A potentially historic number of people are giving up their U.S. citizenship – The Washington Post

More on the increasing number of American expats renouncing citizenship for tax reasons (FATCA), not Trump. Again, while the increase is dramatic, still small in relation to the number of expatriates (State department estimates between three and eight million):

It can be difficult to become a U.S. citizen. A lot of people put a large amount of time, effort and money into the process of gaining an American passport or, failing that, the right to permanent residency.

But to some people, U.S. citizenship can apparently be a burden. And it’s a burden that people seem to be shaking off in increasing numbers. This week, the Treasury Department released its quarterly list of individuals who had chosen to “expatriate” — i.e., renounced their U.S. citizenship or gave up their rights to permanent residence.

The list is notable for a couple of reasons. First off, Britain’s Foreign Secretary Boris Johnson is on it. This means that Johnson, a dual-national who was born in New York City, has finally renounced his citizenship (as he had long promised he would). Secondly — and far more importantly in the grand scheme of things — the list shows that Johnson is just one of a total 5,411 individuals to expatriate in 2016.

The number of people giving up their U.S. citizenship may in fact be higher. Ryan Dunn, a lawyer with Andrew Mitchel LLC, explained via email that his firm has suspicions that the lists released by Treasury are incomplete. However, this would not change the trend. America is seeing what is likely a historically high level of expatriation. And it seems only likely to rise further.

“Given that we’ve seen year-over-year increases in expatriation since 2012, we speculate that the trend will continue,” Dunn explained.

But why would anyone renounce their citizenship to the United States? Dunn said that in his firm’s experience, it wasn’t usually political. “We have not been contacted by anyone saying that they wanted to give up their citizenship because Trump won the election,” he said. Instead the motivation was simpler: money.

The United States is one of the only countries in the world that requires its citizens and permanent residents to file taxes even when they live abroad. Eritrea is the only other country to have a similar policy. This unusual policy a relic of the Civil War and the Revenue Act of 1862, which called for the taxing of U.S. citizens abroad — in part to punish men who fled the country to avoid joining the Union army.

This is no new policy — Americans abroad have always been covered by federal tax laws. However, things changed in 2010, when the Foreign Account Tax Compliance Act (FATCA) was enacted. This law essentially requires foreign financial institutions to check whether an account holder is a U.S. citizen or permanent resident. In some cases, Dunn said, they would ask for proof that the account holder is not a U.S. citizen.

The end result here is that whereas in the past a U.S. citizen abroad might be able to get away with not filing their U.S. taxes, that has become vastly less likely under these new circumstances. In some cases, this can be extremely costly: Johnson was known to have racked up a large U.S. tax bill for the sale of his home in London, even though he had not lived in Britain since he was a small child.

But even for those without Johnson’s wealth, it can be tricky. “FATCA is a dirty word to Americans abroad,” Peter Spiro, a Temple University law professor and the author of “At Home in Two Countries: The Past and Future of Dual Citizenship,” explained. “Think lots of extra forms that have to be filed even by citizens who aren’t wealthy by any standard. Americans abroad used to be able to do their taxes just like Americans at home. Now they have to hire expensive accountants.”

Giving up your citizenship isn’t necessarily cheap either. It can take a long time to get an appointment in some places, and the processing fee is around $2,350. More important, Dunn said, was the “exit tax” that some high-earning or high-net-worth individuals have to pay — and also some people who forget to file their forms correctly too. But evidently, for some people it’s worth it. (Green-card holders have a simpler and cheaper process.)

Source: A potentially historic number of people are giving up their U.S. citizenship – The Washington Post

Evolving Standards of Dual Citizenship: Peter Spiro – Lawfare

Good long review of Peter Spiro’s book on dual citizenship:

In At Home in Two Countries, Peter Spiro provides a detailed account of the largely untold history of dual citizenship in the United States. The story is complex: laws, policies, and practices surrounding dual nationality have evolved inconsistently across various nations and legal systems; even today, dual citizenship is pervasive inside and outside the United States but largely hidden from careful accounting. Spiro deftly covers more than 150 years of development to the present day, interlacing legal history with political acts, court decisions, and powerful vignettes of dual citizens whose fate was often tied to more foundational understandings of citizenship well beyond their control. These biographical sketches provide the human side of a common and vital practice bereft of authoritative statistics. They resonate with some of the most shameful constitutional moments in our history, from the poor treatment of longtime U.S. residents accused of Communist Party affiliations validated by the Supreme Court in Shaughnessy v. Mezei to the internment of Japanese Americans during World War II that was ordered by President Roosevelt, ratified by Congress, and endorsed by the U.S. Supreme Court in Korematsu.

While the notion of perpetual allegiance made sense for societies in which most citizens were bound to their land, Spiro describes that sovereigns began to loosen their jealous grip on their citizens when travel became more widespread.  Yet, even after feudal understandings dissipated, states still attempted to force a choice among homelands, either by finding that naturalization in a foreign state automatically resulted in the loss of citizenship, or by mandating a choice through a process known as “election.”  Meanwhile, the dueling theories of jus soli—that any child born within a state’s territory was a subject—and jus sanguinis—citizenship by parentage—resulted in conflicting outcomes during periods of mass immigration and international travel.

