put the latter in brings it within the taxing power. as far as this act is concerned, about the injunction, they called it a penalty and not a tax for a reason. they wanted it to fall outside that it's in a different chapter, et cetera. is that the heart of what you're saying. >> that's the essence. they called at penalty. didn't give other textual instruction in the affordable care act or the internal revenue code that should be treated as a tax. >> you agree with mr. long, i thought you agreed with justice breyer one of the purposes is to raise revenue. >> it will, well, it will raise revenue. it's been predicted by the cbo it will raise revenue, your honor. even though that's the case, i think that would be true of any penalty, that it will raise revenue, but even though that's the case there needs to be a instruction in the statute this should be treated as a tax for anti-injunction act purposes. >> after this takes effect there may be a lot of people who are

assessed the penalty and disagree, either with whether they should be assessed the penalty at all or with the calculation of the amount of their penalty. so, under your interpretation of the act all of them can now go to court. none of them are barred by the anti-injunction act. >> those are two different thing, justice alito. i think for reasons that i think justice kennedy suggested in one of his questions to mr. long all of the other doctrines of remedies and related doctrines would still be there and the united states would rely on them in those circumstances, and so i don't think the answer is that they can all go to court. >> two former commissioners of the irs have file add brief saying that your interpretation is going to lead to a flood of litigation. they are wrong on that? >> yes. we've taken this position after very careful consideration and we've assessed the institutional interests of the united states and think we're in the right place. >> tell me something. why isn't this case subject to

the same bars that you list in your brief? the tax court, at least so far considers constitutional challenge s to statutes. why isn't this subject to dismissal for failure to exhaust. >> it would go to the individual amount owed we think and that's a different situation from this case. >> if the court has no further questions. >> thank you, general. >> thank you. >> mr. katas. >> may it please the court. let me begin with the question whether the anti-injunction act is jurisdictional. juriesties ginsburg for reasons you suggested we think the text of the anti-injunction act is indistinguishable from the text of the statute that was unanimously held to be

nonjurisdictional in reid elsa veer. no suit shall bes in footed. this says no suit shall be maintained. >> this says immediately after instituted unless the copyright is registered. >> unless the copyright is registered. this goes to the character of the lawsuit, the statute in reid elsa veer, register your copyright and come back to court. >> why isn't that like a filing fee? before you can maintain a suit for copy right infringement you have to register your copyright. >> it's a precondition to filing suit. the analogous precondition here is pay your taxes, and then come back to court. the point is -- >> no. that's not true. the suit here has nothing to do with hearing the action,s has to do with the form of relief that congress is barring. it's not permitting, it is not a

tax case you can come in after. it's not permitting the court to exercise what otherwise would be one of its powers. >> it has to be the same challenge, justice sotomayor, or else south carolina versus regan would say the anti-injunction act doesn't apply. you are right that once you file -- once you pay your taxes and then file the refund action, the act of filing the taxes converts the suit from one seeking prospective relief into one seeking money damages. and in that sense you could think of the statute as a remedial limitation on the courts. but whether you think of it as an exhaustion requirement, or a remedial limitation, neither of those character iceations is jurisdictional. in davis versus passman, a remedial limitation -- >> does seem strange to think of a law that says no court can

entertain a certain action and give a certain remedy, as merely a claim processing rule. what the court is being ousted from what would otherwise be its power to hear something. >> the suit is being delayed, i think is the right way of looking at it. the jurisdictional apparatus in the district court is present, prospective relief under 1331, money damages action under 1346. if the anti-injunction act were jurisdiction ousting one might have expected to the be in title 28 and qualify those statutes and use jurisdictional -- >> how do you deal with this case and our recent gonzalez case where we talked about the language of the cola statute that no appeal will be heard -- >> gonzalez against thayler

rests on a special rule that applies with respect to appeals from one article 3 court to another, that's -- that explains gonzalez and explains bowls before it. you have five unanimous opinions in the last decade in which you have strongly gone the other direction on what counts as jurisdictional. >> there is an argument we should simply say that applies only to appeals but we haven't said that. >> you came close. in henderson, justice sotomayor, you said that bowls which is akin to thailer is explained by the special rules and understanding governing appeal from one article 3 court to another and you specifically said it does not apply to situations involving a party seeking initial judicial review of agency action, which is what we have here. so, while you're right, the text

