same manner as taxes. second, congress provided that penalties are included in taxes for assessment purposes. and, third, the section 5000a penalty bearing the key indicia of a tax. congress directed that the section 5000a penalty shall be assessed and collected in the same manner as taxes. that directive triggers the anti-injunction act which provides that no suit for the purpose of restraining the assessment or collection of any tax may be maintained in any court by any person. >> well, that depends as the government points out on whether that directive is a directive to the secretary of the treasury as to how he goes about getting this penalty or, rather, a directive to him and to the

courts. all of the other directives there seem to me to be addressed to the secretary. why should this one had been directed to the courts? when you say in the same manner, he goes about doing it in the same manner, but the courts simply accept that manner of proceeding, but nonetheless adjudicate the cases. >> i think they have a three-part answer to that, justice scalia. first, the tebs does not say that the secretary shall assess and collect taxes in the same manner. it just says that it shall be assessed in the same manner as a tax, without addressing any party particularly. >> collecting it in the same manner as a tax. >> well, the assessment -- the other two parts of the answer are as a practical matter, i don't think there's any dispute in this case that if the anti-injunction act does not apply, this penalty, the section

5000a penalty will, as a practical matter, be assessed and collected in a very different manner from other taxes and other tax penalties. there are three main differences. first, when the anti-injunction act applies, you have to pay the tax or the penalty first and then litigate later to get it back with interest. second, you have to exhaust administrative remedies. even after you pay the tax you can't immediately go to court. you have to go to the secretary and give the secretary at least six months to see if the matter can be resolved administratively. and, third, even in the very carefully defined situations in which congress has permitted a challenge to a tax or a penalty before it's paid, the secretary has to make the first move. the taxpayer is never allowed to rush into court before the secretary sends a notice of

deficiency to start the process. now, if the anti-injunction act does not apply here, none of those rules apply, and that's not just for this case. it will be for every challenge to a section 5000a penalty going forward. the taxpayer will be able to go to court at any time without exhausting administrative remedies. there will be none of the limitations that apply in terms of you have to wait for the secretary to make -- >> why will the administrative remedies rule not be applicable, exhaustion rule? >> because if the anti-injunction act doesn't apply, there's no prohibition on courts restraining the assessment or collection of this penalty, and you can simply -- >> well, but courts apply the exhaustion rule. i know you studied this. i'm just not following it. you haven't exhausted your remedies, no injunction. >> you could do that i think as a matter of common law or

jushljushl judicially imposed doctrine, but the anti-injunction act is answer tral to the litigation about taxes. the code says you must pay the tax first and then litigate, so that's the baseline. and then in addition it says you must, and it's not common law, it's in the code, you must apply for a refund. you must wait at least six months. many of these provisions are extremely specific with very specific -- >> but they would apply even if the rule is not jurisdictional. the only difference would be that the court could enforce it or not enforce it in particular cases. which brings me to the davis case which i think is injure biggest hurdle. a case quite similar to this in which the constitutionality of the social security act was at issue, and the government waived its right to insist upon the application of this act.

of course, if it's jurisdictional, you can't waive it. so are you asking us to overrule the davis case? >> the davis case was decided during a period when this court interpreted the anti-injunction act as simply codifying the prestatutory equitable principles that usually but not always prohibited a court from enjoining the assessment or collection of taxes. so that understanding, which is what was the basis for the davis decision was rejected by the court in williams packing and a series of subsequent cases, bob jones, and so i would say effectively the davis case has been overruled by subsequent decisions of this court. >> mr. long, why don't we simply follow the statutory language. i know that you argue that the

davis case has been overtaken by later cases, but the language of the anti-injunction act is no suit shall be maintained. it's remarkably similar to the language in -- that was at issue in reed. no civil action for infringement shall be instituted, and that formulation, no suit may be maintained, contrasts with the tax injunction act. it says a district court shall not enjoin. that tax injunction act is the same pattern as 2283, which says courts of the united states may not stay a proceeding in state court. so both of those formulas, the tia and the no injunction against proceedings in state court, are directed to court.

