Andy Grewal (University of Iowa – College of Law) has posted The President's Tax Returns (39 pages) on SSRN. Here is the abstract:
This Article examines whether congressional committees enjoy the unrestricted authority to demand a President’s tax returns. It concludes that they do not. Though a federal statute seemingly compels the IRS to furnish, on request, anyone’s tax returns to some congressional committees, a statute cannot transcend the constitutional limits on Congress’s investigative authority. Congress enjoys a near-automatic right to review a President’s tax returns only in the impeachment context.
After analyzing the general constitutional principles, the Article briefly examines the House Ways & Means Committee’s disputed request for President Trump’s tax return information. That controversy remains ongoing, and subsequent events may affect the legitimacy of any congressional request for that information. However, the Article expresses doubt that the Committee’s request satisfies the relevant constitutional standard.
(Via Paul Caron at TaxProf Blog).
The article approaches the matter mostly from the perspective of caselaw. But I think an originalist/textualist perspective suggests a similar conclusion. The relevant statute, Section 6103(f)(1) of the tax code (providing that congressional committees may request the IRS to provide anyone’s tax return), must be supported by an enumerated power of Congress. In some situations use of the statute clearly would be supported: as necessary, for example, to inform Congress's thinking about tax reform legislation or as part of an impeachment investigation. But it does not seem that there is a constitutional power of Congress that would support the statute in all its applications. As Professor Grewal says in the article (p. 17):
When Congress enacted the statutory predecessor to Section 6103(f)(1), some legislators believed that the Congress, as a co-equal branch, should enjoy the same unlimited access to tax returns that the executive branch does. They may have thus believed that Section 6103(f)(1) would give them unfettered access to tax return information. But that view would have rested on a fundamental misconception of the legislature’s role. Under the Constitution, the President must take care that the laws are faithfully executed. That responsibility ensures the President’s access to tax return information – he or she could not otherwise ensure the proper execution of the tax laws. Congress, by contrast, has no law execution responsibility or authority. It thus has no claim to tax return information in the absence of a legitimate legislative purpose.
At minimum, the committee needs to explain how its request in this situation is based on Congress's enumerated powers — particularly as it is not obvious which enumerated power supports it.
And I would add, as Professor Grewal does, that the issue goes well beyond this particular President's returns. It's somewhat concerning from a privacy perspective that Congress would be able to demand (and disclose) the tax returns of private citizens — a weapon that could be used to retaliate against people Congress sees as troublemakers.
Posted at 6:37 AM