collect debts by revoking a debtors constitutional right until he pays up that is what the fast x passport revocation regime does revokes citizens constitutional rights to travel abroad  ly revokes their passports which is legally equivalent to revoking their constitutional 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 naomi i would like to address all three i'm going to start with substantive to process and i'm going to address it briefly because that is the most ready thoroughly briefed legal argument so starting with substantive d process the controlling case law for this court's analysis comes from the u s supreme court and the th circuit itself so let's think it might be a good idea to start with helping us determine whether we are talking here about fundamental rights such as freedom of speech or whether we are talking about privileges or  of a privilege was a duty or discretion and so on and so forth so if we look at a fundamental right the corruptive would be that there is no right to interfere with that right i began reading your grief i found it a little unsatisfying and i say this critically also of the government's brief that you folks were throwing around right  privilege as if they were the same thing which they are absolutely clearly not so looking at whether a right is fundamental in the terms in those kinds of terms we are instructed by the supreme court to look at the history of the right to hold it up busy almost like a chemical to and analyze it to see what we have there what is your best argument for the proposition that this right is fundamental in the truest sense of the word magna cart internationally is a fundamental right no question about it as the court held in that case that originates in magna carta tent it is quote part of our heritage basic in our scheme of values that is the lexicon of fundamental  amendment protections so that isn't true your case isn't that important distinction relative to  noted that there were you know expressive considerations involving the communists political beliefs but they did not hold that there if they did not reverse the government's conduct there based on  st amendment concerns they simply noted that they pay both can't and affix or grounded their holdings entirely on the fundamental status of the right of internet well now let's come back to i think jobs and sarah really put his finger on the on the on the issue here has the supreme court in any case explicitly i'm not saying implicitly or putting connecting dots or anything like that but it has it ever explicitly said that international travel is a fundamental right no nor is it said the converse that international travel is not a fundamental right rather what we have from the supreme court are a lot of cases including the ones we've just discussed and then starting in the seventy's the welfare benefit case where the supreme court seems to kind of walk back it's clear holdings using the  and the court's been very clear that the standard of review interference with all the bells is to be judged under different standards and the court has also been clear that interstate travel is fundamental so there's no explicit recognition of a sentimental right international travel where does that leave you lisa miller hood where it leaves you is in the constitution correct  and is there anything in the constitution that limit that grants to the government the power to limit the right to travel the government has the right to issue passports for purposes of identification of american citizens but i find nothing in the constitution that grants the spring court or anyone else the power to limit the right of american citizens to travel absent their conviction for example of a crime or civil rights and civil liberties are terminated during the period of  judgment but i find nothing whatsoever that grants the government government the power to give permission as it were to american citizens to travel i agree ron or there's nothing in the constitution directly addressing this beyond the right to travel generally being grounded in the th amendments liberties provisions what i would like to have it fatal is that a fatal admission no no as a doesn't the th amendment say that if you're subject to the requirements of the due process provisions of the th amendment that then all of a sudden you get into this whole range of government responsibilities and duties jeshua sero this is what i was hoping to avoid the briefs thoroughly address the substantive due process analysis we acknowledge that there is tension in the supreme court's case law and i could easily spend the entire day going through all of the cases we would simply say your honor that we stand on our analysis we maintain that can't inapt thicker help that the right of international travel is a fundamental right supreme court has never expressed lee reversed or repudiated that holding it is only qualified it in various ways and we would suggest that if this court is in doubt by the way this court how the question open an op d v rate which i know judge phil and did so correctly i think imprudently this is the case to make a decision about the status of the right of international travel if the court is in doubt then in either direction if the tension in the supreme court's case law makes this is too difficult a decision or it makes it hard to clearly come down on one side or other we would submit that the court should take the position that is more protective of civil rights kind of like an analog of the criminal law rule of len you cite to an example where the supreme court or really any court has decided to recognize or create a fundamental right because things are unsettled i mean that i can recognize in a fundamental