This article appeared today in the American Thinker: No Civilized Country Would Ever Banish Eduardo Saverin, by Peter W. Dunn
The Ex-Patriot Act introduced by Senators Chuck Schumer and Bob Casey is a bill of attainder which would result in cruel and unusual punishment.
Eduardo Saverin’s renunciation of U.S. citizenship has angered many people in the United States. I write as one who has also relinquished U.S. citizenship. As a blogger who openly writes about the experience, I’ve attracted some media attention, including an article by Dow Jones columnist Al Lewis. Lewis starts by saying that I renounced my citizenship to avoid the IRS. So now, Saverin and I have joined the ranks of the most hated people in America — so much so that Senators Chuck Schumer and Bob Casey want to banish the likes of us from the United States forever. To that end, they have proposed a new law, the Ex-Patriot Act. But would such treatment of former citizens be in accordance with the rule of law? I would like to argue that it would be a bill of attainder, forbidden by the US Constitution.
The late Chief Justice Rehnquist explains a bill of attainder as follows (emphasis mine):
These clauses of the Constitution are not of the broad, general nature of the Due Process Clause, but refer to rather precise legal terms which had a meaning under English law at the time the Constitution was adopted. A bill of attainder was a legislative act that singled out one or more persons and imposed punishment on them, without benefit of trial. Such actions were regarded as odious by the framers of the Constitution because it was the traditional role of a court, judging an individual case, to impose punishment.
The United States already has the rarely enforced Reed Amendment, which imposes exile and ten years of taxation on those who expatriate to avoid U.S. taxation. Senators Bob Casey and Chuck Schumer want to harden this law with the “Ex-Patriot Act”; it will exile any wealthy person who relinquishes citizenship to avoid taxation, and it will single such people out for special treatment as compared to other non-resident aliens. Here are some of the tax details:
Any ex-pat with either a net worth of over $2 million, or an average income tax liability of at least $148,000 over the last five years, “will be presumed to have renounced their citizenship for tax avoidance purposes.” The ex-pat will have to demonstrate to the IRS that this is not the case if it is not. If there is a “legitimate reason” for that person living outside the U.S. no penalties will apply. But if the IRS finds that someone gave up their passport for tax purposes, they will impose a tax on that individual’s investment gains “no matter where he or she resides.”
The rate of that capital gains tax will be 30 percent — the same that non-resident aliens currently pay on dividends and interest earnings. The tax detailed [in] this act, if approved, will backdate for 10 years after its approval.
Now the Constitution absolutely prohibits ex post facto laws. But these illustrious senators also have no grasp of history. Historically, banishment is a form of punishment. Permanent exile is a vicious and vindictive form of punishment often exacted in lieu of execution. But what for? Eduardo Saverin has only exercised a fundamental human right. Thus, far from committing a crime, he and I have done nothing wrong except to assert our right to leave the United States to avoid extra-territorial tyranny in the form of tax and bank account filing requirements; this is not so different from the thirteen colonies fighting a war against the mother country to avoid taxation without representation and whole host of other abuses.
This Ex-Patriot Act and the Reed Amendment are thus bills of attainder, which apply punishment and the seizure of a person’s of wealth without the benefit of a criminal trial. Banishment is terrible and inhumane; it is in principle a violation of the Eighth Amendment, which permits no cruel and unusual punishment. Even Professor Bruce Ackerman at Yale Law, who called for banning Saverin in the LA Times, understands this and would therefore allow an exception for those who would need to visit a family member who is dying or in hospital.
Exile is torture, and torture is universally condemned around the world. The Ex-Patriot Act would permanently separate persons from their heritage and their families — children from parents, brothers from sisters, nieces and nephews from beloved aunts and uncles. It tears people away from communities and friends. Exile would destroy their lives. It is psychological warfare, condemning people to years of regret, bitterness, and rage. Saverin is lucky to be originally from Brazil. But many thousands of those who have relinquished and will relinquish citizenship are citizens by birth and have loved ones still living in the United States.
