January 28, 2016

Developing a Reliable and Innovative Vision for the Economy Act of 2015 (DRIVE Act)

DRIVE aims to provide funding for the federal transportation network as well as for investments in highway infrastructure. The recapitalization of the Highway Trust Fund, which faces financial difficulties, is another goal of the proposed legislation.

One of the provisions included in the multitude of pages authorizes the revocation, or denial of renewal, of a US citizen’s passport if the citizen has an outstanding tax liability to the IRS of $50,000 or more. When the law is passed, it is expected to generate a considerable dollar amount per annum in tax revenue.

thanks to Kat

Regardless of revenue gains, this provision might very well cause problems to the nearly 110 million Americans who hold valid passports (a much larger number than what is commonly believed) and who could sometime along the way have to deal with tax debt. The problem is even worse when it comes to Americans living abroad (a rough estimate places the number somewhere between three and six million) who rely on their passports far more heavily than their fellow Americans living in the United States.

If overseas Americans cannot renew their passports, or have them revoked, they will not even be able to travel back home and might see their lives thrown into disarray since the Immigration and Nationality Act of 1952, currently codified as 8 U.S.C. § 1185, stipulates that: Except as otherwise provided by the President and subject to such limitations and exceptions as the President may authorize and prescribe, it shall be unlawful 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.

The aforementioned provision could be tantamount to exile. What is more, this policy was not introduced after consultation with the American diaspora and, to exacerbate the problem, communication between the IRS and the overseas community is not what it should be mainly due to overseas IRS office closures and funding cuts.

Another issue regarding the case is the fact that there seem to be questions of due process. It is not clear if citizens threatened with passport revocation or renewal denial will get to appear before a judge and have a fair and impartial hearing. Furthermore, taking into consideration that to err is human, is there a guarantee that no mistakes will be made and no person will be deprived of a passport due to some glitch in the IRS system? Will the Americans concerned be able to seek an injunction against the revocation of their passport if they are mistakenly branded as delinquent taxpayers? Will they be able to take any other course of legal action necessary in case they suffer damages due to passport problems? It appears to be rather difficult to sue the government due to the doctrine of sovereign immunity which holds it immune to damage claims unless it agrees to such litigation. Although certain kinds of lawsuits against federal employees are allowed by the Federal Tort Claims Act (FTCA), the process is complicated and time consuming.

On a different note, one might see broader issues at play. Freedom of movement is governed by the United States Constitution under the Privileges and Immunities Clause and is seen by many Americans as a human right – whether it is movement within the US or internationally – that is fundamental to the pursuit of happiness. Such freedom is a characteristic of open societies, a valid passport being a means that makes it possible, and it is too important to jeopardize over tax debt or budget concerns.

Although it is true that the administration can deny or revoke passports on grounds of foreign policy, national security or suspected criminal conduct, one should tread carefully when such matters are involved. For example, in Kent v. Dulles, 357 U.S. 116 (1958), the United States Secretary of State refused the issuance of a passport to an American citizen on the basis of suspicions that they intended to travel abroad to promote communism. The Court did not deal with the question of constitutionality in this case, but in an opinion by Justice William O. Douglas it held that the federal government may not restrict the right to travel without due process:

“The right to travel is a part of the ‘liberty’ of which the citizen cannot be deprived without due process of law under the Fifth Amendment. If that ‘liberty’ is to be regulated, it must be pursuant to the law-making functions of the Congress. . . . . Freedom of movement across frontiers in either direction, and inside frontiers as well, is a part of our heritage. Travel abroad, like travel within the country . . . may be as close to the heart of the individual as the choice of what he eats, or wears, or reads. Freedom of movement is basic in our scheme of values.”

It also held that “the broad power of the Secretary under 22 U.S.C. § 211a to issue passports, which has long been considered ‘discretionary,’ has been construed generally to authorize the refusal of a passport only when the applicant (1) is not a citizen or a person owing allegiance to the United States, or (2) was engaging in criminal or unlawful conduct.”

By Vassilis Fragiskos

Editor’s note: In November, 2015, Dems Abroad (DPCA) wrote to members of Congress urging this provision be removed from the highway bill. DPCA continues to advocate for a careful review to reduce impacts on Americans living outside the US.