This post first appeared on May 22, 2012.

N.B.: I am bringing this post back to the front page as it is relevant in our 145 comment thread (so far), IRS insider explains why the United States has never enforced the Reed Amendment’s banishment provision, and he thinks its funny.  In particular, J.E. Gutierrez has questioned many of my positions regarding the constitutionality of the Ex Patriot Act and the Reed Amendment–and I hereby reproduce the arguments I made in 2012.

I sent to Thomas Lifson, editor of the American Thinker,  my post,  No Civilized Country Would Ever Banish Eduardo Saverin, before obtaining an important law article which would have greatly buttressed the argument that banishment is cruel and unusual punishment.  More on that in in a moment (see lower).  I want first to respond to two major objections that I have seen to the article. Curiously, no one has argued that exile is not cruel punishment.  But two other arguments have come to the fore which merit consider.

The first objection is that the bill of attainder prohibition does not apply in this case, because the Ex Patriot Act does not name Eduardo Saverin specifically.  Some think that constitutional prohibition of a bill of attainder only applies when legislation names certain individuals for punishment.  For example Jim Puzzanghera at the says in an LA times article:

The Constitution prohibits Congress from passing laws specifically aimed at one person, what’s known as a bill of attainder. But Schumer and Casey said their proposal, while inspired by Saverin, is not limited to him and therefore would be constitutional.

It is important to note that a bill of attainder may also apply to a group or class of individuals, singled out by legislation.  The Ex Patriot Act clearly singles out rich people, as a class of individuals, whose assets are over two million and whose taxes liability exceed a certain threshold.  Legislation that attacks a clearly defined group of people have been found unconstitutional, such as the Exclusion Acts of 1882, 1884, and 1888 aimed stopping  Chinese immigration were found unconstitutional by a federal court as of bills of attainder may (see article by Armstrong cited below).

Furthermore, the Ex Patriot Acts and the Reed Amendment are bills of attainder according to the definition which I cited in the article, that of Chief Justice Rehnquist:

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.

Secondly, some have raised the objection that the United States has the right as a sovereign country to enforce its borders; banning a person is thus an administrative matter not punitive matter.  Certainly, the United States retains the right to deport or not permit an alien entry; an alien has no “right” to enter the United States.  [N.B.  The discussion below shows that NAFTA provides that citizens of NAFTA nations have the right to enter other NAFTA nations under certain circumstances.  Furthermore, tax expatriation is not one of the stated bases of exclusion of a NAFTA country citizen.]

But many who have made the decision to relinquish US citizenship depend on the knowledge that they will be able to return to visit their home, their loved ones and their friends.  For this, they are counting upon how the United States treats other citizens of their new country, and that they do not expect to be treated in an irrational, vindictive and cruel manner.  We ask only to be treated fairly, not shunned as felons or terrorists.  And that is the point.  The person who renounces to avoid taxes is no criminal.  We are just arranging our affairs so as best to pursuit happiness, and that is a unalienable right given to us by our Creator, and something that no Senator has the right to take away.  To act in a punitive manner against former citizens is not becoming of the United States, but ugly pettiness, and this is being done while world is watching.

Finally, banishment is cruel and punishment according to Michael F. Armstrong, “Banishment: cruel and unusual punishment”, University of Pennsylvania Law Review, 111 (1963) 758-786.    Any punishment which is disproportionate to the crime is cruel.  Armstrong cites one court as follows (780):

To be sure, imprisonment for ninety days is not, in the abstract, a punishment which is either cruel or unusual. But the question cannot be considered in the abstract. Even one day in prison would be a cruel and unusual punishment for the “crime” of having a common cold.

By this token, permanent banishment is cruel punishment for the “crime” of renunciation, because like having a common cold, renouncing one’s citizenship is no crime.

Furthermore, Armstrong argues that banishment is intrinsically cruel.  Punishment can be cruel which causes pain in the body or the mind.  The meaning of cruel and unusual is not restricted to barbaric or painful treatments, but such things as may humiliate or stigmatize.  Thus, my argument that Schumer and Casey wish to use exile as a form of psychological warfare is perfectly valid.  Eritrea also holds hostage families back in the homeland as a means to force its diaspora citizens to pay taxes.  With the proposed Ex Patriot Act, the United States is lowering itself to the status of a terrorist nation.

Finally, I would like to cite Armstrong’s conclusion (786):

It would seem that a practice “universally decried by civilized people” should have no place in a modem, purportedly civilized, society.  Banishment has retained something of the place it once shared with the thumbscrew, the rack, and other medieval refinements chiefly because of the subtle nature of its barbarism and its practical usefulness in the deflection of difficult political or social problems.

This sort of misuse can be ended once and for all by judicial recognition of the fact that banishment fits well within the modem conception of the prohibition against cruel and unusual punishment. A finding to that effect would remove from practice and consideration an archaic device whose only place in a modem world should be in fiction and history books.

I try sometimes to make arguments reductio ad absurdum.  Yesterday in the comment stream I suggested that Canada should ban Wayne Gretzky from returning to Canada because he is rich, no longer pays his taxes in Canada, and renounced his Canadian citizenship when he became an American.  If anyone can tell me why this is wrong, then you will soon see why Congress should ban neither Eduardo Saverin, nor myself, nor any other former American from returning to the United States, solely because we exercised our God-given right to change our nationality.