HCR Enforcement/Criminal Penalties: In my legal opinion, devastatingly EFFECTIVE

[Land Shark]

The hottest trend in anti-consumer anti-citizen legislation is using the criminal justice apparatus (and, in the case of HCR the IRS apparatus as well) as glorified collection agencies. In service of collecting routine civil debts such as bounced checks, sheriff's deputies and prosecutors around the country presently spend many times what such debts are worth to strong arm debtors with both threats and actual enforcement UP TO THE POINT where such debtor pays -- in which case the prosecution has totally served its purpose and the case is dropped.

This is precisely what HCR plans to do, both criminally and with the threat and REALITY of IRS tax liens: To wit:

(2) SPECIAL RULES.—Notwithstanding any other provision of law—
‘‘(A) WAIVER OF CRIMINAL PENALTIES.— In the case of any failure by a taxpayer to timely pay any penalty imposed by this section,such taxpayer shall not be subject to any criminal prosecution or penalty with respect to such failure.
‘‘(B) LIMITATIONS ON LIENS AND LEVIES.—The Secretary shall not—
‘‘(i) file notice of lien with respect to any property of a taxpayer by reason of any failure to pay the penalty imposed by this section, or
‘‘(ii) levy on any such property with respect to such failure.

on edit: "failure to timely pay" is different than outright refusal to pay or abject nonpayment. If one were once late on a payment but is presently current, one can still accurately say they "failed to timely pay" the payment in question. If the provision above intended for such criminal and IRS penalties to NEVER EXIST for all forms of nonpayment, that would make the provisions spelling them out "surplusage" or wasted unnecessary words - a construction that courts are obliged to reject since it is presumed always, no matter how false it may be, that Congress knows what it's doing and is aware of all the law that it is acting upon. That may be a real-life fantasy but it is as solid a legal rule of construction as you can get....

In my legal opinion as a former consumer protection lawyer for about a dozen years, these tactics, while questionably legal at best, are nevertheless very effective collectors. I know somebody who's a small merchant who swears by their effectiveness (to which I add, mafia knee-capping is similarly effective and similarly "questionably legal."). The effective part of it is that it is not worthwhile for any given individual to contest such a case, given the cost not only of legal fees, but even just of posting a bond or considering the stress level of contemplating the effect on one's credit or assets of a mere paper lien being filed, and/or an arrest warrant being issued, much less the cost of an initial night in jail and posting the required bond to get out of jail.

You would think that getting sheriff's departments involved in the collection of every bounced check, (which they freely admit the majority of which are civil because they're accounting or communication errors between spouses (for example) and not intentional conduct necessary to prove criminal intent) would mean that as a practical matter the bad check enforcement practices here would be impractical. But then, you would be wrong. These practices continue on with thousands of form letters threatening arrest going out each year in every given jurisdiction that does this practice -- all to serve the few "key" merchants who are signed for the police collections program. One can say "I thought debtor's prisons were illegal, etc." but that hasn't and doesn't stop this process.

The "beauty" of these kinds of systems is that it isn't worth it for any given individual to press the issue very far, and few indeed do. Very few will pop for $250,000 in attorney's fees on a case worth a few thousand dollars or so.

Instead, what the provisions of this type really do is amount to a form of PRIORITY debt, which is a higher priority for nearly all people to pay than is their rent, mortgage, utilities or even food -- because most people understandably fear a night in jail (or more) plus the hassle of a tax defense or a criminal defense more than they fear paying a few grand or more to make it go away, as required by the provisions in the box above. Heck, even posting the bond will probably set you back that much or more.... Thus, only a few actual prosecutions are necessary after the mass form letters go out to ensure that basically EVERYONE pays.

In my opinion, a vast majority of people CAN "AFFORD" health care private insurance as subsidized because it's priority in terms of payment will be just about the highest priority of their lives -- at least after they get the threat letter.

Given my experience as a consumer protection lawyer, I called the bluff of local prosecutors and police after meeting with the police chief on a routine bounced check (the local bank had refused my deposit but didn't refuse electronic withdrawals after the out of state original bank of deposit closed my account without actual notice to me of their intent to do so). I informed them their activities as collection agencies for select local merchants violated a raft of state and federal consumer protection laws. They didn't care, and didn't have any procedure, they stated, for reconsidering their collection-mill course of action. Because it just so happened that the merchant in question owed me more than I owed them, I didn't pay the debt. They actually went ahead and arrested me at 11pm so I got to spend a night in jail before bond could be posted.

