Seven-Sky v. Holder

SEVEN-SKY, known also Susan al., Sevensky, et

as Susan

Appellants Jr., al., Appellees. HOLDER, H. et

Eric

No. 11-5047. Appeals, States

United

District Columbia Circuit.

Argued 2011. Sept.

Decided Nov.

Schneider, General, Attorney Office of the Attorney Maine, General for the State of Schuette, General, Bill Attorney Office of Attorney General for the State of Michigan, Bruning, General, Jon Attorney Attorney Office of the General for the Nebraska, State of Wayne Stenehjem, At- General, torney Office of Attorney Dakota, General for the State of North Marty Jackley, Attorney General, J. Office of Attorney General for the of State Dakota, DeWine, South Michael Attorney General, Attorney Office of the General for Ohio, Corbett, Jr., the State of Thomas W. Acting Attorney General, Office of the At- torney General for the Commonwealth of Pennsylvania, McKenna, Robert M. Attor- ney General, Attorney Office of the Gener- al for the State of Washington, and J.B. III, vice, Edward L. White pro hac ar- Hollen, Attorney General, Van Office of gued for appellants. the cause himWith Attorney General for the State of Wis- on Jay Sekulow, the briefs were Alan Col- consin. Spohn, Katherine J. Special Coun- May, M. Terry, Miles Landon General, sel to Attorney Office of the James M. Henderson Sr. Attorney General for the State of Nebras- David B. Kopel was on the brief for ka, appearance. entered an amici curiae Independence Institute in Levy, Ilya Robert A. Shapiro, Hans support appellants. of Bader, Lechner, Steven J. Timothy Sande- L. Dale Wilcox and Michael Bekesha fur, Charles Cooper, J. David H. Thomp- were on the brief for amicus curiae Judi- son, Geoffrey D. Talmon and Brian Kouk- Watch, cial in support Inc. appellants. of outchos were on the brief for amici curiae Joseph Lawrence J. was on the brief for Institute, Cato support et al. in appel- amici curiae Physicians American & Sur- lants. Inc., geons, et al. in support of appellants. Patrick T. Gillen was on the brief for Clement, Paul D. Erin E. Murphy, Louis amicus curiae CatholicVote.org. Hubener, F. Deputy General, Solicitor Of- Grant Lally M. and Deborah N. Misir fice of Attorney General for the State were on the brief for amicus curiae Caesar Florida, Cobb, Bill Deputy Attorney Rodney Institute in support appellants. General for Litigation, Civil Office of the Attorney Texas, General for the State of Brinkmann, Beth S. Deputy Assistant Strange, Luther Attorney General, General, Office Attorney Department U.S. of the Attorney Justice, General for the State of argued the cause for appellees. Alabama, Gregory Zoeller, F. Attorney With her on West, the briefs Tony were General, Office of the Attorney General, General for Attorney Assistant Ronald C. Ma- Indiana, Schmidt, State of Jr., Derek At- chen Attorney, U.S. and Mark B. torney General, Stern, Attorney Klein, Alisa B. Office Samantha L. Chai- General Kansas, for the State of Mishra, William J. fetz and Dina B. Attorneys. R. Stetson, Lawrence, Attorney, E. Dominic F. Catherine Perel- Craig Assistant Hatton, la, Jeffrey Melinda G. Reid appearance. entered Micklos were on the brief for amici curiae for was on the brief Rochelle Bobroff Association, Hospital in American et al. of Peo- curiae American Association amici appellees. support of Disabilities, of support et al. in with ple appellees. Gansler, Attorney General, Douglas F. Attorney of the for the of on the for amici Office State

Ian Millhiser was brief Association, Jr., Deputy et al. John Howard Maryland, Nurses B. curiae American Auerbach, General, Attorney of N. support appellees. in Joshua General, D. Attorney Assistant Kamala Michael were Stacy Canan and Schuster Harris, General, Attorney Office of the AARP in for amicus curiae on the brief Attorney General for the State of Cali- of support appellees. fornia, LeBlanc, Special Travis Assistant Greenberger Melissa Marcia D. General, Attorney George Jepsen, C. At- for curiae were on the brief amici Hart General, torney Attorney Office of Center, Law al. National et Women’s Connecticut, for of Jo- General State of support appellees. in Biden, III, General, Attorney seph R. Of- Kry Jefrey A. Lamken and Robert K. Attorney of the General fice for Law on the brief for amici curiae were Delaware, Nathan, of Irvin B. At- State Friedman, sup- al. in Barry Professors et General, torney Attorney of the Office appellees. of port Columbia, for District of General Kim, General, David M. Todd S. Solicitor General, Attorney Coakley, Martha Of- General, Louie, Attorney Office of the Attorney General for the Com- fice Attorney General for the State of Ha- Massachusetts, and Carol monwealth of waii, Miller, General, Attorney Tom Of- Iancu, General, Attorney were Assistant Attorney fice of General for the brief amicus curiae Common- on Iowa, Schneiderman, At- State of Eric T. ap- of support wealth of Massachusetts General, torney Attorney Office of pellees. York, for the of New John General State Rothfeld, Pincus, J. A. Andrew Charles General, Kroger, Attorney of R. Office Kimberly Hughes B. and Paul Michael W. Attorney for the State of Or- General for amici were on brief curiae Consti- Sorrell, Attorney egon, and William H. ap- in support tutional Law Professors of General, Attorney Office of General pellees. Vermont, on the for the State of were on Wydra Elizabeth B. was the brief Maryland, of for amici curiae State brief amicus Constitutional Accountabili- curiae support appellees. al. in of et appellees. ty support Center on Alan B. Morrison was the brief for Scott, A. Szymanski, Patrick J. Judith Caplin curiae amici Mortimer & Sheldon Schneider, Kamiat, Mark and Scott Walter support appellees. Cohen curi- Kronland were on the brief for amici Union, Employees Service International ae Conrad, II, K. Lee Robin S. Blalaek in support appellees. et al. Boyle brief Brian were on the for amicus Chamber of Commerce of the Unit- A. Eisen- curiae Hadrian R. Katz Matthew support neither of America in were the brief for amici curiae ed States stein on support appellees. party. Economic Scholars KAVANAUGH, Servs., Judge, Circuit and Human 648 F.3d 1249-

Before: (11th Cir.2011). SILBERMAN, and EDWARDS Judges. Senior Circuit suit, others, like a chal- This involves lenge coverage “minimum essential filed Senior for the Court Opinion provision,” requires “applicable which all SILBERMAN, whom Judge Circuit purchase individualfs]” to and maintain EDWARDS Judge Senior Circuit concurs. coverage” i.e., “minimum essential re- — quired in an in- essential health benefits Concurring opinion filed Senior beginning in plan surance each month —for Judge Circuit EDWARDS. January requirement 2014. is com- This monly dissenting jurisdiction as to called the “individual mandate.” Opinion and Any “taxpayer” meet deciding filed Circuit who “fails to by the merits requirement” pay responsi- must a “shared Judge KAVANAUGH. bility payment,” “penalty,” a which labeled SILBERMAN, Judge: Circuit Senior will by using be calculated the lesser of either percentage taxpayer’s in- rejected appellants’ district court average come or the premium national to the Patient challenge Protection and plan providing the lowest-level “minimum They Care Act. appeal. Affordable De- coverage.”1 essential spite subject raised as to our questions jurisdiction, matter we conclude we have made specific findings why, in jurisdiction, and we affirm the district judgment, regu- its the individual mandate conclusion that the court’s constitu- lates commerce.2 determined tional. about whether decisions and when to insurance,

purchase health pay and how to services, inherently health care I. economic. And Congress found that with- so already Since much has been written mandate, individuals, out the uninsured in pre- our sister circuits about the issues the aggregate, costly would consume sented will this case—which almost health on pass care services and those surely by the Supreme be decided Court— costs participants. to other market With- we shall be in to sparing adding pro- mandate, view, Congress’s out the other paper. duction of namely prohibitions denying on reforms — it say Suffice to coverage the Affordable health insurance to individuals (the sought Care Act reform our with pre-existing nation’s medical conditions health and health delivery “guaranteed requirement”) insurance care issue or using improving markets the aims of history justify access individual’s medical (the and reducing higher those markets health care premiums insurance “commu- uncompensated costs and nity rating requirement”) care. Other increase —would appeals provi- courts of have its average premiums, described exacerbate adverse se- length. sions at More See Thomas Law lection problems, discourage individu- Obama, (6th Ctr. v. 651 F.3d obtaining 534-35 als from until coverage they Cir.2011); Dep’t Florida v. U.S. Health were sick. 5000A(a) (individual mandate); §

1. findings 26 U.S.C. These are codified at U.S.C. (a.)(l)-(3) 5000A(b)-(c) § extensively (penalty provision). id. and discussed Florida, opinions. other F.3d at 1244-47. Indeed, of this the Fourth citizens suit.6 Circuit four United States Appellants, declaratory recently Liberty held much. See taxpayers, seek federal — Univ., Geithner, —, prevent various Inc. v. F.3d injunctive relief — (4th Cir.2011). agencies According officials and to our sis Government circuit, cov- challenge the minimum essential no suits indi enforcing from ter argue that provisions. They erage vidual mandate can be authority Congress’s un- comes brought mandate exceeds until the mandate into ef and substantial- the Commerce Clause plaintiffs comply, der fail to fect Seven-Sky’s appellants Susan ly bring burdens penalty, plaintiffs IRS imposes religious Edward Lee’s exer- and Charles against IRS. a refund action See id. cise, Religious Freedom violation Although appellants -. both and the Act.3 Restoration parties to this case—in Government —the we, course, jurisdiction, sist we do have granted court the Govern The district duty to independent have an examine upheld It to dismiss. ment’s motion question, see Steel Co. v. Citizens un coverage provisions minimum essential Env’t, Better the the Commerce Clause and Neces der (1998), L.Ed.2d 210 and we have 140 regulation a of sary Proper Clause as previously recognized that the Anti-In substantially activity that affects economic our junction subject- Act is a limitation on care mar health insurance and health the jurisdiction, matter see Gardner United element of a and as essential kets (D.C.Cir.2000). States, 211 F.3d scheme. Mead v. regulatory broader (D.D.C. Holder, F.Supp.2d 33-35 brings in- jurisdictional issue two 2011). rejected appellants’ Reli It also First, questions. whether the terrelated Act Restoration claim.4 gious Freedom itself, by using the at 42-43. Id. tax,” “any applies words to the shared a Appellants timely appeal. filed We responsibility payment. if Second—even affirm. apply the Act does not force—does the Affordable its own

II. stating it that by Care Act invoke outset, obliged At we payment shared be “as- responsibility jurisdiction we over consider whether have sessed collected in the same manner” argued one this case. It is amicus5 subject that are to the Anti- as Injunction Act—which Injunction Act. Anti— states, exceptions, that “no with some suit Act, a of restraining part purpose

for the assess Code, only pre shall be the Internal Revenue bars any or collection ment any person”— challenges to the assessment court enforcement maintained known, As is well entertaining the and collection taxes. restrains us from merits Caplin & seq. § et 5. See Br. for Amici Curiae Mortimer 2000bb U.S.C. Appellees Supp. Cohen Sheldon appellants’ Reli- 4. We affirm the dismissal of Affirmance. claim, be- gious Restoration Freedom agree with district court’s rea- cause we 7421(a) added). (emphasis 6. 26 U.S.C. allege soning appellants failed to facts substantially showing will that the mandate Mead, religious exercise. See burden their F.Supp.2d at 41-43. nal passing Affordable Care Revenue Code. When Congress, Congress uses here, Act, same “tax”—in the same rejected proposals desig- pointedly word— context, presume Congress we intends the responsibility payment nate the shared as meaning throughout. same See Erlen- “tax,” labeling it “penalty.”7 instead baugh v. United 243- U.S. Congress pro- called numerous other That L.Ed.2d in the Act “taxes” indicates that its visions And Congress when wants a “tax” in one “penalty” to use the word here decision statute to include more than the exactions And congressional was deliberate.8 find- statutes, it says labels taxes in other it so. suggested Congress’s ings pur- never instance, For a “tax” Bankrupt- under the pose to raise revenue. The Govern- was cy anything Code means that functions like penalty ment would raise estimates $4 tax, just anything Congress labeled a billion, congressional findings empha- but “tax,” only because directed that responsibil- size that the aim of the shared Bankruptcy terms used Code shall ity everyone payment encourage is to special have meanings. United States v. insurance; purchase goal is universal Utah, Reorganized CF I& Fabricators of coverage, penalties.9 not revenues from Inc., 213, 219-20, responsibility Though payment the shared (1996). By analogy, if part codified Internal says suma owed at customs Code, Congress prohibited Revenue penalty, is not a that designation controls from using IRS traditional criminal en- purposes jurisdictional a customs levying powers forcement or to collect the statute. See v. Helwig United payment.10 persons have legal Covered a 610, 605, 613, 427, U.S. 23 S.Ct. 47 L.Ed. obligation purchase to coverage, minimum (1903). but it is rather that provision’s obvious Nothing we have seen suggests that depends, much a typical success more than Congress intended for “any tax” the obligation, tax voluntary compliance. on Anti-Injunction Act to include exactions key question, therefore, The is unrelated to taxes Congress that labeled Congress “any whether intended the term “penalties.”11 tax” in the Act to sweep does define the word “tax.” But it beyond Congress exactions that designated any does not indicate in way that the term as “taxes” elsewhere the Internal Reve “tax” given can be a meaning different nue Code. Fourth Circuit is of the than in the rest of the Internal Revenue “any view that tax” includes exaction Code. The Supreme Court case to IRS, collected the if Congress even “any consider the meaning tax” dates to —Univ., called it a “penalty.” Liberty 1883, suggested and that a “tax” meant F.3d at —. disagree. We Both the anything eollectéd as a if tax—even collect- Anti-Injunction Act and shared the re erroneously illegally ed long as “it —so sponsibility payment part are the Inter- was claimed proper public officers” 3962, 5000A(b); 501, § 7. 18091(a)(2)(A), (C), (I). § § U.S.C. H.R. 9. 42 U.S.C. & (2009); 3200, 401, Cong. § 111th H.R. 111th (2009); 1796, 1301, Cong. § Cong. S. 111th 5000A(g)(2). 10. 26 U.S.C. (2009); Univ.,- Liberty see also F.3d at - (Davis, J., dissenting). legislative history. The Act also no has Simon, Bob Jones Univ. v. Obama, 529, 8. See Thomas v.More 651 F.3d 2038, (1974). (6th Cir.2011) (Sutton, J., concurring) (surveying usage). — (Davis, J., Marks, dissenting). They do not Snyder v. a “tax.” to be 157, issue, a quite 27 L.Ed. 901 our which raises address denies question: the Government whether exaction Since different tax, is a payment responsibility Congress “penalty” shared intended as least, we should suggests at Snyder, meaning “tax” within the also a Liberty See credit the Government. Anti-Injunction Act. — at (Davis, J., Univ., dissent F.3d parts Other Internal Revenue ing). Congress our view that did Code reinforce Cir- Importantly, aside from Fourth for to not intend decision, no court ever cuit’s recent liability cover unconnected to tax penalties Anti-Injunc- “any tax” under the held Taxes car penalties or enforcement. Congress exactions that tion Act includes Code, ry meanings distinct in the and Con Bailey deliberately “penalties.” called v. it gress has been deliberate when wants 66 L.Ed. George, 259 U.S. as penalties certain treated taxes. (1922), Furniture Bailey v. Drexel —Univ., at — (Davis, Liberty F.3d (Child Case), Labor Tax Co. J., dissenting). weAs discuss further be (1922), 449, 66 L.Ed. 817 two low, Congress expressly defined taxes Fourth relied upon cases which the Circuit penalties nonpayment include taxes contrary. Bailey heavily, are not imposed Chapter subchapter under A George, Supreme held that penalties” imposed “assessable under pre-en- Act barred Chapter subchapter B.13 un challenge Child Labor forcement derstandably Chapter treated Tax, expressly had labeled which taxes, because, unlike the shared re Then, 42 S.Ct. 449. a tax. 259 U.S. payment, they imposed sponsibility Case, action, Labor Tax refund in Child impeding failing comply or otherwise Court held that Child payment reporting obli regulatory was so in function Labor Tax More, gations. See Thomas 651 F.3d at it to “tax” that ceased be a for constitu- 540; Republican Assembly Mobile v. 38, at 42 purposes. tional 259 U.S. cf. (11th 1357, United F.3d 1362 proposition cases for 449. These stand the Cir.2003) imposed (treating penalties for Congress that exactions that intended to organiza of violating non-profit conditions as taxes are within the “tax[es]” enact Act, tax-exempt tions’ as “taxes” because meaning Anti-Injunction the but status of pur- those or may not be “taxes” for constitutional conditions determine whether the — taxes).14 Univ., Liberty ganization F.3d is poses.12 See liable Lederer, 557, ties); 6671(a) (stating § Similarly, Lipke id. that "taxes” also 12. 549, (1922), 68, merely Chapter penalties). L.Ed. subchapter B refer to Anti-Injunction does held that the Act not Congress always apply even if labels exac- held all 14.The Fourth Circuit also There, clear, tion a "tax.” made premiums due the is under Coal Act—which statute, rest a criminal that it did not the of 68, Chapter subchapter B of the outside really the exaction to a tax. Id. at intend purposes of Anti- Code—are "taxes” for 561-62, 42 S.Ct. That is different from Act, Injunction but it reached that conclusion situation, Congress repeatedly where ex- our analysis, assuming, after without responsi- pressed its intention that the shared bankruptcy of a definition "tax” under bility payment “penalty.” was to be a Anti-Injunction law the same as the Act. In is 573, Co., 6665(a) re Coal 99 F.3d § LeckieSmokeless (stating 13. 26 U.S.C. that "taxes” 68, (4th Cir.1996). Chapter penal- subchapter A also refer to Granted, “any also refers to restrain Code the assessment or collection of interest, (“The any § (including additional state taxes. 28 U.S.C. tax, amounts, enjoin, suspend district courts shall not additional assessable assessment, by levy or imposed Title 26 when de restrain the collection penalties)” any authority. assessment tax under State law scribing plain, IRS’s where See, may § speedy remedy 26 U.S.C. 6201. The Fourth and efficient be had in e.g, State.”); dissent reason that such and the be courts of Enochs v. Circuit Co., 1, empowered Packing is Nav. cause the IRS assess Williams & penalties), (including taxes assessable It any because the Act bars well established that used taxes, Injunction restrain the assessment term “tax” in the Tax suit to anything codified the Internal assessments made for the purpose Revenue mean revenues, by subject raising regulatory and assessed the IRS is not “penal- Code Liberty Act. See ties” intended to encourage compliance —Univ., at —, —. F.3d think with a law.15 That is in We distinction keeping leaps inference too far. The term with the aim of the Act, penalties” gen Injunction in the and Tax “assessable Code i.e. to avoid feder- erally Chapter judicial to refer to al used sub- interference with tax revenues (entitled chapter penalties upon B which “Assessable federal and budgets state de- Penalties”), See, Council, type penalty. pend. See Nat’l Private Truck 4083(d)(3)(B); 6671; Comm’n, § e.g., § id. id. id. Inc. v. Oklahoma Tax 6684; 6688; § § id. id. 6695. Nothing L.Ed.2d (1995); language suggests in this that penalties Packing, Williams 370 U.S. at but assessed IRS unrelated to taxes— 82 S.Ct. 1125. See

treat B—would codified in the Tax Code and a ties (Davis, J., dissenting). commonly additional penalty, opposed Liberty IRS, into language the shared taxes Congress’s deliberate efforts to fall not a found in tax, —Univ., under this interest, truly merely tax, and assessable responsibility Chapter transformed all would be F.3d at — - — additional because provision. inexplicable. assessed payment subchapter they amounts, And if Act, penal were as from sponsibility payment. They seek injunc- this suit. Appellants obligations independent of the command, enues quires demonstrates The nature of by its own private companies, produces for them to purpose the individual the ^[*] why Government, purchase terms, appellants’ enjoining Ss have does mandate, health insurance ^[*] challenge also brought and imposes not apply shared regulatory no rev- suit re- re- interpretation Our supported by is also declaratory tive and relief prevent any- to judicial Injunction of the construction Tax being subject mandate, one from Act, a that language statute uses similar irrespective to they of whether to intend it, the Act to bar suits to with comply irrespective and Cuomo, Edmondson, 708, (2d 15. Chamber Commerce v. v. Co. 14 F.3d 713-14 Cir. of (10th Cir.2010); 1993) (overruled F.3d 761-62 grounds). RTC Com- on other Courts mercial Assets Trust 1995-NP3-1 opposed v. Phoenix do not defer to the labels states —as Co., (7th exactions, Bond & Indem. 169 F.3d to on because —bestow Cir.1999); meaning Ben Oehrleins and and a Injunc Sons the of “tax” under the Tax Daughter, federal, Hennepin Cnty., state, Inc. question 115 F.3d tion Act is a law. of not (8th Cir.1997); Edmondson, 1382-83 Travelers Im. 594 F.3d at 761. surers; that only penalty it is the flows to to it. implement chooses means allege cost of the Government. appellants harms —the private from insurance health purchasing That suit centers on the appellants’ religious of their companies, and violation mandate is critical. The skepticism expresses that insurance belief that seek to only bars suits restrain a re- provide as ability to in God’s —exist assessment and collection of tax- the IRS’s mandate, penalty. not the the sult to applied It has never been bar suits es. True, say they do not appellants also that enjoin requirements brought regulatory to mandate, comply to with intend no that bear relation to revenues finan- penalty would be serious Indeed, have we held enforcement. that harm affects burden. But cial not to an apply regula- the Act does IRS fail to who limited class of individuals terms, not, pertain its to tion does into ef- goes mandate comply when the collection of taxes. the assessment or fect. Inst., v. Re- Lodging Foodservice Inc. (D.C.Cir.1987) (al- F.2d gan, 809 mandate and the shared