Exile also punishes those who remain in the country who may never again see their loved one, unless they are able to travel to see him or her in exile. What if my father, an octogenarian, were to fall sick, and I couldn’t visit him? Whom are Schumer and Casey punishing now? Both me and my father. But it is wrong to punish people without a trial. This has been the case since laws were first invented. No truly civilized country ever punishes people without the benefit of a trial and the right to defend themselves before an impartial jury. This is why bills of attainder are odious. Schumer and Casey, however, must know that such a punishment could hardly pass the scrutiny of jurisprudence, and so it is better only to allow a hearing rather than bringing criminal charges and requiring the involvement of the Justice Department, grand juries, petite juries, and media attention. No, let the law declare the expats guilty. Let the law itself banish them. I.e., it is indeed a bill of attainder.
The United States must not ban persons who would normally have permission to enter the country lawfully as a visitor or on a visa. The United States must treat former citizens in the same way as all other people from their country of citizenship. Other Canadians may visit the United States for up to six months without a visa. To single out former U.S. citizens for special treatment is vicious and vindictive, and it is not becoming of a constitutional democracy. I cite the Expatriation Act of 1868, which shows that the United States expects other countries to treat its naturalized citizens with fairness and respect:
And be it further enacted, That all naturalized citizens of the United States, while in foreign states, shall be entitled to, and shall receive from this government, the same protection of persons and property that is accorded to native-born citizens in like situations and circumstances.
The principle of reciprocity requires that the United States treat other nations’ naturalized citizens in the same manner as native-born citizens of their countries. As the Apostle Paul says, “You then who teach others, will you not teach yourself?” To punish ex-Americans would also be a violation of the Universal Declaration of Human Rights (Article 15, 2): “No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.”
The problem with many lawmakers in the United States is that they don’t understand the first thing about freedom, justice, or fundamental human rights. Schumer and Casey are stuck on stupid. Yet it is not these two senators alone. This Ex-Patriot Act is different from the Reed Amendment not in kind, but only in severity. It is demagoguery. It is an affront to all who cherish liberty.
But should we be surprised? Power corrupts. Absolute power corrupts absolutely. The United States is for now still the most powerful nation in the world; this power has clearly corrupted some of its leaders, who are now drunk with arrogance and pride. They obviously believe that they are above the Constitution.
Peter W. Dunn is a DIY investor, a scholar of Early Christianity, and a former United States citizen who blogs on the discrimination of United States persons abroad at the Isaac Brock Society under the alias “Petros.”
@WhoaIt’sSteve Glad to hear you’re not mental. But let’s get back to the idea that somehow the United States can ban anyone they damn well feel like. Sure. But if their reasons are vindictive and punitive–i.e., exile to punish them for leaving for tax purposes–then it is cruel and unusual punishment.
I have no problem with the United States banning folks like criminals, illegal aliens, etc. But it is wrong for them to use a bill of attainder to exile someone, who has committed no crime, and only exercised the right to expatriate, from ever entering for the purposes of tourism or visiting family. It is as I suggest in the article, uncivilized; it is psychological warfare, cruel and unusual punishment. The government is run by control freaks–they can’t control us, so they torture us. It is about pay back and comes from people with puny spirits; it is selfish, greedy and insensitive. It is about how big we are and how you are going to pay sucker. It is unconstitutional because it uses legislative action to punish people. It is ex post facto because it wants to make this retroactive for the last ten years.
Consider how it helps the airlines and the tourism industry to ban all those renunciants as they fly over the United States to Mexico, Grand Cayman and Aruba for their vacations–and believe me, we are at the beginning of an exponential curve, because I don’t believe for one second that your politicians in the US have a the slightest clue what I am talking about, and even if they do, they don’t give a damn who they hurt, they just want to demagogue to get re-elected.
@Petros Exile is a strong emotive word and I don’t think it really fits the situation, in any case if it is actually exile it would be self-imposed as the US isn’t revoking anyone’s citizenship or rights they are just exercising border control which every sovereign nation has the right and ability to do. If the US considers ex-citizens undesirable then it is ultimately us as a country that will suffer.
