This is my first post here and I want to give my huge thanks to Petros and all of the contributors to the Isaac Brock Society. You’re doing great work and I and many other expats appreciate it. I know some of you are already familiar with me due to reading my Overseas Exile blog and I have a confession to make: I steal stuff from you guys. You’re awesome 🙂
Please note regarding the following: I am not a lawyer and this is my interpretation of the law. I think it’s correct, but if I’m full of it, please feel free to tell me why.
By now I’m sure all regular followers of this blog are familiar with the Ex-PATRIOT Act, the full text of which may be found here. In short, it provides a 30% exit tax on some renunciants and it’s retroactive for ten years. Unfortunately, those who argue against this abomination are misunderstanding a couple of points of law. These confuse our overall arguments and I want to clear them up.
The Article I, Section 9, paragraph 3 of the US Constitution states quite clearly that “No Bill of Attainder or ex post facto Law will be passed.” This bill, while probably a Bill of Attainder, will not be ruled as such and it is not an ex post facto law.
A Bill of Attainder is a legislative act that singles out an individual or group for punishment without a trial. Some people claim that the Act is not a Bill of Attainder because it does not name a single individual. However, a Bill of Attainder, as Petros has already pointed out, can apply to an entire class of individuals. Merely declaring that expats who renounce for “substantial tax avoidance purpose” are to be exiled would not be enough to make it a Bill of Attainder if trials were held, but the Ex-PATRIOT act has the following text:
Any alien who is determined by the Secretary of the Treasury to be a specified expatriate is inadmissible.
In other words, no trial.
So why are the courts likely to argue that this isn’t a Bill of Attainder? Because US Constitutional protections only apply outside of the United States to US citizens. Thus, the argument will be made, and it will likely be upheld, that non-US citizens who are outside of the US do not enjoy Constitutional protections. Yes, you can see the absurdity of this, but that’s what I predict is going to happen.
So we might argue that the Ex-PATRIOT act is a Bill of Attainder, but we cannot argue that it’s an ex post facto law. An ex post facto law retroactively changes the rules of evidence such that you can be charged for committing a crime when it was not a crime to commit it. Since the Ex-PATRIOT act is retroactively applied for ten years, it appears that it’s definitely an ex post facto law. However, this is not the case. Since 1798, the courts have held that ex post facto laws only apply in criminal cases, not civil. Nowhere in the Ex-PATRIOT act is the renunciant alleged to have committed a crime.
In criminal cases, a convicted defendant faces incarceration, a fine, or in extreme cases, execution. The “exit tax” will be ruled a tax, not a fine. Further, there is no threat of incarceration or execution. And since no crime is alleged, the Ex-PATRIOT act will likely fall under civil law, not criminal law. If you want to know more, you should read this fairly clear explanation of the difference between criminal and civil law.
So yes, the Ex-PATRIOT act is a flag-waving abomination and there are plenty of ways we can attack it, but from the standpoint of the courts, it’s not going to be held as a Bill of Attainder (due to a technicality) or an ex post facto law (because they don’t apply in civil cases). I know this is not information that most people want to hear, but that’s my reading of the situation.
I don’t post this to discourage you. I post this in hopes that we won’t find ourselves getting bogged down in arguments that don’t actually apply to this horrible bill. Sadly, legal and illegal are only kissing cousins with right and wrong.