The individual challenge enjoin an lowing regula- le- IRS payment create different responsibility regarding categories employers’ reporting tion obligations, for different gal tips). at times. The mandate— different people, maintain “requirement described suggested It has been Bob Jones coverage” in the stat-

minimum essential Simon, University v. obligation “appli- on imposes legal ute— (1974), S.Ct. purchase and main- cable individuals]” Inc., v. “Americans United” Alexander coverage care from minimum health tain 752, 94 S.Ct. L.Ed.2d for month be- company each an insurance (1974), Anti- support application citizens, January Foreign 2014.16 ginning case. cases Injunction to this Those aliens, those who prisoners, and illegal challenges to IRS involved constitutional exemptions are not religious qualify letter-rulings revoking nonprofit organiza- “applicable individuals].”17 considered Jones, tax-exempt status. Bob tions’ contrast, challenged the constitution- penalty provisions petitioner By letter-ruling withdrawing Al- of an IRS ality with the mandate. symmetrical by arguing that the tax-exempt its status though comply who fail some regulate was “to ruling’s must true motivation pay mandate individual (the policies private universi- responsibility payment”) the admissions “shared IRS, ties,” protect cannot af- not “to the revenues.” taxpayers who others — filing 2038. Plaintiffs simi- or who fall below the coverage, ford tribes, threshold, challenged constitutionality of larly of Indian members eliminating tax-exempt organiza- status whom the Secre- any applicable individual engaged political lobbying tary of Human Services deems tions Health and 755-57, not.18 United.” 416 U.S. at have “Americans hardship to suffered —do cases, plaintiffs 2053. In of insurance 94 S.Ct. both purchase Moreover the health Government, appel- to our argued superficially as similar not to be to directed — were taxes, letter-rulings in- private of but rather to lants —that IRS’s is true (e). 5000A(a). 5000A(b), § Violators will § 18.Id. 16. 26 U.S.C. starting April when penalty owe the 5000A(d)(2)-(4). with their tax returns. it must be enclosed Id. 17. 10

really regulatory prohibitions, Coyle, and that ends. Koin v. 402 F.2d 469 (7th Cir.1968). object not to plaintiffs’ was restrain the Accordingly, the Anti-In revenues, and collection of tax junction assessment suits prevent bars the IRS tax seeking but to ensure that donors de- using allegedly from evidence it had ob ductions would continue to contribute to illegally tained as the basis for tax as organizations. 760-61, at their Id. 94 S.Ct. sessment, id.; enjoin agents suits to IRS 2053; Jones, Bob at 94 S.Ct. U.S. disclosing from corporate information in tax returns parties part to third of investigation, audit Kemlon Prods. and rejected argu these Dev. Co. v. United 638 F.2d both It began ments in cases. with the (5th Cir.1981); suits to proposition plain at issue here —that —not enjoin local giving officials from the IRS tiffs cannot evade the information about narcotics traffickers by merely pleading constitutional claims. used make jeopardy IRS assess United,” 759-60, “Americans at U.S. ments, Sandler, Lewis v. 498 F.2d 2053; Jones, Bob at 740- U.S. (4th Cir.1974), 398-99 enjoin and suits to 41, 94 S.Ct. 2038. More it importantly, using particular the IRS from methodolo reasoned —and this is the crucial distinc gies deficiencies, to calculate tax Campbell tion to our the Anti-Injunction case—that Guetersloh, 287 F.2d 880-81 Act applied challenges because IRS let (5th Cir.1961). But merely those cases ter-rulings revoking tax-exempt status are stand the proposition that the Act bars inextricably linked to the assessment and ancillary suits interfere with functions United,” collection taxes. “Americans to tax collection. Mandating purchase 760-61, 2053; at U.S. Bob of health insurance plainly not such a Jones, 738-40, at U.S. 94 S.Ct. 2038. function. arguments Plaintiffs’ that their suits were purpose contributions, ensuring revenues, tax impeding were also de short, we are not persuaded by the by plaintiffs’ pleadings, own since feated Fourth Circuit’s reasoning. We think that injuries the only plaintiffs in identified not, Act does its liability. United,” volved tax “Americans terms, cover responsibility the shared pay- 2053; Jones, at U.S. Bob “any ment under the term tax.” Our dis- 738-39, 2038; cf. senting however, another, colleague, raises —Univ., Liberty F.3d at substantial, objection: more That Con- — (describing similar pleadings by plaintiffs in that gress affirmatively intended for the Anti- case). It does not follow from those cases Injunction apply Act to to the shared re- plaintiffs can bring never a pre-en sponsibility payment, because the Afforda- challenge forcement regulato to discrete ble Care Act penalty directs that the ry requirement imposes obligations “assessed and collected in the same man- unrelated if Congress, revenues in a as an ner assessable under sub- separate provision, chooses to tax some B chapter chapter 68.” 26 U.S.C. those who violate it. § 5000A(g)(l). Since included sure, To be it has been held that subchapter purpose “taxes” for directly suits that do not Act, seek restrain Injunction the Anti main- dissent tax assessment or collection are nonethe tains that the responsibility pay- shared less if they barred directed the can only ment be “assessed and collected by means which the IRS achieves those in the same manner” as if penalties those

11 eredit[], in too, pre-enforcement from the amount thereof the it, is insulated same if it challenges. deficiency.” manner as were a 26 1314(b) added). § A (emphasis U.S.C. argues that “assessed The Government of forest qualified issuer conservation the same manner” has a and collected in liable for tax amount bonds is refund speak limited it meaning; does not more forestry not used for conservation pur- pre-enforcement re- availability “[a]ny amount poses, and such shall be agree. “As used in the Internal view. We and in the assessed collected same manner ... the term assessment Revenue Code by imposed chapter, except as tax this of the amount the tax- recording involves a B of subchapter chapter (relating 63 to Government,” “is owes the and es- payer deficiency procedures) apply shall not in sentially a bookkeeping notation” is respect or of such assessment collection.” liability by recording the “made 54B(h)(3)(A) added). § (emphasis Id. And Secretary.” office of the taxpayer “[a]ny underpayment partner of tax Winn, 124 Hibbs failing comply” reason of to with certain (2004) (internal quo- 159 L.Ed.2d requirements “shall be col- assessed and omitted). marks citations tation and in the lected same manner as if such “collection” to the IRS’s “actu- term refers underpayment were on account of a math- against plaintiff.” imposition al of a 6241(b) § ematical or clerical error.” Id. States, 650 F.3d Cohen v. United added). (emphasis These directions tell (D.C.Cir.2011) banc). (en begins It the IRS how to calculate and cer- obtain taxpayer that a for an un- notice liable sums, tain not when to do so. See Thomas paid a demand that the tax- amount and More, F.3d at 540. payer pay ordinarily it. The IRS receives taxpayer pay- when that sum submits to There is more weaken dissent’s If through any accepted means. ment linguistic analysis. Although the Afforda- pay, continues to refuse to taxpayer Care Act states that the shared re- ble employ can various collection meth- IRS sponsibility payment is to be and assessed ods, including liens and levies on the tax- in the same manner as an assess- collected terms, These payer’s property.19 analo- B, subchapter under able thus contexts, gous have been held to exclude Chapter sen- tracking language of 68’s timing challenges. “Assessing and (assessable penalties “shall be as- tence “in collecting” penalty the same manner” in the same manner sessed and collected tax, instance, require does as a taxes”), Act omits the Affordable Care apply to same statute of limitations That Chapter the next sentence 68. See, e.g., Sage v. each. United “any sentence reads reference (5th Cir.1990). F.2d 23-25 imposed by title ‘tax’ this title shall be penalties also to refer to the manner,” deemed “in the same which phrase provided by [subchapter collection,” B].” liabilities modifies “assessment 6671(a). § The second sentence moreover, U.S.C. throughout is used Code sweeps preceding than the sen- broader methodology procedures. For refer to tence; B instance, subchapter it means assessable adjustment” “[m]ethod directly an error are all related adjustment made to correct —which ], to be treated as taxes for all refund[ ] or taxes —are “assess[ ] colleet[ (notice); (levies). § § § id. See 26 U.S.C. (liens); (means payment); id. id. 12 sum,

purposes why under the Code. That is it we responsibili- read shared universally held that the ty payment provision, been Anti- 5000A(g)(l), section Injunction applies Chapter Act various implicating as not the Anti-Injunction Act. penalties.20 Similarly, the conclusion, 68 assessable If we had doubt about our applies Act to interest due dissenting colleague’s we think our inter- language on of identical taxes because pretation is further foreclosed two addi- requiring section of the Code that another First, tional considerations. Congress, as as a tax.21 this interest be treated noted, we have made the mandate the imposes Affordable Care Act on covered penalties equivalent If were to tax persons purchase insurance analytically purposes including applica es for all — separate and legally from the shared re- tion Act—the last Second, sponsibility penalty. since the 6671 be superflu sentence of section would purpose Act’s obvious is to statutory ous. is a maxim of It hallowed protect fisc, the Government’s we think the effect, we interpretation give must if interpretation Government’s the Act —that possible, to all words a statute. See pre-enforcement judicial no bar to re- Walker, v. 588 Duncan 121 waiver, view—if not a is at least entitled to We do deference. not believe somehow inad vertently quite omitted the last sentence in We think it unlikely when it drafted cross-reference pre-enforcement ju- to intended foreclose Chapter penalties 68 assessable in the dicial review the mandate even if Con- responsibility payment provision. shared gress delay intended to review of the pen- Congress often alty. indicates with specificity scope legal obligation when it wants other exactions imposed by Code the mandate is broader than to be treated as taxes.22 And when Con scope the enforcement mechanism of gress an states that exaction penalty. should be divergence This illustrates “assessed collected the same persuasively why man tax,” sentence, ner as a this last and, omits therefore, and would be awkward fit— still wishes to bar suits to quite unlikely restrain assess to be what Congress intend- collection, ment it has included specific ed. If the applied mandate, to the provisions just to do that.23 Congress’s subject those to the mandate but exempt deliberate decision so do here is from the penalty would either have no telling. judicial they relief —because could never Scanlon, 20. See Botta v. partnerships 314 F.2d underpayment "treated as an (2d Cir.1963) cases); (surveying tax”); see (additions tax, § also id. addi- Mihlbachler, Souther 701 F.2d amounts, tional Chapter under (10th Cir.1983); Lethert, Kelly v. 362 F.2d 68, subchapter tax). A treated as (8th Cir.1966); Shaw v. United States, (9th Cir.1964). 331 F.2d 23.See, e.g., 6305(a)-(b) § 26 U.S.C. (directing the assessment and collection of Social 21. Vossberg, See Nuttelman v. 753 F.2d Security-related liabilities should be "as- (8th Cir.1985) (interpreting 26 U.S.C. ... sess[ed] collect[ed] in the same man- 6601(e)(1)); § Eng’r, Inc. v. United Prof'l tax,” ner ... as if such amount were (4th Cir.1975) (simi 527 F.2d adding provisions expressly lar). additional bar- "any ring brought action ... to restrain or See, e.g., (interest § 26 U.S.C. on tax review the assessment and collection” of tax); 6242(c)(3)(B) (payments treated id. liabilities). those of certain additional liabilities incurred

13 subject to suits under- pre-enforcement be able to suit—or would a refund bring penalty why to the to subject position others score the Government’s sue when v. Regan, See Carolina something not.24 South whether “tax” under the could 378, 1107, 367, 104 S.Ct. Anti-Injunction 465 U.S. Act deserves deference. (1984) the (holding that Anti- L.Ed.2d In Cheatham v. 92 U.S. United “to apply actions Act does not Injunction (1875), explained L.Ed. the for whom by aggrieved parties brought Anti-Injunction byAct purpose the of the provided an alternative has not [Congress] stating government right has the that “the sure, raises a ques- To be that remedy.”). it will prescribe to the conditions on which to the subject someone man- tion whether subject judgment the courts itself of standing challenge legality to' the date in the of its revenue.” Id. at 89. collection if not mandate he or she does face of the Davis, Helvering v. 301 U.S. And to unnecessary But it is decide penalty. (1937), L.Ed. the to that question conclude predecessor the Court held that the to such a quite reluctant to endorse would be Anti-Injunction Act could be waived judicial review. strange scheme in litigation. the Government Id. at Secondly, the determina Government’s that Hel- acknowledge 57 S.Ct. 904. We Anti-Injunction should tion that vering anomaly predating may well be suit interpreted appellants’ to bar not be limitations, jurisdictional stringent more Snyder, 109 entitled to deference.25 the Government has disclaimed Cf. all, After at 3 S.Ct. 157. any explicit waiver of the beneficiary is the of the sole Government filings its recent before the Su- Act, orderly IRS’s facilitates the which Still, recog- preme Court. Court has and pro of taxes uninterrupted collection pre-enforcement nized that suits restrain- subject being collectors from tects IRS ing assessment or collection of taxes these complete func they before litigation if inconsis- might they be barred are Jones, 736-37, at Bob tions. purposes. tent with Act’s at Packing, 370 U.S. Williams Jones, 1125; see Bob emphasiz- also Supreme Court decisions

Past if the IRS’s (suggesting of au- breadth the Government’s ing the legal basis or interpretations it will were without to determine whether be thority responsibility appellants anyone else this suit because shared or will fall 24. Whether category, exempted payment as individuals under Act. See Seven- under is a "tax'’ they Holder, cannot afford because Sky from v. No. 1:10-cv-00950 at 15-16 coverage, cannot determined without be 20, 2010) (memorandum (D.D.C. law Aug. of knowing their income. See household dismiss). support future defendants’ motion 5000A(e)(l)(A). point, By 26 U.S.C. has since abandoned that The Government course, appellants may opportu- have lost position. appellants’ It now concludes that bring pre-enforcement challenge nity "poses disrup of ... suit no realistic threat irrespective they whether the mandate government's adminis tion” the "federal to do so allowed under Code,” cross- tration the Tax and that the ripeness Whether framed as an issue Act. Chapter 68 reference to assessable remedies, the outcome is the same: The invoking 5000A(g)(l) not be read as should Act to applicability Supple Act. Fed. Gov’t mandate challenges to the individual cannot 3-5, 7, Univ., Liberty Inc. mental Br. at challenges to the minimum conflated Geithner, (4th May Cir. No. 10-2347 coverage penalty. essential 2011). litigation, the in this Government 25. Earlier Anti-Injunction Act argued that the barred protection congressional power. Congress regu- to the of the reve- “unrelated can local, nues,” not might apply). purely Act late even the intrastate economic as, in long behavior so the it aggregate, reading The Government’s of section substantially affects interstate commerce. shared 5000A(g)(l), responsibility the The manner in pay which consumers payment provision, as not invoking the services the interstate health mar- care is weight. entitled to example. ket is such an virtually Because all, provision, delegates That after admin- everyone will, point, at some need health powers istration and enforcement services, inactive, truly no one is and the Congress IRS. Whether meant to invoke health market in- inextricably services is through the the tertwined with health insurance. Con- in the provision cross-reference is gress those found that who do not pur- question a that to goes timing of the insurance, chase health and instead self- powers. Government’s enforcement insure, inevitably almost take health care perfectly Government has advanced a they services cannot afford. Hospitals, plausible (indeed, reading of statute virtue of professional federal law and obli- view, one), in our the better and there- gation, services, provide these a and as accept fore we it. result, billion annual $43 costs are shift- insured, ed to through higher premi- Ill That, turn, ums. makes health insur- Appellants’ primary argument why the ance less affordable and increases the total individual mandate exceeded Congress’s Therefore, number of uninsured. it ar- powers enumerated is that Congress can- gued rationally concluded require individuals with no connection that decisions how pay about to for health commerce, to interstate and no desire to care, in aggregate, substantially affect purchase product, nonetheless to do so. interstate commerce. The Government Congress’s authority regulate com- contends, moreover, the individual merce, they say, only existing extends upheld mandate can be as an essential commerce, only i.e. to individuals who take element of the Affordable Care Act’s bring into, affirmative acts that them or reforms, broader guaranteed like the issue affect, market, substantially an interstate and community rating requirements, which only for the duration those activi- all agree Congress’s are within power. reason, ties. For this the mandate also That is because found ab- cannot justified be under the Necessary mandate, sent guaranteed issue Clause, and Proper because that clause and community rating requirements would can powers effectuate those that Con- lead buy individuals to wait to insurance gress actually possesses under the Com- care, until they causing higher needed pre- Clause, merce not create new ones. To miums, again reducing the number in- hold otherwise any would remove limita- sured, and destroying efficacy of Con- tions on federal power, at expense gress’s regulatory scheme. state sovereignty. Congress, appellants warn, could force individuals buy any The Government concedes the novelty market, product, in any with any penalty— the any mandate and the lack of doctrinal from fines to criminal- prosecution —for limiting indeed, principles; argu- at oral non-compliance. ment, the Government identify could not

The Government counters that the purchase indi- mandate product vidual mandate is within well the bounds service interstate commerce that would into the unconstitutional, requirement coverage to maintain least under be future, theory, their under dooms But the Government Clause. Commerce entirety. mandate in its care market is health stress does are few other mar- factually unique; there sure, applications be To some kets, a virtu- says, participation it where conceivably constitu- might mandate declining buy or certainty, where al appellants’ theory- even tional under —for causes a nation- disproportionately product instance, mandate were limited to if the problem. al economic ac- compelling presently those individuals pur- tive in the insurance market to health

