This article in the Washington Times (a conservative newspaper) found by JustMe provides some background information on the Republican Overseas Legal Challenge to FATCA effort.
The tweet that was sent out by Michael DeSombre (“Republicans Overseas will be launching legal challenge to FATCA”) did not mention that funds need to be raised for the U.S. legal challenge. I expect that the Republicans will be successful in raising the monies. My understanding is that there will be a separate organization related to Republicans Overseas raising these funds – similar to our own Canadian “ADCS/ADSC”.
Irrespective of whether you like Republicans, or worry about their motives, the world will better off if either Republicans Overseas or ADCS/ADSC is successful in killing the bad FATCA law.
Jim Bopp, the mean bulldog lawyer who would lead the charge mentions here some (but not necessarily all) of the U.S. laws that might be contradicted by FATCA:
Mr. Bopp told The Times that he plans to attack the act on three legal grounds: that it violates the Senate’s sole possession of foreign treaty power, the Eighth Amendment’s ban on cruel or unusual punishment and the 14th Amendment’s personal privacy guarantee.
Some research convinced Mr. Bopp that the act violates the treaty powers that the Constitution grants members of the U.S. Senate. The U.S. government has forged agreements with foreign governments to have their banks reveal all financial matters about their American customers or face huge penalties.
These country-to-country agreements are in effect treaties but ones that no U.S. department or agency bothered to seek the U.S. Senate’s advice on or approval for, he plans to argue.
Finding senators to serve as plaintiffs in a drive to get the Supreme Court to acknowledge the act’s unconstitutionality is task No. 1 for Mr. Bopp and the board of Republicans Overseas.
Mr. Bopp, as general counsel to Republicans Overseas, presented to its board two other constitutional objections: violation of the Eighth Amendment’s prohibition against unusual punishment in the form of gargantuan monetary penalties and violation of the 14th Amendment’s ban on unreasonable search and seizure of the financial assets of Americans abroad.
Republicans Overseas now wants a litigation vs. legislative approach:
“Seeking legal rather than legislative remedy on behalf of Americans living abroad before the scheduled July 1 full implementation of the law is the only available course for now,” said Solomon Yue, the Republicans Overseas chief operating officer and an Oregon RNC member.
The Republican Overseas position differs from that of Republican Senator McCain and Democrat Levin:
Mr. McCain and Mr. Levin see it differently. They not only want to sustain the law, but they also want to strengthen it.
In a joint report by their Senate permanent subcommittee on investigations, the two lawmakers signed on to a call for “the U.S. Treasury and the IRS [to] close gaping loopholes in FATCA that have no statutory basis.”
@George says:
“Can’t you see the pincer movement? The Charter Challenge in the North and the Republican Overseas in the South.”
Jon Mccomb interviews Richardson now on CKNW 😉
While I truly hope that Republicans Overseas file and pursue the lawsuit – I also hope that it is well thought out and well funded. The worst situation would be for a legal challenge to take place and if we lost it in US court because that would put a lot of wind in the sales of the Treasury. Look what happened with the Obamacare ‘tax’ vs ‘penalty’ issue that went to the US Supreme Court – even the Government’s position was that it was not a ‘tax’ – but the Supreme Court said the ‘fine’ for not have health insurance was within the taxing power of the US – BAM! – what a windfall for the Government. There is a danger here that Jim Bopp must be careful to not potentially make the situation even worse for us….
Further – I am very very disappointed in McCain for being so stupid, ignorant and narrow minded.
I just saw that there’s a recently created Republican Overseas Canada Facebook page.
Questions I’d like to hear:
Mr. Minister. How many laws does Canada enforce in Canada from other countries against Canadians with another citizenship? Would we give the US a list of Canadians of American descent buying Cuban cigars? Of Saudi-Canadians buying pork? Just asking. Exactly when did the rights of a Canadian in Canada depend on what claims another country makes upon them?
@ ChearsBigEars
RE: CKNW interview — Which hour and about what minute mark in that hour? Maybe I can catch Jon & John in the archives.
There was actually a Conservative Senator from Manitoba who was quite skeptical of FATCA last week.
http://www.parl.gc.ca/SenatorsMembers/Senate/SenatorsBiography/isenator_det.asp?senator_id=3552&Language=E&M=M
Em, All,
Thanks, Chears. http://www.cknw.com/the-world-today/ The World Today, May 6, Hour 3, start at about 7:45 MP Nathan Cullen and then into interview with John Richardson.
@Anne Frank
That French article on Huffpo would be a good one to hit the Liberal apologist on the New Republic Article. Specifically in reply to one “roidubouloi” who obviously understands NOTHING about FATCA, and is overly focused on “getting the wealthy” without regard to the unintended consequences or collateral damage. The French, their natural socialist allies, understand the FATCA problems better than he does, so throwing that back in his face would be a good tactic, as he would NEVER read a Washington times article.
I tried, but since my first posting was tied to my twitter account, and I am in China mainland right now, it didn’t seem to want to let me post it. I can not tweet from here. If no one else has, when I get back to the US in about 16 hours, I will try again.
I really think Brockers should try to always post comments on Liberal web sites when and if they discuss FATCA. The New Republic piece is exactly the talking points, I would expect that the likes of Rachel Maddow from MSNBC would use if she ever discussed FATCA. So having counter arguments to that narrative with the article could influence the thinking, just a bit. It is an outside chance, but you have to use it when you can, imho.
I do see Bubblebustin and AtticusinCanada have been busy, but we could use more. Not sure who BC_Doc is, (a Brocker maybe?) but he has good comments too. Rather than expend all our energy preaching to our choir here, we need to take some of it to the unconverted… 🙂
Good to see IBS is NOT blocked in China. 🙂
@Steve Klaus
Regarding McCain…
Did you just figure that out? 🙂 It is why he lost the election, that and his explosive personality that is very irrational and emotional at times.
