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.

A US citizen who is denied a passport, or whose passport is revoked, is still a US citizen even if they are unable to exercise the rights of a citizen. As a citizen, they are still liable for US taxes on their worldwide income and assets, even if they are living outside the US. So any tax debt will continue and is likely to increase with interest, penalties, and new taxes.

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? Many of the US citizens who might be assessed large tax debts are already living outside the US. Under international human rights treaty law, the right to enter the country of one’s citizenship is the most absolute 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:

1. 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.
2. The IRS issues a lien or levy for the tax assessment (again, for at least $50,000 or the latest adjusted equivalent).
3. 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.
4. The Secretary of the Treasury transmits the IRS certification to the Secretary of State
5. 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:

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.

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.

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:

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.

There is a procedure for judicial review, but only of the certification of a tax assessment and lien or levy:

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.

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.

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 judgment that this law is unconstitutional, and violates US obligations as a party to the International Covenant on Civil and Political Rights.

Last year the UN Office of the High Commissioner for Human Rights (OHCHR) developed and promulgated a set of “Recommended Principles and Guidelines on Human Rights at International Borders”, including respect for the right to freedom of movement, on which we made recommendations at the invitation of the OHCHR.

As a follow-up, and in response to ongoing refugee crises in Europe and elsewhere, the OHCHR has been tasked by the UN Human Rights Council with preparing further recommendations in relation to the rights of migrants in transit, including, “[e]xit restrictions … and the externalisation of border controls which could have an impact on the human rights of migrants in transit.”

Our latest recommendations to the OHCHR focus on the human rights implications of restrictions on travel by common carrier:

As we discussed in our previous submission to the OHCHR concerning the human rights of migrants, refugees, and asylum seekers, the right to leave any country is routinely and systematically violated – even where there is no explicit requirement for an “exit permit” – through (1) requirements for identity credentials or other travel documents as a condition of travel by common carrier, without respect for the right to leave any country and to return to the country of one’s citizenship regardless of what, if any, credentials or documents one possesses, (2) requirements for “screening” and approval of common carrier passengers that amount to de facto exit visa, transit visa, and/or entry visa requirements, (3) sanctions imposed on common carriers to induce carriers not to transport certain would-be passengers, on the basis of decisions not made, and not subject to appeal, through effective judicial procedures, and (4) failure by governments to enforce the duties of common carriers to transport all would-be passengers, regardless of their legal status or possession of documents.

Some of the most important decision-makers for asylum seekers, refugees, and other migrants are airline and other common carrier ticket sellers and check-in staff. Many eligible asylum seekers are unable to reach places of refuge, and others die trying, as a direct result of improper denial of transportation by common carrier staff.

Many eligible asylum seekers could afford to purchase airline tickets or tickets on other common carriers (ferries, trains, buses, etc.) to travel to countries where, on arrival, they would be eligible for asylum. They risk their lives as “boat people”, and some of them die, not for financial reasons, but because airlines or other government-licensed common carriers improperly refuse to sell them tickets or deny them boarding.

When airlines or other common carriers deny passage, they often claim that they are doing so in compliance with government mandates or government-authorized carrier “discretion”. But decisions about these “mandates” and how to apply them, and about the scope of common carrier “discretion”, are enforced not by judicial or police personnel but by airline or other common carrier staff, or by contractors, at the points of ticket sales, check-in, or boarding. As a result, it is almost impossible for would-be passengers to obtain judicial review of carrier decisions to refuse ticket sales, check-in, or boarding.

Asylum seekers who are trying to leave a country where they are subject to persecution, and who are denied transport, are unlikely to have access to effective judicial review and redress through the courts of the country that is persecuting them. Airlines know that they can violate the rights of asylum seekers with de facto impunity.

Respect for the right to freedom of movement requires significant changes in the practices of carrier staff. To fulfill their human rights obligations, governments need to ensure that common carriers are aware of, and respect, the right to freedom of movement.

[More.]