[h=1]How New York Can Release Trump’s Tax Returns[/h]The president’s home state has the power to do it. Does it have the political will?
By DANIEL HEMEL
May 02, 2017
The search for Donald Trump’s tax returns finally may have struck gold—in Albany.
Efforts elsewhere to force the president to release his tax filings have proven fruitless thus far. On Capitol Hill, Republican leaders are blocking a bipartisan bill that would make President Trump’s returns publicly available, even though 64 percent of self-identified Republicans say the president should release his tax filings. In Trenton, New Jersey state lawmakers have passed legislation that would require presidential candidates to release their returns as a condition for their names appearing on the state’s 2020 ballot, but Republican Governor Chris Christie vetoed the bill this week.
Lawmakers in Albany, however, have a much more viable opportunity to compel the immediate disclosure of the president’s tax filings—and it arises out of New York’s unique position as the sitting president’s home state.
The idea is a simple one: Each year, Trump files federal income tax returns with the IRS and a similar resident income tax return with New York. The state form doesn’t include all the same information as Trump’s federal filings, but it includes much of it. Trump’s state returns disclose how much income he earns from in-state and out-of-state sources and what deductions he claims for charitable contributions and various other expenses. If Trump uses phantom losses to zero out his federal income tax liability, he almost certainly does the same for state tax purposes. Trump’s state returns also will reveal how much he pays in taxes not only to New York state, but also to New York City—which itself will spend somewhere in the range of $60 million a yearprotecting the Trump family during his presidency.
And if New York wants to publish President Trump’s state tax returns, it can.
On April 26, State Assemblyman David Buchwald and State Senator Brad Hoylman introduced legislation to release state tax returns filed by the president and certain other elected officials. Specifically, the law would require the state tax authority to post on its website the last five years of returns filed by the president and vice president, the state’s two U.S. senators, as well as the governor, lieutenant governor, state comptroller and state attorney general. The state tax authority would continue to post returns filed by those individuals until they leave office. (Of course, if the president or vice president does not file New York returns, the state tax authority wouldn’t have to post anything from those officials.)
Could President Trump challenge the law on constitutional grounds? Yes, but he would be unlikely to succeed.
President Trump might argue that the law is a “bill of attainder”—a legislative act that unconstitutionally singles out a specific person or group of persons for punishment. But that argument would fail for three reasons. First, the New York bill does not single out President Trump. It would apply to anyone who serves in national or statewide elected office now or in the future. Second, the bill does not inflict punishment. It simply forces elected officials to do what past presidents have done on their own volition for most of the last half-century. And third, the Supreme Court has said that a law is not a bill of attainder if it “reasonably can be said to further nonpunitive legislative purposes.” The New York bill would serve the nonpunitive purposes of boosting taxpayer morale, revealing elected officials’ personal stake in tax reform and shedding light on other conflicts of interest that might affect these officials’ performance.
Second, President Trump might argue that disclosure of individual tax information violates his right to privacy, which the Supreme Court has saidthe Fourteenth Amendment protects. But this argument is unlikely to gain much traction from jurists like Clarence Thomas and Neil Gorsuch, who subscribe to a philosophy of originalism. At the time the Fourteenth Amendment was ratified in 1868, individuals’ names and tax liabilities were posted on courthouse doors. The Revenue Act of 1924 likewise required the IRS to make available for public inspection a list with each individual taxpayer’s name, address and amount of income tax paid. Back then, the Supreme Court said it saw no constitutional problem with publishing the tax information of individuals. More recently, the Second Circuit—the federal court of appeals with jurisdiction over New York—held that a law requiring public officials to disclose sources of income, assets and liabilities did not violate the constitutional right of privacy.
President Trump also might argue that the New York bill—by requiring release of the last five years of tax returns—violates the constitutional limits on retroactive laws. But this argument is likewise a weak one. While the bill requires the release of the last five years of tax returns, it is, as a formal matter, purely prospective. A retroactive law is one that punishes people for acts committed in the past. The New York bill applies only to individuals who occupy national or statewide offices after the bill’s effective date. Any official who doesn’t want the bill to apply to him or her has the option of resigning.
And even if a court considers the bill to be retroactive, that doesn’t necessarily mean that the law is unconstitutional. The Constitution bars laws that impose criminal liability on individuals “ex post facto” (after the fact), but the New York bill does not impose any criminal penalty. Outside the criminal context, the relevant question (to quote Justice Kennedy) is “whether in enacting the retroactive law the legislature acted in an arbitrary and irrational way.” There is nothing arbitrary or irrational about requiring the highest-ranking elected officials at the national and state level to disclose their tax returns from recent years so that the public can identify potential conflicts of interest.