John Richardson’s interview is now available in hour 3 of today Jon McComb show on CKNW radio in Vancouver.
@ calgary411
Thanks pinpointing that interview time. Will listen now.
Thank you John, Calgary411, and of course ChearsBigEars for bringing it to our attentions.
Spoke with JR 1 minute after the show and told him I consider him like the best of all hopes to publicly kill FATCA. He wants to do more spots with Jon McComb
I was in the car when this came on. Funny because I was taken by surprise and not always listening to his show. Smiling now knowing that Harper and his merry band of Iscariots are going to have to back down on FATCA because their secret agenda is now exposed publicly, along with a delay that gives us a lot of time to break him and his plans. The delay to 2016 is a really really big mistake on the enemy’s part for now we can go on the offensive and continue to rally public opinion against FATCA and give them a daily royal parliamentary kick in the ass. Oooops did you hear that ol buddy Harpoon? Didn’t mean to interrupt your cheeseburger chow down.
My goodness John Richardson is such a pro at this. He answers FATCA questions effortlessly. Although I could hear that sigh when he was faced with “in a nutshell”. Thanks for the alert CBE. It was a good interview and sounds like Jon & John will be doing more too.
McCains own folks in Arizona are trying to get him out of there during the Repub runoff.
He’s been useful to help Obama with Obama’s new role as war promoter, civil war initiator, and dronestrike final approver.
The reference in the quote from Bopp in The Washington Times is wrong: “unreasonable search and seizure” is dealt with in the Fourth not, the Fourteenth Amendment.
@ChearsBigEars,
re: “I was in the car when this came on. Funny because I was taken by surprise and not always listening to his show. ”
Synchronicity.
Top Republican says this:
““I prefer if investors hold physical gold in a safe deposit box, ideally outside the US, in various locations… Switzerland, Singapore, Hong Kong, Australia, Canada… I think it’s important in today’s very uncertain world to diversify, not only the various asset classes… but also the custody of your assets should be in different jurisdictions.””
So Marc Faber is advocating tax evasion ha ha ha. And who is Marc Faber that anyone should listen to this advice bound to irritate […] Obama and the IRS puppets? ONLY THE WORLD’S TOP ECONOMIST, THAT’S WHO. He lives in Hong Kong where he wields incredible influence on the Hong Kong financial world.
Just checkout out the Democrats Abroad site in Indonesia – they must be smoking something they bought in Bali – guess they can’t face the reality that Obama and the Democrats are throwing them under the FATCA bus.
Some brief comments on the Republicans Overseas FATCA challenge from a legal perspective:
http://opiniojuris.org/2014/05/08/sole-executive-agreements-next-roberts-court-chopping-block/
the article above takes a whack at the 8th and 14th (4th) attack claims and faTCa, but the assumption is that those are directed at an fbar assault, which is discussed in the press release from TImes.
I would be curious to know whether Mr. Bopp has considered the idea that the entire edifice of CBT – at least as currently constructed – is an instance of Congress seeking to achieve indirectly what the Supreme Court ruled in Affroyim v Rusk that the 14th Amendment prohibits them from doing directly i.e. stripping US citizenship from those overseas, the great bulk of whom have acquired another nationality. Cumulatively, the filing requirements and de facto restrictions operate to impede if not entirely block the ability of expats to earn a living or lead a normal life comparable to similarly situate homelanders. By limiting retirement savings options to those available to homelanders and excluding almost all other options with punitive taxation or outright prohibition, by requiring delivery of routine bank account information on complex forms with complete accuracy on pain of disproportionate confiscations and fines from expats only, by in effect prohibiting expats from engaging in employment or occupations involving the management of other people’s funds due to the “signing authority” FBAR rules, by making partnership with non-Americans in business a near impossibility – all of these serve as powerful inducements to relinquish. The statistics, even if suppressed, speak for themselves. Only an insignificant number of expats are “in compliance” with IRS rules and the IRS and Congress have erected high walls (covered expatriate, OVDI penalties) to dissuade any material number of them from coming into compliance. The outcome is the same as if Affroyim had not been decided – millions of American citizens are compelled either to relnquish officially or to forego exercising any rights as citizen due to the coercive penalties and threats that Congress has erected as a wall to keep them out. As I have mentioned before, the number of expat tax filings, FBAR filings, earned income filings (all around a quarter million or less) and even foreign-issued passports (around a million, but including lots of US governed territories) all support the conclusion that about 5% of expats are “in compliance” out of almost 8 million estimated. The walls are working and Affroyim has been effectively gutted by a web of discriminatory legislation since 1996. Whether Congress set out to achieve this result or not, I suppose reasonable minds could disagree. At the very least, they knew or ought to have known of the incredibly adverse impact these measures were having on expat Americans (with little to no impact on homelanders) – the taxpayer advocate reports so advised them – and they continued with more legislation in the same vein. There are weaknesses in the argument, not least of which is the fact that these laws appear to be buried all over the place, the HIRE Act, etc etc. However, the cumulative impact of CBT as constructed by Congress is clearly to pressure if not compel overseas Americans to abandon or formally renounce.
@Anne Frank
This might be true if US tax laws didn’t affect its immigrant population as adversely as it does its emigrants. Does the US really want to start losing many immigrants because of the same burdensome filing and reporting requirements on wealth and business interests accumulated prior to immigrating to the US?
If they really would like to discourage people leaving, they should create a departure tax such as Canada’s, which applies to all Canadians regardless of income and whether or not they have another citizenship at birth.
Alex has written another …
Critics Mount Constitutional Attack on Dreaded FATCA Tax Regime