Cook v. Tait 24: The protection of political minorities in the political process


Introduction And Purpose:

This post is to “tie together” three comments/posts that discuss the problem of “political powerlessness” in the political process. This poses obvious problems in the area of “citizenship taxation”. It is important to note that what some refer to as “expatriate tax legislation” seems to always appear as a “revenue offset provision”. In other words, “Let’s put the cost on those whose votes don’t matter”. This point was made in one of the recent submissions to the Senate Finance Committee.

What should be the basis for the right to vote?

That said, maybe “Americans abroad” are lucky to be able to vote at all. There is NOTHING about citizenship per se (as the Canada experience suggests),  that guarantees a “right to vote” for those who live abroad. In fact a recent comment from  Lucy Stensland Laederich includes:

Both AARO and FAWCO have progress to their credit in terms of citizenship and election reforms – in each case, we followed the legislative path and worked with allies. It is true we do not have a history of “rocking the boat” but we do have one of sometimes major successes: when we inundated Washington with tea bags in the mid-Seventies (a campaign that started in AARO), we got the vote for overseas Americans!

The 1970s “Tea Bag” campaign is interesting. It should also give hope to those who think that change in Washington is impossible.

I strongly recommend reading the “AARO Account of how achieved in an increased capacity to vote“. It includes:

But opposition by the Justice Department continued, still led by Antonin Scalia, who had persuaded the Attorney General to oppose the President’s signature. The representative of the bipartisan committee, Gene Marans, decided to go over the head of the Justice Department. He asked Sen. Barry Goldwater to call the legal counsel of President Gerald Ford.

Senator Goldwater’s message to the White House was: “Listen you ___ fools! There are more Republicans in Paris than there are in Detroit! And Ford doesn’t want to be the first President to veto a voting rights bill since the Reconstruction.”

The bill was signed by the President on January 2, 1976. Direct political life had begun for Americans living overseas.

Note that Antonin Scalia was appointed to the Supreme Court of the United States. He continues to serve on the court today. Note that he wrote a dissenting decision in the May 18, 2015 U.S. Supreme Court decision described below. In other words, Justice Scalia appears to have opposed the rights of Americans abroad to vote, BUT upheld the right to Maryland to impose taxes on the “politically powerlessness”.

Part 1 – Discrete and Insular Minorities In The Political Process – Do Americans Abroad Have REAL Political Representation?

April 25, 1938 – The Case of Carolene Products

Carolene Products and Judicial Review

It was only a footnote. But the footnote included:

There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth.

It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation.

Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, or national, or racial minorities: whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.

It is the third paragraph of Footnote Four concerning the protection of minorities which has had the most lasting impact.

The Court had previously addressed the issue of judicial protection of minorities, but never before in the sense of a characteristic of the group itself requiring special judicial solicitude. (Robert Cover, (91 Yale LJ 1287, 1982)). Rather, previous cases dealt with the losing electoral factions or sectional minorities. Cover reports that one earlier case, in 1872, did mention Negroes as a group meriting special protections, but the Reconstruction backlash essentially quashed this dicta from being expanded.

Cover observed, “Paragraph three of the footnote rescued that lost opportunity by identifying discrimination against racial minorities as a characteristic vice of majoritarianism in the twentieth century.” (Majoritarianism refers to the belief of the legislative majority should hold sway over the courts.) More judicial scrutiny is warranted, according to this paragraph, for discrete and insular minorities because they are groups that are characteristically subject to prejudices, and usually lack efficacy in challenging the political process. That is, “a discrete and insular minority cannot expect majoritarian politics to protect its members as it protects others” (Cover). And, as pointed out in paragraph two of Footnote Four, “prejudice and race hatred are also levers of manipulation in the mass political arena.”

Bruce Ackerman writes that Carolene not only “seizes the high ground of democratic theory” by establishing that legislation can be produced by a “profoundly defective process” but it also “suggested an enduring role for the judiciary” (98 Harv. L.R. 713, 1985). And, as Ackerman suggests, the very vagueness of the terms also ensures an enduring role for the Courts, in defining just who should be considered as discrete, as insular, and as a minority.

Thus, as Professor Lea Brilmayer observed, “United States v. Carolene Products Co. is no longer only a case. It is a line of reasoning, and one so venerable as to have achieved almost axiomatic status in a world where virtually every other proposition of constitutional law is best considered controversial. It is, in Justice Powell’s words, ‘the most celebrated footnote in constitutional law.’” (134 Univ. Pa. L.R. 1291, 1986).

Part 2 – “Discrete and Insular Minorities and “Equal Protection”

The above tweet references the following comment at the Isaac Brock Society.

Why the Carolene Products footnote matters


Excellent 14th amendment arguments. A long time ago I wrote a post on the issue of “citizenship classifications” and the 14th amendment. You will find the complete post here:

(This is part of the series of Cook v. Tait posts which are listed at the beginning of this post: )

Citizenship and Equal Protection

I note that in your argument you say suggest that the standard of review is “rationally related”. I don’t think that is correct. I believe that the appropriate standard of review for “citizenship classifications” is “strict scrutiny”. In any case, you might find this part of the post (in particular) to be of interest:

As Bernard Schneider notes:

“The difference between the tax imposed on nonresidents and that imposed on expatriates constitutes part of the “citizenship penalty” paid by U.S. persons abroad.”

