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.”
There are exceptions for “accidental Americans” even if their net worth or tax liability is higher than the threshold. Those who are dual citizens since birth and have not been residents of the US for more than 10 years in the 15 years before renunciation are not considered covered expatriates. Also, those who renounce US citizenship before they are 18.5 years old and have not been residents of the US for more than 10 years are not considered covered expatriates either.
Question: Given that it takes months to complete the renunciation process, and I suppose one must be at least 18 years old to renounce, is it possible for someone to renounce US citizenship under 18.5 years old?
By the way, Eduardo Saverin became a US citizen in 1998, when he was 16 years old. So he did not apply for US citizenship himself, he most probably became a US citizen automatically when one of his parents naturalized.
@Scotgirl, What advantage for tax purposes did you mother have for becoming a US citizen?
@ Bubblebustin, Yes, I know this. But what if … What if Canadians were as stupid as Boehner, Schumer, Casey and Reed. Then Wayne Gretzky couldn’t come back to Canada after he became an American. We taught him to play hockey. Who the hell does he think he is becoming an American? Don’t let the door hit you in the hockey puck on the way out!!!!
You see what I mean?
@ Shadow Raider It was for estate taxes and trying to guess whether she or my father would die first.
@petros, thank God we aren’t that stupid (and vindictive). Incomprehensible, but I see it now.
@Scotgirl, Oh wow, it’s horrible that because of taxes people have to think about these things. That must have been awful.
But I still don’t understand, if she was living in the US, I assume as a permanent resident, wouldn’t she be treated like a US citizen for tax purposes?
Just found the answer to my question. It’s possible, but not easy, to renounce US citizenship between 16 and 18 years old. And in this case, the person may ask to reacquire US citizenship until 18.5 years old.
http://www.state.gov/documents/organization/120538.pdf
@ Shadow Raider, yes, she was treated the same except for estate tax purposes. It was something to do with if my US citizen father died first, a lot of his estate would have been subject to estate tax because the rules were changed to remove the unlimited transfer to a non citizen spouse (even one with a green card) upon the death of the US citizen. Not sure if it was the state they were living in or federal but it caused a heap of upset!
It kind of explains how I feel more British than American. My mother raised me with the underlying belief that I was a British kid just temporarily in the US. 🙂
Saverin is “f*cked”. Really? How can anyone know his motivation for renouncing unless he states it?
http://www.rawstory.com/rs/2012/05/17/facebook-billionaires-tax-dodge-inspires-punitive-act-of-congress/
@Scotgirl, Thanks for the explanation. This is another anomaly caused by using citizenship to define taxation. It doesn’t seem fair that your parents had to go through that situation.
I view the estate tax as double taxation, because the estate has already been taxed as income during the person’s life, and inheritance is not really a transaction. Many countries have abolished inheritance or estate taxes in recent decades, I hope that the US follows this trend as it already did for 2010.
The proposed special capital gains tax is clearly a Bill of Attainder. Anyone who has not yet given up US citizenship can avoid the tax, by selling US assets before expatriation and investing outside the US. It’s only the several thousand people who gave up their citizenship within the last 10 years who would be stuck. This is a limited group of people and it is a punishment for something that happened in the past and was OK when it was done.
It’s also a stupid incentive. It should be called the “Don’t invest in the US!” bill.
@Steve
“I also believe the best place for American’s is in the United States, even with their foreign spouses and family should that be their particular fancy.” — LOL, that was a good one!!
Dude, did anyone inform you that you’re blogging with a bunch of expats who left the USA a long, long time ago? And most of us have no intention of ever coming back except for the occasional wedding or funeral.
Its nice to blog with Homelanders, but us long-term expats are a different breed.
Hang in there man, you’ll figure it eventually.
Whoa –
“Best place”? You mean after an entire working life in Canada and paying taxes here you think I should move to the United States and have no medical care for the rest of my life without paying through the nose to cover exorbitant premiums? And maybe reach the point of being denied coverage at any price?
Here’s the one question I really want for you to answer: Would you move to the “best place” under those conditions?
@Peter
Great article!
Very well written and thought provoking.
Thank you!
@WhoaitsSteve and @all
Steve, welcome back. Great to have you contributing again.
Here is Steve’s comment:
“I would not begrudge Canada for applying consequences to an action that is viewed to be adverse to the nation’s ongoing viability. I empathize with all of you all’s plight, I think taxing foreign incomes is wrong, so is requiring complex forms, and not creating simple, accessible, online methods to file if we wish to keep the seemingly onerous requirement that American’s file an annual return. But, I also believe the best place for American’s is in the United States, even with their foreign spouses and family should that be their particular fancy.”
The main point of Steve’s comment was this:
“I empathize with all of you all’s plight, I think taxing foreign incomes is wrong, so is requiring complex forms, and not creating simple, accessible, online methods to file if we wish to keep the seemingly onerous requirement that American’s file an annual return.”