I’m conflicted by what I read here, so much vitriolic bile and hatred spewed toward the United States, but then you are even more upset when the US take steps to prevent an ex-citizen from re-entering the country? If you didn’t want to be here in the first place why are you upset that border controls may be raised to prevent you from coming back?
@Whoa Exile is the perfect word. Then, there is banishment. That works too.
You don’t seem to understand our situation. First your government threatens expats with 300% FBAR fines, and if we say, we are not going to submit to this oppression, and we renounce, then your government says, fine, don’t ever come back. So we live in fear, and you are conflicted? I’d be in conflict too if the country I thought was the best place for Americans to be was treating Americans like that.
Why do you want to stop ex-citizens who exercised fundamental right from ever re-entering the country for a friendly visit? Because you don’t see the big picture, which is this: everyone has a right to pursue happiness. I didn’t leave the United States to avoid taxation, I was seeking an education and found a Canadian wife. I just never returned. For what sin, then, do you wish to ban me from ever entering your country again? For not paying taxes to the US? I don’t owe anything. For not wanting to pay taxes when I might potentially owe something in the future? Now we are getting to the truth. The American people think they have a right to enslave and leach off of their expats, no matter where in the world they live. And if we won’t bow down and kiss your feet, you say, Fine, don’t ever step foot in our country again.
Am I a terrorist, a felon or a conspirator? No, no, no. But like Saverin, I am among the most hated people in America, because I’ve renounced. So now Democrats and Republicans alike want to punish me, because they couldn’t control me.
You should try, at least a little, to understand what fundamental rights are. If not, you and all other Americans who wish to punish Saverin and me, you are boiled frogs, who don’t even understand when your liberties are taken away.
Do you think Canada should stop Wayne Gretzky from coming to Canada because he is rich and became an American, and said an oath which includes a renunciation of his Canadian citizenship? If not, why not? Shouldn’t we punish him, in the same manner that the US wants to punish me, to stop me from see my Dad? Shouldn’t Canada fobid him from visiting his father? Don’t you see how odious your country has become?
Do you think I would want to go to the United States for pleasure? No, you misunderstand. The only reason I will go there now is to visit family–and hope that Homeland Security doesn’t arrest me because they feel “conflicted” by what I am saying.
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WhoaIt’sSteve,,,
In fairness, there is some hyperbole here, but hardly what I would call “vitriolic bile and hatred”. There certainly is disgust at US self inflicted Tax Complexity policies, and some strong language about how misguided the US is, but I would be hard pressed to find the “vitiolic bile and hatred” you characterize. Actually, I think there has been some pretty measured comments here, and very little swearing either. Bile is something more associated with Michael Savage type commentary, and even Petros, when he is the most worked up, doesn’t go there.. 🙂
I can understand that you are experiencing a little cognitive dissonance hearing things you don’t hear in the normal course of your life or from your associates. Also, you are young have been raised believing in US Expectionalism, and probably have not yet experienced the cynicism that comes with age and observing the reality of US misguided U.S. policies from a distance.
Again, I think many of us here, me included, enjoy your involvement, and don’t think that because you have a different opinion, or don’t see things as we have come to see them, that you are “mental”! Disagreement and argument is great, as it challenges ones’ belief systems, and I for one try to avoid certainty. For some of us, we have just “been there, done that,” and now evolved to a broader perspective, I think. Maybe in time, you will too. Maybe Not! If you don’t, and everything inside the US borders is just fine, and restrictions and penalties for your movements or investments outside of US borders doesn’t concern you, I would have to admit you are in the majority for now, as few think about it. It doesn’t seem to effect them. As the US becomes more and more multi-cultural, and what it means to be an American continues to evolve, I think you will eventually be in the minority, as the birth rate of White male Anglo Saxons now slips into a minority role.