the anti-injunction act says no suit shall be maintained and it's been argued that that is suter directed in contrast to court directed. >> right. this court has said several times that the tax injunction act was based on the anti-injunction act. you're quite right, the language is different, but we submit that the anti-injunction act itself by saying that no suit shall be maintained is addressed to courts as well as litigants. i mean, after all, a case cannot go from beginning to end without the active cooperation of the court. >> but how is that different from no civil action for infringement shall be instituted -- maintained and institu instituted. does anything turn on that? >> well, perhaps a party could initiate an action without the

active cooperation of the court, but to maintain it from beginning to end, again, requires the court's cooperation, and even if -- if the court were inclined to say as an initial matter if this statute were coming before us for the first time today given all of your recent decisions on jurisdiction, that you might be inclined to say this is not a jurisdictional statute, a lot of water has gone over the dam here. the court has said multiple times that this is a jurisdictional statute. congress has not disturbed those decisions -- >> well, the court has said that many times, but is there any case in which the result would have been different if the anti-injunction act were not viewed as jurisdictional but instead were viewed as a mandatory claims processing rule? >> there's something a number of case where is the court dismissed saying it is jurisdictional. as i read the cases, i don't think any of them would necessarily have come out

differently because i don't think we had a case where the argument was, well, you know, the government has waived this, so if it's not jurisdictional -- >> the clearest way of distinguishing between a jurisdictional provision and a mandatory claims processing role is whether it can be waived and whether the court feels that it has an obligation to raise the issue sua sponte. if there are a lot of cases that call it jurisdictional but none of them would have come out differently if the anti-injunction act were simply a mandatory claims processing rule, you have that on one side. and on the other side you have davis where the court accepted a waiver by the solicitor general, the sunshine an throw sight coal case where there also was a waiver, and there's the williams packing case, which is somewhat hard to understand as viewing the anti-injunction act as a jurisdictional provision. the court said there could be a

suit -- there's no way the government could win and the plaintiff would suffer irreparable harm. now, doesn't that sound like an equitable exception to the anti-injunction act? >> no, i think the best interpretation of the court's cases is that it was interpreting a jurisdictional statute, and, indeed, in williams packing the court said it was a jurisdictional statute. but again, even if you had doubt about simply the cases, there's more than that because congress has not only not disturbed this court's decision stating that a statute is jurisdictional, they have passed numerous amendments to this anti-injunction act. >> you can't separate those two points. the idea that congress has acquiesced in what we have said only helps if what we have said is fairly consistent. you yourself point out in the brief we have gone back and forth on whether this is a jurisdictional matter. >> what you have said, mr. chief justice, has been absolutely

consistent for 50 years since the williams packing case. the period of inconsistency was after the first 50 years since the statute was enacted in 1867, and there was a period as i said when the court was allowing extraordinary circumstances exceptions and equitable exceptions but then very quickly it cut back on that, and since williams packing you have been utterly consistent -- >> well, even since williams packing there was south carolina versus reagan and that can be understood as an equitable exception to the rule which would be inconsistent with thinking that the rule is jurisdictional. >> again, i mean, i think the best understanding of south carolina versus reagan is not that it's an equitable exception but it's the court interpreting a jurisdictional statute as it would interpret any statute in light of its purpose and deciding in that special case -- >> mr. long, in balls the court

looked to a long history of appellate issues as being jurisdictional in its traditional sense, not as a claim processing rule, but as a pure jurisdiction rule, the power of the court to hear a case. from all the questions here, i count at least four cases in the court's history where the court has accepted a waiver by the solicitor general and reached a tax issue. i have at least three cases, one of them just mentioned by justice kagan, where exceptions to that rule were read in. given that history regardless of how we define jurisdictional statutes versus claim processing statutes in recent times, don't -- isn't the fairer statement that congress has

accepted that in the extraordinary case we will hear the case? >> no, justice sotomayor, because in many of these amendments, which have come in the '70s and '90s and the 2000s, the congress has actually framed the limited exceptions to the anti-injunction act in jurisdictional terms, and it's written many of the expressive exceptions by saying notwithstanding section 7421. >> but doesn't that just prove that it knows that the court will impose a claim processing rule in many circumstances and so in those in which it specifically doesn't want the court to, it has to be clearer? >> well, but congress says notwithstanding 7421, the court shall have jurisdiction to restrain the assessment and collection of taxes. >> but back to the question that justice alito asked. assuming we find that this is not jurisdictional, what's the

parade of horribles that you see occurring if we call this a mandatory claim processing rule? what kinds of cases do you imagine that courts will reach -- >> right. well, first of all, i think you'd be saying that for the refund statute as well as for the anti-injunction act which has similar wording. if the anti-injunction act is not jurisdictional, i think that's also going to apply to the refund statute, the statute that says you have to first ask for a refund and file within certain time. so it would be both of those statutes, and we are dealing with taxes here -- >> that wasn't my question. my question was if we deem this a mandatory claim processing rule -- >> right. >> -- what cases do you imagine courts will reach on what grounds? assuming the government does its

