cases about the state's ability to run an election. And while the jurisprudence here is not crystal clear, the nub of this authority is that states can impose requirements designed to make sure the election functions in a reasonable and effective way. So, Storer v. Brown (1974) upheld a "sore loser" statute (restricting an independent run to a candidate who had been in a party within a year of the run); Burdick v. Takushi (1992) upheld a ban on write-in votes; Munro v. Socialist Workers Party (1985) upheld a requirement that candidates receive at least 1% in its blanket primary. Whatever else the tax return requirement is, it is not this.

Some are convinced because they believe the state has a legitimate interest in assuring the integrity of the process, or transparency about the candidates. But again, no one doubts that there is such an interest. The only question is whether that interest can be pursued by conditioning access to the ballot.

I guess we'll have to wait and see what the Supreme Court has to say. Because this issue is definitely ending up there.

All right, let's get to the fun

You know we can't tell you all about lawsuits filed by Trump, the RNC, and fucking Judicial Watch without taking a look at the fun parts.

So without further adieu, let's get on to to the political rhetoric!

I think my favorite quote comes from the Judicial Watch complaint.

Unless SB 27 is enjoined, states will assume the power to create their own qualifications for national candidates seeking to obtain a party's nomination for president. This could lead to as many as 50 distinct and possibly inconsistent sets of qualifications regarding the only national election in the United States. Using rationales similar to California's, states might come to demand medical records, mental health records, sealed juvenile records, driving records, results of intelligence, aptitude, or personality tests, college applications, Amazon purchases, Google search histories, browsing histories, or Facebook friends.

I get that they were going for the whole slippery slope thing, but I would actually LOVE to see these things!

I'll take:

  • Marianne Williamson's medical records (73% chance she just files her psychic's phone number)
  • John Delaney's mental health records (there's something sinister behind that doofy smile)
  • all of the Tim Ryans' sealed juvenile records
  • Kamala's driving records (she may be a "cop," but I'll bet she does the California roll at stop signs)
  • The Tim Ryans' personality tests (I'm not saying one of them has definitely killed someone in a truckstop bathroom before, but I also haven't ruled it out)
  • Andrew Yang's college applications (you just know there's something weird in there)
  • Elizabeth Warren's Amazon purchases (I'll take one of everything she has ever ordered, please)
  • Tulsi Gabbard's Google search history (is it in English or Russian?)
  • Amy Klobuchar's browsing history ("what do you do when all your staffers are idiots?")
  • Beto's Facebook friends (they're definitely way cooler than mine)

Judicial Watch also is still upset that literal criminal Richard Nixon had to disclose his tax returns or something?

President Richard Nixon disclosed his tax returns only after he was elected to his second term. That disclosure only occurred, moreover, after an IRS employee in West Virginia illegally leaked excerpts of his returns to The Providence Journal-Bulletin, which later published them without authorization. This prompted President Nixon to eventually release his complete tax return and submit to a voluntary audit.

Judicial Watch makes a point to note that three Democratic contenders -- billionaire tech bro Andrew Yang, kleptocratic Uncle Joe, Assad's BFF Tulsi Gabbard, and Julian Castro -- haven't yet released their tax returns.

The RNC went the other way, calling the California law "a naked political attack against the sitting President of the United States."

As for Trump, he ... whines about Hillary pointing out that he wouldn't release his tax returns?

Trump declined to disclose his federal tax returns, citing ongoing IRS audits and the need to not prejudice his rights in those proceedings. The Democrats—hoping to harm him politically in the Presidential race—made his tax returns a major campaign issue. Secretary Clinton repeatedly insinuated that their nondisclosure suggested they contained politically damaging information. As she framed the criticism at one Presidential debate: "[W]hy won't he release his tax returns? … Maybe he's not as rich as he says he is. Second, maybe he's not as charitable as he says he is. Third, we don't know all of his business dealings …. Or maybe he doesn't want the American people ... to know that he's paid nothing in federal taxes. ... It must be something really important, even terrible, that he's trying to hide."

Trump also took a cue from some of the many people suing him and complained about tweets and state legislators. Because, sure, why not?

And for some reason, Trump thinks disclosing his tax returns violates his First Amendment rights? I guess he found that section in between the section on his First Amendment right to cheat on his taxes and Article II: UNLIMITED POWER. Trump calls the tax return law a retaliation against his "political associations and speech" and demands his tax returns First Amendment rights be protected.

Throughout the complaint, Trump also argues that people only want to see his tax returns for "political gain."

Ultimately, the Democrats lost this political fight in the 2016 election. Voters heard the political attacks from Secretary Clinton and others, and they elected President Trump anyway. Democrats across the country, however, have only become more eager to obtain the President's tax returns for political gain.

Unfortunately, he never elaborates on just how releasing his tax returns would hurt him politically. I'd really love to hear the answer to that one.

So anyway ...

I want to see Donald Trump's tax returns as much as you do. We deserve to know what kind of grifter bullshit and Russian mob ties are in the president's tax returns. I get what California is going for, here. I just don't see it working.

It's a good try, though! Someone get California a nice, shiny participation trophy.

I genuinely mean that. I like participation trophies. People are big enough assholes as it is. Being nice can only help. Trophies are cool.

LET THEM HAVE TROPHIES!

[Trump Complaint / RNC Complaint / Judicial Watch Complaint / The Root / Lessig]

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Jamie Lynn Crofts
Jamie Lynn Crofts is sick of your bullshit. When she’s not wrangling cats, she’s probably writing about nerdy legal stuff, rocking out at karaoke, or tweeting about god knows what. Jamie would kindly like to remind everyone that it’s perfectly legal to tell Bob Murray to eat shit.
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