Monday, April 17, 2017

A lot in the news lately about Trump's tax returns.

I don't think anybody's noticed yet, but what's really at stake is abortion rights.
There's no freestanding right to an abortion as such.
What there is is a right to privacy, which includes the doctor-patient relationship.
Roe v Wade, as written, was not so much about the rights of women, as it wwas about the rights of doctors. The court felt that abortion bans intruded on the doctor patient relationship and the right to privacy.

 The skirmishes over Trump's tax returns involve his right to privacy. Under the 16th Amendment, the government gets some special powers to compel speech, in order to make the income tax workable.
But that is speech to the government, not to the public at large.

Generally, no one has a "public right to know" someone else's tax returns. That can change when litigation makes such records public records, but such testimony is often under seal.
I'm not awarre of of any lawsuit involving trump's tax returns where the evidence would be more probative than prejudicial, or where a seal order wouldn't be reasonable.

There are a host of problems with the various schemes to try to compel Trump to reveal his tax records. There's an ex post facto problem, a bill of attainder issue, etc. There's a matter of executive privilege. There's the Term Limits v Thorton issue that one can't restrict ballot access by adding qualifications for president or congress.
There's a first amendment problem when speech is regulated for its content; courts tend to apply strict scrutiny and judge such statutes harshly.
This comes into play in the compelled speech cases such as Wooley v Maynard, Barnette v W. Va Board of Education, Riley v Federation of the Blind, Tornillo v Miami Herald, Talley v California, McIntyre v Ohio, Watchtower v Stratton.If we have one right in this country, it's the right to remain silent.

 The core issue is his right to privacy. I used to know, via an online mailing list, a guy named Walker Chandler. In Chandler v Miller, the supreme court said that Georgia couldn't make Chandler take a drug test to get on the ballot. Doing so would violate his constitutional right of privacy under the Fourth Amendment.
Anatole France one said something along the lines of in America, the rich as well as the poor have the right to sleep under bridges.

Here, President Trump is more likely than the average guy to win a case about his right to privacy over his tax returns. First, because he's the president, and can bill his legal defense to the taxpayers, and second, because he's Trump, a man who can afford to keep whole law firms busy.

Maybe that's the real game plan here - to set up a collusive lawsuit Trump will win, to make a point about the right to privacy, which underlies a woman's right to choose. But I don't think anybdy's playing the game that many moves ahead. It's just a matter of strange bedfellows.

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