…Spiro documents how other countries gradually came to embrace dual citizenship, with Britain dropping restrictions on the practice in 1948, France in 1973, Canada in 1976, and Mexico in 1998. In the late 1990s and 2000s a number of other countries with extensive immigration ties to the United States followed suit, so that 19 out of the top 20 sending countries that are sources of U.S. immigration now either accept dual citizenship or do nothing to police it. Naturalization in a new country now adds to the count of dual citizens in the majority of cases (where expatriation had once been the norm). Spiro also mentions that a number of Americans, such as the foreign ministers of Armenia and Bosnia and the chief of the Estonian army, have even retained their U.S. citizenship while serving in foreign governmental posts. These developments reflect a newfound tolerance and acceptance of dual citizenship. Emigrating citizens once had to choose one country or another; today, no such ranking of preferences is required and citizens can maintain attachments to multiple countries at once.Not only are dual citizens spared from having to choose between one nationality and another, many individuals (including Spiro) pursue multiple passports for a host of educational and professional opportunities, immigration benefits, and additional advantages. In today’s global economy, people often seek out several passports for convenience or business purposes rather than out of fierce loyalty to a state. Indeed, several countries offer a range of immigration benefits, including citizenship, to those able to pay for it.  Even some athletes who failed to qualify for the Olympics in their native lands have acquired citizenship in a second country to compete under a different flag. This new conception of citizenship is undermining traditional state-based identities.

Spiro recognizes that dual citizenship still occupies a place of ambivalence in American law. But he argues that it should be embraced as serving both the national interest and the interests of dual citizens without significant social costs. Citizenship is an important part of identity, and dual citizens deserve opportunities to accentuate and cement their connections to their heritages and homelands, as worthy of protection as any other form of association or membership. Whether nationalizing through continual presence, blood ties, or marriage, Spiro argues that dual citizens enhance deliberative democracy while transmitting American ideals and concepts back to the states from which they emigrated. And sending states have begun to see emigrant communities as economic resources that provide benefits (especially financial ones) to their native homelands.  The result is that both sending states and receiving states have seen reason to liberalize their understanding and treatment of dual citizens. And while individuals cannot simply choose to acquire a second (or third, or fourth) citizenship without foundation, Spiro contends that those who obtain multiple nationalities should not be forced to choose among them.

As the availability of dual citizenship has evolved—providing key benefits to those fortunate enough to be in a position to claim them—the wealthy and connected have found ways of making use of dual citizenship that the poor cannot.  Spiro likens these benefits to a kind of “rich kid’s problem” that pales in comparison to those in poorer countries who would benefit enormously from a second citizenship in a wealthier one. In that sense, dual nationality tends to reflect the same inequities that separate haves from have-nots more generally. Taking these concerns seriously, Spiro wonders what can be done to address them, “given the improbability of states moving to suppress the status” on grounds of inequality.  Certainly, more stringent policing of dual citizenship is not the solution. From “a global perspective, what single citizenship you are born with has been among the best predictors of economic well-being.  Citizenship has long been an instrument of exclusion and a vehicle for inequality. In other words, dual citizenship isn’t the problem, citizenship is.”

While At Home in Two Countries is largely descriptive, covering more than 150 years of legal and historical development, it endorses dual citizenship as a net positive, reinforcing important associational values and critical bonds—emotional and otherwise—between citizens and their homelands. Spiro brings welcome wit and levity to these accounts, including his personal pursuit of a second, German citizenship for himself and his children to connect with their heritage and to experience the benefits of holding an EU passport. He concludes with an optimistic outlook on a world in which dual citizenship could rise to the level of a protected right that “shouldn’t have to be sacrificed at a false altar of exclusive national attachment.”

Of course, events occurring after the publication of the book—from the United Kingdom’s withdrawal from the European Union to the election of Donald Trump—could alter the next chapter of dual citizenship in unanticipated ways. While Brexit and Trumpism raise questions about the current appetite for globalization and cosmopolitanism, it is hard to fathom a retreat to the kind of tribalism that defined an earlier age given the long historical arc that has led us to tolerate, if not fully embrace, dual citizenship today. Overall, At Home in Two Countries is full of insights to those curious about the past, present and future of dual citizenship, and Spiro’s expert path through the jagged historical terrain and surrounding legal landscape makes a lasting contribution to the field.

Trump’s Anti-Muslim Plan Is Awful. And Constitutional. – Peter Spiro, The New York Times

Good piece by Peter Spiro on the constitutionality of race or religion-based immigration restrictions:

In the ordinary, non-immigration world of constitutional law, the Trump scheme would be blatantly unconstitutional, a clear violation of both equal protection and religious freedom (he had originally called for barring American Muslims living abroad from re-entering the country as well; he has since dropped that clearly unconstitutional notion). But under a line of rulings from the Supreme Court dating back more than a century, that’s irrelevant. As the court observed in its 1977 decision in Fiallo v. Bell, “In the exercise of its broad power over immigration and naturalization, Congress regularly makes rules that would be unacceptable if applied to citizens.”