in bowls and thayler are not terribly different those are explained by that. under henderson it doesn't apply to this case. the text in this case speaks to the suit, the cause of action of the litigant, it doesn't speak to the jurisdiction or power of the court. the anti-injunction act is placed in a section of the tax code governing procedure, it's not placed in -- >> counsel -- all of that in particular -- >> you did rely on that in reid elsevere. >> and we haven't in other cases. >> another consideration in reid elsa veer that cuts in our favor is the presence of exceptions. you said three in reid elsa veer cut against jurisdictional. here there are 11. >> many of which themselves speak in very clear jurisdictional language. >> well, some of them have no jurisdictional language at all, and not a single one of them

uses the word jurisdiction to describe the ability of the court to restrain the assessment and collection of taxes, which is what one would have expected -- >> basically, the difference of language is relevant, there are a lot of relevant things. one thing that's relevant in my mind is that taxes are for better or for worse, the life blood of government. and so what congress is trying to do is to say there's a procedure you go through, you can get your money back, or cao through the tax court, but don't do this in advance for the reason that we don't want 500 federal judges substituting their idea of what is a proper exwitable defense when there should be an exception made for the basic rule, no. okay. and so there is strong reason that is there. you try to apply that reason to the copyright law, you can't find it. registration with the copyright

register is not the life's blood of anything. copyright exists regardless. so the reasoning is not there. the language, i see the similarity of language. i've got that. but it's the reasoning, the sort of underlying reason for not wanting a waiver here. that is -- has a significant role in my mind of finding that it is jurisdictional. plus the fact we said it nonstop since that northrup or whatever that other case is. >> justice breyer, as to reasoning, you give an argument, you give an argument why, as a policy matter it might make sense to have a nonjurisdictional stat yooxt of course this court's recent cases say congress has to clearly rank the statute as nonjurisdictional in its text and structure. it seems to me a general appeal

to statutory policy doesn't speak with sufficient clarity -- >> i asked the question in case you wanted to answer the policy. >> as to policy, as to policy i think hevering against davis, it is true in most cases the government doesn't want and congress doesn't want people coming into court but davis show there is may be some cases including, for instance, constitutional challenges to landmark federal statutes, where the government sensibly decides that its revenue raising purposes are better served by allowing a party to come into court. and wavering its defense. that's what the solicitor general did in davis and this court accepted that waiver. as for prior cases, we have the holding in davis and the holding in all of the equitable exception case like williams packing -- >> so why don't we say it's

jurisdictional except when the solicitor general waives. >> you have used -- >> why would that not promote congress's policy of insuring -- or congress explicitly. >> it's jurisdictional except when the solicitor general waives it? >> yes. contradiction in terms but i don't disagree. i don't disagree. >> it is a contradiction in terms. all of your cases analyze the situation if a statute is jurisdictional then it's not subject to waiver. if you were to construe this as such a one off unique statute it seems to me we would still win because the solicitor general with full knowledge of the anti-injunction act available to him, affirmatively gave it up. this is not just a forfeiture where the government lawyer fails to raise an argument. this is a case where -- >> they raised it. >> they know what it is and not

only are they not pursuinging it here, they are affirmatively pursuing an argument on the other side. >> is your basic position when we talk about the jurisdiction of the district courts, a statute has to say it's jurisdictional to be jurisdictional? >> i wouldn't go quite that far. i think at a minimum it has to either say that or at least be directed to the court which is a formulation you used in your cases and which is the formulation that congress used in the tax injunction act but did not use in this statute. >> how is -- i suppose one could try to make a distinction between this case and reid elsa veer by focusing on the difference between instituting something and maintaining. and instituting is more what a litigant does and maintaining as opposed to dismissing is more what a judge does. >> i don't think so, justice kagan, because we have an

adversarial system, not inquisitive. the parties maintain their lawsuit i think is the more natural way of thinking of it. if i could turn to the merits question on the aia before my time runs out. the purpose of this lawsuit is to challenge a requirement, federal requirement to buy health insurance. that requirement itself is not a tax and for that reason alone we think the anti-injunction act doesn't apply. what the amicus effectively seeks to do extend the anti-injunction act not just to taxes which is how the statute is written, but to freestanding, non-tax legal duties. and -- >> the whole point of the suit is to prevent the collection of penalties. >> of taxes, mr. chief justice. >> well, prevent the collection of taxes, but the idea that the

mandate is something separate from whether you want to call at penalty or tax doesn't seem to make much sense. >> it's entirely separate. let me explain to you. >> it's a command. mandate is a command. if there is nothing behind the command, what happens if you don't follow the mandate and the answer is nothing, it seems very artificial to separate the punishment from the crime. >> i'm not sure the answer is nothing but even assuming it were nothing, it seems to me there's a difference between what the law requires and what enforcement consequences happen to you. this statute was very deliber e deliberately written to separate mandate from penalty in several ways. they are put in separate sections t mandate is described as a legal requirement, no fewer than 20 times. three times in the operative text and 17 times in the findings. it's imposed through use of a