right is a big step for a court to take so give me an example where that's happened all i can give you judge matheson is the fact that the supreme court did recognize the right of internet that's not what i asked i'm asking interested in how that links to the rest of your argument tell me if i've got it right but it seems like what you're saying is that this statute seven thousand three hundred and forty five is a form of  take us back to whether international travel has a substantive due process right i mean don't the argument just collapse on each other no your honor i think that the nay exit out analysis informs the substantive due process analysis ever since reno v flores in washington v glucksberg substantive due process rights are and now analyzed according to a binary system it's either fundamental in which case it sacrosanct or it's not fundamental in which case the government can do whatever well they're not if the intermediate scrutiny cases there are in a media scrutiny cases under equal protection which is what unique the powell one of the judges there on the th circuit case decided should apply here something in between international travel and without characterizing that constitutional dimension as being either fundamental or non fundamental it's at least important enough that the government may not restrict your falls in our favor we would urge the court to decide this on the issue of substantive to process and we maintain that the right is fundamental and importantly privileges in the muties which it doesn't look like i'm going to get time to argue sort  doesn't that sort of cut against the idea that courts should show restraint in recognizing new fundamental rights if they can decide that case on a different ground yes the doctrine of constitutional avoidance aggressive less aggressive is a good path to take would you agree with that i would agree with that it is less aggressive than going into the substance of the process and elss however in addition to that analysis there is this privileges immunities analysis which we maintain fits perfectly and the supreme court has said that when it has a doctrine that fits perfectly and as you know it is this court the lower co are obliged to follow it that's the agha stevie felt holding and that is a holding that applies here the court should apply privileges and immunities the right to travel is in the stablished privilege thank you counsel i think you wanted to reserve some time did you say or thank you your honor and me and please the court my name is kathleen lyon and i represent the department of state but you made the nutraceutical argument in your brief this issue of international travel is a novel occurrence in american history i guess i'd start by asking you whether the pilgrims had passports i had no no no so the point is that america begin with of liberty and freedom and here they are the united states now they're arguing that we're purposes of tax collection the united states government exercises some power i can't find anywhere has the power to do in prison and jail itself fundamentally jail its citizens to prohibit them from traveling internationally why isn't this case  unconstitutional in three instrument on a right whether it is fundamental or whether it is some lesser species of right that is not acceptable under our liberty interest and it is certainly true that in kent the court did examine the history of the magna carta and it nonetheless decided not to decide the constitutional issue and we  believe that the other side the supreme court cases make it clear that the right to international travel or the liberty interest simply is not the equivalent of the fundamental right of interstate travel so let me ask you a couple of quick yes about the act it was for does this act that you refer to take into consideration the ability of a taxpayer to pay if the taxpayer does not have the decertified that are relatively easy to get out of specifically if a person is not collectable the or if someone is not collectible they can do what's called an offer in compromise and that's provided those are just basically collection because basically the discretion is left to the bureaucrats correct the structure did require if a taxpayer finds himself in the unfortunate situation or herself of owing fifty thousand dollars and the inability to pay it it doesn't provide that the passport has to be revoked it's as it may be somebody has somebody up there in d c in the department of the offer in compromise and i want to point out there is an offer in compromise based on doubt as to collectability if you are not collectable even though the i r s and say i'm not collectible they think they will have to fill out a form to explain their their financial situation  s if i find myself in this unfortunate situation whether i can travel or not sounds to me like it's still part of a collection effort if i got to go to the taxpayer where it which strikes me about this looking at it is what i thought we got past debtors prison a long time this sure looks to me like nothing more than debtors prison if you if you can pay your taxes whatever now if the passport control to help you pick up to help the united states government collect taxes i thought the united states government and the internal revenue service had all kinds of tools in their little two and the taxpayers have every opportunity to challenge that all the way up through the court of appeals and these are people who nonetheless despite all of that have not paid and under this court's rul if a right is not fundamental as we believe interest the international travel is not a fundamental right then around the basis applies that's what this court has said and we think that