Challenging ID Demands
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« The human rights of migrants in transit
Buried in the Fixing America’s Surface Transportation Act (”FAST Act”) signed into law last week is an unrelated rider to provide for revocation of the passport and/or refusal to issue a passport to anyone against whom the IRS has assessed a lien or levy for $50,000 or more in tax debt, or who doesn’t provide a valid Social Security number.
Since a change in Federal regulations in 2009 eliminated the last exception for crossing land borders to or from Canada and Mexico, it is a violation of Federal law “for any citizen of the United States to depart from or enter, or attempt to depart from or enter, the United States unless he bears a valid United States passport.”
This requirement for a passport can be “waived” at the “discretion” of the Department of State. But there is no right to a waiver, no formal procedures or standards for requesting such a waiver, and no apparent mechanism for judicial review of denial of a waiver.
So denying or revoking a US passport amounts to closing the US borders to that US citizen.
It’s not clear at whom, or at what conduct, this new provision in US law is directed.
Are Congress and the President concerned that suspected criminal violators of the tax laws might flee the country before they can be charged or arrested? So much for the presumption of innocence, the distinction between tax debts and crimes, and the Constitutional prohibition on imprisonment for debt.
Is the intent to prevent tax debtors from spiriting their untaxed assets out of the country before they can be seized? If so, restrictions on personal movement are both overbroad and likely to be ineffectual. Most international transfers of wealth occur electronically, and most cross-border shipments of tangible goods are in the form of unaccompanied freight, not accompanied luggage.
Is the goal to exile tax debtors from US territory? Under international human rights treaty law, the right to enter the country of one’s citizenship is [url=http://www.equalrightstrust.org/ertdocumentbank//general comment 27.pdf]the most absolute[/url] of the rights of freedom of movement: “There are few, if any, circumstances in which deprivation of the right to enter one’s own country could be reasonable.”
Denial or revocation of a US passport under this new law is an elaborate five-step process, although most of the steps are purely clerical:
- The IRS “assesses” a tax liability of at least $50,000 in 2016, or the equivalent amount adjusted according to the cost of living index in future years.
- The IRS issues a lien or levy for the tax assessment (again, for at least $50,000 or the latest adjusted equivalent).
- The Commissioner of Internal Revenue certifies the existence of this assessment and lien or levy to the Secretary of the Treasury (the head of the parent department of the IRS), and notifies the citizen of this certification and of their right to challenge it in court.
- The Secretary of the Treasury transmits the IRS certification to the Secretary of State
- Once the State Department receives this certification, it must not issue a new passport to the citizen, and may (apparently at the standardless discretion of the Secretary of State) revoke any current passport.
There are some options, but they are entirely at the discretion of the Secretary of State:
The law also permits (although it does not require — more standardless discretion for the Secretary of State) the denial of any application for a US passport that doesn’t include a valid Social Security number.If the Secretary of State decides to revoke a passport…, the Secretary of State, before revocation, may — (i) limit a previously issued passport only for return travel to the United States; or (ii) issue a limited passport that only permits return travel to the United States.
There’s an impunity clause in the law, although it’s unclear to what if any extent it is Constitutional, that attempts to protect government agents from liability for violating US citizens’ right to travel:
There is a procedure for judicial review, but only of the certification of a tax assessment and lien or levy:The Secretary of the Treasury, the Secretary of State, and any of their designees shall not be liable to an individual for any action with respect to a certification by the Commissioner of Internal Revenue.
The new law is silent on what, if any, redress is available, or through what procedures, for a US citizen whose right to travel is violated when they are denied a passport, their passport is revoked or restricted, or they are subsequently prevented from entering or leaving the US. Responsibility for the deprivation of rights is divided among three Departments: Treasury certifying a tax debt, State denying or revoking a US passport, and DHS enforcing the passport requirement at airports and borders.After the Commissioner notifies an individual … , the taxpayer may bring a civil action against the United States in a district court of the United States or the Tax Court to determine whether the certification was erroneous or whether the Commissioner [of Internal Revenue] has failed to reverse the certification. If the court determines that such certification was erroneous, then the court may order the Secretary [of the Treasury] to notify the Secretary of State that such certification was erroneous.
A citizen could bring an action for a writ of mandamus ordering the State Department to issue a passport, which in some other cases has prompted the State Department to issue a passport before the case could be decided.
Or a citizen could bring an action for an injunction prohibiting the DHS from interfering with their entry or exit to or from the US.
In either case, we look forward to a declaratory judgement that this law is unconstitutional, and violates US obligations as a party to the International Covenant on Civil and Political Rights.
This entry was posted on Wednesday, December 9th, 2015 at 11:36 am and is filed under Freedom To Travel, Papers, Please. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.
6 Responses to “No passports for US citizens who haven’t paid taxes or don’t have a Social Security number”
[*] John Says:
December 9th, 2015 at 9:24 pm
Any thoughts on whether a bankruptcy discharge of the subject tax liability would entitle one to be decertified, and eligible for a passport?
[*]New Collection Challenges | War Tax Talk Says:
December 10th, 2015 at 6:39 am
[...] Another good blog on the passport topic on the website Papers, Please! from The Identity Project. [...]
December 10th, 2015 at 7:50 am
Does this mean Al Sharpton?
[*]Edward Hasbrouck Says:
December 10th, 2015 at 7:59 am
@John - Yes, there is a provision in the law for reversal of a certification of tax debt (and for judicial review of the decision on whether to reverse a certification) in several circumstances including if the debt “has been fully satisfied or has become legally unenforceable.”
December 10th, 2015 at 8:18 am
So, is this effectively a “no fly” list? Because if so, then if Obama’s wishes go forward, they won’t be able to own guns either. And after the IRS’s persecution of Tea Party members through tax audits etc… I’d say we can look forward to anyone who disagrees with the current government being found guilty of tax fraud, owing that debt and then not only being not allowed to travel/leave the country but being disarmed as well.
December 10th, 2015 at 11:46 am
You would think if their a deadbeat on their finances the government would be happy to get rid of them. The way to get your money is to let them out but not allow them back IN until they have the money they owe you.
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