No one – not Congress, not the president, and certainly not a state government – may unilaterally change the requirements to be president of the United States without first amending the U.S. Constitution.
Yet that’s exactly what Gov, Gavin Newsom and the California state legislature are trying to do in their pander du jour to the far left in California. But disenfranchising millions of voters in order to score cheap political points is a step too far, even for California.
The U.S. Constitution is very clear as to the requirements to run for president: one must be a “natural born Citizen,” 35 years old, resident in the United States for 14 years. That’s it.
California’s Presidential Tax Transparency and Accountability Act of 2019, recently signed into law by Newsom, purports to add a new requirement. Candidates must furnish California with five years of tax returns, or they will not be allowed to appear on partisan primary ballots.
This law is squarely aimed at President Trump, who, like most presidential candidates before him throughout the history of our country, has chosen not to reveal his private tax returns publicly. Indeed, before the 1970s, no candidate released his returns. Even transparency advocate Ralph Nader refused to release his returns, and to date, several of the Democrat contenders for president also have chosen not to release theirs.
Disenfranchising millions of voters in order to score cheap political points is a step too far, even for California.
Not only is California’s new law a blatant violation of Article II, Section 1 of the Constitution’s qualifications clause, it runs afoul of the First Amendment’s free speech and free association rights, and it violates the equal protection clause of the 14th Amendment by treating partisan registered voters differently than nonpartisan voters through imposing this requirement at the primary stage. In effect, California’s Democrats want to dictate to the Republican Party which candidates are permitted to seek their vote on the primary ballot. And it’s quite clear that Democrats don’t want Trump to get California’s delegates, which in 2016 constituted 14 percent of all Republican delegates at the national convention.
This unconstitutional law cannot be separated from the national Democratic talking points around Trump’s private tax returns, a political cudgel they have tried and failed to use to discredit the president for the last four years. Having failed politically, they now seek to substitute “emergency legislation” chicanery to finish the job.
Similar attempts by partisan legislatures to try to superimpose their opinions over the rights of voters, have rightfully been turned back by prudent governors and the courts – for example, the birth-certificate requirement that Arizona’s legislature passed in 2011 was vetoed by Republican Jan Brewer as unconstitutional. And the Supreme Court struck down Arkansas’ attempt to impose a term-limits requirement on congressional candidates, under the same constitutional principles at issue here.
The law is well settled -- but the #Resistance could not resist.
You don’t even have to take my word for it that the new law brazenly defies our Constitution. Two years ago, the California state legislature passed essentially the same bill, only to have it vetoed by then-Gov. Jerry Brown, a liberal Democrat who declined to release his own tax returns when he ran for his party's presidential nomination in 1992.
In 2017, California’s nonpartisan Office of Legislative Counsel warned state legislators that the bill “would violate the qualifications clause of the United States Constitution” if enacted. Brown agreed, writing in his veto statement, “While I recognize the political attractiveness – even the merits – of getting President Trump’s tax returns, I worry about the political perils of individual states seeking to regulate presidential elections in this manner.”
“[I]t may not be constitutional,” Brown continued. “Second, it sets a ‘slippery slope’ precedent. Today we require tax returns, but what would be next? Five years of health records? A certified birth certificate? High school report cards? And will these requirements vary depending on which political party is in power?"
Slippery slope, Pandora’s box, can of worms … whatever analogy one invokes, the law commits constitutional carnage.
Newsom had to disregard his own Democratic predecessor and the nonpartisan lawyers of his own government to sign this bill into law. In doing so, he disregarded all principles of a responsible executive to prove his anti-Trump wokeness and appease his party’s increasingly unhinged left.
On behalf of the Republican National Committee, the California GOP, and three Trump-supporting Republican voters in California, my law firm filed for a preliminary injunction in federal court to block this unconstitutional law before it can interfere with the 2020 presidential election. The president and his campaign have done the same.
The hobby horses of the #Resistance cannot be allowed to override the Constitution’s dictates and the foundations of our system of government. The left has huffed and puffed about Trump’s tax returns for four solid years, both before and after the American people chose him to be their president. When they can’t win, the left decides to cheat – but this time by shredding the Constitution. This will not stand.