Why should U.S. citizens abroad be compared to “Homelanders” instead of non-resident aliens? Shouldn’t this trigger 14th amendment scrutiny?

Equal Protection and the Standard of Review

Obviously Congress has the right to make laws. Obviously the Supreme Court has the right to invalidate laws that violate the constitution. The problem facing all lawyers considering an “equal protection” challenge is the question of:

“How much will the court allow congress to get away with? How much will the court defer to Congress? The problem facing any lawyer is how to get the attention of the court. How can the lawyer get the court to actually consider whether there is a violation of “equal protection”? The answer depends largely on the kind of classification involved.

When will the court intervene? At the risk of oversimplification, the court has identified the following standards of review.

– Rational Basis: “turn a blind eye” – all Congress to do what it wants

– Intermediate Scrutiny: “wink” – take a brief look, but then allow Congress to do what it wants

– Strict Scrutiny: “take a good look” – make Congress justify what it is doing

The question is: what set of facts will trigger which level of scrutiny.

Citizenship Classifications and the Equal Protection Clause of the 14th Amendment

The law of equal protection and citizenship is complicated by the facts of each case. Here is a primer on citizenship and equal protection. The vast majority (if not all) of the reported cases deal with discrimination based on citizenship where the non-U.S. citizen is claiming discrimination. That said, the cases are about discrimination based on citizenship. When it comes to non-U.S. residents, the United States is discriminating based on citizenship: in this case against its own citizens! It seems strange that a non-citizen would get a benefit (lower taxes than a U.S. citizen). Therefore, the tax treatment of U.S. citizens abroad arguably violates the equal protection clause of the U.S. constitution.

Citizenship classifications – Standard of Review

Finally, “citizenship classifications” are regarded as particularly offensive and will be subjected to a probing level of analysis. The justification for this “probing analysis” was given by Justice Harlan in an old Supreme Court decision of Carolene Products.

As reported by one commenter:

The idea of the “discrete and insular minority” originated in the now famous footnote four of the opinion in UNITED STATES V. CAROLENE PRODUCTS COMPANY (1938). Justice HAR- LAN F. STONE, writing for only a plurality of the Court, queried—without answering the question—“whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.” In the wake of the Court’s about-face in 1937, Justice Stone was serving notice that the Court might not accord the same deference to statutes directed at “discrete and insular minorities” that it would to statutes directed at ECONOMIC REGULATION.

The Court made little use of the concept until the early 1970s, when it began to delineate the class characteristics of such groups. Included were groups that had been “sad­dled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraor­dinary protection from the majoritarian political process.” Although race, nationality, and alienage seem to have been firmly established as class characteristics of the “discrete and insular minority,” the Court has refused to extend such class status to illegitimates,

It is quite obvious that U.S. citizens abroad are in a position of “political powerless”. That they need protection from the “majoritarian political process”. (I recently suggested in a blog post that U.S. citizens abroad need a lobbyist or two in Washington.)

Why, among the group of non-U.S. residents, should U.S. citizens be singled out for punitive treatment? Of course, that assumes the purpose of the tax is to raise revenue for government services. But then again, maybe the taxation of U.S. citizens abroad is, as Roger Conklin says, a punishment for leaving the Homeland – a kind of “sin tax.“

U.S. Citizenship Abroad and the “Equal Protection”

U.S. citizens abroad compared to Homlanders:

In this case it’s clear that U.S. citizens abroad are discriminated against only they have chosen to live outside the “Homeland”. This results in discrimination only for the sake of discrimination. Surely this would violate the “equal protection clause”.

U.S. citizens abroad when compared to non-resident aliens?

This is an example of what Bernard Schneider calls the “citizenship penalty”. A penalty based on citizenship would violate the equal protection.


The substance, form and administration of U.S. tax laws as applied to U.S. citizens abroad violates the 14 amendment. Whether they are compared to “Homelanders” (discrimination based on residence) or to “Non-resident aliens” (discrimination based on citizenship) they are discriminated against. i

To repeat Bernard Schneider:

“The difference between the tax imposed on nonresidents and that imposed on expatriates constitutes part of the “citizenship penalty” paid by U.S. persons abroad.”

Discrimination based on citizenship is subject to a very high standard of scrutiny under U.S. constitutional law. It is doubtful that this kind of discrimination could pass constitutional muster.

Part 3 – May 2015 – The Supreme Court Of The United States Recognizes “Political Powerlessness” and Taxation

To what extend did “political powerlessness” factor into the tax decision?

Justice Alito for the majority writes:

In addition, the notion that the victims of such discrimi­nation have a complete remedy at the polls is fanciful. It is likely that only a distinct minority of a State’s residents earns income out of State. Schemes that discriminate against income earned in other States may be attractive to legislators and a majority of their constituents for pre­cisely this reason. It is even more farfetched to suggest that natural persons with out-of-state income are better able to
influence state lawmakers than large corporations head­ quartered in the State. In short, petitioner’s argument would leave no security where the majority of voters prefer protectionism at the expense of the few who earn income interstate.

Justice Alito – page 15

Justice Scalia wrote in dissent.

I will leave the analysis of his dissent for another post. That said, I do wonder whether his opposition to giving Americans abroad the right to vote, would factor into a consideration of the “politically powerlessness”.


Supreme Court 13-485_o7jp

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