medicaid reform is in place be eligible for medicaid at that point. >> so if your point that the tax -- what we want to do is get money from these people. most of them -- by buying the insurance. and that will help pay. but if they don't, they're going to pay this penalty. and that will help too. and the fact that we put the latter in brings it within the taxing power. but 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 of it. they called it a penalty. they didn't give any other textural instruction in the affordable care act or the internal revenue code that penalty should be treated as a tax. >> you agree with mr. long. and i thought you just agreed with justice breyer, one of the purposes of the provision is to raise revenue. >> it will -- well, it will raise revenue. it's been predicted by the cbo that it will raise revenue, your

honor. but even though that's the case, and i think that would be true of any penalty, that it will raise some revenue, but even though that's the case, there still needs to be a textual instruction and that's what's lacking here. >> 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 p 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 things, justice alito. i think for reasons that justice kennedy suggested in one of his questions to mr. long, all of the other doctrines that -- exhaustion 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 filed a brief

saying your interpretation is going to lead to a flood of litigation. now, they're wrong on that? >> yes. we don't -- we have taken this position after very consideration. and we have assessed the institutional interests of the united states. and we think we're in the right place. >> but 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 constitutional challenges to statute. so why isn't this case subject to a dismissal for failure to exhaust? >> we don't -- because the exhaustion would go to the individual amount owed, we think. and that's different situation from this case. if the court has no further questions. >> thank you, general. >> thank you.

>> mr. cat sas. >> let me begin with the question of whether the anti injunction act is jurisdictional. justice beginsburg, we think the text is indistinguishable from the text of the statute that unanimous low held to be nonjurisdictional in reed else veer. that statute said no suit shall be instituted this statute says be maintained. >> the rest of your statute says immediately after instituted, unless the copyright is registered. >> unless the copyright is registered. and this goes to the character of the lawsuit, the statute in reed elsevere says register your copyright and then go to court. >> so why isn't that a filing fee? you have to register your copyright. >> it -- 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. it has to do with a form of relief that congress is barkiri. it is not permitted -- it is not a tax case. you can come in afterwards. 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 characterizations is jurisdictional. in divis versus passman, you said a remedial limitation doesn't go -- >> it 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 process. 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 it to be in title 28 and to qualify those statutes and to use jurisdictional --

>> so how do you deal with this case and our recent gonzalez case, where we talked about -- >> right. >> the language of the coa statute, that no appeal will be heard absent the issuance of -- >> gonzalez against daler rests on a special rule that applies with respect to appeals from one article 3 court to another. that's -- that explains gonzalez and it explains both 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 that we should just simply say that bowles applies only to appeals. but we haven't said that. >> no, you came very close. in henderson, justice sotomayor, you said that bowles, which is akin to thaler, is explained by the special rules, and

understandings governing appeals from one article 3 court to another. and you specifically said that 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 bowles and thaler are not terribly different. those cases are explained by that principle. 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 those -- all of that in particular -- >> you did rely on that in reid el sever. >> and we haven't relied on it in other cases. >> another consideration in

reid el sever is the presence of exceptions. you said three against jurisdictional characterization. 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. but one thing that's relevant, in my mind, is that taxes are, for better or for worse, the life's blood of government. and so what congress is trying to do is to say there's a procedure here you go through. you can get your money back. or you go 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 equitable defense of when there is going to be an exception made about da, da, da, 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 a copyright register is not the life's blood of anything. a copyright exists, regardless. so the reasoning isn't there. the language, you're -- 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've said it nonstop since that northrop or whatever that other case is. >> justice breyer, as to reasoning, you give an argument