Hope you don’t find this comment as “vitriolic bile and hatred!” 🙂
btw, I am not one that is renouncing my Citizenship. I am in the “Complain but Comply” mode for now. However, I fully understand why others would, and think they should have the right to do that, without penalty or being called unpatriotic, ungrateful, or tax dodgers. The fact is, that the majority of those that are renouncing (Saverin) are probably doing it in high Tax countries, which gives lie to the entire “Tax Dodging” meme.
and since you haven’t been around for a while, you might read this from the Economist…
Did Eduardo Saverin do anything wrong?
and for others, two new stories (to me) I was reading this morning, that might have been posted elsewhere, but don’t have time to check for duplication. Sorry. Leaving to catch a flight in 30 minutes…
From World Radio Switzerland
U.S. bank clients casualties in an ‘economic war’?
From Asian Investor
Asia fund groups unite versus Fatca
@Just me,
You’re reasonable words are the conscience of Isaac Brock.
I wish I could remain as calmly detached as you, but my Irish-American blood makes it a bit difficult.
@WhoaIt’sSteve Thanks for explaining your views on Accidental Americans.
Speaking for myself, I don’t hate the US. I think the current actions of Congress and the IRS are frightening, but I don’t hate the country. It’s a nice place to visit – my kids love WDW and DH would love to see NYC someday (I know I’m sounding trite, it’s not meant). I’d hope that I’m never banned from visiting, though DH is already joking that he’ll take the kids on holidays there if needed! If I am banned I’ll just spend my holidays lying on a beach in St Lucia. 🙂
@JustMe No of course not, I should made more clear it is not a majority of the comments here that are filled with vitriol and hateful statements. It is just the nature of the Internet and anti-Americanism on it, where everyone seems to have a beef with the US. So for us American’s venturing outside domestic websites and trying to you know follow the suggestions of our foreign friends to read up, and broaden our horizon’s we come across all kinds of hate spewed at the US.
So I apologize for generalizing, US demographics are shifting in the coming decades and it will be fascinating to see what happens.
I think even if I had the ability to travel and spend more time outside the US, I’d always want this country to be home base, I do understand others like yourself have found a new home base, which is why I think we shouldn’t tax foreign incomes and the rest.
@Scotgirl I find accidental Americans as a concept interesting, I think the 14th Amendment is part of what makes the country great, no complications, no obscure blood or parental linkage, just straight forward you’re born here, you’re one of us.
I have read here about how it is such a hard decision to sever your connection to the United States and I’d agree I would never be able to do it I have a deep and profound love for the United States that has only been strengthened by travel and learning about other country’s. Like learning about hate speech regulation which seems to have infected the world like a virus, made me appreciate the first amendment protections even more so that I ever had before.
While I do think there should be consequence’s for renouncing US citizenship, I also think the most severe consequence’s like banning re-entry should be reserved for those with demonstrable proof they did it for un-virtuous reasons, extreme monetary and taxation (I’m talking several hundred thousand to millions of dollars,) political, stuff that’s just not cool, you know. I wouldn’t ban normal people who just want to come spend a few weeks in Vegas or Orlando.
I would as much visit the USA as a Jew would visit 1937 Germany.
I think Steve has been a really good sport about all this. Most of us probably wouldn’t give a hoot about the likes of Eduardo Saverin if we too weren’t the targets of the US government which unjustifiably thinks it has some right to our hard earned income because of a tenuous connection to the US like being born there almost 50 years ago and leaving as small children to make a permanent home elsewhere.
@omg For some of us there are actually principles of freedom. I’m not a billionaire yet, but I believe that even billionaires have certain unalienable rights, such as life, liberty and the pursuit of happiness. I grew up believing in the Declaration of Independence in the the US Constitution, and the limits of power that it is supposed to put on the Federal government. So yeah, I would defend Saverin’s right to his money, even if I was not in this pickle with the US government.
@omg
‘Most of us probably wouldn’t give a hoot about the likes of Eduardo Saverin if we too weren’t the targets of the US government’.
This is too true. But all people who believe in liberty and freedom and what the US once stood for, should ‘give a hoot’. Therein lies the problem. They don’t!
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