by By Yevgeny Shrago
The federal highway and transportation reauthorization bill passed by the Senate (which carries the delightfully meaningless title “Moving Ahead for Progress in the 21st Century”) and currently waiting for consideration by the House contains a provision that has a little more to do with due process and taxes than with roads. According to Section 40304, people with a serious delinquency (currently defined as more than $50,000) would have their passport rights revoked. This is similar to a previous provision that prevents anyone with more than $2,500 in unpaid child support from using their US passport for international travel. Although tax cheats and deadbeat parents are among the most unsympathetic groups around, it may be worth thinking twice before affirming the government’s right to ban someone from travelling internationally.
Passport revocation or denial are paradigmatic due process cases, yet this statute provides not even a whiff of a hearing before a delinquent taxpayers rights are suspended. Although Timothy Meyer, a former State Department attorney and University of Georgia law professor suggested in an The Atlantic Monthly article discussing this issue seems to think that this law will pass scrutiny, the vast majority of his reasoning discusses denying tax refunds to fulfill other policy goals and largely ignores the due process implications or a constitutional right to foreign travel.
Two circuit courts of appeals have considered the parallel child support statute and upheld it, although those two decisions yielded three opinions for supporting the statute and one opinion opposed. Both courts agreed that while a right to international travel exists, it is a subordinate right when compared to the extremely important right to intrastate travel. The Ninth Circuit in Eunique v. Powell split on the proper standard of review to apply, but both judges voting to uphold the statute held that it met their respective preferred standards of rational basis review and intermediate scrutiny. Judge Kleinfeld dissented, claiming that the right to international travel is fundamental and that the Supreme Court’s cases upholding restrictions are grounded solely in considerations of national security. He makes convincing case (and in an exceptionally flowery way) that the right to leave the country is an important guarantor of freedom and life, and although his conclusion that a child support arrearage can never infringe on the right may be too extreme, his reasoning should at least justify requiring a full hearing before the denial.
In Weinstein v. Albright, a Second Circuit panel unanimously held that the key consideration in the case was that those with child support arrearages had already received notice and an opportunity to contest the arrearage. Under this reasoning, taxpayers would similarly need to be informed via either a public lien or an assessed hearing before the revocation could occur. However, the Second Circuit’s opinion is a little puzzling. It’s like suggesting no sentencing hearing is required because the jury has already convicted you of the crime. Beyond that, the parent in Weinstein insisted that he had never received the letter about his arrearage hearing, an issue that was contested for the first time in his suit for injunctive relief on the travel ban. This kind of disagreement demands at least some sort of hearing before passport revocation.
The Supreme Court has not been particularly sympathetic to expansion of due process claims recently and tax cheats don’t make for sympathetic plaintiffs, so this statute will likely be upheld if it passes. There are certainly good reasons to want to keep someone with a sizable tax debt from leaving the country. But we should not be so quick to give away something as important as the ability to leave without a (due process) fight.