the plaintiff in that case said look, where it's inevitable this is what this suit is about. there's two sides of the same coin. that clearly is a primary purpose of the suit and it's -- you can't by clever pleading get away from that. that's just the nature. >> mr. long, aren't you trying to rewrite the statute in a way. the statute has two sections. one is you have to have insurance section. the other is the sanction. the statute has two different sets of exceptions corresponding to those two different sections. you're trying to suggest that the statute says well, it's your choice. either buy nurns or pay a -- or pay a fee. but that's not the way the statute reads. and congress must be supposed, you know, made a decision that that shouldn't be the way the statute reads. it should instead be a regulatory command and a penalty attached to that command. >> i would not argue that this

statute is a perfect model of clarity. but i do think the most reasonable way to read the entire statute is that it does impose a single obligation to pay a penalty if you are an applicable individual and you're not subject to an exemption. the reason i say that, if you look at the exemptions from the penalty in the very first one is you're exempt from the penalty because you can't afford to purchase insurance. it just doesn't seem reasonable to me to interpret the statute as congress having said, well, this person is exempt from paying a pent because we find they can't afford to buy insurance. however, they still have a legal obligation to buy insurance. that just doesn't seem reasonable. so i do think although it's -- i certainly wouldn't argue it's clear that that's the best way to understand the statute as a

whole. but again, i would say that's not essential to the question we're discussing now of whether the anti-injunction act applies. again -- >> could you tell me why you think the solicitor general's reading creates a problem. >> and going back to -- so if the result were to say simply this is not -- i'm sorry, the solicitor general's reading. >> a jurisdictional bar, but there's an exemption for those items that congress has designated solely as penalties that are not like taxes. >> right. well, i think the solis iter general's readling would probably create the fewest problems as i understand it. my main objection to the solicitor general's reading is i don't think it makes a whole lot of sense. basically the solicitor general says every penalty in the internal revenue code. every other penalty in the

affordable care act -- >> that's not. that's carrying it too far. he says if a penalty is designated as a tax by congress, then it's subject to the aia. that's most of the code. the tax code. and he says for those portions of the affordable care act, that designate things as taxes the aia applies. so it's only -- and i haven't found another statute. i'm going to ask him if there's another one. it's only for those statutes in which congress has designated something solely as a penalty and not indicated that it's a tax they don't fall within the aia. >> right. i think my take on it is if you adopted the solicitor general's approach there are probably three penalties for alcohol and back related offenses. 5114-c. 5684, and 5761 that i think would be very difficult to

distinguish from this one and possibly the 5278-j penalty for failure to disclose political contributions. if there are no further questions -- >> thank you, mr. long. general? >> mr. chief justice and may it please the court, this case presents issue of great moment and the anti-injunction act does not bar the court's consideration of those issues. that is so even though the anti-injux act is a jurisdictional limit that serves with that court described as an exceedingly strong interest in protecting the financial stability of the federal government and even though the minimum coverage provision of the affordable care act is an exercise of congress's taxing power as well as its commerce power. congress has authority under the taxing power to enact a measure not labeled as a tax. it did so when it put section

5,000 a into the internal revenue code. but for purposes of the anti-injux act, the precise language congress used is determinative. there is no language in the anti-injunction -- no language in section 5,000 a of the affordable care act or in the internal revenue code generally that provides a textural instruction -- >> general, today you're arguing that the penalty is not a tax. tomorrow you're going to be back and you'll be arguing that the penalty is a tax. has the court ever held that something that's a tax for taxing power under the constitution is not a tax of the anti-injux act? >> no. but the court has held that something can be an exercise of the talking power whether or not it is called a tax. that's because the nature of the

inquiry that we will conduct tomorrow is different from the nature of the inquiry today. tomorrow is whether the congress has the authority to enact it. today we're construing stattory tax. >> you have the child labor tax cases. there the court said that the tax which was a prohibitive tax alone was a tax subject to the aia and then it was beyond the court's taxing power in a separate case, correct? >> i do think that respect to one of the arguments that bailey against george is a significant problem. i think their argument on the constitutionality under the talking power is essentially that the affordable care act provision is the same thing as

is the provision that was held unconstitutional. but on the same day as bailee against drexel furniture the court issued bailee against george which held that the anti-injux act did bar a challenge to that provision even though the court had concluded that it was invalid under the tax power. i think the reason for that has been -- is clear now after williams packing and bob jones in that in order to find that the anti-injunction act doesn't apply to something that orwise would be a tax that triggers it. you have to conclude there's no substantial argument that could be made in defense of it as a tax. we don't have that argument here. i don't think you can get around the anti-injunction act if the court were to read it on that nearry. >> a basic question about your argument. if you're right about the second