why as a policy matter it might make sense to have a nonjurisdictional statute. but, of course, this court's recent cases time and again say it has to clearly rank the statute as nonjurisdictional in its text and structure. it seems to me a general appeal to statutory policies doesn't speak with sufficient clarity. >> that's fine. i just asked the question in case you wanted to answer the policy. >> as to policy -- as to policy, i think hellverifying against davis is the reputation of this view. it is true that in most cases, the government doesn't want and congress doesn't want people coming into court. but davis shows there 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 waiving its defense. that's what the solicitor general did in davis, and this court accepted that waiver. as for prior cases, we have -- holding and davis and the holding in all of the equitable exception cases like williams packing -- >> so why don't we say it's jurisdictional, except when the sew lister general waves? >> you have used -- >> why would that not promote congress's policy of ensuring -- or congress, explicitly? >> it's jurisdictional, except when the solicitor general waives it? >> yes. it's a contradiction in terms, i don't disagree. i don't disagree. >> it is a contradiction in terms. all of your cases analyze the situation as if a statute is jurisdictional, then it's not subject to waiver. if you were to construe this as a -- such a one-off unique statute, it seems to me, we could still win, because the

solicitor general, with full knowledge of the anti injunction act argument available to him affirmatively gave it up. this is not just a forfeiture where a government lawyer is -- through inadd avertence fails to raise an argument. this is a case -- >> they raised it and then -- >> they made it, they know what it is. and not only are they not pursuing it here, they're affirmatively pursuing an argument on the other side. >> mr. katsas, if your basic position is when we're talking 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 courts. which is a formulation you've used in your cases, and which is the formulation that congress used in the tax injunction act, but did not use in this statute. >> well, how -- i mean, i suppose one could try to make a distinction between this case

and reid el sever, the difference between instituting something and maintaining something. and suggesting that 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 kay kagan, because we have an adversarial system, not annin i didn't say active one. the parties maintain their lawsuits, 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 is to extend the

anti injunction act, not just to taxes, which is how the statute is written, but to free-standing nontax legal duties. >> the whole point -- 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 it a penalty or a tax, just doesn't seem to make much sense. >> it's entirely separate. and let me explain to you -- >> it's a command. a mandate is a command. if there is nothing behind the command, sort of what happens if you don't file 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 is a difference between what the law requires and what enforcement consequences happen to you. this statute was very

deliberately written to separate mandate from penalty in several different ways. they are put in separate sections. the 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 very well-defined in the statute, so it can't be sloughed off as a general ex ortation. and it's backed up by a penalty. 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 -- >> well, why would you have a

requirement that is completely toothless? pay -- you know, 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, to the extent one of the justifications for the

mandate is to prevent emergency room cost shifting when people receive uncompensated care. so 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. >> mr. katsas, do you think a person who 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. . >> and what would that look like? what would the argument be as to what the injury was? >> the injury -- 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. it's a classic pocketbook injury. but 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 very 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 by virtue of the mandate. 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 it order to maintain a suit and the question of who is subject to a legal obligation. and you have said that even if there may be no one who has standing the challenge of legal obligation, like the

incompatibility clause or something, that doesn't somehow convert the legal obligation into a legal nullity. finally, with respect to the states. even if it we are wrong 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 to their medicaid roles. but they are not directly subject to the mandate nor could the mandate incur a penalty. >> mr. katsas, when the states say they're injured, are they talking about the people who are eligible now, but who are not enrolled, or are they also talking about people who will become newly eligible? >> it's people who will enroll -- people 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're subject to a legal obligation, but wouldn't have enrolled if given a voluntary choice. but i'm happy to -- i'm happy to focus on currently eligible people who haven't enrolled in medicaid. that particular class is the one that gives rise to simply in it florida alone, a pocketbook injury on the order of 500 to $600 million per year. >> but that does seem odd, to suggest that the state is being injured because people who could show up tomorrow with or without this law will show up in greater numbers. i mean, presumably, the state wants to cover people whom it has declared eligible for this benefit. >> 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? that's one puzzle to me. there's this category of people who are medicaid-eligible,

medicaid doesn't cost them anything. why would they resist enrolling? >> of i don't know, justice ginsburg. all i know is the difference between current enrollees and people who could enroll but have not is, as i said, $600 million delta. >> but it may be just that they haven't 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, whether -- there's a classic pocketbook injury here. the only arguments made about -- against the standing of the states are, number one, this results from third-party actions. that doesn't work, because the third-party actions are not unfettered in the -- in the sense of lou han. they are coerceded in the sense of bennett versus spear. those people are enrolling