A. year coverage. or chase another month brought have apparent, appellants isAs in isolation viewing applications But those challenge the individual man- facial to a in may considering be from them different that a recognize facial Appellants date. that, appellants’ the context of a law under theoretically must establish “that challenge theory, predominantly invalid consists of under which exists set of circumstances no au- applications Congress’s that exceed States v. would be valid.” United the [law] thority. pre- facial Though challenges Salerno, disfavored, sumptively Supreme Court (1987). But unlike the L.Ed.2d 697 nonetheless invalidated the Gun-Free Circuit, appel- before the Sixth plaintiffs in toto States School Zones in United conceding careful avoid there lants were to Lopez, of the law. applications valid

were (1995), suggesting even L.Ed.2d 626 after Cf. More, 556, 561-62, F.3d at Thomas in there the law were circumstances which Instead, (Sutton, J., concurring). ap- might constitutionally applied have been theory Clause Commerce pellants’ had, fact, if in in (e.g. gun traveled virtually all conceivable commerce). would invalidate 561-62, 567, interstate Id. of mandate. applications Perhaps invalidation 115 S.Ct. 1624. facial justified was because the Since, appellants, Congress to according practice, applications assumed that in most regulate individuals power has the to unconstitutional, or law would be ways acting in that affirmatively who are differentiating constitu- because between market, and for the duration of affect applications tional and unconstitutional activity, categorically Congress their also is si- Lopez would be too difficult.26 But authority compel individuals to lacks to subsequent on as are cases. point, lent in a market into participation maintain against assigning dispositive That cautions currently active in the future. No one here, do significance the issue and we to necessarily market will health insurance not. goes active when the mandate effect, obliged to We think we are confront or active that mar- into remain as to gravamen appellants’ argument perpetuity, absent mandate. ket scope of the Commerce Clause. concede that appellants Nor do here Con- to impose require could a mandate gress B. purchase insurance when individuals Appellants’ objection central they hospital arrive at for treatment Congress, the first indefinitely. The mandate is that that maintain insurance Jr., Fallon, Fact and Fic- 26. See Richard H. Challenges, 99 Calif. L.Rev. tion About Facial added).

time, actually (emphasis commanded that all Indian Tribes.” At the purchase product, in- Americans health fashioned, time the Constitution was surance, many of them have never meant, “regulate” now, as it does “[t]o before, purchased purchase, never wish to method,” adjust by well rule or as “[t]o may Appellants never need. do not “direct,” turn, direct.”27 To included question that can regulate the prescribe measure[s]; certain “[t]o interstate health care and health insurance course,” mark out a certain or “[t]o markets, reasonably der; words, to command.”28 In other could conclude decisions about wheth- “regulate” action, can require mean to er health purchase insurance substan- limit, nothing in the definition appears to tially affect interstate commerce. The power only already to those active in issue here is whether the contested Gov- relation to an interstate market. Nor was can an require immensely ernment broad term only the “commerce” limited exist Americans, group people including —all ing commerce. There is therefore no tex persons no uninsured involvement appellants’ tual support argument. So the health insurance and health care mar- turn Supreme we Court decisions. now, buy kets—to health insurance based will, on the mere likelihood most at Framers, The in using term the “com- care, point, virtually some need health thus states,” among obviously merce intend- market, inevitably enter that and conse- toed make a distinction between interstate quently substantially affect the in- health commerce, and local Supreme but say market. Appellants surance that Con- jurisprudence over the century last gress regulate cannot based such on largely Lopez, eroded distinction. See generalizations. Only sweeping individuals 553-61, 1624; 514 U.S. at id. at voluntarily engaging who are in an “activi- 568-75, J., 115 1624 (Kennedy, S.Ct. con- ty” related to interstate commerce—not curring). Today, only recognized limi- uninsured, who are “inactive”—are (1) may tations are that not reg- within scope of the Commerce Clause. ulate non-economic solely behavior based mandate, it recognized, should be an on attenuated link to interstate com- novel, too, indeed but somewhat so for all merce, (2) Congress may regulate its elegance, appellants’ argument. No intrastate economic if its aggre- behavior Supreme Court case has ever or im- held gate impact on neg- interstate commerce is plied Congress’s Commerce Clause Morrison, ligible. See United States authority is limited to individuals who are 598, 610, 615-19, U.S. presently engaging in activity involv- S.Ct. ing, substantially affecting, (2000); or interstate Lopez, 514 U.S. at commerce. 558-61, 566-67, 115 S.Ct. 1624. Those lim- quite inapposite itations are to the consti-

We look first to text of the Constitu tutionality mandate, the individual I, tion. Article cl. states: “The certainly which is focused on economic Congress shall be- regu have Power ... To late foreign Nations, Commerce with havior—if decisions whether or not to among the several and with the purchase health care insurance to seek Johnson, (2d ed.) (1789) Samuel Dictionary nary the En- English Language (4th 1773) (same). (reprinted glish Language ed. 1978) added) (hereinafter (emphasis John- son); Sheridan, Complete see also T. A 28. Johnson 514. Dictio- af- substantially Justice Jackson said even “if we care—that does medical marketed, that it sup- commerce. assume is never it fect interstate grew a need of man who plies it which sure, a number To be otherwise reflected purchases would cases have used Commerce Clause Court’s open Home-grown in the market. wheat “activity” to describe behavior the word competes in this sense with wheat in com- with- regarded as within or that was either merce. stimulation of commerce is a authority.29 But those Congress’s out function regulatory quite use of the as did not to limit purport cases definitely prohibitions or restrictions only existing They activities. were reach Wickard, thereon.” at merely the relevant conduct identifying added). (emphasis Justice Jack- descriptive way, the facts of because recognized son thus “force[d] raise question— those cases did not some farmers into the market to buy what “inactivity” here —of whether presented they provide could themselves.” Id. Florida, regulated. also be can Although regulation 63 S.Ct. 82. short, at 1286. In we do not believe F.3d covered, limited the size of the farms the view that an exist- these cases endorse opinion apply logic would to force activity is kind of touchstone or ing some farmer, any small, no how matter into necessary precursor to Commerce Clause buying open wheat in the market. See regulation. Raich, 20, 545 U.S. at 125 2195. S.Ct. Supreme think the closest Court We Wickard, therefore, very comes close to to Filb precedent our case Wickard v. ours, authorizing a similar mandate to at urn, 111, 82, 63 L.Ed. 317 U.S. S.Ct. 87 indirectly, “activity” the farmer’s least (1942). There, a farmer ran afoul of 122 regulation be as to the could incidental as acreage Agri allowed the his wheat under owning a simply farm. Adjustment Act of by grow cultural 1938 Indeed, were “activities” of some sort to sale, wheat, to ing additional not for but required be before Commerce Clause family his and his Id. at feed livestock. invoked, be it would be rather could diffi- 114-15, 118-19, 63 82. Filburn ar S.Ct. “activity.” cult to define For in- such as gued was unconstitutional stance, child drug pornography our applied using to him because he was not laws, criminalizing possession, mere have any activity in the the excess wheat passive no how upheld been matter Supreme interstate market. The Court if the owner never possession, even unanimously rejected this claim. It held actively contraband, distributes the on the growing personal that even wheat con theory possession makes active trade market, any in sumption, not for sale could in likely future.30 And in our more price, affect national therefore was situation, Judge cogently Sutton has Congress’s within commerce Id. at power. demonstrated, 127-28, many persons regulated by 63 S.Ct. 82. This conclusion was presumably legiti- the mandate would might not because his wheat be di if market, mately regulated, activity into even was a verted the national as was Raich, sought once recognized precursor, they v. 545 U.S. medical care Gonzales 18-19, 2195, More, 1, 1 Thomas 125 S.Ct. 162 L.Ed.2d or health insurance. Raich, Raich, 2195; See, e.g., U.S. at 29. v. 30. See S.Ct. Gonzales Sullivan, (2005); 451 F.3d 891— United States Morrison, 610-13, 1740; Forrest, (D.C.Cir.2006); U.S. at United States v. 558-61, (4th Cir.2005). Lopez, 514 at F.3d U.S. 78-79 (Sutton, J., Moreover, concurring). novelty way. at 560-61 F.Bd cuts another repeatedly reject- obliged this might We well be —and past— these kinds of distinctions ed our most important pre- consideration—-to instance, disavowing, for distinctions be- sume that acts of are constitu- “direct” “indirect” and effects on Morrison, tween tional. 529 U.S. at they interstate commerce—because were S.Ct. 1740. not Appellants have made Wickard, similarly unworkable. 317 clear showing contrary. not irrelevant. The

the mandate and principle. jection, it would be—is ard doesn’t itable future dent, they emphasize in reasonable pose commerce. cal services—as rather useless as that medical our have ic sons on the merits. keep obliged dy, Since Appellants their J., Constitution or minds, clearly who insurance at noted, it. Although that asserting concurring). 119-20, appellants proposed care, at strikes us as appeared buy 569-71, avoids the encroach merely imposing have ^[*] anticipation purchase transactions insurance one cannot Congress, that even novelty assuming rule sought to cannot find real support have the 115 S.Ct. 1624 Supreme ^[*] Supreme both the rather unpersuasive into in facial challenge lack of a limiting — 82; hospital conditions on per- when argument, either the text of of which if ^[*] see also that claim—is be obliged virtually inev- avoid this in power one could be Court the mandate Court occa- one novelty interstate for medi- would, (Kenne- sought Lopez, prece- Wick- as we log- im- ob- disproportionate harm on inflict a both consumption of health care services. of the market troubling, but not surance nize, or affect senting). 556 U.S. we are interpreting recognizing a new constitutional right. Cf. ior, or to prohibit or condition commercial behav- L.Ed.2d 1208 established Caperton limits are not qualitative cause the commerce is commerce. But to tell the sional chase clear We Government’s failure to advance because as noted doctrinal any product because we have not acknowledge mandates market v. A.T. It it, power limitation. That suffices virtually symmetrical constitutional (2009) (Roberts, C.J., principles earlier, apparent as is a Massey because fatal, a result require some service rather everyone that this case to not least because scope limiting 2252, 2272, discomfort Coal yet perceived American the uninsured the health us, of their later power, truth, unique difficulty of a either be- entry will interstate Co., Inc., congres- recog- power those enter long- with pur- rest one, into dis- any 173 in- sionally Appellants’s argument related has treated particular legislative is upholding device’s lack of the mandate pedigree historical would turn the as evi- may dence that Commerce Clause into a federal police device exceed Con- gress’s power, at expense sovereignty. constitutional But appel- bounds.31 state proposed lants’ But the separate constitutional limitation distinctions that is national equally only spheres novel—one that and local have Eleventh been understood as Circuit has recently only partially— those between intrastate and interstate —and Florida, endorsed. commerce, 648 F.3d at traditional, 1285-88. and between non- See, e.g., 31. Free Fund Enter. v. Pub. Co. Ac 521 United U.S. 117 Printz v. , — -, counting Oversight U.S. 130 S.Ct. Bd. (2010); S.Ct. L.Ed.2d in engaging of state concern and those millions of individuals behavior economic areas isolation, Morrison, that, seemingly in is unrelated 529 U.S. to involving commerce. Lopez, commerce. have interstate See 617-19, Appellants at S.Ct. 555-56, accepted 115 S.Ct. 1624. That that health care and health argued assumption appellants’ argu- undermines concerns, and uniquely state

insurance are ment; very premise magni- that the its is legislation federal decades of established any one actions is tude of individual’s irrel- contrary. suggest these areas evant; thing that matters is v. South-Eastern Underwriters United States problem Congress whether the national 'n, 533, 539, 64 Ass substantially one has identified is af- Florida, (1944); L.Ed. Indeed, interstate fects commerce. case Nor do states’ F.3d at 1302-03. we think case, a version appellants’ argu- after powers general over health and welfare make insurance is is tion is tantamount to interstate al 561-62 its aggregate effect of Finally, ostensible can conduct that were L.Ed. 545 des control over its health care quires serve entered, just Moor, state concern. own regulate federal the health state all (Sutton, power. appellants’ 55 U.S. an interstate injurious market; (1853). can also inactivity its sovereignty. government, even instances of making them “active” in the v citizens Thomas J., care to interstate commerce. Moreover, if the position concurring); never regulate ^[*] inside a state. industry a relinquishment market, behavior, More, How. state its A state that re intended purchase ^[*] would not experimenta instances if 568, 574, purely thereby a tradition cf. we policy after F.3d at for, Veazie health think local pre all, ce or ment —that rejected on that basis. See United States lar national trastate individuals that Filburn interstate to national interstate commerce. Id. Wickard, annual wheat engaged sulting expressly impact cumstance” gress’s power havior (surveying 121, 62 S.Ct. Wickard Wrightwood Dairy person on interstate commerce from that had activity, only economic held, it commerce,” ... cases). interstate commerce—has been production. if Congress’s mattered not was being penalized they output very is, ais aggregated problems, only regulate have also much in that vein. Whether was mere extends no not, Co., the most power L.Ed. 726 Nor did matter bearing trivial in also “fortuitous cir- that even those re- any “particu- effects of in- affirmatively to engaged in injury particular it Filburn’s on Con- regulate of tenuous relation for be- (1942) itself, that can- Appellants’ view an individual never the wheat since Filburn intended to subject regu- not be to Commerce Clause for commercial purposes, be used never voluntary, lation affirmative acts absent it, only and used it to sustain his sold home affect, into, that him or her enter or also that farm. It was irrelevant expresses market a concern for interstate quota compel could even those wheat farm- liberty that individual seems more redolent any wheat, selling with no intention of ers of But it arguments. market, Due Process Clause any in the interstate mar- enter in has no foundation the Commerce All that mattered were the overall ket. The shift to “substantial ef- market —in dynamics Clause. of wheat other words, early likely, fects” in the twentieth cen- generalizations doctrine about future tury national behavior. If farmers like Fil- recognized reality that economic quotas, are the result of burn all exceeded their me- problems economic often it 153-57, of market inev- the wheat made United 402 U.S. chanics Sim- that the market be itable interstate would ilarly, it is that irrelevant an indeterminate likelihood impacted—either healthy, persons number of uninsured will try- high price of wheat was care, will never consume health there- unspec- maintain would induce some ing to never fore affect interstate market. at number of farmers to sell wheat ified regulation is an Broad inherent feature of all, probability after or the market Congress’s authority in constitutional enough who had wheat for their farmers area; regulate complex, nationwide eco- buying at mar- stop own use would wheat problems necessarily nomic is to deal way, Either these economic fore- ket. generalities. Congress reasonably deter- any casts—and not affirmative acts class, mined that as a the uninsured create enough like Filburn —were to sus- people thus, failures; market of lack harm 117, 126-28, law. at tain the 317 U.S. any particular attributable to uninsured S.Ct. 82. individual, like their lack partic- of overt since have minimized the Cases Wickard market, in a ipation consequence. is of no significance any particular individual’s requirement That direct for most yet They repeated- behavior further. have Americans purchase any product or ser- ly any actual impact confirmed that the seems an legisla- vice intrusive exercise on one individual’s conduct interstate com- power explains surely why Congress tive immaterial, so long merce as a rational not authority used this before—but believing congres- basis exists for that a political that seems to us a judgment rath- enactment, whole, substantially sional a recognition er than limi- constitutional Raich, relates interstate commerce. certainly tations. It is an encroachment 17-19, 2195; at Lopez, liberty, individual on but it is no more so at single 115 S.Ct. 1624. A than command that restaurants hotels individual need not even be engaged obliged all regard- to serve customers activity any economic not participat- race, gravely less ill individuals —ie. ing in local or interstate market —so cannot use a substance their doctors de- long as the scribed as the engaged palliative individual some effective excruciating pain, or that a farmer cannot type of behavior that would undercut a grow enough support wheat to his own unregu- broader economic if regulation left family.32 right to be from free federal Raich, lated. absolute, regulation yields is not (Scalia, J., concurring). single aAnd imperative be to forge free need even engaging individual national solutions national problems, no activity the harmful that Congress deems seemingly passive— matter how local—or responsible prob- for a national economic origins. their individual See Heart At- of lem; enough it is in general, most do. Motel, lanta Inc. v. United 379 Thus, organized when finds that 241, 258-59, 348, 85 S.Ct. 13 L.Ed.2d commerce, crime harms interstate and that most loan sharks part orga- are of reasons, For the affirm foregoing we crime, Congress nized can regulate even decision of the district court. those individual loan sharks who part organized crime. See Perez v. So ordered. Motel, 2195; Wickard,

32. Heart Atlanta Inc. v. Unite 125 S.Ct. at 317 U.S. dStates, 241, 258-59, 82; More, 379 U.S. S.Ct. see also Thomas 651 F.3d at Raich, (1964); 6-7, (Sutton, J., L.Ed.2d 258 at concurring). EDWARDS, Judge, Senior the individual mandate —is codified in the Circuit and takes Tax Code effect in 2014. The concurring: tax for those without health insur- authority under legislate Congress’s at the capped average price ance is of a limits. Clause not without the Commerce is plan. insurance tax penalty health else, there nothing are boundaries If only failing sanction for to have health Proper Necessary from the emanate only insurance. And IRS—and Const, Clause, I, 8,§ art. cl. see U.S. assess, collect, may and enforce the IRS — as limitations on principled serve which penalty. authority Congress’s under the Commerce Plaintiffs contend that lacks explained As Justice Scalia his Clause. authority constitutional to mandate that Raich, concurrence Gonzales v. purchase citizens health insurance. The (2005), L.Ed.2d responds Congress pos- Government regulate activities Congress may economic requisite authority sesses under the that have a substantial effect on interstate and Necessary Proper Commerce also to make a commerce and enact laws I, Clauses of Article Section 8 of the Con- regulation of commerce effective. valid stitution. The alternatively Government 37-39, at 2195. With See id. provision nothing asserts that this creates category, to the latter rele- respect “[t]he than a routine tax more incentive author- question simply vant whether the means I, Taxing ized Clause of Article ‘reasonably at- adapted’ chosen are Section 8. legitimate tainment of end under the power.” judges, For there is a un- commerce Id. natural and omitted). (citation power inclination “[T]he derstandable to decide these enabling regulation weighty laws effective and historic ques- enact constitutional only my respectful interstate commerce can be exercised tions. But in judgment, de- conjunction regula- congressional ciding the constitutional in this case issues market, an interstate it extends important tion of at this time would contravene an statute, necessary to make long-standing to those measures federal Act, regulation at Anti-Injunction carefully the interstate effective.” Id. which limits Congress’s power jurisdiction 125 S.Ct. 2195. of federal tax- courts over regulation market matters. make the interstate related power effective “is not that threatens Enacted truly the line ‘what is obliterate between Act, exceptions, with a few denies courts ” (cita- truly and what is local.’ Id. national jurisdiction pre-enforcement over suits omitted). tion restrain would “the assessment collection tax.” 26 U.S.C. KAVANAUGH, Judge, Circuit 7421(a). has strict- dissenting jurisdiction as to and not ly that Act a firm interpreted bulwark deciding the merits: judicial against premature interference unusually The Affordable Care Act is with tax assessment and As the collection. legislation significant again, federal that will af- Court has stressed time and al- may all Americans. of the the Act seem an inconvenient provision though fect One in the requires technicality particular Act most Americans to maintain context of a case, system the pay penalty health insurance or else a tax it is essential to overall they their orderly prompt when file annual tax returns. federal tax administra- provision commonly That referred to as tion. — Act, Anti-Injunction the a tax- Affordable Care Act penalties

