Shayak Sarkar (UC-Davis; Google Scholar) presents Taxing Surveillance of Citizenship at San Diego today as part of its Tax Law Speaker Series hosted by Michelle Layser:
This Article examines how migrants are recognized in law, and to what end. Legal recognition of migrants—through noncitizens’ Individual Taxpayer Identification Numbers, for example—does not provide them with legal status as conventionally understood, much less citizenship. Yet rather than “living in the shadows,” migrants use ITINs to facilitate tax compliance and visibility. Such use elides the costs of extreme privacy in our data age but may attract the extreme surveillance surrounding noncitizens across legal statuses. Presidential pressure on the IRS to disclose taxpayer information to the Department of Homeland Security vindicates surveillance fears. This pressure asserts an unprecedented place for the IRS in federal immigration enforcement, despite the failed protests of the agency’s now-demoted chief counsel.
The membranes between beneficial and punitive systems are thin, but that need not render them fragile. For decades, even in periods of aggressive immigration enforcement, the IRS and its lawyers guarded the information of all filers, regardless of immigration status. Immigration authorities (and Congressional proposals for comprehensive reform) also viewed tax compliance as a favorable factor for status adjustments. Status might come to those who filed.
I argue that our migration myopia threatens the interagency membrane that allows the IRS to provide fiscal and other value to our systems. Amid presidential efforts to “eliminat[e] information silos,” silos can serve a purpose. More specifically, the requested mass disclosure contradicts both the ITIN’s regulatory and statutory framework and Congress’s longstanding taxpayer privacy laws. The legal recognition of migrants does and should persist—in tax law and beyond—even absent legalization (or deportation). Immigration law’s contagion might not only upend its administering agencies, but the broader project of government. States and taxpayers themselves can sue to stop the dangerous spread.
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