Gov. Gavin Newsom must decide soon whether he will uphold the Constitution or intentionally violate his oath of office. Newsom has been handed a bill from the California General Assembly that would require any candidate for the presidency to release the last five years of tax returns in order to be eligible for the primary ballot in California.
The dilemma for Newsom shouldn’t be difficult. The bill is overtly unconstitutional and signing it would mean Newsom hates President Trump more than he values fidelity to his own office and the people he represents.
Democrats have sought every way possible to coerce and cajole Trump into releasing his tax returns when they know full well they have no legal basis, and this latest bid in California (and several other states) is yet another attempt to hijack the government process for partisan interests.
The bill is SB-27, referred to as the “Presidential Tax Transparency Act and Accountability Act,” and it would add criteria for presidential candidates beyond what the U.S. Constitution requires. Article II of the U.S. Constitution provides the threshold requirements for presidential candidates: he or she must be a natural-born citizen of the United States, a resident for 14 years, and 35 years of age or older.
Anyone meeting that criteria may run for president. As I have previously written, just as Congress cannot legislate modifications to the U.S. Constitution, neither can the states. It would take a constitutional amendment pursuant to Article V to add a requirement for candidates’ tax returns disclosure.
The Supreme Court previously held in Powell v. McCormick and U.S. Term Limits v. Thornton that states cannot add qualifications for congressional candidates beyond what the U.S. Constitution requires. This same reasoning applies to presidential candidates as co-equal federal office holders. It makes sense, because individual states could have otherwise added inordinately partisan requirements to make the ballot virtually inaccessible to one party or platform or viewpoint or anything else. The list is endless.
Notably, Gov. Jerry Brown vetoed an identical bill in 2017, recognizing how ridiculously petulant the effort was, saying, “This bill is a response to President Trump’s refusal to release his returns during the last election.” Brown laid out a very clear and solid case in his veto memo for the dangers of legislating with such a narrow partisan goal:
“A qualified candidate’s ability to appear on the ballot is fundamental to our democratic system. For that reason, I hesitate to start down a road that will might lead to an ever escalating set of differing state requirements for presidential elections.”
Brown, a Democrat and notoriously quite unconservative, was absolutely correct here.
The founders intended very minimal requirements for candidates seeking federal office, leaving voters to decide who we believe is best suited for office. This kind of legislation is big government at its worst. As voters in the United States, it’s your and my right and privilege to decide what matters to us in a presidential election. It’s certainly not California’s or any other state’s job to determine that for us.
Hopefully Gavin Newsom will prove worthy of his oath and veto this bill.
Jenna Ellis Rives (@JennaEllisRives) is a member of the Trump 2020 Advisory Board. She is a constitutional law attorney, radio host, and the author of The Legal Basis for a Moral Constitution.