Under likewise a tax payer seeking challenge law must must pre-enforcement be insulated from disputed the tax and then a pay bring first by Anti-Injunction suits Act. the suit, which time the refund courts will straightforward logic That chain of con- legal arguments. taxpayer’s consider the vincingly demonstrates that the Anti-In- may legal arguments raise taxpayer Or a junction poses jurisdictional Act a bar to against an IRS defending enforcement our deciding case at this time. may taxpayer bring But a action. case, suit. In this the pre-enforcement Moreover, there is an alternative and effect in mandate takes so individual independent Anti-Injunc- reason that the without health insurance must taxpayers tion applies Act here. Section penalties tax on their tax paying start Tax Code authority defines the IRS’s for in 2015. The Act returns assessment collection of to in- taxes means, therefore, that a suit challenging clude assessment and collection the civil cannot the individual mandate be enter- penalties in the Tax Code are as- tained until unless acts by sessed the IRS —what are statutorily exempt before suits from then these amounts,” known as “additional “additions Act. tax,” penalties.” and “assessable applies Act here be- specifically requires Section 6201 the IRS pre-enforcement suit, cause plaintiffs’ if (including interest, to assess “all taxes ad- successful, prevent would IRS from amounts, tax, ditional additions to the penalties or assessing collecting tax from penalties) imposed by assessable this ti- do health citizens who not have insurance. § 6201(a); tle.” 26 U.S.C. see 26 U.S.C. sure, To be Care Affordable Act labels (collection). §§ 6301-6303 The Affordable its exaction failure to have health in- imposes Care Act “penalty” civil for fail- “penalty” surance as and not as a insurance; ure to have health penalty “tax.” But the Anti-Injunction Act still IRS; to be “assessed” and it tois applies. That’s because Affordable “in the assessed same manner as an requires Care tax penalty Act that the penalty subchapter failure maintain assessable health insurance under B of “be assessed and chapter collected the same manner 68.” The Affordable Care Act as an assessable under subchapter penalty is therefore an penal- “assessable B chapter 68” of the Tax Code. ty” for purposes of Section 6201. Under § 5000A(g)(l). penalties U.S.C. And un- also, then, Section it is a tax for subchapter der B chapter in68 turn purposes of the IRS’s assessment authori- must assessed “be and collected ty. in turn bars same manner taxes.” 26 U.S.C. pre-enforcement suits to restrain assess- added). 6671(a) (emphasis It follows ment or collection of taxes. Because Sec- from provisions, together, those two taken tion 6201 classifies the Affordable Care these Affordable Care Act penalty as a tax for assessment and must be assessed and collected “in the purposes, collection it follows same manner as taxes.” Taxes are insu- Anti-Injunction Act bars pre-enforcement pre-enforcement lated from suits suits to restrain the assessment collec- Anti-Injunction Act. In order for the Af- tion of penalty. the Affordable Care Act Act penalties fordable Care to be assessed “in reasoning independently collected That same manner as tax- demon- es,” the assessment and collection of these strates that the Act pre- Means Committee. Ways House and case at this the deciding this us from eludes likewise fa- Members and staff are Those time. Anti-Injunction Act. Those miliar with the Act, sidestepping In their counter- specialists, and Tax Code heavily on opinion relies majority Branch, deep- were in the Executive parts “penal- used the word Congress fact that crafting the Affordable Care ly involved in the Affordable “tax” rather than ty” Congress has carved years, Act. Over sur- majority opinion’s But the Act. Care Anti-Injunc- many exceptions to out to take account appraisal fails face chal- permit pre-enforcement of the Tax Code. tion Act to and structure text basic laws, penalties particularly numerous situa- lenges Tax contains to tax The Code set forth requirements disruption for violations cause delay where would tions “penal- uses the Congress often Act, moreover, the Code. hardship. In this Con- greater coercive to have a ty” label so as taxpayers relieved from gress specifically Congress wants behavior effect on that the enforcement mechanisms certain But critical for discourage. encourage or tax ordinarily may employ enforce IRS (and by overlooked present purposes Congress But did not relieve obligations. Tax is that Code majority opinion) Anti-Injunction Act’s from the taxpayers taxes for numer- equates penalties tax pre-enforcement suits. We against bar including for purposes, administrative ous Congress’s decision. respect must Unless by the IRS. and collection assessment Congress exception creates an for these Here, of the Tax Code establishes the text Affordable Care Act cases—which Con- Act penalty Affordable Care that the both any still do at time—this suit gress could in the and collected must be “assessed by the federal courts cannot be decided 6671) (Section and taxes” same manner as until 2015. is a that the Affordable Care of the IRS’s assessment Anti- purposes Notwithstanding “tax” for the text of the (Section 6201). tax By equating power Act, argued that Injunction some have each purposes, for these penalties to taxes considerations de- compelling prudential clear that independently makes provision constitu- mand that the courts decide this like penalties, Affordable Care these But consider- prudential issue now. tional taxes, from pre-enforcement are insulated a statute trump cannot the text of ations by Anti-Injunction Act. suits jurisdic- a court’s setting forth limits on , event, my judgment, tion. in the The Tax is never walk Code prudential considerations favor statutory analysis But here relevant park. Anti- firm conclusion that the until 2015.1 waiting leads to a our Injunction Act bars this suit. equates fact that Tax Code I to taxes for IRS assessment by passed Affordable Care Act was is known Members purposes

collection law President signed into legis- on tax-related who work March 2010. The Act initi- Obama on particular, the Members lation—in major changes ated a series of Finance of the Senate Committee staff court, standing to Regardless, may not have plaintiffs. We States States are In this no mandate, challenge for reasons the individual whether the Anti- need not consider therefore Virginia v. explained. Circuit apply differently to a the Fourth Injunction Act would Sebelius, Cir.2011). (4th 656 F.3d 253 challenges mandate. to the individual State’s Code,” Code,” and health American health insurance care “Internal Revenue “Ti- and synonymous.) tle 26” are markets. Title 26 contains subtitles, in turn which are subdivided following Although is an over-simpli- chapters into 1 through numbered fication, important provi- most the Act’s (1) increase in sions are five: an federal D, Within Title is Subtitle which is Medicaid, including through spending, on entitled “Miscellaneous Excise Taxes.” care for lower-income health families and D chapter Within Subtitle is which is (2) individuals; the creation of state-run entitled “Maintenance of Minimum Essen- “exchanges” designed help individuals Coverage.” tial Within chapter 48 is Sec- or employer-provided without other health 5000A, tion which is entitled “Requirement easily insurance obtain insurance more and coverage” to maintain minimum essential cheaply they than now open can on the provi- contains the individual mandate (3) market; requirement a that most em- sion at issue in this case. provide ployers health insurance to their provides Section part: 5000A in relevant employees pay or higher they taxes than (a) Requirement to maintain mini- (4) would; banning otherwise insurers coverage. mum appli- essential —An denying from or coverage charging higher cable individual shall for each month rates to individuals with pre-existing con- beginning after 2013 ensure that the (5) problems; ditions or health a man- individual, any dependent date that most citizens maintain health applicable individual who is an individ- pay insurance or else a tax penalty on ual, is covered under minimum essen- tax their returns. tial for such coverage month. Plaintiffs take exception that last ele- (b) responsibility payment.— Shared ment: the mandate that individuals main- (1) general.- taxpayer iswho —-If tain health pay insurance else a tax individual, applicable or an applica- penalty on their tax returns. Plaintiffs ble taxpayer individual whom the argue that Congress lacks authority to im- (3), is liable paragraph under fails to mandatory-purchase such a pose require- requirement meet of subsection Clause, ment under the Commerce (a) months, then, for or more except Clause, Necessary Proper or the Tax- provided (e), in subsection there is Clause, ing which are the constitutional hereby imposed on the taxpayer bases cited the Government to justify penalty respect with to such failures point the mandate. Plaintiffs out that a in the amount determined sub- under mandatory-purchase federal requirement (c). section unprecedented is in American history. Al- (2) pen- Inclusion with Any though imposed some have States similar return. — alty imposed by this section re- mandates for their citizens to maintain spect month shall be included insurance, health insurance or auto for ex- with a return taxpayer’s chap- under ample, plaintiffs explain that the Federal year ter 1 for the taxable in- which possess Government general does not cludes such month. police power over its citizens and has not previously employed such mandates. provides Section 5000A further amount of capped at the

A average price plan. of a health insurance The Tax Code is specifies codified Title 26 section also who is covered (The the United States exempt. Code. terms “Tax and who example, For lower- illegal By requiring and aliens are that the Affordable income individuals Care failing penalties for to Act be required pay penalty not assessed and collected in taxes, the same manner insurance. as Section have health 5000A(g)(l) triggers question the threshold 5000A(g)(l) Section sets Importantly, jurisdiction before us: Do we have to hear as- penalties how the tax will be forth pre-enforcement light suit in collected, sessed, paid: Act, which states that “no by this section penalty provided purpose restraining suit the the by paid upon shall be notice demand assessment or collection of tax shall be Secretary, provided in except the in any maintained court”? (2), col- paragraph shall be assessed and lected in the same manner as an assess- B subchapter under B of penalty able chapter 68.2 in Enacted pre-enforcement challenges Act bars to tax below, fully the cross- explained As more laws, subject statutory to certain excep- provision subchapter B of referenced — tions not relevant here. The Act requires chapter pen- turn that tax provides 68—in taxpayer objects who to a tax law to first alties “shall be assessed and collected pay the tax and then legal assert his or her the same manner as taxes.” 26 U.S.C. objections in a suit for refund. See 26 6671(a) added). (emphasis 7421(a), §§ U.S.C. 7422. Alternatively, a promote compliance To with the individ- taxpayer may legal arguments raise in de- mandate, Congress ual did not enact crimi- non-payment during fense of a deficiency penalties by Depart- nal enforceable or enforcement But a proceeding. taxpay- Congress impose ment of Justice. Nor did may bring er a pre-enforcement suit. through civil enforceable civil or complaints brought by administrative legal challenges As to the Affordable Department of or the Department Justice Care Act’s popped individual mandate first Services, up of Health and Human for exam- country, district courts around the Instead, ple. initially established a tax Branch Executive took the Code, penalty position that is codified the Tax the suits were all barred returns, paid Indeed, on tax by my individual and as- Act. sessed, collected, count, and enforced the Executive Branch told 10 sepa- importantly IRS.3 And most present Anti-Injunc- rate district courts that the purposes, Congress employed cross-refer- Act tion barred these cases. The Execu- making penalty ences clear that the must tive Branch argued that the courts could constitutionality “assessed and collected the same not decide the Af- manner as taxes.” fordable Care Act’s un- individual mandate 5000A(g)(l) "paragraph opinion 2. Section refers to 3. When I refer in this to the Afforda- (2)” (2) 5000A(g). Paragraph pre- of Section penalties, referring only ble Care Act I am using cludes the IRS from some of its more in Section 5000A for failure to tools, levies, aggressive enforcement such as maintain insurance. health This case does liens, prosecution, notices of or criminal upon not call us to examine the various other a citizen when fails to have health insurance penalties imposed by wide-rang- taxes and pay required penalty. tax fails to ing Affordable Care Act. primary IRS's tool enforcement under this statute for those who do not have health in- pay required penalty surance and fail to consists of offsets to tax refunds. (in refund or enforcement suits The text of the til 2015 effect). jurisdictional manifests its status. The after the mandate has taken says purpose that “no suit for the changed Branch later its The Executive restraining the assessment or collection of Act, Anti-Injunction how- about the mind any tax any shall be maintained in court.” ever, of an under- presumably because Supreme As the Court has explained, stat desire to have courts re- policy standable Anti-Injunction utes like the gov question the constitutional about the solve ern “a adjudicatory court’s capacity” or than la- mandate sooner rather individual “speak power of the court ter. rather than rights obligations to the parties” jurisdictional. See said, That courts cannot avoid the Anti- Shinseki, Henderson ex rel. Henderson v. Injunction Supreme Act. As the — —, 1197, 1202, U.S. 131 S.Ct. 179 held, Anti-Injunc- long repeatedly and (2011); Elsevier, L.Ed.2d 159 Reed Inc. v. jurisdictional. goes tion Act is Jurisdiction — Muchnick, U.S. —, 1237, 130 S.Ct. case, authority to a court’s decide and 1243, (2010) (citation 176 L.Ed.2d 18 jurisdictional courts must consider issues omitted).5 quotation internal marks even when the defendant does not raise Moreover, long when “a line of this Arbaugh Corp., them. v. Y & H 546 See Court’s decisions left undisturbed Con- 506-07, 1235, 500, U.S. 126 S.Ct. 163 gress requirement has treated similar (2006).4 L.Ed.2d 1097 jurisdictional, we presume will that Con- Anti-Injunction juris- Because the Act is gress intended to follow course.” dictional, apply courts must the Act even (citation Henderson, 131 S.Ct. at 1203 affirmatively when the Executive Branch omitted). quotation internal marks That it, waives or does not assert and even interpretive principle certainly applies jointly when the parties, ask the courts to Anti-Injunction here: Since the Act’s en- decide the relevant merits issues immedi- 1867, actment Court has ately. See Enochs v. Packing Williams & consistently jurisdic- ruled that the Act is Co., 1, 5, Navigation 370 U.S. 82 S.Ct. Acker, County tional. See v. Jefferson (1962) (“The 1125, object 8 L.Ed.2d 292 2069, S.Ct. L.Ed.2d 7421(a) jurisdiction § (1999) (“The is to withdraw from 408 federal statute the state and federal courts to entertain plain had in view was an 1867 measure seeking injunctions prohibiting suits depriving jurisdiction courts of over suits taxes.”); 7, collection of federal id. at 82 brought purpose ‘for the of restraining the (“Otherwise, S.Ct. 1125 the District Court assessment or collection’ of federal jurisdiction, tax.”); Simon, complaint is without and the Bob Jones v. Univ. 416 U.S. dismissed.”). 725, 749-50, 2038, must be 94 S.Ct. 40 L.Ed.2d 496 4. Both sides before timing processing us want this case decided lawsuit’s relate to claims See, now and contend that the jurisdiction. e.g., rather than Bowles v. does not bar this suit. The amicus brief Russell, 551 U.S. Caplin former IRS Commissioners Mortimer (2007); L.Ed.2d 96 Eberhart v. United Cohen, and Sheldon submitted coun- able 546 U.S. L.Ed.2d Morrison, cogently argued oppo- sel Alan (2005); Ryan, Kontrick position. grateful site The Court is to amici In so and counsel for their assistance. doing, the Court has reiterated that statutes speak like the Act that to the years, carefully In recent the Court has ana power jurisdictional. of the court remain lyzed provisions governing whether certain (1974) (affirming holding Fourth Circuit’s issue this case. But the Executive jurisdiction Branch has suggested that the District Court lacked that the Court Act); skip can Act question under the Enochs v. altogether proceed directly Packing, 370 U.S. at Williams 7421(a) (“The Taxing Commerce and In- object of is to with- Clause issues. deed, the Executive Branch has jurisdiction expressly from the state feder- draw rejected that proposition recently and has seeking injunc- suits al courts entertain position reaffirmed its the Anti-In- prohibiting tions the collection of federal junction jurisdictional. Act is taxes.”); Osborn, Reply Dodge v. 2-3, Brief for (1916) Dep’t United States at 119, 122, 275, 36 S.Ct. 60 L.Ed. 557 of Florida, Health & Human Services v. No. enjoin (affirming dismissal of suit to as- (U.S. 2011). 26, 11-398 Oct. juris- sessment and collection of taxes on grounds); dictional Brushaber v. Union jurisdictional The status of the Anti- Co., 1, 10, Railroad 240 36 U.S. Injunction Pacific Act reflects the Constitution’s (1916) 236, 60 (discussing 5.Ct. L.Ed. 493 separation powers operation. of Under Anti-Injunction inapplicability of the Act Constitution, Congress possesses the “put way question order to out of the power to tax spend, as well as the jurisdiction”); Snyder of see also v. power purse over appropriations of Marks, 189, 194, 157, 109 U.S. 27 money. Congress zealously guards those (1883) L.Ed. 901 to the (referring “govern- Here, prerogatives. not af- ment” not Branch the Executive alone forded discretion the Executive Branch saying Anti-Injunction that the Act was to waive or forfeit Anti-Injunction right belonging “enacted under respect Act’s bar to the assessment government prescribe the conditions on Rather, and collection by making of taxes. subject judg- which it would itself to the Anti-Injunction jurisdictional, Act ment of the courts in the collection of its Congress has commanded courts abide revenues”); States, Cheatham v. United 92 by the Act even when the Executive (1876) 85, 88-89, U.S. 23 L.Ed. 561 might Branch not assert it. Congress has (same).6 thereby ensured that the of flow revenue is interrupted by litigation. not more,

What is the Executive Branch Therefore, agrees itself Act even when the Executive jurisdictional. is It true that the Execu- affirmatively Branch does not assert or Anti-Injunction Act, Branch argues tive now the Act does tries to waive the we the tax involving bar suits cannot overlook it. To do otherwise would Inc.,- U.S. -, recognized jurisdic Energy, 6. This Court has also Levin v. Commerce See, 2323, 10, e.g., tional status of the Act. Gardner v. 130 S.Ct. 2335 n. 176 L.Ed.2d 1131 1305, States, (D.C.Cir. United 211 F.3d (2010) ("This Court and others have contin 2000) ("The District Court must dismiss regard jurisdictional.”); ued to as subject jurisdiction any lack of matter suit Winn, 88, 107, v. Hibbs 124 S.Ct. exceptions fall that does not within one of the (2004) (TIA "juris 159 L.Ed.2d 172 ais Act.”); Taxpayers Nat’l bar”); dictional Arkansas v. Farm Credit Ser Union, Inc. v. United 68 F.3d Arkansas, vices Central 520 U.S. Indeed, (D.C.Cir.1995) (same). every (1997) (same); appeals jurisdic court has found the Act Church, v. Grace Brethren California 393, tional. L.Ed.2d consistently The Court has held (1982) (TIA "deprived the District Court of Act, Injunction that the related State Tax jurisdiction challenges”). to hear these jurisdictional. U.S.C. is likewise separation powers many the basic 11-398. As revealed contravene Su- jurisdictional princi- preme tenets that underlie Court cases before and since that Congress has established a ples. When have described the Act as jurisdictional power, limit on the courts’ jurisdictional, the Court’s Helvering especially involving in cases monies due to v. Davis decision did not undermine the Government, it would the Federal be in- jurisdictional status of the Act. consistent with our constitutional structure majority opinion nominally acknowl- grant the Executive court Branch edges that we must address the Anti- jurisdic- authority to waive forfeit that Injunction says Act but we should defer to limitation. tional the Executive analysis why Branch’s drive-by attempt In a to crack the solid Act apply. majority does not opinion precedent holding wall of that the Anti- authority suggesting cites no relevant jurisdictional, Injunction some have courts should defer to the Executive Davis, Helvering cited interpretation jurisdictional Branch’s 639-40, 81 L.Ed. 1307 statutes such Act. But that case involved suit a share- Not even the argued Executive Branch has against holder a private corporation, not that it should receive such deference. against the Government. The case shows majority opinion’s approach appears to be simply that the Act does nothing more than a way roundabout necessarily not apply private litigation saying that courts can essentially pass between a corporation and its sharehold- over the Act when Ex- ers. See Brief for United States at 29 n. ecutive Branch claims the Act does not bar 18, Inc., Alexander v. “Americans United” a suit. That approach functionally 752, 2053, 94 U.S. S.Ct. 40 L.Ed.2d 518 equivalent saying the Act is not (1974) (No. 72-1371) (similarly describing jurisdictional. But that’s incorrect. We ).7 v. Helvering Davis That scenario obvi- Act, must independently analyze the and ously does not encompass this case. In just we cannot defer to the Executive’s event, any even if jurisdictional this bar interpretation of it. were relaxed when the Executive Branch sum, juris- Act is Act, affirmatively waived the the Execu- dictional. The text of the Act speaks to recently tive Branch has reiterated to the courts, the power of the which Supreme asserted, means it is Court it has not jurisdictional. assert, and will And any Supreme not Helvering v. repeatedly Davis-based waiver in juris- these cases. held the Act is See Reply 6, Brief for Dep’t United States at dictional. We therefore must address the Florida, Health & Human Services v. No. Act.8 7, prior 1125; Jones, 7. On Helvering ing, other occasions v. at U.S. Bob Davis, the Court 745, likewise held that the Anti- Supreme 416 U.S. at 94 S.Ct. 2038. The Injunction pose jurisdictional Act did not Court has also made clear that the Anti-In- private litigation bar to between a sharehold- junction applies pre-enforcement suits Brushaber, corporation. er and a adequate where there is an alternative 236; U.S. at Pollock Fanners’ remedy, such as a refund suit. See South Co., 429, 554, Loan & Trust Regan, Carolina v. (1895). 39 L.Ed. 759 Here, (1984). S.Ct. position Government’s on the constitutional Supreme 8. The Court has held that the Anti- frivolous, obviously issue is and a tax Injunction apply Act does not in cases where refund or enforcement suit is available argument support Government’s litigate the constitutional claims. Plaintiffs tax is frivolous. See Enochs v. Williams Pack- omitted).9 II quotation nal By pre- marks venting pre-enforcement suits, the Act A assures the United of “prompt States collection of its lawful revenue.” Enochs Anti-Injunc- To determine whether Co., Packing Navigation v. Williams time, & suit at this we start tion bars this U.S. 8 L.Ed.2d Act: with the text of the A objective” “collateral 6015(e), Except provided sections Act, said, “protec- the Court has 6212(a) 6213(a), 6225(b), 6246(b), (c), tion of litigation pend- the collector from 6330(e)(1), 6331(i), 6672(c), 6694(c), and Jones, ing a suit for refund.” Bob 7426(a) (b)(1), 7429(b), no (citation 94 S.Ct. 2038 purpose restraining suit for the omitted).10 quotation internal marks any assessment or collection of tax course, be maintained in Of the exaction in particular shall court any person, statutorily or not case is labeled person whether such as Tax Code person against “penalty,” is the whom not a “tax.” Does such was the Anti- Injunction Yes, apply? Act still assessed. as we learn from a straightforward reading of 7421(a) added). (emphasis 26 U.S.C. cross-references the relevant statu- repeatedly Court has held (I tory provisions. caution the reader that pre-enforcement the Act bars chal- some of the following is not the faint of lenges to tax laws. The Court has in- heart.) terpreted principal purpose “the of this language protection to of the majority opinion places heavy rhe- collect Government’s need assess and torical reliance on the fact that Congress expeditiously possible taxes as as with a labeled the individual provision mandate as pre-enforcement judicial minimum of in- “penalty” a and a “tax.” That is a red terference, require legal herring. Congress that often chooses the label right disputed to the “penalty” sums be deter- instead of “tax” because the in a “penalty” mined suit for refund.” Bob Jones suggests legal label violation of a Simon, Univ. v. powerful rule and thus has a more effect in (1974) (inter- 2038, 40 altering underlying L.Ed.2d 496 behavior that Con- any meaningful penalty may do not mount oth- contention or face an IRS enforcement ac- erwise. seeking unpaid tion to collect the taxes or bring point up penalties. I proceedings, that now because some In taxpayer those suggested have that the existence of those generally may statutory raise constitutional or “exceptions” to the Act un- arguments underlying pay- as defenses to the jurisdiction- dermines the conclusion that it is obligation. ment suggestion al. That reflects misunderstand- ing concept jurisdiction. of the Courts pre-enforcement 10. Federal law not bars jurisdictional must consider statute even enjoin suits to the assessment or collection of when not raised. But the status of a statute taxes, pre-enforcement but also bars suits jurisdictional does not disable the courts seeking declaratory judgments respect "with interpreting Congress’s from the statute and 2201(a). § to Federal taxes.” 28 U.S.C. statutory intent means of usual tools of Jones, Bob Court held that “the See, ("the e.g., construction. id. Act was in- exception Declaratory Judg- tax federal to the apply only Congress pro- when tended ment is at least as broad as the Anti- aggrieved vided an alternative avenue for an Injunction Act.” 416 U.S. at 733 n. behalf”). party litigate claims on its its own 2038. suit, 9. As alternative to refund a resis- taxpayer pay required tant who does not tax majority the fact discourage.11 gestión opinion, encourage or wants to gress Tax created numerous thus has Congress “pen- that the exaction here is labeled as a when a apply penalties Code civil alty” only begins Anti-Injunction Act comply legal require- with taxpayer fails analysis; it does not end it. See, e.g., forth the Code. ments set begin, agree Anti-Injunc- To all that the (penalty for failure of 527(j)(l) § U.S.C. tion Act bar suit if the individu- would dis- required to make political organization provision al mandate of the Affordable closures); (penalty § 6672 26 U.S.C. (i) a “tax” Care Act were either labeled as requirement meet to col- failure to willful for, (ii) lect, pay account over truthfully “penalty” labeled as a but codified tax); (penalty for failure 26 U.S.C. subchapter B of the Tax chapter 68 Code. information). timely report to make B Subchapter chapter 68 is entitled pro- Penalties.” “Assessable Section time, Tax is load-