part, that is, for purposes of the statute, the anti-injunction statute, this penalty does not constitute a tax. then does the court need to decide whether it's -- whether the anti-injunction act in other cases where it does involve a tax is jurisdictional? >> no. i apologize for creating confusion. we think by far is better route is to understand the statute. from the perspective of the united states i'd like to take a minute that the idea that the anti-injunction act could be construed as not being a jurisdictional provision is very troubling. we don't think it's correct. if i could follow up on a question that you asked mr. long in terms of the language of the

anti-injunction act 7421 a which can be founder at page 16 a of the appendix to our brief, i'd ask the court to prepare that to the language of the next provision of the code on the next page of our stat choir appendix. the refund statute. the refund statute this court held was jurisdictional. the court held that the statute of limitations that applies to refund statute cases is jurisdictional. the language in 7422 a is virtually identical to the language in 7420. >> that is correct. all in the refund context you have the sovereign immunity problem in which we presume that has not been waived. >> right. >> originally they were the same

provision. they were only separated out later. i do think that's the strongest indication that 7421 a is jurisdictional. >> the thing that i asked you if you're right that this penalty is not covered by section 7421, if you're right about that why should we deal with the injury dictional issue at all, this statute doesn't involve a tax subject to the anti-jurisdictional act. >> yes. >> if we agree with you about the correct interpretation of statute, we need not decide -- >> there would be no reason to decide the jurisdictional issue. >> don't you want to know the answer? [ laughter ] . >> justice kennedy, i think we all want to know the answers to a lot of things in this case. but i do think that the prudent

course here is to construe the statute in the manner that we read it. >> you indicated there was a discussion earlier about why does the government ral care they have competent attorneys et cetera. you began your argument by saying it would be very troubling to say this. i'd like you to congressmen on that. it's not for us to tell a party what's in its best interest. it would seem to me there could be some instances which is government could want to valid date the tax but you say that's not true. >> there's two problems. one is the problem that justice scalia identified. if it's not jurisdictional, the courts have to ability to craft sections. it may seem from where we stand now that that authority is or could be very tightly cabined. if this court concludes that it isn't jurisdictional, that does empower courts to find other circumstances in which they fight mind it equitable to allow

cases to go forward in the absence of this despite the existence of the anti-injunction act. second i'm certainly not going to stand up here and disparage attorneys for the united states in the slightest. the reality is if this isn't jurisdictional, then the argument is open to the argument that it's subject to forfitchture by an omission and failing to raise it in an answer and that's a troubling prospect. >> how likely is it -- the government is going to be defending these suits. how likely is it that the government would overlook the anti-injunction act? it seems to me that this is -- the government by saying its waivable at the government's option? >> that is not our say seszment of the institutional interest of the united states. we do think that the right way

to go in this case is to read the statute saz not applying to the minimum coverage provision of the affordable care act. bl it was the calculation of the interest of the united states that your predecessor made in the davis case. there the solicitor general exercised the authority that we sanctioned to waive the anti-injunction act. of course, that couldn't be done if it were jurisdictional. >> that's true, mr. chief justice. several points about that, though. we do agree with mr. long's analysis that davis occurred during a time in which under the standard nut case the court had interpreted the anti-injunction act as doing no more than codified the traditional equitable principals which allowed courts discretion to conclude in certain circumstances a case could go forward. william's packing repud dated that analysis and bob jones

against simon repute daded that analysis and said no, we're no longer abiding by that. it is true that the davis case has not formally been overruled, but we do think it's fundamentally inconsistent with the court's understanding. >> davis is the case where a shareholder sues the cooperation. >> yes. >> the remedy is that the cooperation shouldn't pay the money to the tax authority. now it's technical. but that is actually an injunction against the tax authority collecting. they're not restraining the collection of tax. they're saying to the taxpayer don't pay it. >> yes, sir. >> i don't know how far that gets you. >> in fairness justice breyer the united states did intervene in the dais case and was a party. not as far as i'd like would be the answer. >> i think that goes too far. i think that's restraining the collection of a tax. it's restraining the payment of

