the for the purpose of language. i take it you interpret the statute to mean the following, for the purpose means having the effect of. is that correct? >> this court in the bob jones case where the similar kind of argument was being made by the plaintiff in that case, said, look, where it's inevitable that this is what this suit is about, they're sort of two sides of the same coin. that clearly is a primary purpose of the suit, and 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 that you have to have insurance section and 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 insurance or pay a fee.

but that's not the way the statute reads. and congress, it must be supposed, you know, made a decision that that shouldn't be the way the statute reads, that it should instead be a regulatory command and a penalty attached to that command. >> well, 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 exception, and the reason i say that, if you look at the exemptions from the penalty, the very first one is you're exempt from the penalty because you can't afford to purchase insurance. and it just doesn't seem reasonable to me to interpret the statute as congress having said, well, this person is exempt from paying a penalty

because we find they can't afford to buy insurance, however, they still have a local obligation to buy insurance. i certainly wouldn't argue it's clear, but 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. >> could you tell me why you think the solicitor general's reading creates a problem? >> well, in going -- so if the result were to say simply this is not -- i'm sorry, the solicitor general's reading -- >> that it is 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 mean, i think the

solicitor general's reading would probably create the fewest problems, as i understand it. i mean, 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 carrying it too far because he says if a penalty is designated as a tax by congress, then it's subject to the aia and that's most of the code, the tax code. and he says for those portions of the affordable care act that designate thing as taxes, the aia applies. so it's only -- and i haven't found another statute. i'm going to ask them if there's another one. it's only for your shocases whe congress has designated something solely as a penalty and not as a tax, they fall

within the aia. >> my take is if you adopted the solicitor general's approach, there are probably three penalties for alcohol and tobacco related offenses and 5114c and 5761 i think it would be very difficult to distinguish from this one and obviously the 527j penalty for failure to disclose political contributions. if there are no further questions i'd like to -- >> thank you, mr. long. >> general verrilli. >> mr. chief justice and may it please the court, this presents issues of great moment. even though the anti-injunction act is a jurisdictional limit that serves what this 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' tacking power as well as it's commerce power. congress has authority under the taxing power to enact a measure not labeled as a tax, and it did so when it put section 5000a into the internal revenue code. but for purposes of the anti-injunction act, the precise language congress used is determinative, and there is no language in the anti-injunction act, excuse me, no language in section 5000a or in the internal revenue code generally that provides a textural instruction -- >> general verrilli, today you're arguing that the penalty is not a tax. tomorrow you're going to be back and you'll beaing that the penalty is a tax. has the court ever held that something that is a tax for purposes of the taxing power

under the constitution is not a tax under the anti-injunction act? >> no, justice alito, but the court has held in the licensed tax case that is something can be a constitutional exercise of the taxing power whether or not it is called a tax and that's because the nature of the inquiry that we will conduct tomorrow is different from the nature of the inquiry that we will conduct today. tomorrow the question is whether congress has the authority and the taxing power to enact it and the form ever words country have a dispositive affect on that analysis. today we're construing statutory text where the precise choice of words does have a dispositive effect. >> general, you also have the bailey child labor tax cases because there the court said that the tax, which was a prohibitory tax alone was a tax subject to the aia and then said it was beyond the court's taxing power in a separate case, correct? >> yes. i do think, justice sotomayor,

that respect to one of the arguments that my friend from the nfi b has made in the brief, that bailey against georgia is a significant problem because i think their argument on the constitutionality under the taxing power is essentially that the affordable care act provision is the same thing as the provision that was held unconstitutional -- >> that's a different issue. the question -- >> right, but on the same day as bailey against drexel furniture, the court issued bailey against george. the court concluded it was invalid under the tax power. and 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 otherwise would be a tax that triggers it, you have to conclude essentially that

there's no substantial argument that can be made in defense of it as a tax. we don't have that here, so i don't think you can get around the anti-injunction act if the court were to read it as the emeka suggested it be read on that theory. >> mr. verrilli, 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 the anti-injunction act in other cases where it does involve a tax is jurisdictional? >> no. i apologize if i'm creating a confusion about this justice ginsburg. we think by far the better route here is to understand the statute as we have proposed that it be construed as not applying here. from the perspective of the

united states, and if i could i'd like to take a minute on this, the idea that the anti-injunction act would be construed as not being a jurisdictional provision is very troubling and which don't think it's correct. and i would, if i could, follow up on a question justice ginsburg, that you asked mr. long in terms of the language of the anti-injunction act 7421a which can be found at page 16a of the appendix to our brief. i'd ask the court to compare that to the language of the next provision in the code, 17a, which is the refund statute which we have talked about a little bit so far this morning. 7422a. the refund statute this court held in dolm was jurisdictional and the court in both dolm and brocamp found that the statute of linltations that applies is jurisdictional. the language in 7422a is