At the same Code B chapter subchapter penal- Tax vides that provisions treat those ed with as taxes for various admin- Code ties are to be “assessed and collected including assess- purposes, istrative the same manner as taxes.” collection, See, ment, payment. e.g., analytical question in this case 6671(a).12 6665(a), §§ The ma- 26 U.S.C. because the exaction arises associated jority “penalty” fixation on the opinion’s the individual mandate of the Affordable neglect it to the basic text and label causes “penalty” Act is labeled as a but is Care question structure of the Tax Code. The Code, chapter codified not in of the Tax examining here cannot be resolved without D, in chapter but rather 48 of Subtitle places whether this is one of the in the Tax which is entitled “Miscellaneous Excise requires “penalties” to be Code reason, Contrary to the sug- treated as “taxes.” Taxes.”13 For that have some See, e.g., appears 11. It was of two minds Dep't Policy, Office of Tax about whether this exaction should be called Report Penalty Treasury, on placed chapter an tax” and "excise in 48 of of Interest Provisions Internal Revenue D, Subtitle which is entitled "Miscellaneous (1999) ("[PJenalties clearly signal Code 36 Taxes,” penalty placed Excise or called a and noncompliance acceptable is not behav- B, chapter subchapter in 68 which is entitled establishing ior. ... In social and ex- norms "Assessable Penalties.” See Staff of Joint pectations, subjecting noncompliant be- JCX-27-10, Taxation, Committee on Errata For any penalty may important havior to be as as JCX-18-10, (2010) (the at 2 Section 5000A penalty....”); the exact level of the Exec. tax”). "penalty is an excise ended Penalty Force for Task Commissioner's up placing chapter it in 48 of Subtitle D but at II—4 Report Study, on Civil Tax Penalties calling a‘penalty, cross-referencing chapter it (1989) consequence (penalty is adverse for B, subchapter providing pen- and that the rule); comply a id. failure to at III—1 alty by must be assessed and collected ("Penalties consequence violating as a of a IRS in the same manner as taxes. That unti- taxpayers standard of remind behavior might up diness have cleaned had been there ("Penalties duty.”); their at X-l id. are tool legis- on been House-Senate conference this change.”). extraordinary circum- lation. Some electoral process. stances short-circuited that But it is "Virtually 12. Professor Bittker all civil stated: event, (i) telling, any in that both excise taxes assessed, collected, penalties subject (ii) chapter in 48 of D and Subtitle assessable to statutes of limitations in the same manner subchapter penalties chapter in B are con- as taxes.” I. by parties subject ceded all to be to the Anti- Federal Boris Bittker et al. (3d Individuals V50.03 Injunction quite Act. It odd—struc- would Income Taxation ed.2002). recording turally speaking Assessment is the actual conclude that because —to by provision § of the tax the IRS. See 26 U.S.C. 6203. the individual mandate is mix of (“tax”) assuming that the Anti- in been misled into word the Affordable Care Act’s Injunction apply Act does not to the Af- itself, provision mandate Section 5000A. penalty for failure to fordable Care Act’s Instead, Section 5000A cross-references mistake, health insurance. That is a have B, chapter subchapter which in turn however, because the Affordable Care says penalties assessable “shall be as- provision Act’s individual mandate cross- sessed and collected in the same manner chapter particular, references 68. Sec- 6671(a). as taxes.” 26 U.S.C. provides tion 5000A the Affordable class, But as we in logic learn when penalties failing Act’s to have Care B=C, A=B and then A=C. So it is here: health insurance must be assessed and The requires Affordable Care Act that its in chapter collected the same manner as penalty “be assessed and collected in the subchapter penalties. chapter B Those B in turn manner subchapter penalties penalty must be same as an assessable un- in assessed and collected the same manner subchapter 68,” der B chapter and chap- taxes. as subchapter ter B penalties in turn must be “assessed and in collected the same language

The relevant of the Affordable manner as taxes.” It follows that these Care Act states: penalties Affordable Care Act must be as- penalty provided by section this sessed and collected in the same manner by notice paid upon shall be and demand as taxes. Secretary, except provided (2), paragraph shall be assessed back, then, Turning Anti-Injunc- collected the same manner as tion Act: That Act refers specifically to subchapter under B assessable tax,” “the assessment or collection chapter requires it that taxes be assessed and added). § 5000A(g)(l) (emphasis U.S.C. judicial collected without pre-enforcement The cross-referenced provision chapter — It interference. follows that these Afford- B—in turn subchapter states rele- penalties which, able Care Act as we — part: vant determined, have must be “assessed and provided and liabilities collected the same manner as taxes”— subchapter paid upon shall be likewise must be assessed and collected Secretary, notice and demand pre-enforcement judicial without interfer- and shall be assessed and collected in Otherwise, say ence. one could not the same Except manner as taxes. as penalties the Affordable Care Act were any provided, otherwise reference in this being assessed and collected in the same imposed by title to “tax” title shall this taxes, requires. manner as as the statute be deemed also to refer to the and provided by subchap- liabilities Anti-Injunction To conclude that the ter. here, Act does apply not one would have to 6671(a) added). (emphasis § 26 U.S.C. say may challenged that a tax that be in pre-enforcement suits is “assessed and col- we put togeth- When those two sections lected in the same manner” as a tax that is er, we see that Act these Affordable Care pre-enforcement insulated from suits. penalties must be assessed and collected in sure, argument implausible the same Such an is and un- manner as taxes. To be tenable, Congress carefully T- avoided the dreaded for three main reasons.

both, suddenly Anti-Injunction apply. the Act does not

First, Anti-Injunction ap- system prema- Act tax from when the ministration the interference”). suits—that plies, pre-enforcement judicial it bars explains ture That is, the tax is suits before assessed taxpayer why the Supreme Court has described the situations, tax In those the and collected. objective Act ensuring “prompt of the as by the when the collected IRS typically revenue, merely collection” of not eventual return, his or her tax see taxpayer submits collection of revenue. Enochs v. Williams 6151, 6201, 6202, 6302, §§ and U.S.C. Packing, it 82 S.Ct. 1125. So brings a taxpayer thus the lawsuit before would be rather odd to turn around here seeking and a refund. challenging the tax say and ir- temporal differences are apply, Act Anti-Injunction If the did relevant and two taxes assessed and however, taxpayer the could sue block years apart collected are in fact “assessed tax assessment and collection of the and and collected in the same manner.” pay the tax on his or her tax refuse to Second, just in the difference is not taxpayer return. The latter cir- collection, generally pay timing tax any cumstance would of assessment and but only litigation concluded. So as a also the means of assessment and collec- after matter, a temporal practical tax is Anti-Injunction tion. Act ap- When by typically assessed collected the IRS plies, generally tax will assessed namely, much before law- by earlier' — collected the IRS with submission ap- suit—when the taxpayer’s tax return. See 26 U.S.C. plies. Two taxes are not assessed and 6151, 6201, 6301, contrast, §§ By if in they collected the same manner when apply, Act did not years apart, are assessed and collected and tax only could be assessed and collected by when one is assessed and collected litigation after the was resolved in favor of any litigation, IRS whereas the before (if the IRS it was resolved favor of the by other is assessed and collected the IRS IRS), by payment of a means to the IRS completion litigation. after the wake of the court order. A tax as- all, timing After of tax assessment by sessed and collected with a IRS and collection is critical to tax collection taxpayer’s tax return and a tax assessed see, generally, e.g., 26 U.S.C. and collected the IRS not with the tax Act in particular. following return but rather a court order statutory Two of the main duties imposed characterized, cannot persuasively be taxpayers on are to file a tax return on my judgment, being “assessed and col- time and to tax pay liability on time. lected the same manner.” theory The whole regard, keep in mind that the signifi- rests on the fact that there is a individual tax return absolutely central cant purposes difference for of the Govern- to the IRS’s assessment and collection of ment’s assessment and collection ef- Tax taxes. returns are the means forts between a tax assessed and collected which taxpayers pay in most self-assess and Year and a tax assessed and collected Jones, taxes, by their and the which much example. Year for See Bob means of the (“powerful” U.S. 94 S.Ct. 2038 Government’s tax revenue is collect- government in “protecting interest the ad- ed.14 The tax return thus forms the foun- recognized 14. lypically Court has that self-assessed in the United States. Winn, point many anyone times. See v. Hibbs As who has filed a tax return is unlike- ly forget, n. taxpayer, taxing 159 L.Ed.2d not the au- taxes, (2004) ("Income contrast, by thority, party is the first to make the relevant only dation of the IRS’s and collec assessment even when one method of collection of process. suit).15 A method of tax assessment tion by taxes would be restrained rely collection in which the IRS cannot Third, when the Act ap- tax return on the individual to assess and plies, by the tax will be collected the IRS engage a tax but instead must collect repaid and will be taxpayer only if litigation right to win the to assess and the taxpayer subsequent succeeds in the significantly collect tax is different However, refund lawsuit. if the Anti-In- par manner of assessment and collection — junction apply Act did not the taxpay- ticularly conceivably mil multiplied when er pre-enforcement succeeded law- lions of times over for each affected indi suit, would never be tax by collected vidual tax return. Taxes assessed and IRS at all. I quite find it difficult to through widely collected these two diver say that a tax that is assessed and collect- gent reasonably cannot methods be said to by ed the IRS but then returned to the be “assessed and collected in the same taxpayer years some later is “assessed and manner.” United States American Committee, collected in the same manner” Friends Service 7,10, as a tax 419 U.S. (1974) is never by L.Ed.2d 7 assessed or collected (referring withholding as method of IRS at all. collection and Common sense tells us that saying Act applies those two scenarios are not equivalent owed.”); ability calculation of income taxes United the IRS’s to use a subset of its Galletti, 114, 122, States v. traditional tax enforcement tools casts doubt (2004) (“The Federal on the conclusion that the self-assessment, system basically tax one of applies. respectfully I difficulty have with whereby taxpayer computes each the tax due it, reasoning. key point, as I see appropriate and then files the form of return penalty may that the only by be enforced along requisite payment. with the In most IRS, by Attorney the U.S. other cases, Secretary accepts the self-assess- agencies. federal The fact that the IRS can- simply liability ment and records the not use all of its traditional enforcement tools (internal taxpayer.”) quotation marks and ci- does not make it an less IRS-enforced omitted); tation Co., Commissioner v. Lane-Wells provision. 88 L.Ed. Perhaps important takeaway the most from (1944) ("The purpose get is not alone to Congress prevented fact that the IRS from get information in some form but also to it employing everything in its toolbox when en- uniformity, completeness, such and ar- forcing penalty provi- the Affordable Care Act rangement physical handling that the task of following: Congress sion is the spe- focused verifying may readily returns accom- cifically on how this tax would be plished.”); see also Bittker al„ et Federal Congress collected and enforced. And deter- (“The Individuals V44.01 Income Taxation mined that some of the usual IRS enforce- importance of the tax return as the basic ment tools were out of bounds. But sys- document on which the self-assessment taxpayers did bring nonetheless not allow tem rests is attested the number of statuto- filed; pre-enforcement ry provisions challenging suits requiring the law and returns to be dates; seeking specifying filing attaching legal their to restrain assessment and collection consequences filing, penalty. Congress exempt to the fact of of the tax date of did not included; filing, and provision the information and im- individual mandate from the posing penalties filing negligent Congress's or fraudu- Act. careful delin- file.”). failing lent returns and proper improper eation of enforcement suggests tools knowingly acted prohibits creating 15. The exception Affordable Care Act in not the IRS to the Anti-In- using junction pre-enforcement from some of its traditional enforce- Act for constitution- payment challenges ment tools to enforce provi- of the tax al to the individual mandate penalties. majority opinion suggests The that sion. Act. In order for the Affordable Care Act’s manner of assessment and their terms of in to be assessed and collected penalties collection. chapter the manner as the 68 sub- same technicality. is no mere The distinction penalties B and thus in the same chapter deprived expected can be If the IRS taxes, the Affordable Care Act’s manner as ($4 filing of a lawsuit by the mere revenues must be insulated from penalties likewise instance), then the in this annually billion by Anti-Injunc- the pre-enforcement suits will face increased short-term Government tion Act.16 potentially higher budgetary problems and deficits, greater as well as diffi- near-term any statutory Absent cross-references appropria- in for future planning culties definitions, in Anti- the term “tax” the Act de- was tions. Injunction might Act not cover the itself problems. signed part in to alleviate those here. But the Af- penalties tax issue that collected now to be Finding a tax Act’s cross-reference to fordable Care to a tax that is never collected equivalent that tax chapter pen- 68 establishes these design. the Act’s central thus thwarts chapter tax penalties alties—like the in the 68—must be “assessed and collected short, Act dic- the Affordable Care as taxes.” Because of the same manner penalties assessed and tates its be cross-reference, subject and because taxes chapter same manner as collected in the are not pre-enforcement suits assessed subchapter- penalties. Chapter B 68 sub- in the same manner as taxes and collected penalties B in turn must be as- chapter suits, pre-enforcement from the “in insulated sessed and collected the same manner Anti-Injunction Act bars us from exercis- pre- Taxes are insulated from as taxes.” jurisdiction over this case.17 by ing enforcement suits aspect taxpayer may bring pre-enforcement a 16. One Section 5000A but- not other taxpayer challenging the conclusion that a cannot the individual mandate. tresses suit bring pre-enforcement challenging a suit 5000A(g)(l) individual mandate. Section support 17. That conclusion finds further provides penalties failing tax we when examine how paid upon have health insurance "shall be that, applies penalties to other Tax Code by Secretary.” notice and demand That penalty, are codi- like the Affordable Care language paid upon same be notice chapter 68 but cross-reference —“shall fied outside by Secretary” and demand found in chapter example, —is Sections 68. For general penalty provision chapter impose and 5761 of the Tax Code tax 6671(a). § subchapter B. See 26 U.S.C. penalties certain related for violation of laws requirement penalties paid "shall be tobacco; liquor provide all that the upon by Secretary” notice and demand assessed, collected, penalties "shall be generally Secretary may indicates that taxes, paid provided in the same manner as payment penal- assess and demand of the 6665(a).” in section pre-enforcement judicial ties without interfer- 6665(a), chapter Section which is in ence, by pre-enforcement whether suit or by "penalties provided this turn states that deficiency proceeding Tax Court. Cf. paid chapter upon shall be notice and de- (If taxpayer U.S.C. still refuses assessed, collected, and mand and shall be demand, pay after notice and then the IRS (Section paid in the same manner as taxes.” taxpayer and the have to resolve the will 6665(a) 6671(a), thus echoes Section the simi- dispute proceedings.) in enforcement After all, larly chapter 68 cross-refer- worded section in pre-enforcement if a suit could be filed to (he Act.) enced Affordable Care The Gov- payment penalties, block then the tax penalties agrees imposed that the tax ernment paid "upon notice would under Sections and 5761 are sub- Secretary,” demand as the statute re- (he ject quires. Act and thus insu- Absent textual indication to Sup- pre-enforcement contrary, language suggests lated from suits. See further

B above, manner as taxes. As explained (in tax penalties these chapter 68 and thus Anti-Injunction In that the Act arguing Act) in also the Affordable Care can be here, majority apply opinion does not assessed and in collected the same manner part interpretation relies in on a strained as taxes if they are insulated from 6671(a) chapter subchapter of Section pre-enforcement suits under the Anti-In- B. Act, junction as taxes are. provides Recall that Section 5000A majority opinion The on focuses the sec- penalties Affordable Care Act for those 6671(a). ond sentence of Section The sec- without health insurance must be assessed equates ond sentence penalties penal- and collected the same manner as chapter subchapter B to taxes for all B, chapter subchapter ties under which Tax purposes. Code As the majority opin- in turn must be assessed and collected in states, ion that second sentence therefore the same manner as taxes. The relevant appears independently make the Anti- provision chapter cross-referenced Injunction Act applicable to chapter 68 6671(a), subchapter B is Section which B subchapter penalties. majority The states: opinion also states that the second sen- penalties provided by and liabilities 6671(a) tence of Section the first —unlike subchapter paid upon this shall be notice sentence —does not apply to the Affordable Secretary, and demand and shall penalties. that, however, Care Act’s From be assessed and collected in the same majority opinion draws the incorrect Except manner as taxes. as otherwise Anti-Injunction conclusion that Act provided, any reference in this title to apply does not to- the Affordable Care “tax” imposed this title shall be Act’s tax penalties. penalties deemed also to refer to the provided by subchapter. liabilities majority opinion’s on focus the sec- 6671(a) 6671(a) The first sentence of Section is ond sentence of Section is a diver- key purposes above, the Affordable Care sion. As explained Section 6671(a)’s Act’s my analysis cross-reference and for first sentence on its own dictates applies above that the Act applies to here. The Affordable chapter Care and the B subchapter penalties —and 6671(a) first sentence of Section together thus also to the Affordable Care Act’s mean that penal- the Affordable Care Act’s penalties, individual mandate which must ties for failure to have health insurance be assessed and collected in the same man- chapter must be assessed and collected the same ner subchapter penalties. B plemental Liberty Brief for United States at pre- Act and insulated from - - Geithner, (4th Univ. v. F.3d Cir. enforcement suits. The Government counters 2011). 5114(c)(3), 5684(b), 5761(e) provisions But those and their cross- that Sections chapter logically expressly references to 68 cannot all refer to "taxes” in cross-refer- 6665(a) distinguished encing from the Affordable Care Act Section thus distin- chapter guishable and its cross-reference to all from Section 5000A. But that statutes, all, seen, "penalty” a tax after not a relevant distinction. As we have imposed by provision 5000A(g)(l) a Tax accomplishes Code outside Section that same chapter 6671(a), provisions require by referring 68. All of those result to Section which Therefore, penalty that the tax be assessed and collected in turn refers to “taxes.” Section Therefore, 5114, 5684, 5761, in the same manner as taxes. all and 5000A are all provisions including subject those the tax to the Act and insulat- — subject pre-enforcement in the Affordable Care Act—are ed from suits. 36

