The Yale Law Journal


22 May 2017

Can New York Publish President Trump's State Tax Returns?

Daniel J. Hemel

Breaking from a decades-old norm of presidential tax transparency, Donald Trump has refused to make his federal income tax returns available for public inspection. Congressional leaders have blocked bipartisan legislation that would compel the President to disclose his returns. New York State, however, has a unique opportunity to ensure that the practice of presidential tax transparency endures. As a longtime New York resident, President Trump files state tax returns that contain most of the information found in his federal filings. A bill pending in the New York State Legislature would direct state tax authorities to release returns filed by the President and statewide elected officials. If the bill becomes state law, it will do much to protect the norm of presidential tax transparency from Trump’s attack.

This Essay considers the legal issues surrounding New York’s potential disclosure of President Trump’s state tax returns. It anticipates and addresses arguments that state disclosure would violate the Bill of Attainder Clause, the constitutional right to privacy, due process limits on retroactivity, restrictions on state interference in national political processes, and the doctrine of intergovernmental immunity. It also examines federal laws protecting taxpayer privacy and considers whether New York’s publication of the President’s state tax filings would violate the Internal Revenue Code’s prohibition on disclosure of returns and return information. The Essay concludes that federal law does not prevent New York from adopting and enacting legislation that would require the release of the President’s state tax returns. New York can—and, this Essay argues, should—publish the President’s state tax returns if Trump himself and his allies in Congress refuse to act.

16 May 2017

Clarifying the Employee-Officer Distinction in Appointments Clause Jurisprudence

E. Garrett West

On May 24, the D.C. Circuit sitting en banc will hear oral argument on whether Securities and Exchange Commission (SEC) administrative law judges (ALJs) count as inferior officers rather than employees for purposes of the Appointments Clause. This Essay attempts to articulate a coherent employee-officer distinction that suits the Constitution’s text and structure, that remains consistent with the Court’s precedent, and that provides a clear legal rule for judges and for Congress. Part I traces the evolution of the doctrine from an early opinion of Justice Marshall through the nineteenth century to the modern cases of Buckley and Freytag. From this often-confused line of cases, the Essay explains the central normative and constitutional considerations that animate the Court’s doctrine. Part II draws on this doctrine and on related administrative law jurisprudence to present a legal rule that defines who must be an officer under the Appointments Clause: any person who is vested with the authority to alter legal rights and obligations on behalf of the United States. Part III applies this analysis to a recent circuit split between the Tenth Circuit and the D.C. Circuit, and it sides with the Tenth: SEC ALJs are officers of the United States who must be appointed according to the strictures of the Appointments Clause.

01 May 2017

May Congress Abrogate Stare Decisis by Statute?

James Durling

On January 3, 2017, Congressman Steve King introduced a bill that would bar federal courts, including the Supreme Court, from citing a number of the Court’s decisions on the Patient Protection and Affordable Care Act (ACA) “for the purpose of precedence [sic].” The bill cites Article 3, Section 2 of the Constitution, which allows Congress to restrict the Court’s appellate jurisdiction, as legal justification for Congress’s power to regulate rules of precedent. Not surprisingly, media commentators quickly questioned the bill’s constitutionality. What these early news stories overlooked, however, is that King’s proposal does not raise a novel legal question. On the contrary, over a decade ago, Michael Paulsen published an article in the Yale Law Journal arguing that Congress could do exactly what the bill proposes. Over the ensuing years, scholars have debated Paulsen’s argument, without resolving the core question posed by his article.

24 Apr 2017

Federalism and the End of Obamacare

Nicholas Bagley

Federalism has become a watchword in the acrimonious debate over a possible replacement for the Affordable Care Act (ACA). Missing from that debate, however, is a theoretically grounded and empirically informed understanding of how best to allocate power between the federal government and the states. For health reform, the conventional arguments in favor of a national solution have little resonance: federal intervention will not avoid a race to the bottom, prevent externalities, or protect minority groups from state discrimination. Instead, federal action is necessary to overcome the states’ fiscal limitations: their inability to deficit-spend and the constraints that federal law places on their taxing authority. A more refined understanding of the functional justifications for federal action enables a crisp evaluation of the ACA—and of replacements that claim to return authority to the states.