The Readers Digest Version
In his motion to dismiss the indictment against him, Roger Ver has argued that the U.S. 877A Expatriation Tax, is an unjustifiable burden on a constitutionally protected right to renounce his U.S. citizenship. (His motion for dismissal also includes a separate and distinct alternative argument that the 877A expatriation tax is unconstitutional because it creates taxation without a “realization event”. This is the issue that formed the basis of the appeal in the Moore case. I will NOT consider that issue in this post.)
The government in reply has argued that no such constitutional right to renounce U.S. citizenship exists. Additional commentary about the background to the Ver indictment is provided by U.S. lawyer Virginia La Torre Jeker here.
The U.S. Constitution, U.S. Citizenship And Constitutional Issues Surrounding U.S. Citizenship
The 14th Amendment is a constitutional provision that prohibits the U.S. government from stripping U.S. citizens of their citizenship (provided that their citizenship is the result of birth or naturalization in the USA.
The 5th Amendment has been used to argue that there is a constitutional right to relinquish U.S. citizenship. To date no court has expressly ruled that there is a constitutional right to relinquish.
Fortunately, INA 349(a) gives U.S. citizens a statutory right to relinquish their citizenship.
It is an open question whether the U.S. government could prohibit ALL relinquishments of U.S. citizenship.
Outline”
Part A – The 14th Amendment: Afroyim v. Rusk – A Constitutional Right To NOT Be Stripped Of Your U.S. Citizenship
Amendment XIV
Section 1.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. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
In 1967 the Supreme Court of the United States in Afroyim v. Rusk – relying on the 14th Amendment – ruled that the 14th Amendment guaranteed that individuals who were born or naturalized as U.S. citizens could NOT be stripped of their U.S. citizenship without their consent.
It is therefore settled law that Congress cannot strip American citizens of their citizenship.
Question: Does the 14th Amendment right to NOT be stripped of U.S. citizenship include a 5th Amendment right to voluntarily relinquish U.S. citizenship?
Part B – The 5th Amendment: Roger Ver And The Association Of Accidental Americans: Does The 5th Amendment Include A Constitutional Right To Relinquish U.S. Citizenship?
Amendment V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation
https://www.law.cornell.edu/constitution/fifth_amendment
A. In 2022 The Association Of Accidental Americans launched a lawsuit against the State Department arguing that the $2350 fee to renounce U.S. citizenship unconstitutionally burdened a constitutional “right of expatriation”.
The court ruled that there was insufficient evidence that a constitutional right to relinquish U.S. citizenship could be found in the Constitution. Nevertheless, the court did NOT rule out the possibility.
B. In 2025 Roger Ver argued that the 877A Expatriation Tax burdens a “constitutional right of expatriation”.
The U.S. Government has argued (as it did in the Accidental Americans lawsuit) that there is NO constitutional right to relinquish U.S. citizenship. Notably it cited (inter alia) the ruling in the Accidental Americans lawsuit.
Therefore, it is reasonable to infer that …
While a constitutional right to remain a U.S. citizen has been recognized (the government can’t strip Americans of their citizenship) courts have NOT found that there is a constitutional right of relinquishment.
Part C – Constitutional Rights Guaranteed By The Constitution vs. Rights Created By Statute
Relinquishment of U.S. citizenship is a right created by statute. A right created by statute may be taken away by statute!
§1481. Loss of nationality by native-born or naturalized citizen; voluntary action; burden of proof; presumptions
(a) A person who is a national of the United States whether by birth or naturalization, shall lose his nationality by voluntarily performing any of the following acts with the intention of relinquishing United States nationality-
(1) obtaining naturalization in a foreign state upon his own application or upon an application filed by a duly authorized agent, after having attained the age of eighteen years; or
(2) taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state or a political subdivision thereof, after having attained the age of eighteen years; or
(3) entering, or serving in, the armed forces of a foreign state if (A) such armed forces are engaged in hostilities against the United States, or (B) such persons serve as a commissioned or non-commissioned officer; or
(4)(A) accepting, serving in, or performing the duties of any office, post, or employment under the government of a foreign state or a political subdivision thereof, after attaining the age of eighteen years if he has or acquires the nationality of such foreign state; or (B) accepting, serving in, or performing the duties of any office, post, or employment under the government of a foreign state or a political subdivision thereof, after attaining the age of eighteen years for which office, post, or employment an oath, affirmation, or declaration of allegiance is required; or
(5) making a formal renunciation of nationality before a diplomatic or consular officer of the United States in a foreign state, in such form as may be prescribed by the Secretary of State; or
(6) making in the United States a formal written renunciation of nationality in such form as may be prescribed by, and before such officer as may be designated by, the Attorney General, whenever the United States shall be in a state of war and the Attorney General shall approve such renunciation as not contrary to the interests of national defense; or
(7) committing any act of treason against, or attempting by force to overthrow, or bearing arms against, the United States, violating or conspiring to violate any of the provisions of section 2383 of title 18, or willfully performing any act in violation of section 2385 of title 18, or violating section 2384 of title 18 by engaging in a conspiracy to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, if and when he is convicted thereof by a court martial or by a court of competent jurisdiction.
