Garnish Wages or Write a New Tax? Is There Really a Difference?

On a TV talk show on Feb. 3 Sen. Clinton said “going after people’s wages, automatic enrollment’’ may be a way she would pay for her universal health care plan.  The question specifically referred to garnishing a person’s wages and not about a new tax.   In the larger picture whether it is a tax or a wage garnishment may be political symbolism to some but to others it is a legal issue because it raises constitutional issues.

Garnishment

A wage garnishment order forces the defendant’s employer, the garnishee, to collect a set amount of money from the defendant’s paycheck and send that money directly to the plaintiff.  In this case that would be the federal government.  After the garnishment order is in effect, the defendant may later appeal it if they think it is excessive.

Right to Tax

The Constitution forbids the government from taking a person’s property without due process of law.  A wage garnishment is the forcible taking of someone’s money.  The power to tax is also in the Constitution, it is granted to Congress by the Sixteenth Amendment.  Unlike a garnishment a tax is not seen as taking a person’s property, and is not burdened with due process requirements.  But it does have political burdens.

The ability of both regular people and government agencies to garnish a person’s wages requires due process and a court order.  Within the federal government, the IRS is an active participant in garnishing the wages of taxpayers who are delinquent.  The garnishment usually is required to recover back taxes and penalties.  But even as powerful as the IRS is, the IRS cannot unilaterally attach a garnishment order.  A taxpayer may first dispute a tax deficiency notice in federal court and then the IRS must get a judge to order the garnishment.

Due Process

The first step in garnishing someone’s wages is due process, which requires notice and a hearing.  If Senator Clinton’s plan becomes law the federal government would have to file a lawsuit against every person who is unwilling to pay for the insurance.  A judge then would have to find that the person does have a legal duty to pay.  Next, the government must take a separate step to enforce that judgment.

In our court system winning a judgment and collecting on that judgment are two different steps. When someone is sued and the plaintiff wins, the verdict only means that the defendant has been found liable for a certain amount of money.  The defendant usually is left to their own devices as to how they will pay.  If a defendant does not pay, a second court action must be taken to force the defendant to pay.  In this second action the judge will determine how the defendant will pay; either by placing a lien on property, ordering a foreclosure sale, or establishing a wage garnishment order.

Politics

Sen. Clinton’s statement about funding health care via a wage garnishment makes it seem that she is not anticipating taking the first two steps most everyone else has to take to garnish wages, called “due process.”  To avoid having to give due process she can call it a new tax, but she is not calling it a tax.  I wonder why?