Releasing the 1040, Not so EZ: Constitutional Uncertainties from Presidential Tax Return Release Laws# Matthew M. Ryan* Introduction ............................................................................................ 209 I. U.S. Term Limits, Inc. v. Thornton ..................................................... 211 II. What is a Qualification? ..................................................................... 212 A. Targeting a Class of Candidates .......................................... 212 B. Impermissibly Barring or Hindering Candidacy .................. 213 III. The Protection of Informational Privacy .......................................... 213 IV. Anti-Corruption Interest: Emoluments Clauses ................................ 216 V. State Power in Presidential Elections ................................................. 217 VI. Slippery Slope .................................................................................. 220 INTRODUCTION On multiple fronts, Americans are pursuing President Trump’s tax returns: a senator through legislation, a district attorney and congressional committees through investigation, and voters through protest and persuasion.1 None have succeeded. DOI: https://doi.org/10.15779/Z38KK94C89. Copyright © 2020 Matthew M. Ryan. # An extended version of this Article can be found in the Hastings Constitutional Law Quarterly. See Matthew M. Ryan, Releasing the 1040, Not so EZ: Constitutional Ambiguities Raised by State Laws Mandating Tax Return Release for Presidential Candidates, 47 HASTINGS CONST. L.Q. 19 (2019). My many thanks to the editors of the California Law Review for publishing a condensed version. * Law clerk in the United States Court of Appeals for the Eighth Circuit; J.D. 2017, Harvard Law School. All ideas, opinions, and mistakes are solely my own. I owe much gratitude to Professor Laurence Tribe, Max Schulman, and Kripa Sreepada for their invaluable guidance. 1. An Antidote to Donald Trump’s Secrecy on Taxes, N.Y. TIMES (Dec. 12, 2016), https://www.nytimes.com/2016/12/12/opinion/an-antidote-to-donald-trumps-secrecy-on-taxes.html [https://perma.cc/3A5L-463M] (Senator Ron Wyden proposed legislation to require major-party presidential candidates to disclose up to three years of tax returns); Williams K. Rashbaum & Benjamin Weiser, Trump Taxes: President Ordered to Turn Over Returns to Manhattan D.A., N.Y. TIMES (Oct. 7, 2019), https://www.nytimes.com/2019/10/07/nyregion/trump-taxes-lawsuit-vance.html [https://perma.cc/RT5T-RHEJ]; Lauren Fox, Key House Democrat Issues Subpoenas for Trump’s Tax 209 210 CALIFORNIA LAW REVIEW [Vol. 11:209 Last year, California jumped into the fray. It conditioned a candidate’s placement on its presidential primary ballot on the release of their tax returns. Passage of the law finalized what many states—at least twenty-five thus far2— have considered. Yet, California’s aspirations died quickly. After a federal district court wounded the law with an injunction,3 the California Supreme Court dealt a fatal blow, ruling that California’s release law violated the state constitutional provision requiring an open presidential primary.4 The law’s death leaves important questions for another day. Release laws implicate hefty, unsettled constitutional doctrines, including a candidate’s access to the ballot, the right of informational privacy, the Emoluments Clauses, and state power in electing the president.5 Returns, CNN (May 10, 2019), https://www.cnn.com/2019/05/10/politics/democrats-subpoena-trump- tax-returns/index.html [https://perma.cc/C48W-GA5K]; Greg Allen, Protesters Use April 15 to Demand Trump’s Tax Returns, NPR (Apr. 15, 2017), https://www.npr.org/2017/04/15/524122918/protesters-use-april-15-to-demand-trumps-tax-returns [https://perma.cc/8CZU-P9J3]. 2. Kira Lerner, More Than Half of States are Trying to Force Trump to Release His Tax Returns, THINKPROGRESS (Apr. 6, 2017, 8:39 PM), https://archive.thinkprogress.org/state-legislation- trump-taxes-bd00db338546 [https://perma.cc/GG5S-PELC]; see also Alexi McCammond, The Big Picture: The State Efforts to Keep Trump off the 2020 Ballot, AXIOS (June 24, 2018), https://www.axios.com/states-tax-return-laws-presidential-2020-trump-88e84cce-7214-409d-b4c7- a24aad919bdb.html [https://perma.cc/7X2A-VACZ]. 3. See Griffin v. Padilla, 408 F. Supp. 3d 1169 (E.D. Cal. 2019). 