There is much discussion now on ending imposition of U.S. birthright citizenship for persons born in the US whose parents do not have a meaningful relationship with the country.
This discussion does NOT involve, as some very sloppy journalism suggests, ending ALL birthright citizenship, but rather, interpreting part of the already existing section one of the U.S. 14th amendment to mean that children born in U.S. to (e.g., Canadian) parents who do NOT have a legal/permanent/meaningful relationship with the U.S — should not receive U.S. citizenship at birth:
They are not actually subject to the jurisdiction of/allegiance to the U.S. — they are, for example, Canadians and they don’t deserve the benefits or negative consequences of U.S. birthright citizenship irrespective of consent or whether some might like the idea of having a second passport.
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside…”
I hope that the United States Supreme Court will confirm this common sense interpretation of the U.S. 14th Amendment.
“True. The solution to that is to stop repealing the Expatriation Act of 1868, not to start repealing the 14th Amendment.”
No one wants to repeal the 1868 Act, since the “right to expatriate” results in a very handsome payday of $2350/LCN / customer and paid for,mostly ,by people who never contributed into the US tax system.
About Trump’s no -birthright promise ,his only interest is in eliminating birthright demands coming from illegals,migrants,tourists. What about births resulting from foreign students, contractual workers,etc.People who stay longer for other reasons than the obvious.
An article which cites a Supreme Court ruling in 1898 which possibly sets a precedent in which any challenge to US birthright citizenship would be declared unconstitutional.
https://www.huffingtonpost.com/entry/chinese-cook-case-birthright-citizenship_us_5bd9ecf5e4b0da7bfc1689d6
All european countries now have conditional birthright citzenships and the US used to have retention requirements . Trump could introduce a conditional birthright executive order and leave it to the USSC to desire. That way it can be settled without it becoming a constitutional issue.Citzenship should be treated more like a privilege rather than be given carte blanche.
“the US used to have retention requirements .”
US Supreme Court overturned them.
“Trump could introduce a conditional birthright executive order and leave it to the USSC to desire.”
The reason the court would be involved is that it would be a constitutional issue.
” The reason the court would be involved is that it would be a constitutional issue.”
Quite right in that regard but I was answering also to any challenge to birthright citzenzenship as being unconstitutional. A conditional birthright citzenship ,to my way of thinking, does not violate the constitutionality of birthright citzenship . It seems to me,the USSC is in the business of defining the terms or conditions of constitutional rights ,such as birthright citzenship without seemingly violating the actual rights,to suit or conform to the prevailing thought or circumstance.
The latest predictions are that the Democratic party will take over the House of Misrepresentatives, the Republican party will keep control of the Senate, and both parties will maintain diaspora taxation.
All I know is if Trump wants to rescind my unwanted (unrecognized by me) US citizenship for free, I will hand it to him on a silver platter. Alas, he won’t, yet I meet his definition -as do so many of us- of an anchor baby, which is deplorable to those of us duals who returned to ours and our parents’ homeland mere years after our births. We have never felt ” subject to US jurisdiction” and never will.
Have at me, Mr. President. You are so right. I don’t deserve US citizenship and no right to pay US taxes.
How to distinguish a homelander from the diaspora:
For a homelander, October 31 is a day for fun and games, and the first Tuesday in November is a day for scary stories.
For the diaspora, every day is a day for scare stories.
@Norman: But George Holding retains his seat. At least we still have our one genuine advocate in the House.
This recent rumbling by Trump about birthright and citizenship got me thinking about the subject again.
What is usually discussed is what is ‘constitutional’ and that’s a valid reference point for this specific issue. But in terms of the whole idea of CBT, the issue is not what is constitutional, but what legal basis there is to support such a law.
To just look at what’s constitutional or not, it was pointed out on a legal forum I was reading recently that in a literal sense, it’s not actually ‘unconstitutional’ for the US gov to just tax anyone anywhere, citizen or not. Technically the constitution does not prevent them from deciding to tax all citizens of any country in the world by putting forth something like the ridiculous notion that the very existence of the USA is a benefit to them. 🙂 But obviously such a thing would be considered absurd.
But to the point, I have yet to see anyone put forth a valid argument proving there is any legal basis for CBT. One principle of law as it relates to the constitution, is that a ‘right’ cannot be converted into a privilege. So if you are born in the USA and thus given citizenship by default as a right. I have yet to see any valid legal mechanism by which someone can then be taxed for being a citizen (if they no longer reside in the USA).
