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By Wes Hester December 20, 2010

Del. Bob Marshall says violators of Obama health care reform face prison time

Among the many conservatives celebrating U.S. District Judge Henry E. Hudson’s health care reform smackdown this week, perhaps no one was more joyous than Virginia Del. Bob Marshall, R-Prince William County.  

Marshall introduced the state legislation that opened the door for the ruling. Early this year, Marshall was the patron of HB 10, the Virginia Health Care Freedom Act, exempting state residents from the federal law. That bill set up Attorney General Ken Cuccinelli’s challenge to health care reform.

On the day of Hudson’s ruling -- which found the provision requiring nearly every American to purchase insurance or face a penalty unconstitutional -- Marshall unleashed a fresh attack on the health care law.

"The federal law compels American citizens to contract for health insurance they do not want, do not need, or find morally objectionable," Marshall wrote in a news release. "Persons who decline to buy the coverage face fines and imprisonment."

Later in the release, Marshall reiterated his point:

"The threat of heavy fines and jail time for failure to buy Obamacare health insurance is a power grab without practical limits and has no precedent in American history. It undermines our constitutional form of government, and is an affront to free men and women."

Jail time? Really?

We asked Marshall for a source, and he pointed to an exchange in the Senate Finance Committee between Sen. John Ensign, R-Nev., and Joint Committee on Taxation chief of staff Thomas Barthold on Sept. 24, 2009.

After asking about the penalty for failing to pay the fine for not purchasing health insurance, Ensign received a handwritten note from Barthold confirming the penalty for failing to pay an up-to $1,900 fee for not buying health insurance. Violators could be charged with a misdemeanor and could face up to a year in jail or a $25,000 penalty, Barthold wrote.

That was true -- then.

But it took place well before the health care law was approved.

Both House and Senate versions of the health care bill contained language that would levy a tax on persons who refuse to obtain coverage. Under the House version, evading that tax would have resulted in jail time; but not in the bill approved by the Senate Finance Committee and eventually made law.

The health care bill signed by President Obama explicitly says there are no criminal penalties for those who do not obtain coverage and refuse to pay the penalty tax.

As plainly stated on page 111 of the law, "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." There would also be no liens or levies placed on property for failure to pay.

Instead, the law would allow the government to collect the tax by deducting it from any IRS tax-refund checks or other government payments.

Just to be certain we weren’t missing anything, we asked Virginia Attorney General Ken Cuccinelli’s office for their take on the issue.

"The law does not send people to jail for not paying the fine," confirmed Brian Gottstein, Cuccinelli’s director of communication.

So Marshall is flat out wrong on the jail time.

His point that there are fines is correct.

The individual mandate in the health reform bill imposes "taxes" that are designed to prod uninsured Americans to buy insurance. Exemptions would be provided for families of limited means. The idea is that by expanding the pool of Americans paying for coverage, insurers can use the additional revenue to improve benefits, eliminate barriers for pre-existing conditions and reduce costs for others enrolled in the plans.

Those without coverage could eventually (by 2016) pay a tax penalty greater than $695 per year up to a maximum of three times that amount ($2,085) per family or 2.5% of household income. The penalty will be phased-in. After 2016, the penalty will be increased annually by the cost-of-living adjustment.

Let’s recap.

In his release, Marshall twice said people failing to purchase health care could face imprisonment. That’s not true.

Marshall references an exchange that took place over a year ago, well before the law was approved. At that time, imprisonment was a possibility, but not in the legislation that was enacted.  It is ridiculous for Marshall, no novice in public affairs, to insist otherwise.

We rate his claim Pants on Fire.     

Featured Fact-check

Our Sources, Del. Bob Marshall reacts to health care ruling, Dec. 13, 2010

Kaiser Family Foundation, Summary of New Health Reform Law, accessed Dec. 14, 2010, "Imprisoned for Not Having Health Care?" May 11, 2010

Interview with Bob Marshall, Dec. 14, 2010

Email interview with Brian Gottstein, Director of Communication, Office of the Attorney General of Virginia, Dec. 14, 2010

Email interview Joe Figueroa, Center for Politics, University of Virginia, Dec. 15, 2010

Politico, "Ensign receives handwritten confirmation," Sept. 25, 2009

The New York Times, "What’s the Penalty for Not Having Insurance?" June 15, 2010

Thomas,H.R. 4872 - Reconciliation Act of 2010, accessed Dec. 15, 2010

Thomas,H.R. 3590 - Health care overhaul, Senate version, accessed Dec. 15, 2010

"Willful failure to file return, supply information, or pay tax," Title 26 U.S. Code, sec. 7203.

"Attempt to evade or defeat tax," Title 26 U.S. Code, sec. 7201.

"Sentence of fine," Title 18 U.S. Code, sec. 3571

Letter from Thomas Barthold to Sen. John Ensign, Sept. 24, 2009 

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