No jokes about parsley, please.
Can a court ordered garnishment on a sitting President’s wages be enforced?
I know other Federal employees can have their wages garnished. And I know that State employees, even including a top elected official in the Executive branch, can have state wages garnished.
So I’m not sure why the President would be different.
(Except that he could possibly order the firing of the payroll person who processed the wage garnishment order.)
The question comes up because the Constitution says a President’s salary cannot be modified while said president is in office. The question boils down to: does a garnishment count as a modification in the president’s salary? I garnish with cilantro and/or arugula.
Lots of government employees have their salary set by law, but I’m sure there’s plenty of precedent for, say, members of the armed forces having their wages garnished. The salary is still what it is, but some of it is going to pay off a civil judgement.
I’m not sure there’s going to be a clear answer and this certainly isn’t an area I’m expert in. But:
Generally, sovereign immunity would prevent wage garnishment of federal payments by state or local courts. As I understand it, 42 USC 659 waived sovereign immunity for garnishments " to enforce the legal obligation of the individual to provide child support or alimony." That was extended at some point to more broadly by 5 USC 5520a.
So, if the President were a “regular” federal employee, then the answer would be yes. But I have two concerns:
One is the statutory interpretation principle that general statutes do not apply to the president, absent a “clear statement” to the contrary. See Franklin v. Massachusetts (1992). As the DOJ explained in 1995: “G]eneral statutes must be read as not applying to the President if they do not expressly apply where application would arguably limit the President’s constitutional role.” Does a waiver of sovereign immunity that makes the president’s pay subject to a state court “arguably limit the President’s constitutional role”? I would think so. (Note: this doctrine also featured prominently in the more legalistic discussions about how and whether the president could violate general federal obstruction statute).
Second, unlike federal employees, the President in required to receive payment. (This is why Washington, Hoover, Kennedy, and Trump have had to accept and then donate their pay as opposed to simply forego it). Sure, they’re not required to receive any particular amount. But the withholding of a portion of the legally mandated pay would raise a concern there that would not, I think, be presented by attempting to garnish the wage of a regular federal employee.
I could be wrong about all of that. I don’t think there’s going to be an established GQ answer – presidents tend to be wealthy enough to satisfy their obligations. But that’s my Monday coffee-break analysis.
Excellent answer by Falchion. I will add that one argument against garnishment of the President is that sec. 5520a contains language that specifically includes Members of Congress (including the VP, who presides over the Senate) in the definition of “employee,” but does not include similar language for the President or federal judges. Notably, both the President and federal judges have constitutional protections on their salaries that members of Congress do not, so there may have been concern that subjecting them to garnishment would be overreaching.
I doubt a garnishment counts as a modification considering that according to case law COLA increases are not considered unconstitutional pay increase and that is an actual modification.
It was discussed in the temporary thread before the transfer, but my thought was that as Clinton v. Jones allows a civil suit to proceed against a sitting president, it would only follow that a money judgment could be collected against a sitting president. And if a money judgment can be collected against a sitting president, then it would follow that traditional collection tools could be used like wage garnishment.
As far as the constitutional prohibition against diminishing a president’s salary, in no other circumstances, including tax law, would a garnishment constitute a diminution in salary.
Wasn’t the issue the opposite? That failing to provide COLA increases for federal judges was an unconstitutional pay reduction?
Whether or not it actually would be constitutional, I’m suggesting that it’s not permitted by the statute, and that perhaps the drafters of the statute made that omission so as to avoid even the possibility of a constitutional problem.
Reading Falchion’s answer I can’t help but wonder whatever happened to the notion that, in the US, no one is above the law.
I suppose you could say the president is not “above the law” but, rather, we have carved out huge exemptions in the law for the president. To me that is starting to be semantics.
No jokes about parsley, please.
The “nobody is above the law” about the President started with the whole Nixon thing.
The problem is that the Constitution pretty clearly established that a president, one human being, IS the executive branch responsible for enforcing laws. So to say that that individual cannot be “above the law” becomes a contradiction in terms. So do we need someone else who can prosecute the president?
If we have that, then it seems that the president is then not the embodiment of executive power and we need a Constitutional amendment. Maybe we do.
But it seems silly to point at the guy who is charged with enforcing the laws to say that he “is not above the law” with the implication that someone else can do something to him, thereby making him not the person ultimately charged with enforcing laws. It does not square with the Constitution.
Actually it goes back to the Magna Carta and, certainly, one of the FFs goals was to not have a monarchy where one man “is” the law and above the law.
“No man is above the law and no man is below it: nor do we ask any man’s permission when we ask him to obey it.” ~Theodore Roosevelt (this was also before Nixon)
Should’ve saved my post in the Brigadoon thread.
Art. II says, “The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.” If I had a valid judgment against the President and wished to garnish his wages, I would argue that the Treasury is still paying out the same amount as his salary, set by statute, but that a court may lawfully garnish the same percentage (25% of gross pay in each pay period in Ohio, at least) as it would for any other person in that situation. It is a lawful diversion of a portion of his salary; it is not a “diminish[ment]” within the meaning of Art. II (which, in context, is pretty clearly intended to keep Congress from being vengeful).