Indeed, initially gations under the Tax The second when the Government Code. country around the that gives told district courts taxpayers sentence thus numerous suits, Act barred these rights respect imposition chap- with to of first sentence of it too relied on the Section subchapter penalties ter 68 B tax 6671(a). in Support Memorandum of taxpayers possess respect imposi- to 15, to Dismiss at United States’ Motion just tion of example, taxes —to take one (D.D.C. Holder, F.Supp.2d 766 16 Mead v. a civil right bring action for dam- 1:10-cv-950) (“It 2011) (No. does not mat ages against employee an IRS who violates payment sought to be ter whether any provision collecting Tax Code in a tax. enjoined ‘penalty’ labeled a rather than is 7433(a). § 26 U.S.C. here, exceptions immaterial a ‘tax.’ With sure, To be the second sentence of Sec- ‘assessed and collected 6671(a) broadly tion it is so written that pen other assessable the same manner’ as Code, arguably chapter subchap- also makes 68 alties under the Internal Revenue and, § like other B 5000A(g)(l), penalties equivalent I.R.C. these ter taxes penalties, falls within the bar the AIA. purposes of assessment and collection— (some 6671(a).”) § omitt I.R.C. citations specifically which the first sentence accom- ed).18 plishes. majority opinion finds redundancy problematic. But such redun- 6671(a),

The second sentence of Section dancy common, is not unusual. It is after majority opinion points, ap- to which the all, specific for a statutory require- list of just plies to more than assessment and prohibitions ments or accompany gen- equates That collection of taxes. sentence statutory requirement prohibition B eral chapter subchapter penalties 68 to taxes rights full and obli- panoply encompasses specific.19 majority opinion suggests 18. The that I am on its own is insufficient make the Anti- breaking ground interpreting Injunction new the first applicable pen- Act to a Tax Code 6671(a) way. sentence of Section alty. majority opinion Many incorrect. cases See, Prisons, e.g., Ali v. Fed. Bureau 552 analyzing penalties Tax other Code encom 214, 831, 226-27, 128 S.Ct. 169 L.Ed.2d 6671(a) passed by have Section concluded (2008) ("Congress may simply 680 have in- applies that the to those any tended to remove doubt that officers of penalties requirement because of the in the customs or excise were included in 'law en- 6671(a) pen first sentence of Section that the event, forcement ... officers.' we do alties be assessed collected the same woodenly apply limiting principles every See, Lethert, e.g., Kelly manner as taxes. v. specific example time includes 629, (8th Cir.1966); 362 F.2d 633 Nat'l Com (brackets along general phrase.”) awith omit- modity & Barter Ass’n v. United 625 ted); Railway & v. Ameri- Western Co. 920, (D.Colo.1986); F.Supp. v. Norfolk Griffith Ass’n, 117, Dispatchers can Train 499 U.S. Commissioner, F.Supp. 40 (1991); (N.D.Ohio 1983); Commissioner, Crouch v. Industries, Inc., Harrison v. PPG (N.D.Cal.1978); F.Supp. lli McA 1, 589, 580 n. L.Ed.2d Dudley, F.Supp. ster v. (W.D.Pa.1956). 550-51 (1980); Islands, Springer Philippine see also 72 L.Ed. 845 leading similarly A treatise “[B]e- states: (1928) ("Where grant a statute contains a 6671(a) provides cause shall power enumerating things may certain which taxes, be assessed and collected as Anti- general grant power be done and also Injunction taxpayers seeking Act bars from standing which alone would include these enjoin penalties.” the assessment of Bittker more, things general grant may al., et Federal Income Taxation of Individuals ¶ moreover, given appears, full effect if the context shows that the 51.10. It that no case litigation decided before the enumeration was not intended to be exclu- current has ever 6671(a) sive.”). said that the first sentence of Section text, Focusing plain on the as must: plusage. we But under the majority opinion’s says The Affordable Care that its tax approach, own the entire first sentence of penalties must be assessed and collected in 6671(a) Section surplusage. would be Cf. chapter subchapter manner as same 68 Corp. v. Ltd. Partnership, i4i Microsoft — penalties. B The first sentence of Section —, 2238, 2248, U.S. 131 S.Ct. 180 6671(a) definitively that chap- establishes (2011) (“Here, L.Ed.2d 131 interpreta no B tax subchapter ter 68 are to be § tion of including the two alterna 282— assessed and collected in the same manner tives advanced Microsoft—avoids ex as taxes. Even if the second sentence Indeed, language.”). cess majority accomplished would have that same result opinion’s invocation of the redundancy chapter subchapter B penalties, the principle with regard to the second sen sure,” first sentence makes “double a rou- 6671(a) tence of Section is particularly mis approach legislative tine drafting.20 placed given that entirety of Section And that first sentence—combined 6671(a) the "first and second sen —both the Affordable Care Act’s cross-refer- already tences —is redundant of Section ence—establishes that the Affordable Care 6665(a). 6665(a), all, Section after sepa tax penalties Act’s must be assessed and rately chapter that all penal establishes collected in the same manner as taxes and (not just chapter ties those in 68 subchap therefore pre-enforcement insulated from B) assessed, collected, ter are to be suits. otherwise treated as taxes. majority opinion’s reference to the The truth is that the (or language broad redundancy surplusage) principle here 6671(a) the second sentence of Section principle is further flawed because that redundancy makes with the first carries force when there two al- sentence are interpretations, ternative one of which inevitable here. The lesson from the re- would eliminate dundancy or sur- redundancy these sections and elsewhere Corp. Partnership, 20. See v. i4i Ltd. drafting, unusual long events in and so as Microsoft - -, 2238, 2249, U.S. 131 S.Ct. 'positive repugnancy’ there is no between two (2011) ("There L.Ed.2d 131 laws, times when give a court must effect to both.... We Congress provisions superflu enacts that are again have stated time and that courts must ous----”) States, (quoting Corley v. United presume legislature says that a in a statute 1558, 1572-73, U.S. 129 S.Ct. it what means and means in a statute what it J., (2009) (Alito, dissenting)); L.Ed.2d 443 there.”) (citation omitted); says Crandon v. - States, -, DePierre v. United U.S. States, 152, 174, United 2225, 2232, (2011) 180 L.Ed.2d 114 (Scalia, J„ (1990) 108 L.Ed.2d 132 con- ("Accordingly, Congress’ choice to use the curring judgment) ("superfluous exceptions admittedly redundant term 'cocaine base' (to sure’) doubly 'make assurance are a more chemically refer to basic cocaine is best un phenomenon common than the insertion of derstood as an make effort to clear that clause utterly pointless language”); Shook v. D.C. (iii) apply involving pow does not to offenses Auth., Responsibility Mgmt. Fin. & Assistance der cocaine or other nonbasic cocaine-related (D.C.Cir.1998) ("Some- 132 F.3d — substances.”); Abbott United statutory provisions times drafts U.S. -, 178 L.Ed.2d 348 appear preclusive of other unmentioned (2010) ("This reading gives effect to the statu possibilities just pro- as it sometimes drafts 924(c) tory language commanding that all — appear duplicative visions that of others— punishment offenders shall receive additional words, simply, in Macbeth’s 'to make assur- provision, their violation of that a com is, Congress ance times.") double sure.’ That means (emphasis mand reiterated three add ed); Germain, clarify might what be doubtful —that Conn. Nat'l Bank v. 249, 253-54, meaning mentioned item is covered—without (1992) ("Redundancies ones.”). across statutes are not to exclude the unmentioned provisions is not to read likewise must be assessed and collected in the Tax Code contrary plain to their out of the statute same manner as taxes. To be as- majority would opinion meaning, as sessed and collected in the same manner Rather, we should read the have us do. taxes, all of tax penalties these must be terms, recog- according their provisions pre-enforcement insulated from suits. If often to make nizing wants give plain we are to effect to the text of so common technique “double sure”—a statute, Act must canon, it its own Latin spawned pre-enforcement bar challenging suits Fort ex abundanti cautela. See Stewart penalties Affordable Care Act’s for failure FLRA, Schools v. 110 to have health insurance.22 (1990) (“It 2043, 109 L.Ed.2d 659 course, reasonably might argued, Ill exceptions that these two are indeed tech- alternative, analysis In the somewhat nically unnecessary, and were inserted out Circuit’s, similar to the Fourth I would drafting of an abundance of caution—a Anti-Injunction ap- conclude that the Act enough imprecision venerable to have left (ex plies mark Latin here because of the legal its on abundanti definition of the cautela).”); see also Shakespeare, authority assessment provided IRS’s William (“But yet Macbeth act scene I’ll make Section 6201 of the Tax Code. That section sure”).21 assurance double penalties” defines “assessable to be “taxes” purposes au- IRS’s assessment short, the first sentence Section thority. The Care penal- Affordable Act’s 6671(a) on its own dictates that chapter 68 ty is an penalty assessable and is therefore penalties B subchapter are to be assessed purposes a tax for of the IRS’s assessment and collected the same manner as taxes. authority under Section 6201. The Anti- Because Affordable Care Act penalties Injunction Act bars suits to restrain as- must be assessed and collected the same chapter subchapter manner as B sessment or collection of It penal- taxes. thus ties, penalties the Affordable Care Act’s bars this suit.23 21.Indeed, employs ap- grant, grant the Constitution this cannot weaken the force of the proach. Wiltberger, merely explanatory, United See States itself. The words are and a, cautela."). 115 n. 5 Wheat. introduced ex 5 L.Ed. 37 abundanti (1820) (Marshall, C.J.) ("It highly prob- seems expression jurisdic- able that the ‘maritime majority opinion 22. The reasons that Con- tion,’ constitution, in the was borrowed from gress easily could have said in Section 5000A: commissions, language of those and was applies "The Act to these cautela, True, superad- introduced ex penalties.” abundanti just but could as 'admiralty,' ded easily to the term in order to obvi- have said: "The apply ate doubt as to the penalties.” full extent of the does not to these tax Con- conferred.”); authority gress analyze meant to be Brown v. did neither. We must the statu- 110, 150-51, tory Congress employed, United 8 Cranch terms that not those (1814) L, (Story, dissenting) 3 L.Ed. 504 employed. that we wish had ("If the constitution had been silent as to marque captures, letters of it would not 23. The Fourth Circuit relied Section on authority congress. have narrowed the to conclude that authority grant marque letters of pre-enforcement challenging barred suit reprisal, regulate captures, and to are ordi- Affordable Care Act’s individual mandate. - - nary necessary Geithner, power incidents to the Liberty Univ. v. F.3d declaring utterly (4th Cir.2011). war. It would be ineffectual Although agree I do not therefore, expression, every without them. The reasoning, detail of the Fourth Circuit's implied very agree that which is in the nature of the I do with its bottom-line conclusion that out, spell again go To let’s the same manner as” a chapter 68 sub- requires 6201 authorizes and text. Section chapter B penalty” “assessable an is—it the IRS24 to make “assessments of all penalty.” “assessable Because the Afford- interest, (including additional taxes penalty able Care Act assessable amounts, tax, additions to the and assessa- penalty and because Section 6201 classifies penalties) imposed by ble this title.” 26 assessable purposes as taxes for 6201(a). Importantly, U.S.C. Section of the IRS’s power, assessment the Afford- 6201 thus defines taxes for assessment able Care Act is a tax for purposes purposes “including” additional of the IRS’s assessment authority under amounts, tax, additions to the and assessa- Section 6201. penalties,

ble which are the three kinds of Act in pro- turn penalties imposed by civil the Tax Code vides that “no suit for purpose of re- and assessed the IRS.25 straining the assessment or collection of here, particular Of relevance Section any tax shall be maintained in any by court 6201 to include defines “taxes” “assessable 7421(a). any person.” § 26 U.S.C. Given penalties” “imposed by this title.” that Section 6201 defines “assessments of Subchapter chapter B of of the Tax all taxes” to include assessment of the is entitled Code “Assessable Penalties.” penalty here, Affordable Care Act at issue requires The Affordable Care Act that the given the Anti-Injunction Act “penalty” for failure to have health insur- bars suits to restrain the ... “assessment ance be “assessed and collected tax,” any of Act bars a same manner as an un- penalty assessable suit to restrain the assessment of these B subchapter chapter der 68.” 26 penalties just Affordable Care Act tax § as it 5000A(g)(l). U.S.C. Because the Af- bars a suit Act to restrain the penalty fordable Care is a Tax assessment of Code Therefore, “penalty” that is to taxes. by plaintiffs’ be “assessed” suit is barred and, moreover, is to be assessed by “in Act.26 IRS — Smith, 38, 46-47, Section 6201 defines the Care Affordable Act (1939) (Act penalty purposes to be a tax for of the IRS's L.Ed. 1092 apply does not in case authority, involving penalties assessment imposed by Secretary which in turn means penalty Agriculture). that the Affordable Care Act is insulat- pre-enforcement by ed from suits the Anti- Injunction 26.That’s not all. Sections Act. provide any the IRS must collect Secretary pursuant 24. The tax that statute refers to the of the has been assessed to Sec- Treasury, delegated who in turn tions 6201-6203. assess- Because the IRS's collec- IRS, responsibility duty duty, ment and collection tion tracks the to the IRS's assessment specifically duty necessarily the IRS's collection Commissioner of Internal encom- 7701(a)(ll)(B); passes penalties Revenue. See 26 all U.S.C. see of the that have been also, 301.6201-1, e.g., by §§ pursuant 26 C.F.R. assessed the IRS 301.7701- to Sections convenience, (i) For I will refer here 6201-6203. Given that these Affordable penalties to the IRS. Care Act purposes are taxes for (ii) power the IRS's assessment the stat- generally 25. The requires does not ute in turn the IRS to collect all assessments, apply penalties imposed that are outside of it follows that the Affordable by govern- penalties the Tax Code and enforced purposes federal Care Act’s are taxes for agencies ment officials or other authority. plaintiffs' than IRS. the IRS’s collection So SNG, Inc., suit, successful, Algonquin See FEA v. prevent if would the IRS from collecting by n. taxes as defined Sections (1976) (Act apply involving not does in case and 6303. And the President); penalties imposed by the bars suits to restrain the “collection of Mulford all, respond or an to the tax.” After majority opinion “addition How does tax, amounts, majority opinion simply as- additions to the to this? The additional penalty penalties pen- the Affordable Care and assessable are the civil serts that under Section penalty imposed by not an assessable alties the Tax Code and as- by that sec- by thus is not covered Numerous provisions 6201 and sessed IRS. majority opinion’s amounts, reason- tion. I find the the Code refer to additional addi- quite unpersuasive. tax, ing point penalties on this tions to the and assessable Tax penalties as the universe of Code civil insists that majority opinion See, by e.g., are assessed the IRS. penalties” the Tax only “assessable 860(h), 6155(a), 6201(a), §§ U.S.C. sub- chapter are those listed Code 6321, 6324A(a), 6601(e)(2), 7122(b), That is incorrect. Section chapter B. 7522(a). categories But all three of civil defines the IRS’s assessment 6201—which are defined Section 6201 to be penal- authority speaks of “assessable — purposes “taxes” for assess- IRS’s title,” just of imposed “by this ties” authority. ment even if So the Affordable penalties imposed chapter assessable Care Act were an additional Indeed, of the title.27 there are numerous tax, amount or an addition to the it would penalties” in the Tax Code “assessable still be a tax under 6201 and the Section chapter that are outside of 68. For exam- Anti-Injunction Act apply. would still ple, chapter 61 contains several assessable majority opinion’s wriggle effort to out of penalties, and the IRS itself states that the Section is futile. in the Code are not penalties” “assessable chapter all in 68. See Internal Revenue sum, In the penal- Affordable Care Act 2011) (a (Apr. num- Manual 20.1.9.1.1 ties at issue here are defined to be taxes in ber of Sections 6038-6038C of penalties purposes pow- for of the IRS’s assessment chapter penalties 61 “are assessable er under necessarily Section 6201. That by deficiency proce- are not covered penalties means that these also are taxes dures”); 6038(b), §§ see also 26 U.S.C. purposes Anti-Injunction for of the Act’s 6038C(c). 6038A(d),6038B(c), protection against pre-enforcement suits Moreover, seeking to restrain if Act the IRS’s assessment the Affordable Care “any tax.” For that “penalty” penalty,” is not an “assessable alternative and reason, independent penalty Anti-Injunction what kind of Tax Code civil the does majority opinion deciding think it is? The two Act bars the Court from this options other are an “additional amount” suit.28 Therefore, plaintiffs' penalties "imposed by tax.” suit is barred all assessable this ti- tle,” just by chapter Act for that additional 68 of the title. reason as well. 28. Section 7421 the Code codifies Anti- majority opinion suggests Injunction companion provision,

27. The also that all Act. The penalties chapter filing, requires 68 relate to late Section exhaustion of adminis- reporting, pay- taxpayers bring erroneous and insufficient trative remedies for who tax See, provides: ment. But as well. that's inaccurate refund suits. Section "No e.g., § (chapter penalty proceeding any 26 U.S.C. 6720A suit or shall be maintained in recovery any for sale of diesel fuel that does not meet court for the EPA internal revenue regulations); (chapter alleged erroneously § 26 U.S.C. 6720C tax to have been or ille- collected, notify plan gally any penalty for failure to health assessed or or of eligibility premium cessation of for COBRA claimed to have collected been without author- assistance). event, any majority opin- ity, any alleged or of sum to have been exces- collected, point wrongfully ion's claim on that because sive irrelevant manner plainly Section 6201 defines to include for taxes until claim refund or credit has been Americans United. The problem