They ultimately DROPPED ALL CHARGES without me giving them a shred of my copious evidence and briefing on the illegality of the charges -- so long as I paid the EIGHTY DOLLARS or so -- the GRAND TOTAL of the full face amount of the check plus a $35 or so collection fee (which the sheriff got for the thousands of dollars in police and prosecutor time they spent on my case). It was a colossal waste of taxpayer funds -- IF THE PURPOSE of government is to serve the taxpayer.

But I do not think the purpose of government, any more, is to serve the taxpayer or citizen.

The Congress is poised to hand out a mandatory monopoly right and harness the entire federal criminal justice apparatus as well as the IRS apparatus as a mill to enforce collection of the monopoly fees to be paid private insurance corporations. The vast, lion's share majority of people will pay up in full before or shortly after they get the form letter threatening arrest.

If ya'll have the same or more courage to stand up to these kinds of abuses that I did, I salute you.

But I do point out it's not worth it economically not to mention stress-wise for any given individual to fight provisions that set up mass collections of amounts less than 10,000 dollars or so. I avoided criminal charges, yes, and I earned a pyrrhic victory of a huge civil rights violations lawsuit which I probably will never pursue for reasons of time and energy, but the fact remains EVEN I PAID. Most of you will be less sure of yourselves legally, less able to represent yourself in court, perhaps somewhat less willing to stand on principle, and thus you'll pay -- just faster than I paid. But I, too, paid. The good news is that if they ever repeat this, they'll have a giant RICO lawsuit on their hands.

But what percentage has the will and the means to run this kind of gauntlet? That's the "beauty" of these kinds of collection provisions. They are OH SO FAR FROM "TOOTHLESS" and "UNENFORCEABLE."

That's the idea of a mandate with collection provisions like this: EVERYONE PAYS THE PIPER - and the Piper is the Insurance conglomerates of the USA.

[L0oniX]

1. I have no problem with a reasonable amount of tax from my paycheck for health care. What I can't do

...is pay $300 a month with a $5000 yearly deductible. In fact, I can't pay out more than $20 extra a week at this point in my life. Good luck to them trying to impose a fine on me. What the hell do they think they can squeeze out of someone single who makes $16k a year?

[2 Much Tribulation]

3. You're right, it's VERY difficult to squeeze blood out of a turnip, SO THEREFORE they Prioritize

the debt so that you'll pay it to stay out of jail -- even at 16,000 dollars a year you CAN, with a few months time, PAY, if it's the most important thing in your life, more important than even food or other debts -- even your landlord.

All the OP Is saying is that this maximizes their chances of collection, and the rest remaining who just can't pay timely can be prosecuted and jailed until they're satisfied that they have squeezed you as hard as you can possibly be squeezed (which is harder than you currently think possible for you to pay, rest assured!)

Basically, jail is where you get interviewed to see if the hardship is real enough FOR THEM, or not.

[L0oniX]

7. In Florida is cost over $35k a year to keep someone in jail. Soooooo...

They would rather pay $700 a week of tax payers money to keep someone in jail for not being able to afford $300 a month? That's crazy. Not to mention that after being put in jail they will no longer even have a job to make any payment. It's bizarro world.



:crazy:

[Land Shark]

9. It's certainly a waste of taxpayer $$, but totally makes sense if the govt is business-controlled...

Then it's just the enforcement wing/agents of the business community acting to improve the bottom line of the principals - and the principals are the insurance companies in the case of HCR, powerful local merchants in the case of check collection mills run by police agencies.

[Hannah Bell]

21. The prison industry is being privatized, too. Every prisoner = public $$ funneled to corps.

either by state payments or as cheap labor.

[Land Shark]

29. Correct, and it doesn't seem to matter to legislators that this ultimately costs taxpayers more. nt

[Land Shark]

10. And, they probably won't keep most in jail for a full year - just until they've extracted every $ nt

[Land Shark]

4. If you make only 16K a year, they can squeeze up to 16K out of most folks w/ threats of jail, etc.

[Edweird]

2. And the (R)'s will get to campaign on "we tried to stop this" and "we tried to save Medicare".

They will have their cake and eat it too.

[Land Shark]

5. & they'll probably have hypocrisy to say Dems TAX FOR INSURANCE Co's they're so wild about taxing..

[Xicano]

6. If some is arrested they are entitled to a trial by a jury of peers.

Enter jury nullification.

