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.
Hasta la vista Chuckie!
#1 – Peter, nobody has arugued that exile is cruel and unusual punishment because – living outside the US is NOT cruel and unusual punishment. If anything, it’s BETTER because you don’t live with terror alerts and the like– No weather EXTREMES like tornadoes, hurricanes, volcanoes.
That place stinks– both politically and geographically.
It’s just a shame we have to put up with this guy until the 2016 election.
@ Geeez; My clear position is that permanent exile is cruel and unusual punishment because it is holding loved ones within the United States hostage to make the taxpayer not use expatriation as a means to dodge future tax liabilities. I have argued that it is cruel and unusual punishment because it is psychological warfare.
It is not because I want to go there for pleasure; hell I’d be happy never to step foot in the place ever again. But I still have my dad there. And two sisters and a brother. Nephews and neices. Ok. So to say I can never go and visit them ever again is to make Senators Schumer and Casey into gods, and I have a God thank you very much, and He never treats me like this.
What are the implications of trade and travel treaties that the US has with other countries. Can the US exclude a person that has renounced US citizenship, when under NAFTA they have the right to enter the US as a Canadian citizen.
yeah, I understand Peter. I completely **DISAGREE** with that those sentators are doing. I have elderly grandparents and parents in the US. Would they deny me from seeing them one last time? I’m not rich — you could look at my case and see in 1 second or less that I’m not upset over taxes; it’s about overall treatment.
The point I was trying to get across is that the US isn1t “really” the best place on the planet. There are many other more “hospitable” countries in the world where people of all nationalities are accepted, where there are no hurricanes, tornadoes, or volcanoes. The US is not the center of the universe, and far from being the best place on the planet. Even though Canada is soooooooo cold.. I don’t know why you guys put up with it….. The politicians must be very practical there……….
He doesn’t post on here much anymore, but post-renunciant “Boiling Frogs” used to talk a lot about how Americans “think” they are free, but they are really NOT, hence, the “boiling” handle, I guess. American citizens are not free until they live somewhere they are happy and they have paid their $450 fee to renounce. The fee is a shame to being American. If I really thought US Citzenship was worth something, I would be outraged that they charge $450 to get rid of it. After all, IMHO, there should be ZERO renunciations.
But reallly, where is the problem? With me living my life independently overseas using ZERO USA services, or with US laws? You decide…
@petros- from the time that America was founded there has been a confusion of identity between God’s special people, the new world or promised land, and the nation state of America which came to occupy that new world. This confusion is very well summed up in the American belief in its “Manifest Destiny”.
Since America’s boundaries have now been extended from sea to shining sea the phrase “Manifest Destiny” has been replaced by the words, “American Exceptionalism”.
It therefore isn’t a real leap of logic that the U.S. should be so eager to impose banishment as the ultimate non-lethal form of punishment for the SIN of not obeying the word of god, as it is embodied in the laws of the U.S. government. The government which just so happens to preside over the new earthly promised land.
The U.S. can’t see itself as just like any other nation because the U.S. has a special charge form God, to be His instrument of justice in a divided world. America very much sees itself as the world’s saviour.
@TrueNorth
“What are the implications of trade and travel treaties that the US has with other countries. Can the US exclude a person that has renounced US citizenship, when under NAFTA they have the right to enter the US as a Canadian citizen.”
I’m not sure Canadian’s have that “right” even with the Free Trade Agreement, the only one’s with a right to enter the US, are US Citizen’s, I think Canadian’s working between the two country’s under the auspice’s of NAFTA have an easier time, but I don’t think it is elevated to status of a right.
@WhoaIt’sSteve “right” may have been a poor choice of words. There is however an international agreement that allows Canadian citizens to travel to and even work in the United States. As long as the treaty is in place can a new law ban someone from the US when the treaty says they can enter? Would the US not be breaking a signed treaty if they kept someone out, how had a right at least under the treaty to be there? To be honest I don’t have the answer myself, my last post was more of a question than a comment.
