Afroyim v. Rusk – A New Perspective: Do The Specific Rules Of US Citizenship Taxation Result In The Forcible Destruction Of US citizenship?

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Prologue

The United States of America is the ONLY country in the world that both:

1. Confers citizenship by birth inside the country; AND

2. Imposes worldwide taxation and regulation based on citizenship.

Therefore, it is reasonable to conclude that:

US citizenship is the world’s only true “taxation-based citizenship”.

Afroyim – Should extending constitutional status to US citizenship be understood as a new gift or exacerbating an old curse?

US Citizenship Stripping Before 1967 – The Significance Of Afroyim

The US government was stripping US citizens of their citizenship if they committed various “expatriating” acts. This was codified in statutes that mandated that certain kinds of conduct would result in the loss of US citizenship. At various times the expatriating conduct included (but was not limited to): naturalizing as a citizen of another country, voting in a foreign election, serving in the armed forces of a foreign country and even marrying a non-citizen.

US Citizenship Stripping After 1967 – Afroyim

The 1967 US Supreme Court decision in Afroyim clarified that Congress lacked the power to strip US citizens (who were born or naturalized in the United States) of their citizenship. The Afroyim ruling clarified that:

1. US citizenship belonged to the citizen and could be lost by the citizen only if the citizen voluntarily relinquished US citizenship by voluntarily committing an expatriating act with the intention of relinquishing US citizenship; and

2. Congress cannot enact laws or engage in practices that result in the forcible destruction of citizenship.

How this happened

1967 – Beys Afroyim Visits The Supreme Court Of The United States

On May 29, 1967 the Supreme Court of the United States delivered its judgment in Afroyim v. Rusk. It is inconceivable that Mr. Afroyim, his lawyers, the Supreme Court justices or the public could have foreseen the monumental consequences of the decision. Although citizenship taxation was never mentioned in the ruling, the truth is that Justice Black’s majority decision in Afroyim planted the seed which grew into the FATCA and citizenship taxation problems leading to the renunciations of today.

The facts in Afroyim

The facts as described in the court’s decision in Afroyim were:

Petitioner, of Polish birth, became a naturalized American citizen in 1926. He went to Israel in 1950, and in 1951 voted in an Israeli legislative election. The State Department subsequently refused to renew his passport, maintaining that petitioner had lost his citizenship by virtue of § 401(e) of the Nationality Act of 1940 which provides that a United States citizen shall “lose” his citizenship if he votes in a foreign political election. Petitioner then brought this declaratory judgment action alleging the unconstitutionality of § 401(e). On the basis of Perez v. Brownell, 356 U. S. 44, the District Court and Court of Appeals held that Congress, under its implied power to regulate foreign affairs, can strip an American citizen of his citizenship.

The legal basis for arguing that the statute stripping Mr. Afroyim of his US citizenship was unconstitutional was the 14th Amendment which includes:

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 other words, the fact of “birth” or “naturalization” in the United States affords a constitutional right to US citizenship which cannot normally be taken by the government. Therefore, the government cannot enact a law that would “strip” a person of US citizenship at the whim of the government.

What the court ruled in Afroyim

Held: Congress has no power under the Constitution to divest a person of his United States citizenship absent his voluntary renunciation thereof. Perez v. Brownell, supra, overruled. Pp. 387 U. S. 256-268.

(a) Congress has no express power under the Constitution to strip a person of citizenship, and no such power can be sustained as an implied attribute of sovereignty, as was recognized by Congress before the passage of the Fourteenth Amendment, and a mature and well considered dictum in Osborn v. Bank of the United States, 9 Wheat. 738, 22 U. S. 827, is to the same effect. Pp. 387 U. S. 257-261.

(b) The Fourteenth Amendment’s provision that “All persons born or naturalized in the United States . . . are citizens of the United States . . .” completely controls the status of citizenship, and prevents the cancellation of petitioner’s citizenship. Pp. 387 U. S. 262-268.

The Good News – the preservation of citizenship:

Afroyim was an important ruling which created the possibility for US citizens to acquire an additional citizenship without relinquishing US citizenship. Hmmm … Is that good? Remember that US citizenship is the world’s ONLY true “taxation-based citizenship!)

The Bad News – the expansion of taxation:

Afroyim had the effect of increasing the number of citizens of other countries who were treated as US tax residents. In other words, Afroyim had a number of effects which include (but are not limited to):

1. Expanding US taxation-based citizenship into other countries in general and through FATCA in particualar

2. Making it very difficult for US citizens to move from the United States and fully integrate into other countries

3. Making it difficult for “accidental Americans” to even maintain a basic bank account

4. Confiscate some of the non-US pensions of Americans abroad who wish to renounce US citizenship

The irony is that a Supreme Court decision in Afroyim that was intended to protect US citizenship has had the additional effect of making US citizenship a disability for Americans abroad and contributing to the “forcible destruction of their citizenship!

Yes, taxation was not considered, referenced and even thought of during the whole Afroyim process.

The lesson is clear and that lesson is:

No consideration of US citizenship is possible without the recognition that US citizenship is in fact primarily about taxation.

As the Eagles wrote in the Hotel California:

You can check out any time you like
But you can never leave”

What About Taxation and the “forcible destruction of citizenship”

Mr. Justice Black’s ruling in Afroyim concluded with:

Citizenship in this Nation is a part of a cooperative affair. Its citizenry is the country, and the country is its citizenry. The very nature of our free government makes it completely incongruous to have a rule of law under which a group of citizens temporarily in office can deprive another group of citizens of their citizenship. We hold that the Fourteenth Amendment was designed to, and does, protect every citizen of this Nation against a congressional forcible destruction of his citizenship, whatever his creed, color, or race. Our holding does no more than to give to this citizen that which is his own, a constitutional right to remain a citizen in a free country unless he voluntarily relinquishes that citizenship.

Does the punitive taxation of US citizens abroad result in the “forcible destruction of citizenship”?

John Richardson – Follow me on Twitter @Expatriationlaw

Appendix – The Evolution Of Citizenship, Taxation and Citizenship Taxation And The Creation Of The Fiscal Prison

Part 1 – The Evolution Of Taxation

Part 1: Cook v. Tait 1924 – The evolution of Citizenship, Taxation and "Citizenship Taxation"

Part 2 – The Evolution Of Citizenship

Part 2: Cook v. Tait 1924 – The evolution of Citizenship, Taxation and "Citizenship Taxation"

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