California and the Left Try to Unconstitutionally Change the Requirements of the Presidency


Mark Goldfeder

July 31, 2019

4 min read




The Left is once again trying to circumvent the Constitution to do what it cannot do politically.

Yesterday California’s Democratic Governor Gavin Newsom approved Senate Bill 27, the Presidential Tax Transparency and Accountability Act (SB 27). The Act requires presidential candidates to publicly disclose five years’ worth of income tax returns, with an added urgency clause specifically aimed at forcing President Trump to release his returns before the 2020 election. This is not the first time that California has tried this undisguised political gambit. In 2017, the California Legislature approved Senate Bill 149, a bill that was nearly identical to the current bill. It was vetoed by then-Governor Jerry Brown on the grounds that the law was in fact, likely unconstitutional. Brown was right.

This bill is unlawful for at least three reasons:

  1. It makes access to the state presidential ballot conditional on voluntary disclosure, imposing unlawful additional substantive qualifications for the presidency in violation of the Constitution and Supreme Court precedent;
  2. It violates federal statutory tax law, and would therefore be preempted; and
  3. Adding insult to injury, the bill also violates the California State Constitution.

The qualifications and requirements to be President of the United States are set forth in the Constitution in Article II, Section 1, clause 5: a natural born citizen who has obtained the age of thirty-five years and has resided within the United States for at least 14 years.

Requiring an individual to release their tax returns before they can be recognized as a candidate for the Presidency creates a new eligibility requirement that Article II does not demand.

While the Supreme Court has never dealt with a state trying to change the constitutional qualifications for the Presidency under Article II, it has in fact dealt with a very similar issue; i.e. states trying to alter the qualifications for federal office under Article I. In U.S. Term Limits, Inc. v. Thornton, the Supreme Court held that “the Framers intended the Constitution to be the exclusive source of qualifications for Members of Congress, and that the Framers thereby ‘divested’ States of any power to add qualifications.” There is no reason to assume that Article II’s qualifications for President should be treated any different.

Much like in that case, supporters of SB 27 defend their bill’s constitutionality by pretending that they are not adding a new substantive qualification but rather a mere ‘procedural requirement’ Thankfully, the Supreme Court addressed this gamesmanship directly in Thornton noting that the law in question was  “an indirect attempt to accomplish what the Constitution prohibits” and was just an  “effort to dress eligibility to stand for Congress in ballot access clothing.”

The bill is also unlawful because under the plain language of the Internal Revenue Code, federal law guarantees the confidentiality of tax returns. As such, it would preempt any state, like California, from requiring that an individual divulge their returns before running for President.

Finally, SB 27 is unlawful because it violates Article II, sec. 5, of the California State Constitution. The candidates on the ballot are those found by the Secretary of State to be recognized candidates throughout the nation or throughout California. To be clear, President Trump is by any definition a “recognized candidate throughout the nation,” and lest anyone think otherwise the Sacramento Superior Court has already made it clear that the California Secretary of State does not have unfettered power to decide which candidates are “recognized.” In 1992 the California Secretary of State excluded Lyndon LaRouche from the Democratic presidential primary ballot. LaRouche sued in state court and won. In response to the court decision, the Secretary of State promulgated new standards: she will place anyone on the primary ballot who either campaigns in California, or who has appeared on the ballot in at least twenty other states, or who appeared in fifteen states and contested at least five caucuses.

The California legislature may be worried that President Trump might win their state, but breaking the law to try and keep him off the ballot will not help their cause.