(b) Whenever the loss of United States nationality is put in issue in any action or proceeding commenced on or after September 26, 1961 under, or by virtue of, the provisions of this chapter or any other Act, the burden shall be upon the person or party claiming that such loss occurred, to establish such claim by a preponderance of the evidence. Any person who commits or performs, or who has committed or performed, any act of expatriation under the provisions of this chapter or any other Act shall be presumed to have done so voluntarily, but such presumption may be rebutted upon a showing, by a preponderance of the evidence, that the act or acts committed or performed were not done voluntarily.
(June 27, 1952, ch. 477, title III, ch. 3, §349, 66 Stat. 267 ; Sept. 3, 1954, ch. 1256, §2, 68 Stat. 1146 ; Pub. L. 87–301, §19, Sept. 26, 1961, 75 Stat. 656 ; Pub. L. 94–412, title V, §501(a), Sept. 14, 1976, 90 Stat. 1258 ; Pub. L. 95–432, §§2, 4, Oct. 10, 1978, 92 Stat. 1046 ; Pub. L. 97–116, §18(k)(2), (q), Dec. 29, 1981, 95 Stat. 1620 , 1621; Pub. L. 99–653, §§18, 19, Nov. 14, 1986, 100 Stat. 3658 ; Pub. L. 100–525, §§8(m), (n), 9(hh), Oct. 24, 1988, 102 Stat. 2618 , 2622.)
https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title8-section1481&num=0&edition=prelim
1868 Right of Expatriation
R.S. §1999 provided that: “Whereas the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness; and whereas in the recognition of this principle this Government has freely received emigrants from all nations, and invested them with the rights of citizenship; and whereas it is claimed that such American citizens, with their descendants, are subjects of foreign states, owing allegiance to the governments thereof; and whereas it is necessary to the maintenance of public peace that this claim of foreign allegiance should be promptly and finally disavowed: Therefore any declaration, instruction, opinion, order, or decision of any officer of the United States which denies, restricts, impairs, or questions the right of expatriation, is declared inconsistent with the fundamental principles of the Republic.”
https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title8-section1481&num=0&edition=prelim
As history Lucy Salyer has suggested in her book “Under The Starry Flag”, it is questionable whether the 1868 Expatriation Act ever created a right of expatriation for U.S. citizens.
Conclusion:
Will the courts rule that there is a constitutional right to relinquish U.S. citizenship? Is the better constitutional argument that the provisions of the extra-territorial tax regime are forcing Americans to relinquish U.S. citizenship?
Time will tell.
John Richardson – Follow me on X.com @ExpatriationLaw
Appendix A – U.S. Government Opposes Dismissal of Bitcoin Investor Indictment
UNITED STATES OF AMERICA,
Plaintiff,
v.
ROGER KEITH VER,
Defendant.
Excerpt From U.S. Government Brief
b. Expatriation is not a fundamental right
Ver’s claim that expatriation is a fundamental constitutional right is wrong. The Due Process Clause affords heightened protection for certain enumerated or implied rights. Dep’t of State v. Munoz, 602 U.S. 899, 910 (2024); Washington v. Glucksberg, 521 U.S. 702, 720 (1997) (collecting cases). The Constitution is silent on expatriation, so Ver must be asserting an implied right.
Contrary to Ver’s argument, “the Supreme Court has not recognized that the right to abandon one’s citizenship constitutes a constitutional right.” Sze v. Johnson, 172 F. Supp. 3d 112, 121 (D.D.C. 2016) (emphasis in the original), aff’d sub nom, Sze v. Kelly, 2017 WL 2332592 (D.C. Cir. 2017) (per curiam); see also L’Association des Américains Acc. v. Dep’t of State, 656 F. Supp. 3d 165, 179 (D.D.C. 2023)
Ver misleadingly suggests, (Br. at 17), that the Supreme Court found such a right in Glucksberg and Savorgnan v. United States, 338 U.S. 491 (1950). But Glucksberg only concerned assisted suicide, not expatriation. 521 U.S. 702. In Savorgnan, while the Court stated in dicta that, traditionally, the U.S. has supported the right of expatriation, it also recognized there was a “common-law prohibition of expatriation without the consent of the sovereign.” 338 U.S. at 497.13 It would be inconsistent with the concept of a fundamental constitutional right to require congressional consent before citizens could exercise it.