4. See Patterson v. Padilla, 451 P.3d 1171, 1189 (Cal. 2019); see also CAL. CONST. art. 2, § 5(c) (“The Legislature shall provide for partisan elections for presidential candidates, and political party and party central committees, including an open presidential primary whereby the candidates on the ballot are those found by the Secretary of State to be recognized candidates throughout the nation or throughout California for the office of President of the United States, and those whose names are placed on the ballot by petition, but excluding any candidate who has withdrawn by filing an affidavit of noncandidacy.”) (emphasis added). 5. Many have commented on release laws’ constitutionality, but no article has considered how such laws serve as a vehicle to examine unresolved and significant constitutional issues. See, e.g., Vikram D. Amar, Can and Should States Mandate Tax Return Disclosure as a Condition for Presidential Candidates to Appear on the Ballot, JUSTIA: VERDICT (Dec. 30, 2016), https://verdict.justia.com/2016/12/30/can-states-mandate-tax-return-disclosure-condition-presidential- candidates-appear-ballot [https://perma.cc/SF2H-TZ7B]; Laurence H. Tribe, et al., Candidates Who Won’t Disclose Taxes Shouldn’t Be On The Ballot, CNN (Apr. 14, 2017, 5:21 PM), http://www.cnn.com/2017/04/14/opinions/state-laws-requiring-tax-return-disclosure-legal-tribe- painter-eisen/index.html [https://perma.cc/28B6-CBJ2]; see also Eric T. Tollar, Playing the Trump Card: The Perils of Encroachment Resulting from Ballot Restrictions, 51 SUFFOLK. U. L. REV. 695 (2018); see also Danielle Lang, Candidate Disclosure and Ballot Access Bills: Novel Questions on Voting and Disclosure, 65 UCLA L. REV. DISC. 46 (2017); cf. Daniel J. Hemel, Can New York Publish President Trump’s State Tax Returns?, 127 YALE L. J. 62 (2017). As of September 9, 2019, Derek T. Muller appears to have a forthcoming article arguing that the release laws are unconstitutional titled “Weaponizing the Ballot.” See Derek T. Muller, Weaponizing the Ballot (Abstract), SSRN (Sept. 9, 2019), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3450649 [https://perma.cc/RL8X-3FY2]. 2020] RELEASING THE 1040, NOT SO EZ 211 I. U.S. TERM LIMITS, INC. V. THORNTON Beginning with precedent, U.S. Term Limits, Inc. v. Thornton is the marquee case for analyzing the legality of release laws.6 In 1992, Arkansas amended its constitution to prohibit from its ballot House of Representatives members who had served three terms and Senators who had served two terms.7 The Supreme Court, in a 5-4 split, found the law unconstitutional.8 Term Limits settled two significant disputes: (1) whether states have the reserved power to add qualifications to congressional office and, if they do not, (2) whether term limits constitute an impermissible qualification. For the question of reserved state power, both sides—Justice Stevens’s majority ruling no reserved power and Justice Thomas’s dissent arguing for a reserved power—bolstered their claims with historical analysis. The majority put forth Federalist Papers quotes.9 The dissent countered with post-ratification state laws.10 The justices also disagreed over the Constitution’s text. The majority read the Constitution’s enumeration of three qualifications to sit in Congress—age, years of citizenship, and residency11—as an exhaustive list.12 The dissent read that same list as a baseline from which states could expand.13 Because originalist and textualist principles provided no clear answer, the majority bolstered its position with two structural considerations. First, the Court looked to the fact that the people elect their congressperson—“a fundamental principle of our representative democracy” that states could not obstruct.14 Second, the Court cautioned that state-mandated qualifications would lead to a “patchwork of state qualifications,” and undermine Congress’s representation of all people.15 After determining that states do not have the reserved power to set qualifications for congressional office, the Term Limits Court attempted to comprehensively define qualification. Doing so proves no easy task. 6. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995). 7. Id. at 784. 8. Id. at 838. 9. Id. at 806–08 (quoting THE FEDERALIST NOS. 52, 57). 10. Id. at 905–10 (citing Virginia’s property qualification, and durational residency requirements in Georgia, North Carolina, and Virginia). 11. U.S. CONST. art. I, § 2, cl. 2 (“No Person shall be a Representative who shall not have attained to the Age of Twenty-five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.”); U.S. CONST. art. I, § 3, cl. 3 (“No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.”). 12. Term Limits, 514 U.S. at 805. 13. Id. at 867 (“[T]hese different formulations—whether negative or affirmative—merely establish minimum qualifications.”) (emphasis in original). 14. Id. at 819–22. 15. Id. at 822. 212 CALIFORNIA LAW REVIEW [Vol.