IV for the majority opinion here is that the majori- Trying approach, different emphatically rejected Court this Court’s separately contends ty opinion case, reasoning calling it “unper- apply Act does not and “circular.” Alexander v. suasive” plaintiffs’ suit even the Affordable Care if Inc., “Americans United” are taxes penalties purposes 760-62, 40 L.Ed.2d 518 Anti-Injunction Act. ma- According (1974), rev’g (D.C.Cir.1973); 477 F.2d 1169 jority opinion, plaintiffs are challenging Simon, see also Bob Jones Univ. v. purchase the mandate to health insur- penalties imposed ance and not the tax (1974). There sequel. is no call for a (even violating though the mandate solely through mandate is enforced majority opinion’s these effort to charac- penalties). majority opinion tax ar- plaintiffs’ terize suit challenge as a to the gues that the Act does not mandate and not to the tax penalty is apply plaintiff when a to chal- purports wrong on the facts and on wrong the law. lenge regulatory purpose or effect of a It wrong on the plaintiffs’ facts because reasoning tax. That is the same complaint repeatedly unmistakably adopted get around the Anti- asks for relief from the Affordable Care Injunction inAct our 1973 decision in penalties.29 Act’s tax wrong It is on the 7422(a) duly filed” with the Contrary majority IRS. 26 U.S.C. opinion's sugges added). (emphasis tion, Section plaintiffs' its complaint seeks to restrain the terms, contemplates taxpayers pay who penalties. assessment and collection of the tax penalties may challenge those complaint requests permanent Plaintiffs’ "a against juxtaposi- refund suits IRS. The injunction against the enforcement of the in (Section 7421) tion of the provisions.” dividual mandate First Amend (Section 7422) provision and the refund suit Holder, Complaint ed at Mead v. general principle taxpayers reinforces the that (D.D.C.2011) (No. F.Supp.2d 16 1:10-cv- later, pay litigate including are first and course, 950). Of the "enforcement” contem respect penalties tax such as those plated by the statute is the assessment and contained in Section 5000A of the Affordable penalties by the collection of the IRS. Packing Care Act. See Enochs v. Williams & Therefore, injunctive plaintiffs the relief that Co., Navigation 370 U.S. 82 S.Ct. seeking "against are to obtain the enforce (1962) (Anti-Injunction L.Ed.2d 292 Act re- provisions” ment of the individual mandate quires legal right disputed "that the to the injunction barring assessing the IRS from sums determined in a suit for refund” and collecting the Affordable Care Act tax thereby "prompt ensures the Government col- failing to have health insurance. revenue”). lection of its lawful complaint The also describes in detail the suggested It has been that Section 7422’s burden that the penal- Affordable Care Act tax express penalties might reference to indicate impose plaintiffs’ ties would on household penalties, that Section 7421 does not cover supporting plaintiffs' finances—details re- only because Section 7421 refers to taxes. quest injunctive against pen- relief the tax my analysis rely But of Section 7421 does not alty. (stating (in plaintiff See id. at 6-16 each on the term "tax” in isolation which case force). Rather, pay strong objec- "will be forced to critique might have some —under responsibility pay- tion—the annual my analysis shared independent relies on two estimating statutory plaintiff's ment” and each alternative shared cross-references which responsibility payment pen- make clear that the for "each taxable Affordable Care Act's (each year”); failing plaintiff id. at 6-16 alties for to have health insurance is "com- now, pelled adjust” purposes by

taxes for of the IRS's assessment his or her "finances (Section 6201) power setting money, and collection and are aside and will continue to do so, pay responsibility to be assessed and collected "in the same the annual shared (Section 6671). ("The payment”); manner as taxes” id. at 3 total amount of event, by claiming Act the because, any Supreme the Government’s law taxpayer that a squarely purpose imposing regu- held the tax was to Court has Anti-Injunction Act cannot avoid than to revenue. late behavior more raise regulatory challenge purporting key inquiry, according Supreme of a tax. purpose or effect Court, impact is the suit’s on tax collection: successful, suit, if taxpayers’ whether the regulate taxes behavior Regulatory in- plaintiffs’ would reduce the taxes —or higher taxes on disfavored be- imposing so, If “anyone’s deed taxes.” Id. then the taxes on favored behav- havior and lower Anti-Injunction applies. See Bob v. Sonzinsky ior. United Jones, 738-42, 2038; at U.S. 81 L.Ed. U.S. United, 760-62, at Americans involving regulatory tax- cases S.Ct. 2053. es, flatly rejected Supreme Court Anti-Injunction through evasion of the Court later summarized employed by the kind semantics principle way: “Because the suit majority opinion here. In both Bob Jones in- would have restrained the collection of United, plaintiff non- and Americans taxpayer come taxes from the and its con- profit organizations argued they were tributors, well as the collection of feder- termination of their challenging IRS’s security al unemployment social taxes allegedly engaging status for tax-exempt from the taxpayer, the Court concluded (race in disfavored conduct discrimination that the suit was an action to restrain the improper lobbying in one case and in the assessment or collection of tax within other), they not the increased taxes would meaning Act.” pay have to because of the denial of their Regan, South Carolina tax-exempt organization status. The (1984) pay Americans United even offered to its (internal omitted).30 quotation marks extra taxes of the regardless outcome Bob Jones Americans United there- that it the case order to show was not following: fore mean the If the sanc- seeking payment to avoid of taxes. See regu- tion attached to a federal law that 94 S.Ct. 2053. The Su- private imposition lates behavior is the of a preme held that civil tax exaction that falls within the cov- suits, stating Act still that tax- barred Act, erage then the cannot end-run payers and, Anti-Injunction Act applies absent a by object Act claiming they to a tax recognized exception, precludes pre-en- regulatory tax law’s effect and not the challenging itself. The Court further stated that tax- forcement suit that law. The payers Anti-Injunction Anti-Injunction cannot evade the Act cannot be evaded 1, 10, 1511, responsibility payments shared that Plaintiffs U.S. 128 S.Ct. prepare through pay (2008) (“This must themselves to though is so even the Anti- $27,265 may greater depending upon than Injunction prohibitions impose upon Act's the during year their income levels each taxable wronged taxpayer requirements” that "the living adjustments.”). and cost of taxpayer must to an succumb unconstitutional tax, and seek recourse after it has been Supreme 30. The Court has also held that "the exacted.”); unlawfully see also United States taxpayer's of a constitutional nature claim” is Committee, v. American Friends Service consequence Anti-Injunction of "no under the 7, 11, 13, (1974); U.S. 95 S.Ct. L.Ed.2d United, Act.” Americans 416 U.S. at 16, 20, Bailey George, v. 259 U.S. repeated S.Ct. 2053. The Court has the same (1922). See, 66 L.Ed. 816 point e.g., in several other cases. United Co., Mining States v. Clintwood Elkhorn challenge only suit as a strain the IRS’s or characterizing the assessment collection of aspect of a tax. The Act regulatory just taxes. Plaintiffs’ suit here would do A pleading regula- more than a hurdle. is that; therefore, it is barred.32 tax, long actually it tory at least so Moreover, Supreme the long ago revenue, a tax within would raise some Anti-Injunction held that the applies Act meaning of the Act. a regulatory effectively even to tax that Jones, 738-48, Bob 94 S.Ct. (or mandates) prohibits conduct, just not 2038.31 (or ineentivizes) one that disincentivizes away In attempting distinguish Bob Bailey George, conduct. See 259 U.S. United, majority Jones and Americans (1922); 42 S.Ct. 66 L.Ed. 816 Bai- says only if opinion apply those eases Co., ley v. Drexel Furniture 259 U.S. regulation “inextricably and tax (1922). 66 L.Ed. 817 In the Maj. Op. Supreme linked.” at 10. But the cases, Bailey twin Court rec- phrase opin- Court did use its ognized that the Child Labor Tax didn’t United, ions in Bob Jones and Americans just discourage employment labor; of child majority opinion and it is unclear what the prohibited it in effect it. The Court none- it here intends to mean. What the Su- theless held say did that a chal- preme Court suit pre-enforcement barred a

lenging regulatory challenging tax is barred suit Anti-Injunction Act if the prohibition. suit would re- That Bailey principle re- long rejected arguments Injunction applies 31. The Court has regulatory taxes if that a Due Clause taxpayer's prevent Process violation occurs suit would the IRS taxpayer pay compels when a statute assessing collecting "anyone's from taxes.” allegedly illegal unconstitutional or otherwise being challenge legality involving before able to its In cases state taxes under the Jones, Act, in a refund suit. See Bob Injunction 416 U.S. at related State Tax a few lower 746-47, (rejecting university's 94 S.Ct. 2038 taxpayers courts have sometimes allowed argument forcing pay it to some taxes challenge regulatory aspect regulato- of a litigate first and then claim its in a refund suit ry points concerning exaction. Three those law”); deny process "will it due see also First, Injunction State Tax Act cases: Commissioner, 589, 597, Phillips v. Act, case concerns the federal (1931) (summary 75 L.Ed. 1289 and Bob Jones and Americans United are di- procedure require- tax collection "satisfies rectly point saying on that the federal Anti- process of due ments because two alternative Injunction purport Act bars suits that to tar- judicial of eventual methods review are avail- get regulatory aspect of a federal tax. party "bringing able to the” affected an ac- Second, cross-references, — through its the fed- tion, against either the United States or the qualify eral Tax Code what defines exactions collector, paid”); to recover the amount purposes as taxes for Osborn, 118, 122, Dodge v. §§ Act. See 26 U.S.C. 5000A. 60 L.Ed. 557 Injunction The State Tax Act does not. So to law, the extent there’s a difference in case sure, requires To be the Due Process Clause that difference stems from the distinct texts exception Anti-Injunction an to the Act when Third, and contexts of the two statutes. high purported the tax is so as to render the Act, respect Injunction to the State Tax a just penalty, tax not a disincentive or civil but recent en banc Seventh Circuit decision au- See, prohibition. e.g., Lipke a criminal v. Led- Judge explained thored erer, 560-62, 549, Posner in detail 557, 259 U.S. 42 S.Ct. 66 why wrong Jones, it is even under the State Tax (1922); L.Ed. 1061 see also Bob 416 Injunction 743, 2038; pre-enforcement Act to allow U.S. at 94 United S.Ct. States v. Auto., 321, 329, challenge regulatory aspect of a state Coupe One Ford 272 U.S. 47 154, (1926); Empress Corp. tax. See Casino Joliet v. Bal- S.Ct. 71 L.Ed. 279 Graham v. 567, Club, Inc., 722, Racing Dupont, 262 U.S. moral 651 F.3d otherwise, (1923). (7th Cir.2011). L.Ed. 965 But the Anti- law, Supreme penalties as the Court for failure to maintain health in- good mains “Moreover, peti- explained Bob Jones: surance. Under Bob Jones and Ameri- argument give appropriate tioner’s fails United, Anti-Injunction cans the Act 16, Bailey George, v. weight to applies.33 therefore In that 66 L.Ed. clarity Given the of the relevant Su- case, that the Court held the blocked Government, preme precedent, the enjoin suit to collection of pre-enforcement argues which otherwise now that the Anti- Tax, although the federal Child Labor Injunction suit, Act does not bar this still regulatory as a challenged was meas- expressly disavows beyond taxing power Congress. the rationale set forth ure Significantly, Bailey the Court announced here majority opinion. As the So- George day v. on the same that it issued recently licitor General told the Co., Bailey v. Drexel Furniture Act, Court: “The when (1922), 66 L.Ed. 817 a tax- applicable, any bars suit seeking relief that refund in which the case Court struck necessañly preclude would assessment down the Child Labor Tax Law as uncon- or collection taxes under the Internal grounds taxpay- stitutional on the that the Code, regardless Revenue plaintiffs attempted prematurely er raise Bai- professed motivation the suit.” Brief ley 740-41, George.” 416 U.S. at for United in Opposition States at 22 & S.Ct. 2038. Geithner, Liberty n. Univ. v. No. 11-438 majority opinion So to the extent (U.S. 2011) Jones, (citing Oct. Bob argue here that an tries there’s Anti- 731-32, 2038) (internal (i) Injunction Act distinction between omitted) quotation (emphasis marks add- tax provision civil that creates a mandate ed). (ii) prohibition provision a tax that Finally, try, as a majority opin- last disincentive, creates an incentive or suggests ion these Affordable Care distinction does not work. The relevant penalties Act tax designed aren’t to raise question is whether and, revenue for suit, the Government plaintiffs’ successful, if for that would reduce reason, Here, liability. suit, may qualify their tax plaintiffs’ pur- if as taxes for (to zero) successful, vrould poses reduce their tax Act. But the majority opinion signifi- to attach tries health insurance. And let’s consider the ma- ways jority cance to the opinion’s different hypothetical rather fanciful (which case): relieved presented by individuals from the mandate. Some is not this If some- "applica- excluded from the "applicable definition of one who individual” but (for aliens), example, illegal ble exempt individual” from the nonetheless wants (for Act, “exempt” example, and some are challenge low- is found to have stand- individuals). Congress ing, prevails, income necessary implication used different part provisions methods in litigation victory because other would be to reduce tax- distinguish categories. the Act the different exempt. es on those who are not As the clear, however, See Patient Protection and Affordable Care Americans United case made Act, 111-148, 1302(e)(2)(B), Pub.L. No. Act would still bar such a (2010) suit; (permitting Stat. ap- certain expressly that case barred a suit that plicable taxes,” exempt "anyone's individuals who are from the would reduce even if it catastrophic to enroll in health plaintiff’s insur- would not reduce taxes. 416 event, plans). argument ance is a U.S. at majority 94 S.Ct. 2053. The majority opinion’s attempt wring significance sideshow: No matter how much the to out of opinion point, plaintiffs tries to avoid the statutory exceptions here the different modes of (and elsewhere) they provision have sued because don't the individual mandate is valiant pay penalties want unavailing. tax for failure to have but regulatory that tion Act. The empha- in Bob Jones held Court has by taxes are covered judicial sized that the desire for. a final they raise some revenue. long Act as as constitutionality decision on the of a law at 741 n. 743 n. U.S. trump cannot constitutional or statutory 2038; Sonzinsky, 300 U.S. S.Ct. judicial power. cf. limits on the Here, Congressional 57 S.Ct. 554. In Byrd, Raines v. for example, the Budget Office has estimated the Govern- Supreme Court considered the constitu- year ment will collect about billion a $4 Act, tionality of the Line Item Veto an revenue from the Affordable Care Act’s issue even more fundamental govern- on those without health in- operations ment budgetary issues than Douglas Letter from El- surance. See W. litigation the current mendorf, Director, Office, over the individual Cong. Budget (Mar. 2010). mandate. But Harry explained Reid tbl.3 To the Court that Sen. terms, it in put pay preference concrete that would prompt judicial reso- 100,000 the annual salaries of mem- about legislation’s lution of the constitutionality Military. bers of the U.S. That’s real rev- could not overcome constraints on the enue. jurisdiction case, Court’s the Con- —in standing requirement: stitution’s “In the short, we cannot avoid the Anti-In- light of this overriding and time-honored junction by characterizing plain- either concern keeping Judiciary’s about pow- complaint challenge tiffs’ as a to the man- proper er within its sphere, constitutional penalty, and not to the tax date put we must aside the natural urge to characterizing goal the Government’s proceed directly to regulating buy the decision to health insur- the merits of this im- raising ance rather than as revenue. portant dispute and to ‘settle’ it for the efficiency.” sake of convenience and

V 811, 820, S.Ct. 138 L.Ed.2d (1997)(footnote omitted). Plaintiffs and the Government have sug- 849 gested, as have host outside commen- contended, however, Some have tators, should courts decide the Congress would have wanted courts to constitutionality of the individual mandate now, notwithstanding decide this case country provision now because the has a Act. But not did judicial pressing need for immediate express any alleged such intent the text respect argument. resolution. I But Act. parties Affordable Care prudential considerations of that sort can- report cite no committee or even an indi- not override the text of a statute that vidual statement a Member of jurisdiction. our no limits There is “com- expressing the view that courts should de- pelling prudential excep- considerations” challenges cide to the individual mandate tion to the Act. In immediately, despite event, prudential the relevant consider- if employ gener- Act. So even we the most support waiting ations on balance our approach legislative history, ous we find until in tax decide this case refund or argument. support no for this Puerto brought enforcement suits that are after Cf. Dep’t Rico Consumer v. Isla taken the mandate has effect. Affairs Corp., Petroleum A (1988) (“une- beliefs, some, approvals, nacted and desires are Contrary suggestions we laws”). disregard Anti-Injunc- cannot simply presumed congression- up special judicial proceeding set review

The invocation employed here of the kind for the Line Item particularly inappropriate al intent is Congress clearly Bipartisan Campaign devoted careful Veto Act or the Re- because so, Congress form Act. But to the enforcement details of done attention provision. congressional mandate Con- and we must adhere to the the individual statutory barred the IRS from us- choice reflected text. gress specifically Simon, ing traditional tools to enforce Bob Jones Univ. v. some its (1974) Congress But did not create the mandate. (“But Anti-Injunction Act to this matter exception Congress, which is appropriate body suits pre-enforcement challenging weigh allow rele- vant, considerations, constitutionality policy-laden Here mandate. such as law....”). elsewhere, upend present courts should not the harshness of the Congress statutory balance struck in the Congress If wants the courts to decide text. now, the individual mandate suits Con- gress always jurisdictional can remove the Some have said that the health insur limit; Anti-Injunction industry prefers jurisdic- ance Act’s decision now and statutory, tional Congress would have bar is not constitutional. wanted courts action, however, congressional Absent such to accommodate that concern. That is cer tainly Congress statutory a reason have we must adhere to the could decid con- jurisdiction could straints on our no exempt ed-—and still decide—to matter how Anti-Injunction parties much the might jump statute from the Act.34Af want us to all, jurisdictional ter the voice of the health insurance rails and decide this case industry was heard now. legislation when this

was crafted. But Congress did not ex B

empt the individual provision mandate from the Act. cannot We Even if we could interpretation alter our rewrite the Affordable Care Act to accom of the pru- based on alleged modate an congressional considerations, intent to dential those considerations apparent follow the wishes of health support on balance our waiting to decide (in industry. insurance this case until 2015 tax refund or en- brought forcement suits after the mandate suggested Some have that the Anti-In- effect). By has taken waiting, we would junction Act not apply does because these respect judicial the bedrock principle of brought suits have been so far in advance prematurely restraint that courts avoid of the mandate’s 2014 effective But date. unnecessarily deciding constitutional ques- “early-bird special” there is no exception tions. to the creating Act. And such an exception pose would recently host of summa- arbitrary line-drawing problems. The rized declining those essential tenets while proper audience argument for such an question to reach a vital the consti- about Congress, which can always tutionality carve out an of Section 5 of the Voting exemption to the Rights Act or Act: indeed, Jones, squarely exceptions. Bob Jones held that there is no And after Bob "great exception Anti-Injunc- harm” exception carved out a narrow tion Act. 416 U.S. pre-enforcement challenges allow to the IRS’s emphasized L.Ed.2d 496 The Court tax-exempt determinations of status. proper body is the to create question ground upon dispose has at- other which to of

That constitutional in- the from dozens of case. tracted ardent briefs importance of parties,

terested but Municipal Utility Northwest Austin Dis justify rushing does not our question Holder, trict v. Number One 557 U.S. Quite contrary: it. Our to decide 2504, 2508, 2513, 174 L.Ed.2d 140 to avoid the unneces- practice usual is (2009) (some citations, quotation internal sary ques- resolution of constitutional omitted). marks, and brackets eli- agree tions. We that the district is Although the Northwest Austin Court seek bailout. gible under the We addressing was the constitutional avoid- reverse, and do not reach the therefore canon, general principles ance it articu- constitutionality of 5.... avoiding premature lated about or unnec- assessing questions, those we are essary constitutional apply decisions institutional role. keenly mindful of our this case as well.35 fully appreciate judging We an Act of constitutionality of C gravest duty and most delicate perform. is called on to The this Court that we principle premature avoid coequal govern- is a branch of unnecessary constitutional ap- decisions take the ment whose Members same plies special force here. That’s be- uphold oath we do to the Constitution of if cause we do not decide the constitutional now, United States.... may issue we never have to decide it. duty not from our