mandatory verb "shall." the requirement is well defined in the statute so it cannot be sloughed off as a general exhortation. and it's backed up by a pen amount. congress then separated out mandate exceptions from penalty exceptions. it defined one category of people not subject to the mandate. one would think those are the category of people as to whom congress is saying you need not follow this law. it then defined a separate category of people not subject to the penalty, but subject to the mandate. i don't know what that could mean other than -- >> why would you have a requirement that is completely toothless? buy insurance or else, or else what? or else nothing. >> because congress reasonably could think that at least some people will follow the law precisely because it is the law, and let me give you an example of one category of person that

might be. the very poor who are exempt from the penalty but subject to the mandate. mr. long says this must be a mandate exemption because it would be wholly harsh and unreasonable for congress to expect people who are very poor to comply with a requirement to obtain health insurance when they have no means of doing so. that gets things exactly backwards. the very poor are the people congress would be most concerned about with respect to the mandate with respect one of the justifications for the mandate is to prevent emergency room cost shifting when people receive uncompensated care. they would have had very good reason to make the very poor subject to the mandate, and then they didn't do it in a draconian way, they gave the very poor a means of complying with the

insurance mandate and that is through the medicaid system. >> do you think a meern is subject to the mandate but not subject to the penalty would have standing? >> yes, i think that person would because that person is injured by compliance with the mandate. >> what would that look like, what would the argument be as to what the injury was. >> when that person is subject to the mandate that person is required to purchase health insurance. that's a forced acquisition of an unwanted good, a classic pocket book injury. even if i'm wrong about that question, justice kagan, the question of who has standing to bring the challenge that we seek to bring seems to me very different, your hypothetical plaintiff is different from the actual plaintiffs. we have individuals who are planning for compliance in order to avoid a penalty which is what

their affidavits say. and we have the states who will be subject, no doubt, to all sorts of adverse ramifications if they refuse to enroll in medicaid, the people who are forced into medicaid. so we don't have the problem of no adverse consequences in the case. and then we have the separate distinction between the question of who has article 3 standing in order to maintain a suit, and the question of who is subject to a legal obligation. you said even if there may be no one who has standing to challenge a legal obligation like the incompatibility clause, that doesn't convert the legal obligation into a legal nullity. finally, with respect to the states, even if we are wrong about about everything i've said so far, the states clearly fall within the exception recognized in south carolina against regan. they are injured by the mandate

because the mandate forces 6 million new people on their medicaid roles but they are not directly subject to the mandate nor could they violated and incur a penalty. >> when the states say they are injured are they talking about the people who are eligible now but who are not enrolled or are they talking about people who will become newly eligible. >> pell who wouldn't have enrolled had they been given a voluntary choice. >> but who are eligible now. >> that's the largest category. i think there could be future eligibles who would enroll because they are subject to a legal obligation but wouldn't have if given a voluntary choice. i'm willing to focus on elground ball people who haven't enrolled in medicaid. that class is the one that gives rise to simply in florida alone,

a pocket book injury on the order of 500 to $600 million per year. >> that does seem odd to suggest the state is being injured because people who could show up tomorrow with or without this law, will show up in greater numbers. presumably the state wants to cover people whom it declared eligible for this. >> they could but they don't. what the state wants to do is make medicaid available to all who are eligible and choose to obtain it. >> why would somebody not choose to obtain it? there is this category of people who are medicaid eligible, medicaid doesn't cost them anything. why would they resist enrolling >> i don't know. all i know is the difference between current enrollees and people who could enroll but have not is in the $600 million

delta. >> it may be just that they have not been given sufficient information to understand that this is a benefit for them. >> it's possible but all we're talking about right now is the standing of the states. and the only arguments made against the standing of the states, i mean there is a classic pocket book injury. one, this results from third party actions, that doesn't work because the third party actions are not unfettered in the sense of they are coerced in the sense of bennett versus sphere. they are enrolling because they are under a legal obligation to do so. the second argument against the state standing is the states somehow forfeit their ability to challenge the constitutionality of a provision of federal law because they voluntarily choose to participate. >> i'm a little bit confused. and this is what i'm confused

