Federal judge: This tax-return requirement for California's presidential primaries smells unconstitutional

Indeed it does, and the injunction issued by US district court Judge Morrison England Jr represents a victory for Donald Trump — if a temporary one. California had passed a law requiring all presidential primary candidates in the state to publicly release the last five years of their income tax returns to qualify for the ballot. A former fringe candidate joined Donald Trump in challenging the law for its super-constitutional efforts to add state-level qualifiers to federal office, and Judge England issued an injunction against its enforcement.


In the end, it might not have been the Constitution that was the deciding factor:

U.S. District Judge Morrison C. England Jr. said he would issue a final ruling by the end of the month but took the unusual step of issuing the tentative order from the bench. He said there would be “irreparable harm without temporary relief” for Trump and other candidates from the law signed by Gov. Gavin Newsom in July.

England spent much of the court proceeding on the question of whether a long-standing federal financial disclosure law preempts any additional rules that a state could impose. The federal law, known as the Ethics in Government Act, or EIGA, was originally passed in 1978 and applies to a range of top federal officials. Trump has filed the required annual report, which provides an overview of his finances, most recently in May.

“Do we even need to get here if EIGA preempts” the new California law? England asked attorneys for the state. “Is that it?”

That’s not necessarily the best grounds on blocking the law by a federal court, although the plaintiffs will take what they can get. The better argument is that the Constitution alone sets the qualifications for federal office; otherwise, we could end up with fifty different sets of qualifications for the presidency apart from the Constitution, many of which might be contradictory. It goes beyond the presidency, too; what about the House and Senate? Elected officials from each state would have unequal obstacles to office for a legislative body that is supposed to be a meeting of equals within the two chambers.


Fortunately, England did address that issue as well:

Thomas McCarthy, an attorney representing the president, told the judge the U.S. Constitution sets out rules for running for the nation’s highest office that are “fixed and unalterable” by individual states. He said California voters may have an interest in a presidential candidate’s tax returns, but the state “cannot try to inform” voters beyond the basic information.

England seemed to suggest there could be reasons to rein in electoral rules that leave presidential candidates scrambling to provide different information in different states. “Wouldn’t that create a hodgepodge of laws around the country?” he asked.

Yes indeed it would. And those might start getting veeerrrry specific depending on who is in office and who might be seeking office at any time. Would Democrats want states to demand DNA tests to corroborate ethnicity claims in this cycle, for instance? Elizabeth Warren would probably not appreciate that.

England promises a full ruling by the end of the month, but the injunction tips his hand. Federal judges do not issue temporary injunctions unless (a) the plaintiff has a good chance of prevailing on the merits of the argument and (b) immediate and irreparable harm will result without the injunction. That puts a full W within arms’ reach for Trump’s legal team, unless England suddenly changes his mind on both the merits and the harm.


Even that will be temporary, of course. Both sides have the resources for appeals all the way up the chain to the Supreme Court. California has reason to hope that the Ninth Circuit might be a little more sympathetic to the need to rebuke Trump. If they are, though, the Supreme Court will want to chew on the issue for themselves, and it’s not even clear that the liberal wing will want states encroaching on qualifications for federal office. It’s the kind of issue that can produce 9-0 decisions, even if Trump is one of the plaintiffs.

If California wants to make tax-return releases a requirement for federal office, they should go about it the proper way — propose a constitutional amendment. It might even get out of the House, although it’s tough to see Mitch McConnell shepherding such a thing through the Senate. Alternately, California can call for an Article V convention on the question, which is the real check on federal power granted to the states still in the Constitution after the 17th Amendment gutted their Senate check. Until then, Gavin Newsom et al might do better to study the Constitution before attempting to bypass it.

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Ed Morrissey 11:27 PM | July 13, 2024
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