This column by ACRU Fellow Ken Klukowski was published March 5, 2017 by Breitbart.
Sen. Lindsey Graham (R-SC) is proposing a federal law that would require all candidates for president to release their 1040 personal income tax returns, including President Donald Trump. But such a law should not survive a court challenge, because it would be unconstitutional.
Article II of the Constitution sets forth three criteria to be eligible for president. A person must be (1) a natural born citizen, (2) at least 35 years of age, and (3) been residing in the United States for at least 14 years before the election.
That is all. Everything else is left to the voters to decide whom they want as commander in chief. Consequently, a federal statute requiring submitting tax returns would impose a requirement beyond what the Constitution specifies. Any candidate running for the presidency in 2020 would have legal standing to challenge the statute’s legality in court.
Several Supreme Court cases involving Congress buttress the idea that Graham’s idea would not pass constitutional muster.
In Powell v. McCormick (1969), the Court held that the Constitution’s provision that a simple majority of the U.S. House (or Senate) can decide the qualifications of its new members before allowing them to be sworn into Congress is limited to the criteria set forth in the Constitution (citizenship, age, and residency). Excluding a duly elected candidate for any other reason amounts to expelling that person from Congress, which requires a two-thirds vote by Congress, instead of 51 percent.
More recently, in U.S. Term Limits v. Thornton (1995), the justices split on whether states can impose term limits on people from that state in Congress (there, six years for House members and 12 years for senators), voting 5-4 that such limits imposed by states are unconstitutional. Justice Thomas dissented, joined by the conservative justices plus one moderate justice, arguing that under the Tenth Amendment each state has sovereign authority to add its own conditions for people from that state.
The Supreme Court is currently divided on whether state lawmakers can impose additional requirements to qualify for various federal offices on each state’s ballot, but there is likely no disagreement regarding requirements imposed by federal lawmakers to qualify for the ballot. Both the majority and the dissent in Term Limits seemed to indicate that Congress could not impose additional requirements beyond the Constitution’s.
The only other constitutional provision relevant to this discussion gives Graham no support. The Elections Clause in Article I says that while states have primary jurisdiction over elections, Congress can pass laws altering the “times, places and manner” of elections for federal office.
That Article I provision does not include Graham’s proposed law. This has nothing to do with an election’s time (such as having federal elections on a Tuesday in November), place (polling locations), or manner (such as allowing voter-ID requirements to cast a ballot). This would instead add a requirement on who can be listed on the ballot.
This has nothing to do with transparency or making information available to the public. This is instead about who gets to decide such matters. In this case, the Constitution sets forth what conditions must be satisfied to run for president.
The voters can impose whatever additional requirements they choose as shown by who they vote for, but that is between the candidate and the electorate, not legislators who seek to insert themselves into the voting process in ways not authorized by the Supreme Law of the Land.