Also, the supreme courts have hundreds of times cited that "in EVERY prosecution of crime", that means everything from a traffic ticket to homicide, "the elements of a corpus delicti are required to satisfy standing and subject matter jurisdiction." BAM! right there you have it because the necessary elements of a corpus delicti as also cited by numerous supreme courts is: 1) violation of an INDIVIDUAL right. 2) Cause of damage or injury.

Just as in EVERY victimless act the government labels as criminal we have legal proof that the law is unlawful. Might have been created (legislated) in a lawful manner. BUT, nonetheless since by the letter of the law they are impossible to satisfy standing and subject matter jurisdiction they are unlawful.

Just ONCE before I leave this world I would like to see a law maker stand up and say something like: "Ahh, excuse me, but, although this proposed law looks like a good idea generally. However, how is the prosecution going to achieve standing?"

The absence of that happening is the REASON why we have so many unlawful laws.


Sorry, I just had to rant a bit. :)



Peace,
Xicano

[Land Shark]

8. If you win at trial with a nullification theory of case, if allowed, the law's 100% served purpose

And that purpose is to make it easier, by far, to pay the insurance companies as the most important debt in your entire life. Those few that survive the gauntlet of trial are inconsequential. ONly a published appellate case with a proper briefing and presentation of issues would have a longshot chance at challenging the law itself.

Put another way, going to trial is, except on the level of pure principle, a loss -EVEN IF YOU WIN. At trial, everyone loses is a common legal truism (with rare and notable exceptions)

[BeFree]

15. Heh

So a bunch of notices go out. Say there are 200 guys in one area who get 'noticed'.

What happens if all 200 got together in the police station and demanded they all get arrested, right now?

One lawyer is all that is needed.

[Land Shark]

26. If you got 200 people, then go for it. That's much easier said than done, however. nt

[Hello_Kitty]

11. The way I read it, they're saying they're not going to do those things. eom

[Land Shark]

12. And you're reading that wrong. I just posted "on edit" to clarify, then saw this post.

Courts will never find that congress acted to spell out penalties that IT NEVER INTENDS WILL ACTUALLY APPLY in any class of real cases. That's attributing an absurdity to the law that may exist in fact, and in politics, but it isn't the way ANY court of law looks at the law. They respect the word of the law without thinking much at all about the politicians behind it, and are required to find a construction that makes every word of it make sense, if that's possible.

Your construction makes the act of spelling out penalties in the first place a legal nullity and useless act. Courts are prohibited by law from arriving at such results unless there's no other possible way to look at it. But there is a possible way -- see the OP.

[Land Shark]

13. I wish it weren't so often so, but the way lawyers and non-lawyers read ain't always same.

Too often, even a double Ph.D. in reading comprehension will not allow one to arrive at all the same results that a lawyer would. That being said, if you consider the rules of legal construction -- something within the lawyerly domain -- then you can basically see this through the rough equivalent of lawyer's eyes -- certainly have all the reading comprehension and intelligence and all other tools to do so. But that's why lawyers have their own monopolies - on the practice of law - because it's an expert terrain that is more than mere reading comprehension for better or for worse.

[Hoyt]

14. That's exactly the way I read it -- no severe penalties or collection actions.

I think a lot of folks are off base a bit here. We all need to step back and look at this thing from a more objective perspective. There are some bad things about it, but the misplaced criticism on this thread ain't one of them.

[Land Shark]

23. Fine if you want to say a legal opinion is wrong, but it's incumbent on you to explain why

the cited rules of legal construction would not apply.

[Hoyt]

30. You know what they say about the value of legal opinions that are free.

My friend, I think you are wrong. I'm not the only one. I can tell you from experience that attorneys are often wrong.

I would suggest looking at the "intent" of the legislation before you try to figure out the legal construction, and bashing this section of the Senate Bill. The intent is clearly to keep some poor soul from getting hounded to death over a relatively insignificant amount of money just because they can't afford it or are too stupid to buy insurance or file for subsidies if needed.

Here's a link from another who thinks you are wrong.

http://www.dailykos.com/storyonly/2009/12/21/817417/-Devil-in-the-Details:-Mandate-not-mandatory


Good luck in your career.

[sabrina 1]

32. You are assuming that the only objection to mandated purchasing

of a commodity (btw, Health Care is a right not a commodity, imo, but since the administration claims it is a commodity, that is how it will be viewed legally) from a Private Business is whether or not people end up in jail.

That is certainly one consideration. Mostly it is the unbelievable attempt in a free society to even contemplate accepting a law that takes away a citizen's right to choose what they may spend their own money on.

