On Thursday, Sen. Ben Sasse, R-Neb., discussed his multi-layered new legislation that would, among other things, require presidential and vice-presidential candidates to release their tax returns. While this may seem like a no-brainer good idea to some, particularly those who were annoyed then-candidate Donald Trump did not release his tax returns in 2016, congressional compulsion is an unconstitutional solution and a bad idea.
Here are three reasons why:
1. Article II of the Constitution provides the criteria for presidential candidates. It would take a constitutional amendment to modify that criteria on a federal level.
Currently, the criteria for a presidential candidate, per the Constitution, is that the candidate must be a natural-born citizen of the United States, a resident for 14 years, and 35 years of age or older. That’s it. Congress can’t add to the constitutional criteria through federal legislation.
If Congress wanted to change the threshold criteria for presidential candidates, it would likely take a constitutional amendment to Article II, which would in turn require ratification by at least three-fourths (currently 38) states. Congress does not have unilateral authority to add to Article II and impose this kind of mandated criteria on presidential candidates.
The United States Code governing presidential elections is procedural, not substantive, in furtherance of the states’ rights for the electoral process. It is similar to Congress’ role in an Article V convention of the states—there are absolutely no powers for Congress to control or regulate the substance of the convention, but merely procedurally Congress must call the time and place of the convention.
If the states wanted to instruct their Electoral College delegates, that’s a very different constitutional question than for Congress to require it, but is still constitutionally dubious. Powell v. McCormick and U.S. Term Limits v. Thornton make it clear that neither Congress nor the states can add to qualifications for members of Congress. This same rationale should apply to presidents.
2. Congress has no constitutional authority in presidential elections. Congressional meddling undermines constitutional federalism.
Congress has absolutely no constitutional power in presidential elections. The states control the Electoral College and each state has control over its own delegates, in compliance with Article II and the Twelfth and Fourteenth Amendments. In fact, the only constitutional limitation on service as a delegate in the Electoral College is that any current federal office holder (which includes Congress) may not be an elector. The Founders drew clear boundaries preventing federal interference in presidential elections.
Federal legislation requiring candidates to disclose tax returns is likely unconstitutional and definitely undermines federalism and the separation of powers between the federal and state governments. The outcome of this proposal is infringement upon states’ powers by congressional control of election criteria.
Sasse claimed in his USA Today op-ed Thursday, “Every presidential nominee prior to 2016 understood that voters deserve basic information about the financial situation of their potential chief executive. We’re going to make sure they can get it.” What would be the punitive sanction? Being disqualified for office? Fines?
This is not Congress’ job. If voters actually want that information—and Trump was right that clearly not releasing his returns did not dissuade enough voters—then it’s up to the voters to demand it. What constitutional authority grants Congress the power to compel presidential candidates’ disclosures? How far would that supposed authority extend? Could it extend to health records as well?
3. “Good ideas” don’t always equal good laws.
Voters are free to vote by whatever subjective standards and criteria they prefer in a candidate. The Electoral College delegates are similarly bound by their states’ rules. If releasing tax records is important to that many people and is a direct cause of a presidential candidate not being elected, future candidates can certainly take this into account and determine how to run their campaigns and what information to disclose.
Just because some people (apparently including Sasse) may have tax disclosures high on their priority list for voting, that doesn’t mean it’s proper for federal legislation to compel disclosure. There are a lot of examples of things some people think would be great ideas and want to happen, but the solution is more often not the government (particularly the federal government) regulating or compelling it.
That’s a hallmark of conservatism. Private individuals, which include candidates seeking federal office prior to their actually taking office, have a right to be free from government intrusion and overregulation. The voters are the best solution. If the voters demand it, candidates can choose to comply.
This is neither a good nor constitutional idea for a federal law. Congress must stay out of the states’ powers.
Jenna Ellis (@jennaellisJDFI) is a contributor to the Washington Examiner’s Beltway Confidential blog. She is Director of Public Policy at the James Dobson Family Institute. She is a constitutional law attorney, radio host, and the author of The Legal Basis for a Moral Constitution. She can be reached at [email protected].