that that the statute you know does serve a legitimate justification to interfere with freedom to travel internationally and say i don't know freedom to go to a football game i mean doesn't international travel now whether you call it fundamental or something short of that require a strong justification from the government to interfere with that freedom is it i mean are we back are we back to this go i mean or or look at it this way could could the government revoke a passport for anyone who just has a tax that they owe taxes we're going to revoke the passport would that be constitutional is that constitutional well i mean given that that's not an issue i'm not sure you know well it's not an issue but it might help us it might help us with the issue we have if you could address that question mean if you are suggesting that that the government may need to hire you know may need to prove something more than simply a rational basis if this court is considering an intermediate scrutiny standard we would we would say that the statute meets that as well in the same way that the child support that statutes were also upheld under either rational basis or or intermediate scrutiny and the congress could pass a statute saying because it would still be analyzed under the rational basis as to logs this now is that your position well under this court's standards if might have absolutely that might be only tenuously related or or you know overbroad or something but but as a general principle under this court's rules the rational basis test applies so yes well under this cour rules i think i get i'm not criticizing your answer i'm just asking we're trying to get a feel for what the breadth of the rule yes that's involved here so it really is kind of an issue as you try to figure out what should be a law what you can be allowed  unless the airlines have a twenty five percent capacity limited cetera et cetera that i could just conceive all the regulations you're you're ocracy could conceive  surely it can't be just rational there's a rational basis for every well your honor again if this court were to depart from i think we're about to make you and said let's go to intermediate couldn't find anything we're not allowed to go there right well the state of this court's precedent is that if something is not a fundamental right and a rational basis the plies court which the part from that we do think that that this statute would meet intermediate scrutiny the the enforcement of tax laws is vital to the to the efficient collection of revenue for the government went and taxes are the lifeblood but we also have some reluctance in saying that well rational basis is the right level of review right because we think international travel  really does stand busy in a different posture than a lot of other interests that are subject to rational basis review if that's where we are what's your what's your advice to the panel on how it should approach this issue well your honor this court can find that international travel is not a fundamental right and then i would i would point this court to the cases in the child support or anywhere where the courts didn't express behind their rational basis or had to me to scrutiny applied because that if out of the statute had either of them and so i don't know that this court actually needs to decide which level of scrutiny applies in this case because the yes at the client to apply strict scrutiny and on and on an international travel restriction there it dealt with social security benefits and it seemed like the burden on the international travel was was really just incidental compared to the revocation of the passport altogether so why why don't we rely on a case like that and as of right well what we're citing us have orian for is specifically that the the individual in that case had challenge to had asked the court today to decide whether internet encourage the court to find that the two rights were equivalent and as a foreign expressly rejected that and said they're not equivalent and then it went a step further and said that restrictions on international travel are not to be judged by the same standard  interstate travel it also held that the law tissue there had incidental effects so we think those are two alternate bases you know for finding that strict scrutiny doesn't  apply and so that's what we are mainly relying on as of oregon for is to as to show that it's not a fundamental right counsel your honor i'm available if the court wants to go over really put it sounds like the court is thinking in terms of intermediate scrutiny i direct the course of my part i'd appreciate a debtor in jail until they make them pay up it's different for child support individual children's lives and welfare are at stake that is why the higher trial support passport revocation regime survived intermediate scrutiny in the th circuit unique case because in our common law tradition courts can hold deadbeat parents in contempt and put them in jail if necessary in order to get them to pay a child support that  ordinary debtor in jail just to make him pay up and you're right we got rid of debtors prisons in the early th century we don't do that but instead others present he's talking about living in the united states i guess and in the sense that that's the way it would operate here but and we're not relying on you know strict bettors prison we didn't even discuss debtors prisons in the breeze but it is an analogous to a type of bettors other words it restricts a constitutional right as a means of coercion in order to force payment and that's not what that's not how constitutional rights for that reason your honor and since i'm going to even further over i would simply ask that the court