job and comes in and raises the aia as an immediate defense, where can a court then reach the question despite -- >> that would certainly be the first class of cases that occurs to me where if the government does not raise it in a timely way, it could be waived. i would think plaintiffs would see if there was some clever way they could get a suit going that wouldn't immediately be apparent that -- >> assumes the lack of competency of the government, which i don't, but what other types of cases? >> mr. long, i don't think you're going to come up with any, but i think your response is you could say that about any jurisdictional rule. if it's not jurisdictional what's going to happen is you're going to have an intelligent federal court deciding whether you're going to make an exception, and there will be no parade of horribles because all federal courts are intelligent. it seems to me it's a question

you can't answer. it's a question which asks why should there be any jurisdictional rules. and you think there should be. >> and, justice scalia, i mean, honestly, i can't predict what would happen but i would say that not all people who litigate about federal taxes are necessarily rational and i think there would be -- >> mr. long -- >> i don't want to lose the second half of your argument and all the time so far on jurisdiction and i accept pretty much, i'm probably leaning in your favor on jurisdiction, but where i see the problem is in the second part because the second part says -- restraining the assessment or collection of any tax. now, here congress has nowhere used the word tax. what it says is penalty. moreover, this is not in the internal revenue code but for purposes of collection.

and so why is this a tax? and i know you point to certain sentences that talk about taxes within the code, and this is not attached to a tax. it is attached to a health care requirement. so why does it fall within that word? >> well, i mean, the first point is our initial submission is you don't have to determine that this is a tax in order to find that the anti-injunction act applies because congress very specifically said that it shall be assessed and collected in the same manner as a tax, even if it's a tax penalty and not a tax. so that's one -- >> but that doesn't mean the aia applies. i mean -- and then they provide some exceptions, but it doesn't mean the aia applies. it says in the same manner as. it is then attached to chapter 68, references that as being the manner of.

well, if it's being collected in the same manner as a tax, doesn't automatically make it a tax. particularly since the reasons for the aia are to prevent interference with revenue sources, and here an advance attack on this does not interfere with the collection of revenues. i mean, you have read the arguments, as have i, but i'd like to know what you say succinctly in response to those arguments. >> specifically on the argument that it is actually a tax, even setting aside the point that it should be assessed and collected in the same manner as a tax, the anti-injunction act uses the term tax. it doesn't define it, somewhat to my surprise. tax is not defined anywhere in the internal revenue code. in about the time that congress

passed the anti-injunction act, tax had a very broad definition. it's broad enough to include this ex action which is codified in the internal revenue code. it's part of the taxpayers annual income tax return. the amount of the liability and whether you owe the liability is based in part on your income. assessed and collected by the irs. >> there's at least some doubt about it, mr. long, for the reasons that justice breyer said, and i thought that we had a principle that ousters of jurisdiction are narrowly construed. that unless it's clear, kourcou are not deprived of jurisdiction. i find it hard to think that this is clear, whatever else it is. it's easy to think that it's not clear. >> well, i mean, the anti-injunction act applies not only to every tax in the code

but as far as i can tell to every tax penalty in the code. >> mr. long, you said before, and i think you were quite right, that the tax injunction act is modeled on the anti-injunction act and under the tax injunction act, what can't be enjoined is an assessment for the purpose of raising revenue. tax injunction act does not apply to penalties that are designed to induce compliance with the law rather than to raise revenue. and this is not a revenue-raising measure because if it's successful, nobody will pay the penalty and there will be no revenue to raise. >> well, in bob jones the court said that they had gotten out of the business of trying to determine whether an ex action is primarily revenue raising or

primarily regulatory and this one certainly raises -- is expected to raise very substantial amounts of revenues, at least $4 billion a year. >> but bob jones involved a statute where it denominated the exaction as a tax. here we have one where the congress is not denominating it as a tax. it's denominating it as a penalty. >> that's absolutely right, and that's obviously why if it were called a tax, there would be absolutely no question that the anti-injunction -- >> absolutely. >> -- applies. >> but even the section of the code you refer to previously, the one following 7421, the aia, it does very clearly make a difference, 7422, make a difference between tax and penalties. it's very explicit. >> yes. it does. that is correct. and there are many places in the code where -- >> the best collection i found

in your favor i think is in mortimer kaplan's brief on page 16, 17, he has a whole list, all right? i'll let my law clerk look all those up, and it seems to me they all fall into the categories of either, one, these are penaltyings that were penalties assessed for not paying taxes, or, two, they involve matters that were called by the court taxes, or, three, in some instances they were deemed by the code to be taxes. now, what we have here is something that's in a different statute that doesn't use the word tax once except for a collection device, and, in fact, in addition the underlying aia reason which is to say to the solicitor general, we don't care what you think. we in congress don't want you in court where the revenue of a state, tax injunction act, or the revenue of the federal government is at stake.