As far as that DK diary is concerned, the claim that because there is some language in the bill that appears to make sure people won't end up in jail, it is not convincing at all. People are in jail right now for being unable to pay fines for not having auto insurance, since supporters of this bill constantly erroneously compare it to mandated auto insurance.

Once you include an enforcement mechanism, it will be used. Sure, first they will take away people's food money if they can, or savings. Medicaid eg, can attach people's property and use up all their resources before they start paying the bills if someone ends up having to use it.

All these attempts to make this bill more palatable demonstrate how unacceptable the whole concept of forcing people to buy from a Private Industry. Congress also has a conflict of interest in this matter, as the Private businesses who will benefit most from this, have funded the campaigns of many them.

As far as intent, that part of our laws is probably the most abused or ignored in this society already. I wouldn't want to bet my life on our judicial system honoring the intent or spirit of laws once they find a way to use them as a bludgeon which happens daily in our courts, to get a successful prosecution.

If this was Bush's Bill, the 'left' would be outraged and DK would be singing a different tune. I'm never especially impressed by anything that comes from that blog anyhow.

I know the Constitution. The intent of the Constitution was to ensure that citizens were treated fairly and equally and that the government worked FOR the people, not for Private Businesses. This part of the Health Care violates both the spirit and the intent of the Constitution. If they were to include a PO, that would change things quite a bit. But with no choice but to buy from Private Insurance, this is just unacceptable no matter how anyone tries to paint it otherwise.

Sad too to know that Democrats would have slammed this as I said, if it was a Republican Bill. It is a rightwing idea, they too are being hypocrites as if Bush had introduced a way to throw those 'welfare queens' they hate so much, they would be cheering for it.

[sabrina 1]

16. What about a Constitutional challenge?

I don't know how that works exactly, but with so many across the political spectrum already opposed to this part of the bill, I have already heard people talking about getting ready to challenge it in court.

Could there be a class-action suit against Congress eg? ACORN just sued Congress and won. And if one group did win, would it stop there or would that victory if it should happen, stop other prosecutions or does a case have to get to the SC before a decision is accepted generally?

Good for you btw, for fighting. Wouldn't it be easier in this case though, since so many people are involved?

I don't know if you've read this article. But I've now read several commentaries from different sources who basically agree that this has never done before, and probably does violate the Constitution. This article explains why the claim that it is covered under the Commerce Clause of the 10th Amendment, doesn't work:

http://www.afterdowningstreet.org/node/48553

The Individual Mandate: An Unconstitutional Exercise of Congressional Power

Given the centrality of the mandate, it is somewhat surprising that little attention has been paid to the critical legal question of whether Congress has the constitutional authority to require Americans to purchase a commodity from a private, for-profit corporation.

.....

Article I, Section 8 of the Constitution grants Congress the power “o regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.” Therefore, in order for Congress to have the authority to require Americans to purchase health insurance, the purchase of health insurance must constitute “commerce” within the meaning of the Commerce Clause. It does not.

.......

For single-payer advocates, a very powerful argument is that, while the individual mandate to purchase private health insurance is unconstitutional, Congress can lawfully tax to support a government financed health insurance program. Article I empowers Congress to use its taxing powers in support of government programs that foster the public welfare; this is the constitutional authority for Social Security and Medicare. But to extend that authority to requiring Americans to purchase a private commodity raises profound civil liberties issues. If Congress can compel the purchase of insurance from a for profit insurance company, it can compel the purchase of any commodity if there is an arguable public policy to support it.

He explains very clearly in the article why the two cases most often mentioned in defense of this mandate, do not apply in this case. Briefly that for Congress to claim authority in this case under the Commerce Clause, there has to be a market for the product. Once an Insurance Premium is purchased it cannot be sold and therefore has no market value. So, that makes it very different from even Life Insurance policies which can be sold to corporations.

It does seem that Congress doesn't have the authority to make this decision. But they do have the authority to collect taxes for a Single Payer system. I think this article makes the reason for the opposition to mandated insurance, which I'm sure will grow as more people find out about it, very clear and debunks all the defenses for it so far.

I wonder what the ACLU thinks about it?

[Land Shark]

27. NON-constitutional challenges are preferable when available, b/c SCOTUS doesn't get final say

On all matters constitutional, the Supreme Court of the United States is the final unappealable authority. Even a 100% vote of both houses of Congress, signed by the President, won't change a Supreme Court opinion anchored in an interpretation of the Constitution.