Not only is the New York bill constitutionally sound, it’s also sound policy. Presidential tax transparency has been the norm since Richard Nixon, and for good reason. First, disclosure of presidential tax returns gives ordinary taxpayers greater confidence that their elected leaders are paying taxes too. Disclosure dispels the pernicious notion that “only the little people pay taxes,” a notion that undermines tax morale and tax compliance where it takes root.
A second function of presidential tax transparency is to aid voters in evaluating whether tax reforms proposed by the president serve his personal interest or the general interest. For example, the leak of President Trump’s 2005 federal income tax returns revealed that he would have paid no federal income taxes that year if not for the existence of the alternative minimum tax—a tax he now wants to abolish.
Third, disclosure of the president’s returns might reveal other conflicts of interest potentially affecting his performance in office. To be sure, even if Trump were receiving payments from Russia, there is no line on his returns—federal or state—where he would report: “$X received from Vladimir Putin for services rendered.” But while President Trump’s tax returns are unlikely to contain smoking-gun evidence of ties to the Kremlin, they might shed some light on his sources of income and potential foreign entanglements.
Second, if New York releases the president’s state tax returns, there is always the risk that the Trump administration will retaliate. Conceivably, the president could direct the IRS to stop cooperating with New York state tax authorities in their joint efforts to fight tax evasion. Or the Trump administration might seek to exact revenge in ways that we cannot yet imagine.
Hopefully, the threat of retribution—purely hypothetical at this point—will not deter New York from standing up to the president. Americans deserve to know whether their elected leader is contributing to the cost of government (and how much), whether he will benefit personally from his own tax plan (and how much) and whether he is entangled in financial conflicts of interest that stand in the way of his performance in office. The decades-old norm of presidential tax transparency is important both to our tax system and our political system. New York lawmakers can—and should—ensure that the norm does not die with President Trump.
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Daniel Hemel is assistant professor at the University of Chicago Law School.
By DANIEL HEMEL
May 02, 2017
The search for Donald Trump’s tax returns finally may have struck gold—in Albany.
Efforts elsewhere to force the president to release his tax filings have proven fruitless thus far. On Capitol Hill, Republican leaders are blocking a bipartisan bill that would make President Trump’s returns publicly available, even though 64 percent of self-identified Republicans say the president should release his tax filings. In Trenton, New Jersey state lawmakers have passed legislation that would require presidential candidates to release their returns as a condition for their names appearing on the state’s 2020 ballot, but Republican Governor Chris Christie vetoed the bill this week.
Story Continued Below
Lawmakers in Albany, however, have a much more viable opportunity to compel the immediate disclosure of the president’s tax filings—and it arises out of New York’s unique position as the sitting president’s home state.
The idea is a simple one: Each year, Trump files federal income tax returns with the IRS and a similar resident income tax return with New York. The state form doesn’t include all the same information as Trump’s federal filings, but it includes much of it. Trump’s state returns disclose how much income he earns from in-state and out-of-state sources and what deductions he claims for charitable contributions and various other expenses. If Trump uses phantom losses to zero out his federal income tax liability, he almost certainly does the same for state tax purposes. Trump’s state returns also will reveal how much he pays in taxes not only to New York state, but also to New York City—which itself will spend somewhere in the range of $60 million a yearprotecting the Trump family during his presidency.
And if New York wants to publish President Trump’s state tax returns, it can.
On April 26, State Assemblyman David Buchwald and State Senator Brad Hoylman introduced legislation to release state tax returns filed by the president and certain other elected officials. Specifically, the law would require the state tax authority to post on its website the last five years of returns filed by the president and vice president, the state’s two U.S. senators, as well as the governor, lieutenant governor, state comptroller and state attorney general. The state tax authority would continue to post returns filed by those individuals until they leave office. (Of course, if the president or vice president does not file New York returns, the state tax authority wouldn’t have to post anything from those officials.)
Could President Trump challenge the law on constitutional grounds? Yes, but he would be unlikely to succeed.
President Trump might argue that the law is a “bill of attainder”—a legislative act that unconstitutionally singles out a specific person or group of persons for punishment. But that argument would fail for three reasons. First, the New York bill does not single out President Trump. It would apply to anyone who serves in national or statewide elected office now or in the future. Second, the bill does not inflict punishment. It simply forces elected officials to do what past presidents have done on their own volition for most of the last half-century. And third, the Supreme Court has said that a law is not a bill of attainder if it “reasonably can be said to further nonpunitive legislative purposes.” The New York bill would serve the nonpunitive purposes of boosting taxpayer morale, revealing elected officials’ personal stake in tax reform and shedding light on other conflicts of interest that might affect these officials’ performance.