We will shrink “as First, disappear by this case could the bulwark of a limited constitution because, then, Congress may fix the encroachments,” legislative against alleged shortcoming constitutional and en- (J. 78, p. Federalist No. Cooke ed. sure that the Affordable Care Act’s indi- 1961) (A. Hamilton), but it is a well- provision comfortably vidual mandate fits principle governing pru- established Congress’s Taxing power. within Clause jurisdiction clear, of this dent exercise Court’s To be I not take a position do here normally the Court will not decide a on currently whether the statute as writ- question justifiable constitutional if there is some ten is under the Taxing Clause repeated passing upon framed 35. The Court from constitutionali- See, many e.g., ty point representative Elk an act times. Grove branches Unified Newdow, 1, 11, obliged proper perform- School District v. 542 U.S. unless to do so in the (2004) ("The function”) (citation, judicial S.Ct. 159 L.Ed.2d 98 ance of our com- inter- marks, omitted); guard jealously rarely quotation mand to and exercise nal and brackets TVA, 288, 346-47, power pronounce- our to make constitutional Ashwander v. 297 U.S. J„ (1936) (Brandéis, requires ments strictest adherence when mat- S.Ct. 80 L.Ed. 688 ("The great significance concurring) anticipate national are at will ters stake. concededly jurisdic- question Even in cases within our of constitutional law in advance of III, necessity deciding tion under Article we abide a series of it. It not the habit questions passing rules under which we have avoided of the Court to decide of a constitu- upon large part absolutely necessary of all the constitutional tional nature unless to a case.”) (footnote, citations, decision.") (ci- questions pressed upon us for decision of the marks, tation, omitted); quotation quotation internal and brackets and internal marks cf. omitted); Valley Forge College Schlesinger Stop the Christian v. Reservists Committee to War, Separation 41 L.Ed.2d Americans United Church & Levitt, State, Inc., (1974); parte Ex (1982) ("this re- 82 L.Ed. 493 Court has I am or the Commerce Clause. What incentivize certain kinds of lawful behavior saying only potential Taxing but also mandates such is behavior. Section shortcoming in the current provides: applicable individ- 5000A “An Clause individual to be rela- provision appears beginning ual mandate shall for each month after 2013 just individual, a minor tively slight. any And tweak to ensure that the depen- statutory language the current would de- dent of the individual who applicable is an individual, finitively establish the law’s constitutionali- covered is under minimum es- (and ty Taxing thereby under the Clause sential co'verage for such month.” 5000A(a) added). any moot need to consider the Commerce (emphasis U.S.C. Clause).36 Therefore, 2014, beginning in a citizen reason37 the current statute who does not maintain health insurance may Taxing under the might acting illegally.38 not suffice Clause is Taxing arguably just Section 5000A does not traditionally Clause has not authorized a opinion, explained 36. Earlier in I Congress’s power this that the not does vitiate under the applies penalty Cases, Taxing Act to the tax Clause. See License Tax 462, 471, 462, at issue here because of how the various stat- U.S. 5 Wall. 18 L.Ed. 497 cross-references, utory provisions, (1867) ("The license, therefore, and defini- granting of a together. tions in the Tax Code fit As the regarded nothing must be as more than a indicated, tax, Court has the fact that imposing mere form of a implying and of applies does not nec- nothing except that the licensee shall be sub essarily penalty permissible mean the tax law, ject penalties to no under national if he Taxing Compare Bailey under the it."). Clause. pays Nor does it matter that 16, 419, George, 259 U.S. 42 S.Ct. 66 L.Ed. explicitly did not Taxing cite the Clause when (1922) (pre-enforcement challenge to ex- enacting legislation. Cloyd See Woods v. Act), is barred Co., action 421, W. Miller 333 U.S. Co., Bailey v. Drexel Furniture 259 U.S. (1948) ("The question 92 L.Ed. 596 (1922) (in 66 L.Ed. 817 constitutionality by Congress of action taken suit, holding refund that the same exaction is depend power does not on recitals of the Clause). Taxing invalid under the exercise.”). which it Finally, undertakes to plaintiffs plaintiffs neither here nor in the suit, successful, Plaintiffs' if would reduce have, other Affordable Care Act cases so far (and payment their of taxes the tax is aware, argued as I am that the amount of the prohibition criminal such that the Due Pro- high Affordable Care Act’s exaction is so as to require pre-enforcement cess Clause would punishment be a unjustifia criminal and thus available). suit to be all That's that’s needed to Taxing ble under the Clause for that reason. find the applicable. That they. Dep’t Nor could Revenue Mont. Cf. necessarily is not justify all that’s needed to Ranch, 767, 778-81, v. Kurth Taxing civil under the Clause. (1994); S.Ct. Sonzin sky, 300 U.S. at 57 S.Ct. 554. plaintiffs It is true that variety advance a arguments why other the Affordable Care failing Act’s argument, to have health insur- 38.At oral counsel for the Govern- justified Taxing ance cannot be argued under the ment that a citizen who refused to arguments Clause. But those alternative all obtain health acting insurance would still be appear definitively true, to be lawfully. foreclosed Su- If that were the mandate First, preme precedent. contrary presumably pass would muster under the Tax- contention, plaintiffs' Taxing ing Clause au- Clause. But it is not evident that the taxes, regulatory long thorizes statutory language at least so as fairly susceptible to such revenue, said, the tax raises some as it does interpretation. here. an perhaps That Sanchez, See United States v. 44- canon of constitutional avoidance would al- (1950); 95 L.Ed. 47 interpretation low such provision Sonzin- 506, 513-14, sky v. United thereby squeeze Taxing it within (1937). Moreover, 81 L.Ed. 772 Clause. Municipal Northwest Austin Utili- Cf. One, the fact that an ty exaction is not labeled a tax District Number 129 S.Ct. 2504. mandate, prohibition opposed regulatory to kinds of taxes that legal Taxing just a financial disincentive or incentive.39 has Clause authorized. Another source of constitutional authori- potential But this discussion about the ty example, the Commerce Clause— —for problem with the Taxing Government’s customarily thought necessary to been argument Clause easily also shows how

justify prohibitions or mandates.40 such could poten- eliminate such contended, however, Many have that a problem. example, tial For Congress a tax legal penalty mandate with civil for might keep statutory the current language economically indistin- non-compliance is payment simply and amounts and add a regulatory a traditional tax guishable from provision as basic as: “The taxpayer has a if the amounts of the exactions are the lawful choice either to maintain in- health argument same. Such an assumes that surance or make the payment to the IRS citizens care about economic incen- 5000A(a)-(c).” required by Section Or complying tives and not also about -with Congress might retain the exactions and vigorously The Law. Plaintiffs contest that payment they amounts as are but elimi- According plaintiffs, assertion. to legal nate the language mandate in Section necessarily States does not consist United 5000A, providing instead something to the people of 310 million who have over-ab- applicable effect of: “An individual without (i) equate sorbed their Posner and a tradi- minimum coverage essential must make a regulatory tional tax that incentivizes or payment to the IRS on or tax his her (ii) disincentivizes certain behavior and a return in the amounts listed in Section or legal prohibition accompanied mandate 5000A(c).” Congress Or could adopt the a tax by the same amount. bill, approach from the House-passed all, plaintiffs say, After common sense tells expressly which a created tax incentive many us citizens want be law- plainly and Taxing satisfied the Clause. (and abiding law-abiding), known as and Any options of those others as law-abiding that their desire to be affects —and provision op- their For well—would ensure that this purposes behavior.41 the Tax- Clause, ing prohibitions regulatory and erates as a traditional mandates tax and might step beyond readily be one the traditional Taxing satisfies the Clause. See act, Taxing Necessary 39. The pecuniary punishment violating Clause and the Proper plainly support prohibitions all; but, Clause do penalty, then it and not tax at compliance and mandates related to but, with thing prohibited, where the done is not reporting, filing, payment obligations, as it, respect privilege doing with to the opposed penalty provisions imposing to civil tax, imposed, excise tax is it is none the less a prohibitions underlying pri- or mandates on be, results, though practical even it in its (for example, vate behavior a mandate have prohibitive.” Argument of Solicitor General insurance). health Co., Bailey reported v. Drexel Furniture 21-22, 259 U.S. at 42 S.Ct. 449. Although have not had courts occasion explain clearly (perhaps this distinction 41. See Office of Tax Dep’t Policy, of the Trea- prohibitions because most extant federal Report Penalty sury, on policy comfortably the social arena have been Interest Provisions of the Internal Revenue Clause), by ap- authorized the Commerce (1999) ("[Pjenalties clearly signal Code parent cogently difference was once described noncompliance acceptable is not behav- may easy the Solicitor General: “It not be establishing ior. ... social norms and ex- to draw a line of demarcation between a tax, pectations, subjecting noncompliant be- penalty and a but the line of demarcation that, any penalty may important prohibits havior to be as seems to be where the statute ”). doing penalty.... imposes of an act as a sanction the exact level of the Sanchez, enforcing it would be unconstitutional.43 United States (1950) (even a tax 95 L.Ed. events, In one of those the courts would prohibitive character and “regulatory with likewise opine never have to on the consti- merely not cease to be valid burden” “does presented tutional issues this case. discourages, regulates, it or even because recognize legislative We all realities taxed”); definitely deters the activities any change unlikely, that make whether Sonzinsky v. United just “fix” any potential constitutional (1937) 513, 57 S.Ct. 81 L.Ed. 772 (“[A]n problem significant or to take more action Act of which on its face all, respect to Section 5000A. purports taxing to be an exercise of the After power is not the less so because the system requires our constitutional action tax is burdensome tends restrict or any legislative three entities before taxed.”); thing cf., suppress e.g., Af- may Senate, change approved House, — Act, Health fordable Care America (cid:127) Therefore, and Executive. it is much (2009) 3962, Cong. H.R. 111th harder to pass legislation technical —even (House-passed bill on health care reform said, legislation. fixes—than to block That imposing a on individuals without “[t]ax possibility there is the legislative of such acceptable coverage”); health care Pa- action that could obviate the need for the Act, 2520, tients’ H.R. 111th Cong. Choice Judiciary immensely to decide this conse- (2009) §§ (proposing 301-303 to amend the quential constitutional issue. Tax a Code create refundable tax credit clear, purchase qualifying for the To be health insur- federal courts do not wait to ance plans).42 simply decide constitutional cases because possibility congressional change

Second, far broadly, by but more legislation to the presidential or nonen- Congress might choose to eliminate Sec- forcement of what the President concludes is, tion altogether 5000A eliminate —that is an Delay unconstitutional law. on that failing this financial disincentive for abdication, judicial basis would constitute have health insurance. Or the President judicial might not enforce the individual not restraint. But mandate the discussion provision if the President concludes that here has been addressing question eliminating legal 42. To the extent man- a statute based on its own constitutional inter language (or date would decrease the incentive to pretation even if the courts have would insurance, buy have) health the amount of the exac- upheld the statute as constitutional. having tion for not health insurance could be reverse, power This does not work in either (so long increased as it a remains civil exac- Congress. for the President or In other tion) appropriate if that were deemed words, may the President a enforce stat- equivalent maintain an incentive. against private ute individual when stat- by ute is deemed Constitution, unconstitutional the courts. 43. Under the may the President may Congress pass Nor a statute and have it regulates decline to enforce a statute that against private simply enforced individuals private individuals when the President deems unconstitutional, Congress disagrees because with the the statute even if a court situations, Court. Judiciary In those has held or would hold the statute constitutional. Commissioner, Freytag v. meaning the final word on of the Constitu- 501 U.S. 868, 906, See, Bush, e.g., tion. 115 L.Ed.2d Boumediene v. 553 U.S. J., (1991) (Scalia, (the (2008); concurring) 171 L.Ed.2d President States, possesses power encroaching "the Dickerson v. to veto United 530 U.S. (2000); disregard they laws or even to them when S.Ct. 147 L.Ed.2d United unconstitutional”) (citation omitted). Eichman, Simi States v. larly, Congress may repeal pass or decline to 110 L.Ed.2d 287 compelling prudential ders it an unconstitutional assertion there are whether power, commerce and our intervention is justify that would over- considerations required.... If Congress attempts that Anti-Injunction Act riding the limits of the extension, then at the least we in- must deciding this case now. consider- and quire whether the exercise of national question, it is relevant ing specific power seeks to intrude an upon area of waiting might to decide mean note traditional state concern.... The statute decide, having prospect never now before us forecloses the States from supports adherence experimenting exercising their own Act.

judgment lay an area to which States claim right history expertise, D it regulating activity beyond does so an compelling reason There is additional ordinary the realm of commerce in the wary unnecessary premature to be of an term.”); usual sense of that see also Printz ruling in this case. As I constitutional v. United said, Taxing have the Government’s Clause (1997) (“[I]f, argument may potential problem have contend, petitioners Congresses earlier (al- legal because of the statute’s mandate highly avoided use of this power, attractive though problem relatively is potential we would have reason to believe that the easily minor and could be fixed Con- exist.”). power thought was not to above). Indeed, gress, as described no addition, position Government’s accepted court to reach the merits has on the Commerce Clause carries broad Taxing argument. Government’s Clause implications position broader than its —far result, As a those courts have had to tackle Taxing on the Clause. Under Govern- the Government’s Commerce Clause sub- theory, ment’s Commerce Clause as it mission. freely acknowledged argument, at oral But the Clause issue is ex- Commerce impose imprisonment Government could tremely significant difficult and rife with other punishment criminal on who citizens potentially implications and unforeseen for do not have health insurance. That ais Judiciary. the Nation and North- Cf. jarring prospect. rather The Affordable Municipal Utility west Austin District impose Care Act does not such criminal One, Number 129 S.Ct. at 2513.44 But if penalties. approve we the Afforda- ble Care Act’s mandate under the Com- To uphold Affordable Care Act’s Clause, necessarily merce we would mandatory-purchase requirement under approving punishment including criminal Clause, we have to — Commerce would imprisonment comply failure to —for uphold unprecedented law on the only with this Act but also future history. federal level American That mandatory-purchase requirements. Judiciary fact alone counsels the to exer- caution. great Moreover, cise See United States v. despite the Government’s ef- 583, Lopez, 514 U.S. 115 S.Ct. fort to argu- cabin its Commerce Clause (1995) J., (Kennedy, mandatory purchases 131 L.Ed.2d 626 ment of health (“The insurance, concurring) upsets good statute before us there seems no reason its degree theory ultimately the federal balance to a ren- would not extend as well discussion, purposes supplementary 44. For of this when re- Commerce Clause and the ferring to the Government’s Commerce Necessary Proper Clause. argument, referring Clause I am to both the mandatory purchases important enforcing retirement ac role in those structur accounts, counts, housing college savings principles thereby al in safeguarding insurance, accounts, in disability liberty. dividual That Congress subject disaster insurance, surance, example. life a political check does not absolve the unnecessarily Judiciary duty should hesitate decide of its to safeguard We the con in a significant liberty. a case that could usher stitutional structure and individual — congressional authority U.S. —, expansion of with See Bond v. United partic 2364-65, no limit. That is principled obvious 131 S.Ct. 180 L.Ed.2d 269 (2011); ularly given government that the Enterprise so tradi Free Fund Public , — objectives in tionally has achieved its these Accounting Oversight Co. U.S. Bd. —, through Taxing legislation 3157, 177 areas Clause 130 S.Ct. L.Ed.2d 706 customary (2010); York, employs permissible City Clinton v. New 417, 449-53, tax incentives and disincentives on certain U.S. 580-83, (1998) Lopez, J., behavior. L.Ed.2d 393 (Kennedy, concur Cf. J., (Kennedy, concurring). ring); 575-80, S.Ct. 1624 Lopez, 514 U.S. at J., 1624 (Kennedy, concurring); INS v. Unlike some other courts that up- have Chadha, 919, 940-42, 944-59, held the mandate on Commerce Clause (1983); 77 L.Ed.2d 317 see also grounds implications, and disclaimed the Olson, 654, 697-734, Morrison v. majority opinion quite here is candid— (1988) admitting and accurate —in that there is no (Scalia, J., Here, dissenting). Congress’s limiting principle real to its Commerce subject being political to a check thus does holding. majority Clause opinion’s mitigate not do much to the fact that the means, holding example, that a law majority opinion has green-lighted signif Security replacing system Social with a icant expansion congressional authori mandatory private retirement accounts ty potentially significant thus also a —and would be constitutional. So would a law infringement liberty. of individual mandating parents purchase private college savings accounts. I credit that, the ma- Having said all of we just should be jority opinion for its refreshing candor. as cautious about prematurely or unneces- But acknowledgement its of the extraordi- sarily rejecting the Government’s Com- nary ramifications of its decision expand- argument. merce Clause The reason is ing Congress’s authority impose to plain manda- and needs little Striking elaboration: tory-purchase requirements underscores down a beyond federal law as Congress’s why I think we should be cautious rare, about Commerce authority Clause is a ex- barreling jurisdictional through traordinary, limits to and momentous act for a fed- merits, reach the majority as the opinion 568, eral court. Lopez, See at does here. 568-75, J., (Kennedy, S.Ct. 1624 con- curring) (exploring Commerce Clause his- tryTo mitigate to the dramatic implica- tory, great which “counsels restraint be- tions of its no-limiting-principle holding, fore the Court determines that the Clause majority opinion notes that Congress support is insufficient to an exercise of the subject political true, to a check. That’s national power”). Supreme but as the Court has told us time' again, the structural principles of the designed The elected Branches this law Constitution are more than parchment to help provide all Americans with access barriers; they protect liberty. individual quality affordable health insurance and And the historically played care, courts have an health vital policy objectives. This moreover, enacted, E after a legislation was vigorous national debate. high-profile sure, may To not be courts shirk their to that great respect must afford Courts in duty “say what the law is” cases that wary effort and should be legislative properly are before them. Marburg v. it. upending Madison, 137, 137, 177, 1 Cranch 5 U.S. This case also counsels restraint because (1803). L.Ed. 60 As the in may leading edge be on the of a shift we famously stated: “With whatever goes how the Federal Government about doubts, difficulties, with whatever a case furnishing safety a social net for those who attended, may it, we must decide if it be sick, old, poor, or disabled and need brought before us. have no We more theory help. of the individual man right jurisdiction to decline the exercise that private date this law is entities will given, which is than to usurp that which is government providing do better than given.” Virginia, Cohens v. 19 U.S. insurance and that certain social mandates (1821). Wheat. L.Ed. 257 regulato will work better than traditional duties, in fulfilling And their courts ry prompting people taxes set aside sometimes must decide difficult and far- money help pay now to for the assistance reaching constitutional cases sooner rather they might later. Privatized need social See, than e.g., later. Dames & Moore v. mandatory-pur services combined with 654, 660, Regan, 453 U.S. requirements employed chase the kind (1981); 69 L.Ed.2d 918 United v. States provision mandate the individual Nixon, 683, 686-87, 418 U.S. might Affordable Care Act become a blue (1974); Aaron, Cooper 41 L.Ed.2d 1039 print used the Federal Government 4-5, generation partially priva the next over (1958); Youngstown Sheet & Tube Co. v. safety government tize the social net and Sawyer, move, programs assistance least L.Ed. 1153 degree, away tax-and-gov some from the model is common ernment-benefit history precedent But counsel cau- naturally very now. should be Courts reaching tion before out to decide difficult interfering careful before with the elected questions quickly, espe- constitutional too update Branches’ determination to how the cially underlying when the issues provides National Government such assistance. all, lasting significance. ap- After what Motel, Cf Heart Atlanta Inc. v. . pears obviously correct now can look States, 241, 348, 379 U.S. 85 S.Ct. United quite just years different few down the (1964); NLRB v. Jones & road. Va. Bd. Educ. v. See W. State 1,

Laughlin Corp., Steel 301 U.S. Barnette, 624, 1178, 319 U.S. 87 615, 81 L.Ed. 893 (1943), overruling L.Ed. 1628 Minersville Gobitis, School District significant implications of Com- (1940); L.Ed. NLRB v. S.Ct. in this case—in ei- merce Clause decision Laughlin Corp., & Steel Jones point: If we ther side’s favor—lead (1937) (Hughes, L.Ed. is- need not decide Commerce Clause C.J.), now, backing away A.L.A. Schechter sue we should not decide Com- from Poultry Corp. v. I United merce Clause issue now. therefore (1935) L.Ed. 1570 sidestep not the Anti-In- would strain C.J.). junction (Hughes, Act. Qwest 2015, Congress might

Between now Communications International Inc., al., et Intervenors. keep the mandate as is and President If that may happens, enforce it as is. No. 10-1184. resulting federal courts would resolve the Appeals, United States by our lights constitutional case best District of Columbia Circuit. shy away necessary from a con- would history stitutional decision. But tells us to Argued Sept. 2011. only if and bridge cross that when we need Decided Nov. majority opinion, to. Unlike the I would adhere to the text

Act and leave these momentous constitu- day day

tional issues for another —a

may never come.

I greatest respect my have the two

colleagues panel. my analysis on this But decisively

leads me to the conclusion that jurisdiction lack

we because of Anti-

Injunction Act. I therefore would vacate judgment of the District Court and

remand with directions that the suit be jurisdiction.

dismissed for lack of I re-

spectfully dissent.

VERMONT PUBLIC SERVICE

BOARD and Maine Public Utilities

Commission, Petitioners

FEDERAL COMMUNICATIONS COM-

MISSION and United States of

America, Respondents

Case Details

Case Name: Seven-Sky v. Holder

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Nov 8, 2011

Citation: 661 F.3d 1

Docket Number: 11-5047

Court Abbreviation: D.C. Cir.