[johnaries]

17. If you are a "legal expert", you must be terrible at it.

‘‘(A) WAIVER OF CRIMINAL PENALTIES.— In the case of any failure by a taxpayer to timely pay any penalty imposed by this section,such taxpayer shall not be subject to any criminal prosecution or penalty with respect to such failure.
‘‘(B) LIMITATIONS ON LIENS AND LEVIES.—The Secretary shall not—
‘‘(i) file notice of lien with respect to any property of a taxpayer by reason of any failure to pay the penalty imposed by this section, or
‘‘(ii) levy on any such property with respect to such failure.

That's pretty clear-cut and inarguable, in MY "legal opinion".

[sabrina 1]

18. Too bad Al Capone didn't know he couldn't go to jail

for failure to pay taxes. Do a google search to see how many could use your help to stay out of jail for failing to pay their taxes ....

Do you have a link to the information you provided btw?

[johnaries]

19. The info is in the OP, who probably copied it from DKOS.

And this section specifically prohibits "Al Capone-like" prosecution in this specific case.

[Land Shark]

25. The point is that COLLECTION can be effective, w/o necesarrily going "all the way" to sentencing...

[Land Shark]

24. A waiver is the release of a known right, PRE-EXISTING until waiver is exercised.

That's consistent with the criminal prosecution existing until such time as things are paid. It's not consistent with criminal prosecutions never existing.

[JDPriestly]

34. You can go to jail for failure to comply with a court order.

In the case of child support, for example, you do not go to jail for failure to pay child support per se, you go to jail for failure to comply with the court's order to pay child support. It's called contempt of court.

I don't think that the court can place a person in jail for failure to pay debts other than child support, but maybe this changes that.

I personally think that the provision that requires people to buy insurance from private companies will be challenged in the courts. Of course, as LandShark (sorry if I got that name wrong) says, there are a couple of problems with thinking that a court could find the provision unconstitutional. First, should such a case be heard only in the lower courts it would set no precedent. The case would have to work its way through the appellate courts and probably up to the Supreme Court. That can take years. Second, trials are very risky. Third, you should forget about jury nullification. It is very rare.

If you want to know how these things go, please look at the post on the Supreme Court's refusal to hear an appeal of a case involving religious freedom and torture of so-called "suspected enemy combatants."

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x7325996

Pretty depressing.

[madrchsod]

37. yes they can send people to jail if they do`t pay any debt

that they agreed to pay in court ..yes it`s contempt of court.

[Land Shark]

40. If there's a clear COURT ORDER and contempt of court procedures are followed, yes, but...

One can not obtain a court order on any old debt, such as an insurance premium, in the ordinary course. People do not typically go to jail for failure to pay a judgment -- which is certainly a robust form of court order you might say. Hiding assets could lead to contempt of court, but that sounds in perjury for not revealing the assets honestly as (presumably) ordered to do so in post-judgment proceedings the debtor attended and testified at.

[Hannah Bell]

20. +1

[amborin]

38. +1

[Gravel Democrat]

22. kick

[Land Shark]

28. Senate bill SUMMARY by nonpartisan analysts says "Require ENHANCED COLLECTION" and reporting on race

ethnicity and primary language {of non-paying people}. This ought to make clear that the quoted section in the OP is clearly NOT having the effect of prohibiting collection activities, and ought to raise the specter right away for DUers of how this data will be used, certainly by political groups to demonize the non-paying public for being freeloaders and the like...

On edit: see page 25 of this analysis pdf at www.kff.org/healthreform/upload/housesenatebill_final.pdf

[Hoyt]

31. "Collection" in your citation has nothing to do with monetary penalties.

It has to do with collection of data to help the government ensure things are working properly and see what changes might be necessary to improve access.

Here's what your citation says: "Require enhanced collection and reporting of data on race, ethnicity, sex, primary language, disability status, and for underserved rural and frontier populations. Also require collection of access and treatment data for people with disabilities. Require the Secretary to analyze the data to monitor trends in disparities. (Effective two years following enactment)"


There is plenty to criticize in this bill, but this too is not one of them.

[Land Shark]

43. There are two types of collection, true, but race-based tracking is not a Non-issue nt

[Joanne98]

33. *&^%$#

:nuke:

[Joe Chi Minh]

35. The nightmare gathers pace.

[scentopine]

36. The very definition of a police state... -nt

[Land Shark]

39. It's getting there, isn't it? :) nt

[midnight]

41. The legal language and the use of the IRS as a collection agency demonstrates

how accessing affordable health care has been twisted into a bill that is not user friendly or affordable.

[Odin2005]

42. K&R. STOP CORPORATISM!