virtually identical in the language in 7421 -- >> that is correct, although in the refund context you have the sovereign immunity problem in which we presume that that has not been waived. >> right. but 7421 -- >> the language is parallel. >> they were the same statutory provision, they were only separated out later. i think that's the strongest textural -- >> the question i asked you is 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 jurisdictional question at all because this statute, if you're correct in the way you read it, doesn't involve a tax that's subject to the anti-injunction act. >> yes, that is exactly our position. >> so you agree -- if we agree

with you about the correct interpretation of the statute, we need not decide the -- >> there would be no reason to decide the jurisdictional issue. >> don't you want to know the answer? >> justice kennedy, i think we all want to know the answer 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. >> but you indicated -- there was a discussion earlier about why does the government really care, they have competent attorneys, et cetera, and you began your agreement saying it would be very troubling to say there is no jurisdiction. i want you to comment, it's not for us to tell a party what's in its best interest. it seems to me there might be some instances where the government would want to litigate the validity of a tax and would want to waive. >> i think there are two problems. one is the problem that justice scalia identified, if it's not

jurisdictional, then courts have authority to craft equitable exceptions and it may seem from where we stand now that that authority is or could be very, very tightly cabined, but if this court were to conclude that it isn't jurisdictional, that does empower courts to find other circumstances in which they might find it equitable to allow cases to go forward in the absence of -- despite the existence of the injunction. second, certainly not going to stand up here and disparage attorneys for the united states in the slightest. the reality is that if this isn't jurisdictional, then it's open to the argument that it's subject to forfeiture by a simple omission in failing to raise it in an answer and that's a troubling prospect. >> how likely is it -- i mean, the government is going to be defending these suits. how likely is it that the government will overlook the anti-injunction act?

it seems to me that this is arming the government by saying it's waivable at the government's option. >> that's -- that is not our assessment of the institutional interests of the united states, justice ginsburg. we do think that the right way to go in this case is to read the statute as not applying to the minimum coverage provision of the affordable care -- >> it was the calculation of the interests of the united states that the your predecessor made in the davis case. there the solicitor general exercised authority that we sanctioned to waive the anti-injunction act, and, 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 codifying the traditional equitable principles which allowed courts discretion to conclude that in certain circumstances a case could go forward. williams packing repudiated that analysis and bob jones against simon again repudiated 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 -- >> it was the case where a shareholder sues the corporation. >> yes. >> and the remedy is that the corporation shouldn't pay the money to the tax authority. now, it's a little technical, but that isn't 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. >> i don't know how far that gets you. >> well, in fairness, justice

breyer, the united states did intervene in the davis case and was a party, and so -- not as far as i'd like i guess is the answer. >> don't do it again because i think that goes too far. i don't think that's restraining the collection of the tax. it's restraining the payment of the 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. justice ginsburg suggested that the language was very similar as it is here, but there are even further similarities. it pointed out that the provision in question wasn't in title 28, here, too, it's not in title 28. in reed it was pointed out that

the provision there had numerous exceptions to it. here, too, there are numerous exceptions that we find that have been created by the courts over the years. 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 make -- after you pay your taxes. so it seems in multiple respects on all fours with this case. why is that wrong? >> i don't think so, justice kagan. first, we think and i guess i'm repeating myself and i apologize. we think the closest analog is the very next provision in the united states coat, 7422a which this court has held as jurisdictional and is phased in exactly the same way as 7421a. they were the same provision back in the earlier days. that's the closest analog. this isn't -- and it's actually

7422 that's the statute that says do something first, but this statute is just a flat out command that -- >> i take the point, but if you would comment on the similarities to this case. how do you think it's different at all? >> well, because -- i think the best answer to that is there are no magic words and that history and context matter as the court said in henderson, and history and context here is that 7422 and 7421 function together to protect an exceedingly strong interest that the court has held with respect to 7422, sufficiently strong that it explains jurisdictional nature of that. the same interest applies here. this isn't just a matter of do "x" and then you can come to court. it's just a fundamentally different set of interests at stake. so we do think that that makes a big difference. >> why isn't -- if you're

dividing jurisdictional complains processing, you have to register before you can sue. there are lots of things tough to do before you can sue. you have to file a filing fee before you can file a complaint. >> we do think it's very much in that nature and different from this case, urn, and one way i think it's helpful to get at this is to look at the history. we have cited a string of court of appeals cases in a footnote in our opening brief. over time it's been very consistent that the court of appeals has tred ee eed treateda a jurisdictional case. the hanson case the district court in that case had dismissed the complaint under a federal rule of federal rule 12-bc.

