Sarkar: Tax Law's Migration

Shayak Sarkar (UC-Davis), Tax Law's Migration, 62 BC L. Rev. 2209 (2021):

Tax law has long left poor foreigners in precarity. Despite the Supreme Court striking down nineteenth-century state laws taxing migrants upon entry, the tax system has nonetheless determined who deserved a place, and what sort of place, within our borders. That tradition continues when the tax system’s emergency relief deprives otherwise needy noncitizens, giving migrants a lesser place.

This Article sheds light on this phenomenon—“tax law’s migration”—engaging two underappreciated connections between immigration and tax law.

First, I use 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 constraining, but not extinguishing, tax law’s policing of migrants.

Second, I describe how migration and mobility rights are used to police tax compliance. Tax law now 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 but the privilege denied to those who seek little else.

Reckoning with tax law’s migration requires acknowledging the bureaucratization of ethnic and racial animus and the abandonment of economically vulnerable migrants during emergencies. We should be concerned about, rather than reflexively ratify, tax law’s migration.