Second, President Trump might argue that disclosure of individual tax information violates his right to privacy, which the Supreme Court has saidthe Fourteenth Amendment protects. But this argument is unlikely to gain much traction from jurists like Clarence Thomas and Neil Gorsuch, who subscribe to a philosophy of originalism. At the time the Fourteenth Amendment was ratified in 1868, individuals’ names and tax liabilities were posted on courthouse doors. The Revenue Act of 1924 likewise required the IRS to make available for public inspection a list with each individual taxpayer’s name, address and amount of income tax paid. Back then, the Supreme Court said it saw no constitutional problem with publishing the tax information of individuals. More recently, the Second Circuit—the federal court of appeals with jurisdiction over New York—held that a law requiring public officials to disclose sources of income, assets and liabilities did not violate the constitutional right of privacy.
President Trump also might argue that the New York bill—by requiring release of the last five years of tax returns—violates the constitutional limits on retroactive laws. But this argument is likewise a weak one. While the bill requires the release of the last five years of tax returns, it is, as a formal matter, purely prospective. A retroactive law is one that punishes people for acts committed in the past. The New York bill applies only to individuals who occupy national or statewide offices after the bill’s effective date. Any official who doesn’t want the bill to apply to him or her has the option of resigning.
And even if a court considers the bill to be retroactive, that doesn’t necessarily mean that the law is unconstitutional. The Constitution bars laws that impose criminal liability on individuals “ex post facto” (after the fact), but the New York bill does not impose any criminal penalty. Outside the criminal context, the relevant question (to quote Justice Kennedy) is “whether in enacting the retroactive law the legislature acted in an arbitrary and irrational way.” There is nothing arbitrary or irrational about requiring the highest-ranking elected officials at the national and state level to disclose their tax returns from recent years so that the public can identify potential conflicts of interest.
Not only is the New York bill constitutionally sound, it’s also sound policy. Presidential tax transparency has been the norm since Richard Nixon, and for good reason. First, disclosure of presidential tax returns gives ordinary taxpayers greater confidence that their elected leaders are paying taxes too. Disclosure dispels the pernicious notion that “only the little people pay taxes,” a notion that undermines tax morale and tax compliance where it takes root.
A second function of presidential tax transparency is to aid voters in evaluating whether tax reforms proposed by the president serve his personal interest or the general interest. For example, the leak of President Trump’s 2005 federal income tax returns revealed that he would have paid no federal income taxes that year if not for the existence of the alternative minimum tax—a tax he now wants to abolish.
Third, disclosure of the president’s returns might reveal other conflicts of interest potentially affecting his performance in office. To be sure, even if Trump were receiving payments from Russia, there is no line on his returns—federal or state—where he would report: “$X received from Vladimir Putin for services rendered.” But while President Trump’s tax returns are unlikely to contain smoking-gun evidence of ties to the Kremlin, they might shed some light on his sources of income and potential foreign entanglements.
***
One potential obstacle to publishing Trump’s tax returns is the New York State Senate, which has a Republican majority leader. (The State Assembly is overwhelmingly Democratic.) But despite the fact that Republicans are in charge of the upper chamber, 32 of the 63 state senators are Democrats. Nine of those Democrats caucus with the Republicans, receiving committee chairmanships and other perks. And the Independent Democratic Conference, which represents eight of the nine crossover Democrats, has come out in favor of publishing the president’s state tax returns. In addition, there are nine Republican state senators who represent districts in which Hillary Clinton won more votes in 2016. They surely know that if they stand in the way of presidential tax transparency, they may face much tougher battles for reelection next year.
Second, if New York releases the president’s state tax returns, there is always the risk that the Trump administration will retaliate. Conceivably, the president could direct the IRS to stop cooperating with New York state tax authorities in their joint efforts to fight tax evasion. Or the Trump administration might seek to exact revenge in ways that we cannot yet imagine.
Hopefully, the threat of retribution—purely hypothetical at this point—will not deter New York from standing up to the president. Americans deserve to know whether their elected leader is contributing to the cost of government (and how much), whether he will benefit personally from his own tax plan (and how much) and whether he is entangled in financial conflicts of interest that stand in the way of his performance in office. The decades-old norm of presidential tax transparency is important both to our tax system and our political system. New York lawmakers can—and should—ensure that the norm does not die with President Trump.
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Daniel Hemel is assistant professor at the University of Chicago Law School.