and, therefore, you can't waive it. now, i got that. here it's not at stake. and here there are all the differences i just mention it, and i ask that because i want to hear your response. >> i mean, there are penalties in the internal revenue cold that you really couldn't say are related in any close way to some other tax provision. there's a penalty discussed in the briefs for selling diesel fuel that doesn't comply with the epa's regulations. so there are all kinds of penalties in the code, and i think -- >> mr. long, aren't there places in this act, fees and penalties, that were specifically put under the anti-injunction act? there's one on health care plans. there's one on pharmaceutical manufacturers where congress specifically said the anti-injunction act is triggered for those. it does not say that here.

wouldn't that suggest that congress meant for a different result to obtain? >> well, i mean, congress didn't use the language the anti-injunction act shall apply -- >> no, but in section 9008 and 9010 it specifically referred to the part of the code where the anti-injunction act is. >> all of subtitle f which picks up lots of administration and procedure provisions, but those are fees, and they're not -- congress did not provide, you know, in the sections thegez that they should be paid as part of a tax return. so they were free-standing fees, and by using that subtitle f language, congress plugged in a whole set of rules for how to collect and administer the fees and it went not just to assessment and collection and the irs has recognized this, but to examination, privacy, a whole series of additional things. so i think it would be a mistake

to look at that language and say here is congress saying they want the anti-injunction act to apply. they're actually doing more than that, and, yes, i grant you, you could look at section 5000a, the individual coverage requirement, and say, well, it could have been clearer about saying the anti-injunction act applied, and that's certainly true, but, again, they were trying to accomplish a lot -- >> it's easier to talk about this case if we just forget the words for the purpose of restraining assessment or collecti collection. in a sense that brings the jurisdictional question and justice breyer's question together. it seems to me -- maybe you could just comment on that language -- is that sort of language usually contained in a jurisdictional provision. you often don't know the purpose of a suit until the thing is under way. i can see it with malicious prosecution and some civil

rights cases. does it strike you as somewhat unusual to have this -- >> it does strike me honestly as a bit unusual, but this is an old statute. i mean, the core language is essentially unchanged since 1867, and, you know, i think that's part of the explanation for it, and, again, it's become the center of a series of provisions that very carefully control the circumstances in which litigation about federal taxes can take place. >> mr. long, there's another argument that has been made that i would like you to address, and that is all this talk about tax penalties. it's all beside the point because this suit is not challenging the penalty. this is a suit that is challenging the must buy provision, and the argument is

made that if, indeed, must buy is constitutional, then these complainants will not resist the penalty. so what they're seeking is a determination that the must buy requirement stated separately from the penalty, that that must buy is unconstitutional and if that's so, that's the end of the case. if it's not so, they're not resisting the penalty. >> well, i think that argument doesn't work for two reasons. first, if you look at the plaintiff's own complaint, they clearly challenge both the minimum coverage requirement and the penalty. page 122 of the joint appendix, they challenge the requirement that the individuals obtain health care coverage or pay a penalty. >> why does -- >> if that's the problem, it's easy to amend a complaint. you can just take that out of the complaint. >> well, and -- yes, i mean --

another complaint would be filed, but still i think that's a serious problem, but even if they had filed a different complaint, i don't think in this case you can separate the minute coverage requirement from the penalty because the penalty is the sole means of enforcing the minimum coverage requirement. so, first, i think these plaintiffs would not be satisfied if the court were to render a judgment saying the minl coverage requirement is invalida invalidated. the penalty, however, remains standing. anybody who doesn't have insurance has to pay the penalty. then they have to pay the penalty equal to the cost of the insurance and they wouldn't even have insurance. >> well, they say they want to obey the law and they say your argument puts them in the position of having to disobey the law in order to obtain review of their claim. what is your answer to that? >> first of all, i can't find that in the record, in claire

declarations. i don'ts a statement that they will never incur a penalty under any circumstances, but even if that were so, what this court has said in americans united is the anti-injunction act bars any suit, not just to the enjoy the clix of your own taxes, but to enjoin the collection of anyone's taxes. so even if it were really true that these plaintiffs were not interested in the penalty and would never pay the penalty, if they were to succeed in this case in striking down the minimum coverage requirement, the inevitable result would be that the penalty would fall as well because the government couldn't collect a penalty for failing to following an unconstitutional requirement, and so it would still be barred because it would be a suit that would prevent the collection -- >> let me take us back to justice