a tax. >> well, you don't want to let that bone, go. right? >> our view here is that it is jurisdictional. because it's jurisdictional as this court understands jurisdiction now it's not waivable and therefore we don't think that that part of the davis decision is good law. >> general, can i ask you about reed elseveer. just as ginsburg suggested that the language was very similar in that as it is here. there are even further similarities. it pointed out that the provision in question wasn't in title 28. here, too, it's not in tile 28. it was pointed out that the provision there numerous exceptions to it. here, too, there are numerous exceptions that we find that have been created by the courts over the year. in that case the question was essentially one about timing. come to court after you file

your registration. here, too, the question is one about timing. come to court after you pay your taxes. so it seems in multiple rms on all fours with this case. why is that wrong? >> i don't think so. fist we think, i apologize, we think the closest analog is the very next provision in the united states code 7422 a which this court has held as jurisdictional and is phrased in exactly the same way as 7421 a. they were the same provision back in the earlier days. what's the close analog. this isn't -- it's actually 7422 that's the statute that says do something first. but this statute is just a flat out command that no suit shall be maintained to -- >> i take it be point, if you would comment on the similarities to this case. how do you think it's different

at all? >> i think the best answer is there are no magic words and history ancon text matter. history and context is that 7422 and 7421 function together to protect an exceedingly strong interest. it explains the jurisdictional nature of that. the same interest applies here. is isn't just a matter of do x and then you can come to court. it's just a fundamentally different set of interest at stake. we do think that makes a big difference. >> why in reed elseveer if you're finding jurisdiction on claims processing says you have to register before you can sue? there are a lot of things tough do before you can sue. why isn't reed elseveer like you have to pay a fine before you can file a complaint? >> we do think it's very much in

that nature indifferent from this case. in one way i think it's helpful to get at this is to look at the history. we cited a string of court of appeals cases in a footnote in our opening brief. over time it's very consistent that the courts of appeals have treated the anti-injunction act as a jurisdictional provision. again if the court agrees with our construction, we don't have to reach this issue. they have in fact one of those cases the hanson case, the district court had dismissed the complaint court of appeals vacated and sent it back to the instruction. so i do think that to the extent this issue is before the court it is jurisdictional, it doesn't need to be before the court because of the statutory construction argument. is there any other exaction

imposed under the internal revenue code that would not qualify more as a tax or is 5,000 a just out there all by itself? >> it's -- it's not quite out there all by itself. there are other provisions that fall outside of subchapter b of chapter 68 and therefore wouldn't be governed by the instruction in the section which answers the question about the applicablity of the act for most penalties theities. the one that we identified, one is 26 usc 857 which posed certain penalties in connection with the administration of real estate investment trusts. there are provisions that mr. long identified in his brief sections 6038 a through c of the

code which imposed certain penalties with respect tocorpor. we have in addition in footnote 22 at page 36 of our brief, identified three provisions that mr. long also identified about alcohol and tobacco. >> could we address, general, the question of whether there are any collateral consequences for the failure to buy -- to not buy health insurance. is the only consequence the payment of the penalty? the respondents argue there are other collateral consequences such as for people on probation who are disobeying the law, if they don't buy health insurance, they'd be disobeying the law and could be subject to having their supervised release revoked. >> that is not a correct reading of the statute, justice

sotomayor. the only consequence that ensues is the tax penalty, and we have made a representation and it was a carefully made representation in our brief, that it is the interpretation of the agency's charged with interpreting this statute, the treasury department and the department of health and human service there is is no other consequence aside from the tax penalty. i think if i could talk for a couple of minutes about the argument that was discussed as to whether this can be conceived of as a suit just challenging the requirement which is entirely stand alone based on inferences drawn from the exemptions. really don't think that's right. and if i could spend a minute on it i think it's important. the exemptions in section 5000-a, it is true that there are two categories of exemptions. there are exemptions to the penalty and exemptions to the subsection a requirement.