Steve, thanks for that – as I recall that was not your initial position.
The “afterthought” to the main point was:
“But, I also believe the best place for American’s is in the United States, even with their foreign spouses and family should that be their particular fancy.”
Steve is perfectly entitled to his belief (in the same way that we are). I invite Steve to explain his belief. Why do you think that the best place for Americans is in the United States? Would you take this position, even if an American preferred living somewhere else?
Once again Steve, thanks for returning to the Isaac Brock Society. Hope you stay and thanks for your support. But please (even though I recognize it was not point you were trying to make), why you believe that the best place for Americans is in the U.S.
Thanks,
Also, anybody new to this board, might be interested in an incredibly interesting conversation with Steve in early April. Steve, I am posting this because I really respect the way you listened to people on this board.
isaacbrocksociety.com/2012/04/02/disproportionate-effort-to-chase-a-few
@WhoaIt’sSteve who said: “But, I also believe the best place for American’s is in the United States, even with their foreign spouses and family should that be their particular fancy.”
Could you explain why you believe this ? Once upon a time I probably felt that way too, but now I realize how enlightening it is to spend time in other countries. You may find better ways of doing some things, and you may find that what you had at home really was the best on earth. Either way, you will have learned something about the world, life, and yourself.
In its own best interests, the US should be encouraging Americans to go abroad, learn other cultures, make contacts in numerous places and pave the way for economic and cultural collaborations. It’s a global world now and Americans will undoubtedly miss out on the opportunities that Asia, Africa and South America will provide as their economies expand if they don’t look outward more often.
If George W Bush’s Iraqi “experts” had actually known anything about the language, culture, history and religion of that country, his presidency might very well have been more successful.
PS – welcome, and please keep talking.
@ Whoait’steve Note please that your statement is pretty — I don’t know the best way to put it diplomatically–prejudiced, I guess. What if I said that the best place for African is Africa? People in the 19th century actually believed that. That’s why Liberia and Sierra Leone were created, to repatriate liberated slaves back in Africa. People believe things based on prejudiced but their solutions, being man-made often lead to significant nightmares for people.
@Foxyladyhawk
Completely agree that it is important to experience other cultures and ways of thinking. Your comment made by think of the movie about Robert McNama (Defense Secretary in Kennedy administration) – “The Fog of War”. In it he admits that the Vietnam War was a big mistake. But, I so well remember his saying to the effect that it is important to be able to get in someone elses skin – to see the world the way they see it. It is the ability to see things from the point of somebody else that is the quality that “homelanders” lack – and at the root of the “Nationalistic Narcissism” that is just so U.S.A.
http://www.huffingtonpost.com/jonathan-kim/rethinking-emthe-fog-of-w_b_228032.html
http://youtu.be/-pG8TX4jdZk
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I think Steve is expressing wishful thinking. He clearly doesn’t speak for all Americans.
If what he says is true that America is the best place for Americans, then why are so many leaving? The answer is it’s not the best place especially for the rich.
The current relationship between the US government and the rich is like a boyfriend who mistreats his girlfriend so she leaves to give him time to figure out that he’s an a–h—. If he doesn’t figure out what he’s been doing wrong and correct it, she’ll never come back. She may find a new guy named Singapore who treats her much better.
And people like Steve wonder why people of other nations resent it being inferred that they’re second class!
To Scotsgirl, I think someone who has never ventured in to the US and disconnects themself’s from their acquired American citizenship shouldn’t face the same consequence’s someone who does it strictly for monetary reason’s and has lived in or was educated in the United States would face.
To the others, Yes I have traveled in Europe, to the other two North American country’s and the Caribbean, I saw awesome places, I met great people, but nowhere did I come across any city, neighborhood, or street, that I was comfortable enough in to think I’d want to call it home, the only places I’ve come across that have been in the US. Although I’d love to spend more time, a month or so in France that place is amazing it even forged me in to a burgeoning Francophile.
“Why do you think that the best place for Americans is in the United States? Would you take this position, even if an American preferred living somewhere else?”
No if an American didn’t feel a connection or belonging to the US they shouldn’t stay, nor should anyone tell them otherwise. I feel the US provides the best infrastructure, community, and kinship that is there for all of us American’s, we come in every shape, size, color, and type, and offer the best educational opportunities (granted there are massive differences and all manner of variety’s of elementary and high school education, but higher education in the United States is top notch.)
To bubblebustin I don’t remember exactly why or how I found this site but like I said my sister is engaged to be married to an Englishman this fall, and she’ll be living in England with him while they make preparations to move back here to the US.
@Petros Haha I don’t think I’m mentally ill ;o) I don’t think my opinion’s hold true for anybody except me, and I wouldn’t try to force my opinions on anyone else, they are mine alone. I know there are great and fascinating places all over this planet, and if anyone American or not felt like they were meant to be somewhere they should go and be where they feel at home.