because they're under a legal obligation to do so. the second argument made against the state standing is that 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's 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 principles theory for state standing is the states are challenging the mandate, because the mandate injuries them when people are forced to enroll in medicaid. now, it is true, they are not directly subject to the mandate. >> that's what i'm -- >> let me try -- 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 is 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 section5000a penalty shall be assessed and collected in the same manner as taxes. and the party's principle argument why that does not make the anti injunction act applicable is that, well, that simply goes to the secretary's

activities. and i would simply ask, if you look at chapter 63 and 64 of the intern internal revenue code, which are the chapters on assessment and collection, they are not just addressed to the secretary. there are many provisions in there that are addressed to courts. and, indeed, talk about this interaction, the 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 many of the exceptions to the anti injunction act or in the assessment and collection provisions, there was a statement made that none of these directly confer jurisdiction to restrain the assessment and collection of taxes. that's not true. in footnote 11 of our opening brief, we criteria several. i'll simply mention section 6213 as an example. that says, i quo, notwithstanding the provisions

of section 2421a, the making of such assessment or beginning of such proceeding or levy during which time prohibition is enforced may be adjoined by the proper court, including the tax court. the tax court shall have no jurisdiction to enjoin any action or order any refund under this subsection unless a timely petition for a redetermination of the deficiency 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 into chapter 68. and it's certainly an argument in your favor. the overarching thing, in my mind, is that it's up to congress within lee way. and they did not use that word tax, and they did have a couple exceptions. and it is true that all this language that you quote, the first two sentences and so forth, it talks about the use of tax in the irc.

it talks about the penalties and liabilities provided by the sub chapter. and we look over here, and it's a penalty and liability provided by a different law, which says collect it through the sub chapter, and it has nothing to do with the irc. so we've got it in a separate place. we can see what they're trying to do. they couldn't really care very much about interfering with collecting this one. that's all the statutory argument. are you following me? i'm trying to get you to focus on that kind of argument that i just made. >> i think i'm following you, but the fact that it's not in the particular sub chapter for assessable penalties, in my view, makes no difference. because they said it's still clearly -- it's assessed and collected in the same manner as a penalty in that sub chapter. and those penalties are collected in the same manner as taxes. and so that's i think -- it's rather detailed, but i think it's a rather clear indication that the anti injunction act

applies. the refund statute that does specifically refer to penalties, that has nothing to do with this argument that it's assessed and collected in the same manner as a tax. that would simply go to the point that, well, you can't just call it a tax. because they referred to it as a penalty. and finally, on jurisdiction, you know, 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 these exceptions and jurisdictional terms. as i read bowles and john arrests and in gravel, the gist of those decisions was not any sort of special rule about appeals. it's that when we have that situation, which i would submit, smis as much to the collection of federal taxes as it does to appeals from district courts, when we have this degree of precedent, including precedent from congress in the form of

amendments to this anti injunction act, that should be the presumption should be that this is jurisdictional. if there are no further questions. >> mr. long, you are 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 will continue argument in this case tomorrow. we will hear argument this morning in case 11 398. wrapping up the first day of oral argument, justices will hear in regards to the nation's health care law, if you missed any of this, it's now available online at c-span.org. we will also show it again in our prime time schedules. today's question was, if the health care law includes a tax, is does the supreme court have jurisdiction. tomorrow's issue is the individual mandate to purchase

health care coverage constitutional. on wednesday, there will be two questions before the court. in the morning, if the individual mandate portion of the law is unconstitutional, can the rest of the law survive? and wednesday afternoon, is the law's expansion of medicaid coverage an unconstitutional intrusion on states? and we've got a facebook poll up on the issue. we're asking what your level of interest is, in the health care case. go to facebook.com/c-span. that's c-span with no dash and register your feelings. and don't forget, we've been following the health care debate from the beginning at c-span.org, you'll find arc kind offal video of hearings, speeches and rallies, as well as related documents and links to other web pages. again, that's at cspan.org. this is c-span 3, with politics and public affairs programming throughout the week. and every weekend, 48 hours of people and events, telling the american story on american history tv. get our schedules and see past