the federal government dismi dismissed. so i do think that to the extent this issue is before the court, it is jurisdictional, but it doesn't need to be before the court because of the statutory construction argument. >> on your stat kour construction argument, is there any other exaction imposed under the internal revenue codes that would not qualify as a tax for anti-injunction act purposes or is 5000a just out there all by itself? >> it's not quite out there all by itself. there are other provisions that fall outside of subchapter b of chapter 67 an8, and therefore, wouldn't be governed by the exception. the ones that we have identified may be overlapping a little bit

with mr. long here, one is 26 usc 857, which poses poses cert penalties in connection with the administration of real estate investment trusts. there are provisions that mr. long identified in his brief, sections 66038 a through c of the code, which impose certain penalties with respect to reporting requirements for foreign corporations. 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. now -- >> 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 private responsibilities argue there are other collateral

consequences such as for people on probation who are disowe way baying the law. if they don't buy health insurance, they would be disobeying the law and could be subject to having their supervise 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 charge with interpreting this statute, the treasury department and the department of 4e8 health and human services, there is no other consequence apart from the tax penalty. and i do think, if i could talk for a couple minutes about the argument discussed about 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, we

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 5000a, it is true, that there are two categories of emgss. there are exemptions to the penalty and exemptions to the subsection requirement. but i think not only as a practical matter, but i think there is a text you'll indication and even as a legal matter, they both function as exceptions to the requirement. first, as a practical matter, one of those exemptions is a hardship exemption, and if the court will bear with me for one minute here, it's at page 11a appendix to our brief. it provides a person can go to the secretary of hhs and obtain a hardship exemption for -- which would -- as a formal matter here, excuse compliance with the penalty. it seems to me to make very

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 -- another way in which you can get to the same conclusion slightly differently is by considering the provision on the prior page, 10a, which is 5000ae sub 3, 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 the 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. it's an 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 person is getting their health care through the indian health service are violating the law,

because -- exempt only from the penalty but still under a legal obligation to have insurance when the whole point is -- >> is your point is that this was inartful drafting by congress? that to the extent that there is an exemption under the penalty, it's an exemption from the legal obligation? >> i guess what i would say about it, your honor, is that the way in which this statute is drafted doesn't permit the inference my friends are trying to draw from it. and there is a text you'll of that, which is at page 13 of our reply brief. this is a provision that is 42usca, section 18022e. this is a provision that provides for a certification that certain individuals can get, and it's just 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 5000a, by reason of section 5000ae-1 of such code is entitled to a certificate that allows for enrollment in particular program for this category, people. which you can see here congress is saying is an exemption from under 5000ae-1, which is an exemption from the penalty and not the underlying requirement is, as congress says, an exemption from the requirement of section 5 -- >> 5000a says directly an applicable individual shall ensure that the individual has the minimum essential coverage. and you're saying that it doesn't really mean that. that if you're not subject to the penalty, you're not under an obligation to maintain the 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 just think that's the -- reading this in context, that is the stronger reading of the statute. >> 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 they 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 the -- that the -- that the -- you cannot infer from the fact that someone is exempt from the penalty that they're still under an obligation to have insurance. that's just not the fairest reading of the statute. >> but -- >> go ahead. >> the nature of the representation you made, that the only consequence is the penalty, suppose a person does not purchase insurance, a person who is obligateded to do so under the statute, doesn't do it, pays the penalty instead.

and that person finds herself in a position where she is asked the question, have you ever violated any federal law. would that person have violated a federal law? >> no. our position is that the -- 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've paid the penalty. >> if they have paid the tax, they're in compliance with the law. >> why do you keep saying tax? >> if they pay the tax penalty. >> thank you. the penalty. >> right. >> 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 and a pers person wants medical care. goes to the emergency room, and the hospital says, well, 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 alito, for the reason i just gave. i think that the answer in that situation is that that person, assuming that person -- that person eligible for medicaid may not be in a situation where they're going to face any tax penalty. >> they're not facing the tax penalty. so the hospital will have to continue to give them care and pay for it themselves and not -- >> right. >> -- require them to be enrolled in medicaid. >> right. >> will they be able to take this out and say you really should, you have a moral obligation to do, the congress of the united states has said you have to enroll? >> i think it's certainly fair to say that congress wants people in that position to sign up for medicaid. i think that's absolutely right. and i think the statute is structured to accomplish that objective. but the reality still is that

the only consequence of noncompliance is the penalty. >> general, i thought the people who were eligible for medicaid weren't subject to the penalty. am i wrong? i could be just factually wrong. >> the penalty is key to income. and the -- it's keyed to a number of things. one is, are you making 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 their medicaid eligibility at the present moment. that will depend on where things are and what the -- >> but for those people below -- >> for a general matter, people below the poverty line, it's almost inconceivable they're ever going to be subject to the penalty. and they