It is understood that when in a country, you are subject to the laws of that country, and when you leave you are no longer subject to those laws. The other way a legal obligation can created is through a contract. But if you are a citizen by birth, clearly you never entered a binding contract (in contract law, such a contract, if it existed, would be voidable for a number of reasons, which are obvious).
Anyway, as a legal layman this is just my limited knowledge, I’d be happy to hear anything to the contrary.
Robin Schell – With your contract theory that would be helpful for anyone who got their US citizenship at birth (or prior to reaching the age of majority) and never exercised that citizenship as an adult – but probably not for those who lived in the US or used a US passport as an adult (which could be seen as affirming that “contract”), and definitely not for anyone who got a green card/naturalized in the US as an adult (or are snowbirds, etc.).
Thanks Kelly,
I don’t know what sort of things one signs as a naturalized citizen or when getting a green card. But for birth citizens, I don’t think just using a passport would hold up anywhere as a contract because a contract must be clear as to what you’re signing or once again it is voidable. So for example if you sign a legit contract but there’s a clause somewhere written in invisible ink, that clause would not be enforceable. Plus… there is no requirement to sign some kind of tax agreement in order to get a passport and just signing the passport book itself would not meet the contract requirement because the signature page has nothing stating any sort of agreements / obligations.
And lastly, even if by some far-fetched ideology, a passport could be considered a contract, then when that passport expires, or if it is surrendered, then logically the contract would end. Because it is a tenet of contract law that there must be a fixed term, aka ‘ you cannot sign your life away’.
The (at least current) US passport application mentions that US citizens have to file taxes (just like they would in the US) when abroad, so signing that form could hold up as a valid “contract” under your theory.
Hi Kelly,
It has been so long ago for me that I don’t remember what my first passport application said. But once again, a contract cannot be forever. So if the issuing of a passport and the application involved etc. created a valid contract, then it would be relatively easy to end that contract. (I suspect if this was the case it would be well known and exercised regularly by anyone wanting to end their ‘agreement’ with the government)
I will add though, the IRS does try at any opportunity, to create a contract. So for example when someone files a return or some kind of agreement with them, it will then create a contract even if no legal obligation existed prior.
Robin Schell thank you, you’ve just strengthened my determination not to file a single bit of paperwork with the IRS. Never have, never will.
@RobinSchell
Here is an interesting article which discuses the supreme court challenge to citizenship taxation Cook vs Tait.
http://nomadcapitalist.com/2018/01/08/citizenship-based-taxation-countries/
Yeah I read that not long ago actually. It talks about other things that are sometimes erroneously cited as justification for CBT, like right of return etc. But the crux of Cook v Tait was what is ‘constitutional’.
I have seen articles from university law departments etc. arriving at the opinion that CBT is not supported by accepted legal principles, I have yet to see a similar scholarly article putting forth anything to rationalise it.
“I will add though, the IRS does try at any opportunity, to create a contract.”
No, it does the opposite.
The doctrine of prevention of performance is that if parties A and B make a contract, and party A does something to prevent party B from fulfilling party B’s responsibility under the contract, then even though party B breaches the contract, party A cannot complain about the breach because party A caused the breach.
There is no doctrine of prevention of performance in tax matters. Taxes are not a contract. When the US government does something to prevent party B from filing a valid US income tax form, the US government can impose penalties and can confiscate payments without due process.
The principle that the doctrine of prevention applies to the US government in cases involving contracts was confirmed in a historical case of a company that was hired to cut wood. It does not apply in tax matters because taxes are not contracts.
Interesting. ‘Not sure what sort of scenario would involve the government preventing someone from filing a valid return though.
The Social Security Administration has never granted nor rejected the SSN application for my wife that was submitted in accordance with IRS instructions in 1974 before ITINs were invented. Form W-7 ITIN application has instructions saying not to apply for an ITIN until the SSA issues a rejection, but sometimes the IRS told us to apply anyway so we did and the IRS rejected the applications. In 2010 we refiled a return for 2005, I wrote “SSN: applied for, ITIN: rejected” for my wife, and the IRS accepted the refiled return, but the US Department of Justice persuaded US Court of Federal Claims and US Court of Appeals for the Federal Circuit to overturn the IRS’s acceptance of the refiled return. One reason for overturning was that I didn’t report a number for my wife.
