Tax Law's Migration

Abstract

Tax law punishes poor foreigners. Although the Supreme Court struck down nineteenth-century state laws taxing migrants upon entry, the tax system determines who deserves a place, and what sort of place, within our borders. The tax system’s emergency relief programs may deprive otherwise needy noncitizens, giving migrants a lesser place. This Article sheds light on this phenomenon—“tax law’s migration”—engaging two connections between immigration and tax law. First, this Article uses the term to explain the tax system’s long tradition of policing migrants. From colonial tax incentives for selective migration to joint tax-immigration worksite enforcement, tax law crystallizes financial welcome for some and hostility for others. Immigration status-based inequalities give rise to constitutional litigation that constrains, but does not extinguish, tax law’s policing of migrants. Second, this Article describes how migration and mobility rights are used to police tax compliance. Tax law fashions penalties through the revocation of driver’s licenses and passports. A striking contrast emerges from comparing (often-affluent) citizen tax noncompliers with noncitizens. Remaining in the country becomes the penalty for those who may take it for granted. Yet, remaining is also the very privilege denied to noncitizens who may seek little else. Reckoning with tax law’s migration requires tracing the bureaucratization of ethnic and racial disregard and the abandonment of economically vulnerable migrants during emergencies. This Article argues that rather than reflexively approving tax law’s migration, we should scrutinize it.