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.

The power to tax is a right granted to Congress by the Sixteenth Amendment.  The ability of both regular people and government agencies to garnish a person’s wages requires due process through a court order.  The IRS is an active participant in garnishing delinquent taxpayers’ wages for back taxes and penalties.  But even the IRS cannot unilaterally attach a garnishment order.  A taxpayer may first dispute a tax deficiency notice in federal court.

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. 

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.

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.” For citizens who choose not to pay her plan seems to be to immediately take the money out of their paychecks without any court order, which is what a tax is.  But she is not calling it a tax.