The court has given the political branches the judicial equivalent of a blank check to regulate immigration as they see fit. This posture of extreme deference is known as the “plenary power” doctrine. It dates back to the 1889 decision in the Chinese Exclusion case, in which the court upheld the exclusion of Chinese laborers based on their nationality.

Unlike other bygone constitutional curiosities that offend our contemporary sensibilities, the Chinese Exclusion case has never been overturned. More recent decisions have upheld discrimination against immigrants based on gender and illegitimacy that would never have survived equal protection scrutiny in the domestic context. Likewise, courts have rejected the assertion of First Amendment free speech protections by noncitizens.

Nor has the Supreme Court ever struck down an immigration classification, even ones based on race. As late as 1965, a federal appeals court upheld a measure that counted a Brazilian citizen of Japanese descent as Asian for the purposes of immigration quotas.

In the context of noncitizens seeking initial entry into the United States, due process protections don’t apply, either. This past June, the court upheld the denial of a visa for the spouse of an American citizen based on the government’s say-so, with no supporting evidence.

The courts have justified this constitutional exceptionalism on the grounds that immigration law implicates foreign relations and national security — even in the absence of a specific, plausible foreign policy rationale. The 1977 Fiallo case, for instance, involved a father seeking the admission of his out-of-wedlock son from the French West Indies — hardly the stuff of national interest.

Indeed, contrary to the conventional understanding, President Trump could implement the scheme on his own, without Congress’s approval. The Immigration and Nationality Act gives the president the authority to suspend the entry of “any class of aliens” on his finding that their entry would be “detrimental to the interests of the United States.” President Obama has used this to the better end of excluding serious human rights violators.

But here’s the interesting thing: Just because Mr. Trump’s proposal has a judicial pedigree, that doesn’t make it “constitutional” in a broader sense. The Constitution and the courts are not synonymous, nor do the courts have a monopoly on constitutional interpretation. Politicians, the legal community, scholars and the public at large are all a part of our continuing constitutional conversation. Clear popular consensus can establish constitutional norms, with or without the courts.

The leading example comes out of the internment of Japanese-Americans during World War II. The Supreme Court upheld the internment in its 1944 Korematsu decision, and that ruling has never been judicially reversed. Technically, it remains good law. But it has been effectively overridden by other actors, and in the court of public opinion. A formal apology and payment of reparations, enacted by Congress and signed into law by Ronald Reagan in 1988, supplies the formal evidence. Korematsu continues to provoke popular shame.

We may be seeing that same shame at work today. Mr. Trump’s plan has triggered an uproar across the partisan divide. Perhaps a religion-based immigration bar may be consistent with court-made doctrine. But it doesn’t reflect our deeper, broadly assimilated understandings of the Constitution.

Source: Trump’s Anti-Muslim Plan Is Awful. And Constitutional. – The New York Times

The evolving acceptance of dual citizenship – LA Times

Peter Spiro on dual citizenship and the question of potential dual loyalties in the US context. Agree with him mostly, and reflects the Canadian approach, but no discussion of where some of the dual loyalty issues lie (e.g, violent extremism, foreign military service):

Recent efforts to enforce the renunciation oath have gone nowhere because the advantages of dual citizenship cut across a variety of politically powerful constituencies. Our new citizens deserve a revised oath reflecting contemporary realities. In the meantime, the archaic phraseology wont stop many from holding on to their original nationality.

And shouldnt they? Citizenship is an important part of individual identity. Theres no reason it needs to be exclusive. Those of us who are U.S. citizens also have other associations: religions, civic institutions, advocacy groups. That some of us belong to other nations doesnt undermine our capacity to be good Americans.

The evolving acceptance of dual citizenship – LA Times.

Citizenship Round-Up: Nine Trends from 2013

A good overview by Peter Spiro of some current citizenship trends:

  1. Citizenship is not priceless.

  2. Even the Germans can live with dual citizenship

  3. American no more.

  4. Foreigners have privacy rights, too.

  5. A human right to citizenship.

  6. Obama’s gives up on The New Citizenship.

  7. Ted Cruz may be a Canadian, but he is eligible for the presidency.

  8. The path to legal residency matters more than the path to citizenship.

  9. Recementing ties to long-lost brothers and sisters.

And a couple to watch for 2014: what would be the UK/EU citizenship mechanics of Scottish independence; will increasingly common birth tourism packages revive efforts to scale back birthright citizenship in the US; and how will citizenships of convenience play out in the Sochi Olympics.

Blog Archive Citizenship Round-Up: Nine Trends from 2013 » Opinio Juris.

Dual Citizenship: As It Should Be – Room for Debate – NYTimes.com

Peter Spiro on the realities of dual citizenship.

Dual Citizenship: As It Should Be – Room for Debate – NYTimes.com.