@Steve and TrueNorth: One example of this is NAFTA, which has a whole chapter devoted to “temporary entry for business persons”. The relevant provision is probably Article 1603:
From the US side, the only way to find someone not qualified under “measures relating to public health and safety and national security” would seem to be those listed in the first three paragraphs of INA 212(a) (“health-related grounds”, “criminal and related grounds”, or “security and related grounds”). However, the existing Reed Amendment, along with the new Ex-PATRIOT Act, put the prohibition against re-entry of “taxpatriates” way down in paragraph 10 (“MISCELLANEOUS”). NAFTA has exceptions about denying entry for people involved in labour disputes and a few other grounds, but nothing relevant to renunciants even if they’re wearing a 10-foot tall sign that says “I renounced to avoid taxes”.
NAFTA’s dispute resolution procedures require a “pattern of practice” to be demonstrated before one side can take any action, but that won’t be too hard to demonstrate if the U.S. has a law on its books and takes positive steps to start enforcing it (which would require regulations, amendments to the State Department’s Foreign Affairs Manual, and the like).
@TrueNorth I’m no expert I know that NAFTA created a new set or changed up some of the visa’s, I’d imagine they still need to be applied for in advance, so they could at the very least run the background checks for criminal, good moral character and stuff.
One of the things I remember reading when I was doing research once was the US doesn’t negotiate freedom of movement clauses in free trade agreements in order to maintain immigration policy, so anything like Schengen or the freedom of movement in the EU would never happen in the US, that is probably until the conspiracy theory NAU is created lol.
Whew…I really hope for you guys overe there in Canada that the “North American Union” nightmare never comes to pass. I couldn’t see it happening now, but if the US were to fall apart in the next ten years it might view such a union as the only way to compete with the BRICs, Latin American Union, EU (if it still exists…:P), etc in 20 years’ time. They’re too full of themselves in the US currently to push it through or promote it at all.
NAFTA could be the back door to an NAU though. Remember, lots of eurosceptics (that is, mainly British politicians and the far right across Europe) point out that the EU was originally just an Economic Community – When the UK joined in the early 1970s, for example, they thought that they were just joining a free trade zone and not a political union.
Be on your guard over there!
Thoughts of an immigrant considering US citizenship…..
Hmmm….Should I become a US citizen?. Well I have to go through all the baloney of citizenship and English lessons, and pay about $3000 in fees etc. That’s a pain.
Then someday if I want ot move aborad, I’ve got idiots like Sen Carl Levin making my life complicated with FATCA, I have to start concealing the fact I’m a US citizen to foreign banks, and I face life-long taxation no matter where I live in this globalised world. and
Then later on if by some stoke of luck I make something of myself and become wealthy only later to find the US wants to tax me even though I don’t live there and none of my income comes from there. That’s unfair.
If I later disagree with US citizenship-based taxation then idiots like Sen Charles Schumer and Casey want to then banish me from the US forever because I renounced out of protest…Hmmm…I think I’ll leave US citizenship alone it’s not worth it the hassle.
Senators Levin, Schumer, and Casey you “overvalue” US citizenship these days because the US will suffer more when the world’s talent decides not to commit because of stupid laws like the Ex-patriot Act that hurts the US more in the long-run.
Make no mistake the US is competing against the rest of the world for talent because the American standard of living is no longer the envy of the world. Yes you can duplicate it in a lot of countries these days.
Senator Schumer if you were young, talented, and had a good “Facebook” idea would you ever become a US citizen from a foreigner’s point of view? After your behaviour last week the answer is increasingly NO. The US has to learn to take “the rough with the smooth” and stop having tantrums (including yourself).
If I were you Senator Schumer I would be keeping an eye on who the US is attracting these days, poor workers from Guatemala who will gladly sign up to your citizenship-based taxation plan because they have nothing to lose, or is the US losing the “players” with money, talent, and ideas who will bring the US prestige and influence in future?
Please remember Senators becoming a US citizen is not mandatory to succeed in the World 2012, you act like people don’t have a choice and have to become a US citizen. It’s time you to do a reality check about the US’s place in the world.
The message from Schumer and Casey is clear:
“If you want to leave our ‘plantation,’ you will never see your families again.”
“And all you ex-pats, shut up and stay in the back of the bus where you belong.”
Cruel and unusual punishment indeed!
@ TrueNorth, Thanks for the suggestion about NAFTA. @Eric, thanks for explaining the grounds on which a nation may refuse entry (health and national security). It appears that Steve is wrong, Canadians and Mexicans under certain situation have a NAFTA protected “right” to enter the United States. These are called, quite to the contrary of what Steve maintains in one of his comments, “mobility rights” which are protected by treaty.