Or I would just go after the President’s non-salary assets which, in the case of the current incumbent, are considerable (although, by all objective accounts, not as considerable as he has boasted of them being). Or maybe I’d just allow the judgment to grow, with interest mind you, until the President left office, and then go after him.
If a garnishment were ever being used as a political weapon, the courts would, I’m sure, see that and prohibit it in order to be true to the Framers’ intent. But, as T.R. said and has long been the ideal, no one is above the law, and no one is beneath it.
ETA: Whack-a-Mole beat me to the punch with the T.R. quotation! :: shakes fist ::
I don’t know. The traditional rule is that garnishing wages that were due to federal employees was barred by sovereign immunity, because “[s]o long as money remains in the hands of a disbursing officer, it is as much the money of the United States, as if it had not been drawn from the treasury. Until paid over by the agent of the government to the person entitled to it, the fund cannot, in any legal sense, be considered a part of his effects. The purser is not the debtor of the seamen.” Buchanan v. Alexander (1846).
As discussed in my earlier post, that immunity has been waived, but I think there is a compelling argument that such waiver (under standard rules of statutory construction) does not extend to the President.
But on the constitutional question (about which I’m less confident), I think the key term is “receive”. If wages are not “part of the effects” of the employee until paid out (and if garnishment “diverts” such payment), then I’m not sure that the President has “received” his required compensation if such wages are garnished. But, again, I’m ambivalent on this point. Still, I think the key issue is that garnishment of wages (unlike other remedies that go after the judgment debtor’s personal assets) works to divert the wages prior to payment.
That rule sounds less like sovereign immunity than a theory that if applied generally would bar all wage garnishment no matter the source. If the seaman does not receive money from the purser, then it is not “considered a part of his effects.” Likewise no person who has his wages garnished should have to include that in his income according to what you cited as he never received it.
Well, the standard sovereign immunity theory is straightforward: a writ of garnishment is directed to the employer (the garnishee) and compels it to pay money to the creditor. Where the garnishee is the federal government, this is an action for money against the sovereign. I don’t think this is a particularly controversial application of the doctrine (and would not, of course, apply to a non-sovereign garnishee).
My second argument isn’t really one about immunity. It is controversial that garnished wages are still included as “income” for tax purposes (it think of it as analogous to discharged debt). But, “income” for tax purposes is an artificial concept that means whatever the legislature and the tax authorities say it means. There is nothing that really requires you to “receive” wages for them to be treated as income. But there is a provision that requires the president to “receive” compensation. That’s not an “immunity” theory, but it wouldn’t apply any more broadly than the president and, perhaps, article III judges.
I don’t think it is an action against the sovereign anymore than an action against Acme, Inc.
Say I work for Acme, Inc. and you get a wage garnishment against me. All the garnishment does is tell Acme Inc. that instead of paying the money you owe to UltraVires, pay it to Falchion. Acme, Inc. isn’t out any money other than what it was already contractually obligated to pay, it is just changing the payee.
The case you cited seems to suggest that unless and until Acme, Inc. pays me, then it is not legally my money yet and therefore no order can go to Acme, Inc. I didn’t read the whole opinion, but the part you cited doesn’t seem to depend on the sovereign nature of the U.S. Treasury, but on a mundane aspect of property law, especially by using a seaman and a purser as examples.
This drifts a bit afield from my argument on presidential salaries, but I think you’re confused about the issue of sovereign immunity and the attachment of wages owed federal employees.
The case is not a long read and it’s pretty straightforward. A handful of US Naval seamen owe money to “boarding house keepers”. The landlords get writs of attachment (i.e. garnishment) from the state court against the purser (of their vessel) to attach the wages of the seamen. The purser refuses to comply (at direction of the Secretary of the Navy). The Court concludes that you can’t use state process to “attach” these funds because (1) The purser is the same as any other “disbursing agent” of government funds; (2) Funds still in the possession of the disbursing agent remain sovereign money; (3) An attachment acts to “divert” the money to the creditor; and (4) “The funds of the government are specifically appropriated to certain national objects, and if such appropriations may be diverted and defeated by state process or otherwise, the functions of the government may be suspended.”
It’s like you’re reading the quote (or my argument) to hold that writs of garnishment fail as a matter of property law. But you know that the court didn’t hold that (I should hope) because you know that they are a very real thing. And you know (based on my earlier points) that the immunity has been waived so that, now, you can direct a writ of garnishment to the United States.
And so, that’s not what the case says, it doesn’t say you can’t garnish wages (“therefore no order can go to Acme”). It’s saying that the order compels Acme to divert its funds, which is normally fine, but not when it’s directed at the sovereign. Because, in that case, “if the creditors of these seamen may, by process of attachment, divert the public money from its legitimate and appropriate object, the same thing may be done as regards the pay of our officers and men of the army and of the navy, and also in every other case where the public funds may be placed in the hands of an agent for disbursement. To state such a principle is to refute it.”
I think the court rather overstates the risk to the general operation of government, but the idea that you can’t use state court process to compel the federal government to pay you seems like a fairly ordinary application of immunity (and federalism) principles.