In the first ruling of its kind in the nation, the federal appeals court based in Denver has decided that a six-year-old law revoking the passports of people who owe large amounts of back taxes is constitutional.
In doing so, the U.S. Court of Appeals for the 10th Circuit declined to label international travel a fundamental right, on par with voting or interstate travel, mandating enhanced protection from government infringement.
Jeffrey T. Maehr of Pagosa Springs challenged a provision within the Fixing America’s Surface Transportation Act of 2015 that permitted the government to deny or rescind passports for people who had at least $50,000 in delinquent tax debt. The intent was to create an incentive for tax compliance, with no apparent link to international travel, the suit claimed.
Maehr, who owes approximately $250,000 in taxes, disputed the authority of the State Department to impose the penalty — known as a collateral sanction — based on tax debt. A three-judge panel of the 10th Circuit sided with the government Tuesday, finding the policy was rooted in a reasonable policy goal.
“As Mr. Maehr concedes, the federal government has a legitimate interest in ‘conserving or raising money’ through taxes,” wrote Judge Scott M. Matheson Jr. in the panel’s July 20 opinion. “Congress’s decision to further this legitimate interest by providing for revocation of passports for those who have a ‘seriously delinquent tax debt’ ... is rational.”
As of April 2018, 436,400 taxpayers were eligible for passport revocation, the Internal Revenue Service reported. Due to inflation, the debt threshold is now $54,000 to earn the sanction. Once an outstanding tax bill is resolved through full or installment payments — or even through a compromise in the amount owed — the IRS will notify the State Department within 30 days.
Maehr had relied on multiple Cold War-era decisions from the U.S. Supreme Court that he believed established international travel as a fundamental right. For example, the 1958 case of Kent v. Dulles involved a man being denied a passport because he refused to sign an affidavit attesting to his Communist Party affiliations. The Court's majority concluded that travel was part of a citizen's a liberty that could not be taken away without due process of law.
But a lower court judge in Colorado dismissed Maehr's lawsuit, finding the Supreme Court has never explicitly established international travel as a highly-protected right. Therefore, the government only needed a rational basis for revoking a person's passport, and enforcing the tax code was reason enough.
Although the 10th Circuit’s panel was unanimous in upholding the dismissal, the appellate judges were highly critical of arguments both parties made during oral arguments in November.
Bennett L. Cohen, the lawyer for Maehr, asserted to the panel that it is a fundamental right to travel internationally. Rescinding a taxpayer’s passport “is legally equivalent to revoking their right to travel abroad. And it does so not because of any national security concerns or foreign policy concerns or public safety concerns, but simply to coerce payment of debt, which is not constitutional.”
Matheson pressed him to identify a case where courts have created such an important right without clear direction from a higher authority.
“Recognizing a fundamental right is a big step for a court to take, so give me an example where that’s happened,” he said.
“All I can give you," Cohen responded, "is the fact that the Supreme Court did recognize the right of international travel—"
“No, that’s not what I asked,” Matheson interrupted. Cohen conceded that he had “no case law to support that argument.”
Senior Judge Carlos F. Lucero compared the confinement of an individual to the United States based on their tax obligation to a debtors' prison.
“America began with the Pilgrims, with the conquistadores, with any number of the first arrivals — the non-indigenous arrivals to this continent — all came here exercising a fundamental human right: namely, the right to travel internationally,” Lucero said. “Now, we’re arguing that for purposes of tax collection, the United States government … has the power to imprison and fundamentally jail its citizens to prevent them from traveling internationally.”
He added: “What strikes me about this case in looking at it is I thought we got past debtors' prison a long time ago, and this sure looks to me like nothing more than debtors' prison.”
The panel decided the Supreme Court has not identified international travel as a highly-protected right, and declined to recognize the right as a circuit court. Matheson’s opinion rejected Maehr’s contention that the 800-year-old Magna Carta, which established the ability of “any man to leave and return to our kingdom unharmed and without fear,” created a fundamental American right.
Lucero wrote separately to note that while many people may consider international travel a luxury, “freedom to leave one’s country and explore the world beyond national borders strikes me as a deep and fundamental component of human liberty.”
While he believed international travel was a “prerequisite” for freedom, Lucero ultimately decided that neither party had argued for a review of the FAST Act’s constitutionality using what he considered to be the appropriate standard.
However, Lucero cautioned, “if I imagine America in the absence of the right, with the citizenry entirely deprived of the right of international travel and the borders closed to all, it would be impossible to consider our country truly free.”
Maehr and his attorneys did not immediately respond to a request for comment. In a legal brief to the 10th Circuit, the attorneys told the court that "Mr. Maehr agrees that depriving people of their constitutional rights can be a very effective way of motivating them to pay debts, or do anything else the Government wants them to do."
"That is why," they concluded, "lawsuits like this one are necessary to maintain a free society."
The case is Maehr v. U.S. Department of State.