Ver also mischaracterizes Murray v. The Charming Betsy, 6 U.S.(2 Cranch) 64 (1804) and Maehr v. Dep’t of State, 5 F.4th 1100 (10th Cir. 2021). Regarding The Charming Betsy, he quotes from counsel’s argument, not the Court’s opinion, which begins 20 pages later and explicitly declined to decide whether expatriation was possible. Id. at 115-20. As to Maehr, Ver claims to be referencing the court’s holding. But he actually cites to a concurrence. The majority said nothing about expatriation. Id. at 1119-22.
Finally, Ver relies on dicta from Richards v. Sec’y of State, 752 F.2d 1413 (9th Cir. 1985). (See Br. at 17.) In that pre-Glucksberg case, the panel quoted the 1868 Act’s Preamble and cited Afroyim v. Rusk, 387 U.S. 253 (1967), for the proposition that the right to voluntary expatriation was “placed” “on a constitutional footing.” Id. at 1422. Ver quotes from an errant phrase used only once by the panel to describe appellant’s argument. See id. That off-the-cuff remark should not be construed as creating a fundamental right on par with freedom of speech or marriage rights. Also, the panel did none of the careful and rigorous analysis Glucksberg later required when recognizing new constitutional rights, as discussed below.
Moreover, the panel’s dicta misconstrued Afroyim, which involved the interpretation of the Fourteenth Amendment’s Citizenship Clause, not the Fifth Amendment’s Due Process Clause. 387 U.S. at 268. Afroyim simply held that there is a right against involuntary expatriation and said nothing about the right to expatriate voluntarily. See id.; also Sze, 172 F. Supp. 3d at 121.14
This Court should not take the extraordinary step of recognizing-for the first time-a fundamental right to expatriation. The Supreme Court has cautioned courts to “exercise the utmost care” before “break[ing] new ground” in identifying unenumerated rights. Glucksberg, 521 U.S. at 720.
To do so, this Court would need to engage in a lengthy historical analysis, which Ver does not address. Such an analysis first requires a “careful description” of the asserted fundamental liberty interest, id., which may demonstrate that a court need not decide whether a broad right exists, e.g., San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 37 (1973). Here, Ver’s asserted liberty interest is the right for similarly situated high-net-worth individuals to expatriate tax-free. (Br. at 17-19.) Then, it requires analyzing whether such a right is “deeply rooted in the Nation’s history and tradition.” Glucksberg, 521 U.S. at 720-21. Here, it is not.
First, as discussed above, under the common law there was no right to renounce one’s citizenship without the consent of the government. Afroyim, 387 U.S. at 258; see also Shanks v. Dupont, 28 U.S. (3 Pet.) 242, 246 (1830).
Congress gave such consent for the first time in the Expatriation Act of 1907, Pub. L. No. 59-193, 34 Stat. 1228. This statute “prescribe[d] the only means by which the expatriation of a native-born American citizen may be accomplished.” Yin v. United States, 31 F.2d 738, 739 (9th Cir. 1929). What is then “deeply rooted” in this Nation’s history and tradition is that Congress can prescribe whether and under what circumstances one can expatriate.15
Recognizing a fundamental right here would also conflict with longstanding Supreme Court authority recognizing that the Due Process Clause “is not a limitation upon the taxing power conferred upon Congress.” Brushaber, 240 U.S. at 24 (collecting cases). Were it otherwise, the Constitution would “conflict with itself by conferring, upon the one hand, a taxing power, and taking the same power away, on the other, by the limitations of the due process clause.” Id. The Due Process Clause thus only limits taxes that are either takings-in-disguise or fail rational basis review. Id. at 24-25; accord Barclay & Co. v. Edwards, 267 U.S. 442, 450 (1924); see also Chiles v. United States, 843 F.2d 367, 370-71 (9th Cir. 1987) (citing Brushaber, rejecting claim that tax unduly impinged constitutional right to interstate travel).
In sum, there is no fundamental right to expatriate deeply rooted in the Nation’s history and tradition. This Court should not now create one.