but i think, not only as a practical matter but i think as an indication even as a legal matter, they are -- they both function as exceptions to the requirement. the first as a practical matter, one of those exemptions is a hardship exemption. if the court will bear with me for one minute. it's page 11-a of the appendix to our brief a. person can go to the secretary of hhs and obtain a hardship exemption for -- which would as a formal matter, excuse compliance with the penalty. seems to me to make little sense to say someone who has gone to an official of the united states and obtained an exemption would nonetheless be in a position of being a law breaker. we think another way in which you can get to the same conclusion slightly differently is by considering the provision on the prior page, 10-a, which

is 5000-ae sub three, members of indian tribes. members of indian tribes are exempt only from the penalty as a formal matter under the structure of the statute here, but reason for that is because members of indian tribes obtain their health care through the indian health service which is a clinic-based system that doesn't involve insurance at all and entirely different system. they were taken out of this statute because they get their health care through a different system and it doesn't make any sense to think that persons getting their health care through the indian health service are violating the law because exempt only from the penalty but under a legal obligation to have insurance when the point is -- >> is your point that this was inartful drafting by congress? that to the extent that there's an exemption under the penalty it's an exemption from the legal obligation? >> what i would say about it

your honor, the way in which this statute is drafted doesn't permit the inference that friends are trying to draw from it. there is an indication of that which one can find at page 13 of our reply brief. this is a provision that's 42 usc-a section 18022-e. this is a provision that provides for a certification that certain individuals can get, and it's the paragraph starting with the words other provisions contains the quote. and it says an individual with a certification that the individual is exempt from the requirement under section 5000-a, by reason of section 5000-ae 1 of such code, is entitled to a certificate that allows for enrollment in particular program for this category of people. but you can see here congress is

saying exemption under 5000-ae 1, the exemption from the penalty and not the underlying requirement is, as congress says, an exemption from the requirement of section -- >> 5000-a says directly an applicable individual shall insure that the individual has the minimum essential coverage. you're saying it doesn't mean that. that if you're not subject to the penalty you're not under an obligation to maintain minimum essential coverage. >> that's correct, and we think that's what congress is saying, both in the provision i just pointed to your honor and by virtue of the way the exemptions work, i think that's the reading this in context that is the stronger reading. >> it makes it easy for the government to drop the other shoe in the future, right? you've been under the law subject to this mandate all along, you've been exempt from the penalty so all i have to do is take away the penalty.

>> i don't -- i don't think so, mr. chief justice. i don't think it makes it easy for the government in the future. we think this is the fairest reading of the statute, that you cannot infer from the fact that snn is exempt from the penalty they are still under an obligation to have insurance. that's not the fairest reading of the statute. >> go ahead. >> the nature of the representation you made, that the only consequence is the penalty, sfos a person does not purchase insurance, a person obligated to do so doesn't do it, pays the penalty instead, and that person finds herself in a position where she's asked the question, have you ever violated any federal law? would that person have violated a federal law? >> no. our position is that that person should give the answer no. >> and that's because -- >> if they don't pay the tax, they violated a federal law.

>> but as long as they have paid the penalty. >> they paid the tax they are in compliance with the law. >> why do you keep saying tax? >> if they pay the tax penalty it complies with the law. thank you. >> the penalty. >> suppose a person who has been receiving medical care in an emergency room, has no health insurance, but over the years goes to the emergency room, a person wants medical care, goes to the emergency room and the hospital says fine, you're eligible for medicaid, enroll in medicaid and the person says no, i don't want that, i want to continue to get just get care here from the emergency room. will the hospital be able to point to the mandate and say well, you're obligated to enroll. >> no, i don't think so, justice ali alito, for the same reason i

just gave. i think that the answer in that situation is that that person, assuming that person -- if that person is eligible for medicaid they may not be in a situation where they are going to face a tax penalty. >> they are not facing the tax penalty so the hospital will have to continue to give them care and pay for it themselves and not require them to be enrolled in medicaid. >> right. >> able to take this out and say you really should, you have a moral obligation to do what the congress of the united states has said you have to enroll. >> i think it's certainly fair tocy that the congress wants people in that position to sign up for medicaid. i think that's absolutely right. i think the statute is structured to accomplish that but the reality still is that the only consequence of noncompliance is the penalty. >> but i thought that people who were eligible for medicaid weren't subject to the penalty. am i wrong? i could be factually wrong. >> the penalty is keyed to income, and it's keyed to a

number of things. one is are you making so little money that you aren't obligated to file a tax return and if you're in that situation you're not subject to the penalty. it's also if the cost of insurance would be more than 8% of your income you're not subject to the penalty. so there isn't necessarily a precise mapping between somebody's income level and medicaid eligibility. that will depend on where things are and what the requirements are. as a general matter people below the poverty line it's almost inconceivable they are subject to the penalty and they would after the acts medicaid reforms would be eligible for medicaid. >> so is your point that the -- what we want to do is get money from these people. most by buying the insurance. and that will help pay. but if they don't they are going to pay this penalty, and that