This could pose a certain problem for Schumer and Casey if a Canadian base transportation company has drivers, pilots or other workers who require entry into the United States. Perhaps, if a person works for WestJet or Air Canada, and they are deemed to be a “taxpatriate”. Then their entry into the US is part of their job, and to deny them entry on tax expatriation grounds would be anti-competitive under NAFTA. These Senator have opened a can of worms of potential lawsuits. These are the very kinds of reasons that the US seldom bans people via the Reed Amendment, and, as far as I know, no one from Canada has ever been denied entry because of it.
@ geeez, I know what you’re saying and I agree. I just think this Schumer thing has made me a humourless curmudgeon. When my lawyer said to get my retirement out of the TD with all its branches in the US, that the US could hold their assets in the US hostage to get at me, I said, no way! He said, they don’t play fair. Schumer isn’t playing nice. But these guys are drunk with their own power and self importance.
Is Schumer and Casey getting the regulators on Facebook’s case? Facebook is now being investigated for giving some shareholders preferential access to disclosue information.
http://www.bbc.co.uk/news/business-18163687
Is Schumer is now trying to trash Facebook’s share price to make a statement by getting the SEC on their backs? Would a US Senator ever engage in such underhanded tactics?
Reasons not to invest in the US –
Citizenship-based taxation
FATCA
Ex-Patriot Act
Senators Levin, Schumer, and Casey
If all the above fail, US politicians will sic the SEC on the offending stock to trash its share price. This is the world we live in.
@Peter, great article. I thought about this as well and agree with geeez. Not ever going back to the States is not much of a hardship for me but my parents? For the moment they are both in good health and travel a lot but eventually they won’t be able to just hop on a plane for Europe whenever they like.
Of all the reasons I’ve heard recently for not renouncing this is the one most often cited: family back in the U.S. It may stop a few but I think most will conclude that there is family in the U.S. to consider but there is also family in the host country to protect. Aging parents versus spouse and children? Cruel choice but I’d have to come down on the side of the latter.
Oh and it’s very sweet of US politicians to propose waivers for those with ill or dying relatives. How generous. How humane. Sorry but any person who would force (as they are) the above choice is so lacking in moral goodness that I would not for two seconds trust that they would keep their word or not require some sort of quid pro quo (just pay what we think you owe us and we’ll hand over the visa).
My .02.
@Petros Whoa dude, pretty rude whatever… If you want to call it a right that’s fine, the TN Status is only for the indicated professions, requires proof of educational equivalency, proof of Canadian citizenship, and finally the big one an employment offer letter from an American firm that has specific information, you cannot use TN for self employment. If you think that confers status equivalent to a “right” you might want to check the dictionary. Anyway, you are kind of a jerk so I’m done here, I have to go write some letters to my Senators and Congressman.
@ Steve You seem a pretty touchy fellow. But you sure can dish out an insult. Not an unusual combination in my experience.
I didn’t make up the term “mobility rights” with regard to NAFTA. That is part of the discussion. So it does seem that you are wrong. Under certain circumstances, a banned expatriate would have the “right” to enter and/or work in the United States thanks to NAFTA. This is an area that needs exploration to determine what all those circumstances are.
@Steve Also, there are different grounds for rights: The right to expatriate is a god-given intrinsic right that every person has and no man, whether or senator or not, has the authority to abridge, curtail, or thwart it. Some rights are of this nature.
Others are rights that are granted by law, treaty, custom or contract. NAFTA is a treaty which gives individuals and companies certain rights to do business within a Free Trade Zone.
@ Steve, take a look at the Universal Declaration of Human Rights and see how many the Ex Patriot Law violates: Here is another:
“No one shall be subjected to arbitrary arrest, detention or exile.”
By the way, I put one of the words in boldface, hoping that you would notice it.
Mark Nestmann has a comment from a reader suggesting that the Ex Patriot Act violates the Universal Declaration of Human Rights on numerous substantial points: http://nestmann.com/facebook-co-founder-unfriends-usanow-the-empire-strikes-back/
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The law seems to indicate that the IRS can look up any of those expatriating over the last ten years and investigate their tax status, even though they are now bona-fide non US citizens. Again, this suggests a full Turtle seems the best move now as well as in the past.