If the doctrine of prevention applied to tax situations, the Court of Appeals for the Federal Circuit should have observed that the failure to report a number for my wife was that the US government prevented us. But it doesn’t apply. I made another refiling, fabricated an SSN for my wife, explained why, and included a copy of the court ruling. The IRS accepted that too but they still haven’t credited withholding that I paid in 2005.
There are also other ways that the government can prevent someone from submitting a valid return. Some instructions for some forms are round pegs that don’t fit in square holes, and some are pegs that are just broken from the start.
As for the difference between submitting and filing, I don’t even know what constitutes filing. Some IRS administrative transcripts show an original return being filed but later no longer on file. I didn’t unmail a return but how did it get unfiled? Some IRS administrative transcripts omit both the original filing and the subsequent unfiling.
Sometimes IRS records show that my wife didn’t file any US returns, sometimes they show that she filed some but not others, but all of them differ from the list of years for which my wife had to attend US Tax Court and she had to buy a US tourist visa to attend US Tax Court.
In 1985 the IRS hid a lot of returns in ceilings and other places because they felt overwhelmed; I guess they eventually got filed late but who did the filing?
Sometimes I or my wife sends registered mail and a USPS search shows that it reached USPS but didn’t reach the IRS but just disappeared; other times a USPS search shows that it was delivered to the IRS but the IRS denies it.
Robin Schell:
“I will add though, the IRS does try at any opportunity, to create a contract. So for example when someone files a return or some kind of agreement with them, it will then create a contract even if no legal obligation existed prior.”
Indeed. The return, with the jurat, is needed, in order to put the burden of proof on the taxpayer.
The Cook v. Tait psychodrama opens (from our perspective) with Cook being asked by the IRS to file a return to report the sale of his Mexican property to the IRS so that the IRS can assess Cook for tax due from the sale to the IRS. And Cook complies, thus agreeing to be assessed.
But if he had ignored the letter, the IRS probably could have found another way to get the return and the jurat. It’s not really the Cook v. Tait ruling that enables enforcement of the US tax code on non-US-resident US citizens. It’s the passport.
A US citizen who desires or requires something from the US (be it the passport, the right to enter, US income, the right to claim US tax benefits, or simply the US identity) is subject to US law. It’s pointless for them to wonder whether this or that aspect of US law affecting expats does or does not breach US constitutional rights. Waste of time. The US has the whip hand.
An individual who lives outside the US and doesn’t need or want anything from the US, can choose to ignore US law, or heed only the requirements for loss of US citizenship. The rest of US law – including considerations of constitutionallity or non-constitutionallity – doesn’t matter.
I bet Calgar411’s son never had a US passport. The IRS can make a Substitute for Return if they want, and Cook v. Tait clarifies that they can. The IRS can’t make him sign a jurat but the Substitute for Return suffices to let them assess if they want. If Calgary411’s son weren’t a Canadian citizen then CRA would even help the IRS collect. Luckily he’s a Canadian citizen so the IRS can’t get collection assistance from CRA, all they can do is assess, file a lien, etc.
As we’ve observed, the IRS only attacks minnows who try to comply, so Calgary411’s son is lucky because he hasn’t tried to comply, but … well, let’s hope the IRS closes their eyes when he’s on the radar.
“I bet Xxxxxx never had a US passport. ”
Indeed. And doesn’t need to take notice of US law.
“the IRS only attacks minnows who try to comply, so Xxxxxxx is lucky because he hasn’t tried to comply, but … well, let’s hope the IRS closes their eyes when he’s on the radar.”
Ah yes, that terrifying IRS radar that has never yet snared a helpless citizen of a non-US country and imposed on them an imaginary US tax debt and “filed a lien” on non-existent US property to collect non-existent US dollars in satisfaction of the imaginary US tax debt.
‘Ah yes, that terrifying IRS radar that has never yet snared a helpless citizen of a non-US country and imposed on them an imaginary US tax debt and “filed a lien” on non-existent US property to collect non-existent US dollars in satisfaction of the imaginary US tax debt.’
They are on the radar. The IRS chooses to close their eyes unless the victim makes the mistake of trying to comply. Didn’t I even mention my wife had to buy a US tourist visa to attend her Tax Court case.