https://www.taxnotes.com/research/federal/court-documents/court-petitions-and-briefs/government-opposes-dismissal-bitcoin-investor-indictment/7qbt6
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Appendix B – L’Association Des Americains Accidentels v. United States Dep’t of State
Excerpt from the court decision
Plaintiffs argue that “the right to voluntarily renounce American citizenship is a fundamental right” protected by the Due Process Clause. Pls.’ Cross-Mot. and Opp’n Mem. at 14. Plaintiffs cite no authority supporting this position, and this Circuit has acknowledged that neither the Supreme Court nor this Circuit has found that renunciation is a fundamental right. See Kwok Sze v. Johnson, 172 F. Supp. 3d 112, 121 (D.D.C. 2016), aff’d sub nom. Kwok Sze v. Kelly, No. 16-5090, 2017 WL 2332592 (D.C. Cir. Feb. 21, 2017) (citing Afroyim v. Rusk, 387 U.S. 253, 268, 87 S.Ct. 1660, 18 L.Ed.2d 757 (1967)) (“[T]he Supreme Court has not recognized that the right to abandon one’s citizenship constitutes a constitutional right[,]” and “[t]he D.C. Circuit has not addressed the question” either.). At oral argument, Plaintiffs’ counsel acknowledged that this court would be the first to recognize such a constitutional right but noted in their brief that there are cases in which the Supreme Court has referenced a statutory right to expatriate, without reference to the Due Process Clause. First, Plaintiffs direct the court to Savorgnan v. United States, 338 U.S. 491, 498 n.11, 70 S.Ct. 292, 94 L.Ed. 287 (1950), in which the Supreme Court stated in a footnote that the language of the Expatriation Act is “broad enough to cover, and does cover, the corresponding natural and inherent right of American citizens to expatriate themselves.” Pls.’ Cross-Mot. and Opp’n Mem. at 25. Second, Plaintiffs rely on United States v. Wong Kim Ark, 169 U.S. 649, 704, 18 S.Ct. 456, 42 L.Ed. 890 (1898), in which the Supreme Court noted that “the right of expatriation . . . must be considered . . . a part of the fundamental law of the United States.” Pls.’ Cross-Mot. and Opp’n Mem. at 25. But although the Supreme Court has recognized “a constitutional right to remain a citizen,” Afroyim, 387 U.S. at 268, 87 S.Ct. 1660, it has recognized no such right to voluntarily expatriate, and this court will not decide that question as a matter of first impression, see Collins v. City of Harker Heights, Tex., 503 U.S. 115, 125, 112 S.Ct. 1061, 117 L.Ed.2d 261, (1992) (“The Court has always been reluctant to expand the concept of substantive due process . . . The doctrine of judicial self-restraint requires [courts] to exercise the utmost care whenever . . . asked to break new ground in this field.”).
Moreover, even assuming arguendo that the substantive Due Process Clause does protect the right to voluntary renunciation, the State Department’s Renunciation Fee would not violate that right. Even under a strict scrutiny analysis, the court is mindful of decisions in this Circuit holding that certain regulatory or statutory restrictions on the right to expatriate are permissible. In Lozada Colon v. U.S. Dep’t of State, 2 F. Supp. 2d 43 (D.D.C. 1998), aff’d, 170 F.3d 191 (D.C. Cir. 1999), the district court held that “even if one were to concede Plaintiff’s argument that an individual has a fundamental right to expatriate, the Secretary of State still would have the discretion to determine whether an individual has adequately renounced affiliation with the United States so as to trigger that right.” Id. at 45. More recently in Farrell v. Pompeo, the district court “reject[ed] the plaintiff’s claim that the [State Department’s] denial of his application for a [CLN] was contrary to [an assumed] constitutional right to expatriate.” 424 F. Supp. 3d 1, 24 (D.D.C. 2019), rev’d and remanded sub nom. on other grounds, Farrell v. Blinken, 4 F.4th 124 (D.C. Cir. 2021). And in other constitutional contexts, the Supreme Court has ruled that administrative fees—recouping the cost for facilitating the exercise of a right—do not violate a constitutional right. See Cox v. New Hampshire, 312 U.S. 569, 571, 577, 61 S.Ct. 762, 85 L.Ed. 1049 (1941) (holding that charging a reasonable fee to obtain a “special license” for “a parade or procession upon any public street” is not “contrary to the Constitution.”). Given that the Renunciation Fee only recoups the resources expended by the government, the court finds that that the $2,350 fee for processing a CLN is narrowly tailored to achieve the government’s compelling interest.
Having found that the right to voluntarily expatriate is not a fundamental right protected by the Fifth Amendment, the court applies the rational basis test, and finds the government’s interest in recouping expenses for administering renunciation services is “unquestionably mportant and legitimate” and that the Renunciation Fee is “reasonably related to their promotion and protection.” Glucksberg, 521 U.S. at 735, 117 S.Ct. 2258. The Renunciation Fee is analogous to the fee the U.S. Citizenship and Immigration Services (“USCIS”) charges non-citizens to process their N-400 application for naturalization. See 8 C.F.R. § 106.2(b)(3). An individual applying to become a naturalized U.S. citizen seeks the pantheon of rights granted to U.S. citizens by the Constitution, and the court is unaware of any case holding that the citizenship application fee fails the rational basis test. Consequently, Plaintiffs’ motion for summary judgment on this claim will be denied, and Defendant’s motion for summary judgment will be granted.
https://casetext.com/case/lassociation-des-americains-accidentels-v-united-states-dept-of-state-1