about. there is a challenge to the individual mandate. >> yes. >> all right. what does the fact that the state is challenging medicaid, how does it give the state standing to challenge an obligation that is not imposed on the state in any way. >> the principle theory t the states are challenging the mandate because the mandate injures them when people are forced to enroll in medicaid. now, it is true they are not directly subject to the mandate. let me try it this way. may i finish the thought. in south carolina versus regan, the state was not subject to the tax at issue. the state was harmed as the issuer of the bonds and the bond

holders were the ones subject to the tax. so, the state is injured not because it's the direct object of the federal tax, but because of its relationship to the regulated party as issuer bond holder. >> thank you, mr. katsas. mr. long, you have five minutes remaining. >> everyone agrees that the section 5000-a penalty shall be assessed and collected in the same manner as taxes. and the parties' principle argument why that does not make the anti-injunction act applicable is that simply goes to the secretary's activities and i would simply ask if you hook at chapter 63 and 64 of the internal revenue code which are the chapters on assessment and collection, they are not just addressed to the secretary, there are many provisions therein that are addressed to

courts and indeed talk about this interaction, very limited situations in which courts are permitted to restrain the assessment and collection of taxes. there was a statement made that there aren't in in many of the exceptions to the anti-injunction act are in the assessment and collection provisions. there was a statement made that none of these directly conferred jurisdiction to restrain the assessment and collection of taxes, that's not true. in footnote 11 of our opening brief we cite several. 6213 as an example, that says, i quote, notwithstanding the provisions of section 7421 a, the making of such assessment or the beginning of such proceeding or levy during such time prohibition is in force may be enjoyed by a proceedings including the tax court, the tax court shall have no jurisdiction to enjoin any action or proceeding or order any refund under this subsection unless a

timely petition for redetermination has been filed and then only in respect of the deficiency that is the subject of such petition. >> all that's going to really what i think congress's intent was meant to be in sticking the collection thing in chapter 68. and it's certainly an argument in your favor. the overarching thing in my mind it's up to congress within leeway. they did not use that word tax and they did have a couple of exceptions. it is true that all of this language you quote, the first two sentences, it talks about tax in the irc, it talks about the penalties provided by this subchapter and we look here and it's a penalty an liability provided by a different law which says collect it through the subchapter. we've got it in a separate place, we can see pretty clearly

what they are trying to do. they couldn't care much about interfering with collecting this one. are you following me. i'm trying to get you to focus on that kind of argument. >> i think i'm following you, but the fact that it's not in the particular subchapter for assessable penalties in my view makes no difference because they said it's clearly it's assessed and collected in the same manner as the subchapter and those are collected in the same manner agency taxes. so that's i think it's rather detailed but i think it's a rather clear indication that the anti-intungs act applies. the refund statute that does refer to penalties, that has nothing to do with this argument it's assessed and selected in the same manner as a tax. that would go to the point that you can't just l call it a tax because they referred to it as a

penalty. and finally, on jurisdiction, i think the key point is we have a long line of this court's decisions that's really been ratified by congress with all of these exceptions in jurisdictional terms as i read bowls and r sand and gravel, the gist was not a special rules. if we have that situation which i submit applies as much to the collection of federal taxes as it does to federal district courts when we have this degree of precedent including precedent from congress in the form of amendments to this anti-injunction act. the presumption should be this is jurisdictional. >> mr. long, you were invited by this court to defend the proposition that the anti-injunction act barred this litigation.

you have ably carried out that responsibility for which the court is grateful. we'll continue argument in this case tomorrow. we will hear argument in case 11398. >> oral argument from earlier today as the supreme court takes up the constitutionality of the nation's health care law, it's the first of three days of testimony today, all of the oral argument from today and the next two days all of it available on line at c-span.org. in about 30 minutes we'll be re-airing all of what you've seen and heard over the last 90 minutes or so. and it's coming up again tonight as part of our prime time schedule on the c-span networks ty justices dealt with the question if the health care law includes a tax, does the supreme court have jurisdiction? tomorrow's issue is the individual mandate to purchase health care coverage constitutional? on wednesday, two questions will be before the court. in the morning, if the individual mandate portion of the court is unconstitutional,

can the rest of the law survive? and wednesday afternoon. is the law's expansion of medicaid coverage an intrusion on states. we have a facebook poll. we've been conducting today asking what level of interest to you have in the health care case? go to facebook.com/c-span to register your feelings. we have been following the health care debate from the beginning at c-span.org. you'll find videos and related documents and links to other webpages. that's at c-span.org. following the oral argument we heard from participating attorneys, republican presidential candidate rick santorum also showed up on the steps of the court to comment. and after that we'll hear from spokespersons for special interest groups on both sides of the issue. this all is about 30 minutes.