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 are not subject to an exemption. and the reason i say that, if you look at the exemptions from the penalty, the very first one is you are 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, you know, this person is exempt from paying a penalty because we find they can't afford to buy insurance, however they still have a legal obligation to buy insurance. that just doesn't seem reasonable. so i -- so i do think, although it's -- i certainly wouldn't argue it's clear -- that that's the best way to understand the statute as a whole. but again, i would say, you

know, that's not essential to the question we're discussing now of whether the anti- injunction act applies. again, you know, i think - >> could you tell me why you think the solicitor general's reading creates a problem? >> well, in going back to -- so if the result were to say simply, this is not -- oh, i'm sorry. the solicitor general's reading. so now it's not - >> 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 -- my main objection to the solicitor general's reading is i don't think it makes a whole lot of sense. i mean, basically the solicitor general says every penalty in the internal revenue code, every other penalty in the affordable care act is -- >> but that's not -- 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 things as taxes, the aia applies. so it's only -- and i haven't found another statute. i'm going to ask him if there's another one. it's only for those statutes in which congress has designated something solely as a penalty. >> right. >> and not indicated that it is a tax. >> right. >> they don't fall within the aia. >> i think my -- my take on it is if you adopted the solicitor general's approach there are probably three penalties for alcohol and tobacco-related offenses at 5114(c), 5684, and 5761 that i think would be very difficult to distinguish from this one, and possibly the 527(j) penalty for failure to disclose political contributions.

if there are no further questions, i would like to reserve my time. >> thank you, mr. long. general verrilli. >> mr. chief justice and may it please the court. this case presents issues of great moment, and the anti- injunction act does not bar the court's consideration of those issues. that is so even though the anti-injunction act is a jurisdictional limit that serves what this court described in clintwood elkhorn as an exceedingly strong interest in protecting the financial stability of the federal government, and even though the minimum coverage provision of the affordable care act is an exercise of congress's taxing power as well as its commerce power. congress has authority under the taxing power to enact a measure not labeled as a tax, 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 of the affordable care act or in the internal revenue code generally that provides a textual instruction that - >> general verrilli, today you are arguing that the penalty is not a tax. tomorrow you are going to be back and you will be arguing 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 a license tax cases that 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 under the taxing power to enact it and the form of words doesn't have a dispositive effect on that analysis. today we are construing statutory text where the precise choice of words does have a dispositive effect on the analysis. >> well, 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 it said it was beyond the court's taxing power in a separate case, correct? >> yes. i do think, justice sotomayor, that, with respect to one of the arguments that my friend from the nfib has made in of the brief, that bailey v. george 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 in bailey v. drexel furniture company. >> that's a different issue. >> but on the same day - right, but on the same day as bailey v. drexel furniture, the court issued bailey v. george, which held that the anti-injunction act did bar a challenge to that provision, even though the court had concluded that it was invalid under the tax power. so -- 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 is 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 amicus suggest it should be read, on that theory. but -- >> mr. verrilli, a basic question about your argument. if you are 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 -- i apologize if i'm creating confusion about that, 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 we don't think it's correct. and i -- 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 7421(a), which can be found at page 16a of the appendix to our

brief. i -- i'd ask the court to compare that to the language of the very next provision in the code, which is on the next page of our statutory appendix, 17a, which is the refund statute which we've talked about a little bit so far this morning, 7422(a). the refund statute this court held in dolan was jurisdictional, and the court in both dolan and brockamp held that the statute of limitations that applies to the refund statute cases is jurisdictional. the language in 7422(a) is virtually identical to the language in 7421(a) - >> that -- that is correct, although in the refund context, you have the sovereign immunity problem, in which we presume that has not been waived. >> right. but i - 7421(a) -- were the same - >> the language is quite parallel. >> and -- originally, they were the same statutory provision. they were only separated out

later. so i do think that's the strongest textual indication, justice ginsburg, that -- that 7421(a) is jurisdictional. >> but then, general, what 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, correct, the way you reading - read it, doesn't involve a tax that's subject to the anti-injunction act. >> yes, that is exactly our position. and the reason we don't - >> so -- so you -- you agree that we would not -- if we agree with you about the correct interpretation of the statute, we need not decide the jurisdiction. >> there would be no reason to decide the jurisdictional issue. >> don't you want to know the answer? [laughter] >> justice kennedy, i think we all want to know the answer to a lot of things in this case. but -- but i do -- i do think that the prudent course here is

to construe the statute in the manner that we read it. >> but -- but you indicated -- there was a discussion earlier about why does the government really care, they have competent attorneys, et cetera. but -- and you began your argument by saying it would be very troubling to say that it's not jurisdictional. i'd like you to comment on that -- it's not for us to tell a party what's in its best interests. it would seem to me that there might be some instances in which the government would want to litigate the validity of a tax right away and would want to waive. but you say it's -- that's not true. that it's very troubling. >> i think there are two problems. one is the problem that justice scalia identified, that 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 -- 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 -- of - despite

the existence of the anti- injunction act. and second, although i certainly am not going to stand up here and disparage the attorneys from the united states in the slightest, the reality is that if this isn't jurisdictional, then it's -- the argument -- 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 -- and that's a troubling prospect. >> how, if you're troubled by - >> can i ask - >> justice ginsburg. >> how -- 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. and we do think that the - 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 act. >> it was -- it was the calculation of the interests of the united states that your predecessor made in the davis case. there, the -- the solicitor general exercised the authority that we sanctioned to waive the -- 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 in -- 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 v. 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 now of - >> davis 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. he's not -- they're not restraining the collection of tax. they're saying to the taxpayer, don't pay it. >> yes. and - >> i don't know how far that gets you. >> well, in fairness, justice breyer, the united states did intervene in the -- 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 a tax. it's restraining the payment of a tax.

>> well - >> you -- 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 that part of the davis decision is good law. >> general, can i ask you about reed elsevier? justice ginsburg suggested that the language was very similar in reed elsevier as it is here, but there are even further similarities. reed elsevier pointed out that the provision in question wasn't in title 28. here, too, it's not in title 28. in reed elsevier, 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. in reed elsevier, 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 reed elsevier seems in multiple respects on all fours with this case. why is that wrong? >> i don't think so, justice kagan. repeating myself and i apologize, but -- we think the closest analogue is the very next provision in the united states code, 7422(a), which this court has held is jurisdictional, and is phrased in exactly the same way as 7421(a). in fact, as i said, they were the same provision back in the earlier days. that's the closest analogue. this isn't -- and it's actually 7422 that's a statute that says do something first. but this - this statute is just a flat-out command that no suit shall be maintained to restrain - >> i take the point - >> the assessment or collection. >> but if you would comment on the similarities of reed elsevier to this case. how do you think it's different, if at all? >> well, because the -- the -- 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 the history and context here is that 7422 and 7421 function together to protect an exceedingly strong interest that -- that the court has held with respect to 7422 sufficiently strong that it -- it explains the jurisdictional nature of that. the same interest applies here. this isn't just a matter of do x and then you can -- and then you can come to court. it's just a fundamentally different set of interests at stake. so we -- we do think that that makes a big difference. and - >> why, in reed elsevier, you were dividing jurisdiction from claims processing, says you have to register before you can sue. there are a lot of things you have to do before you can sue. so why isn't reed elsevier like you have to pay a filing fee before you can file a complaint? >> it is -- we do think it's very much in -- in that nature and different from this case, your honor.

and one -- one way i think it's helpful to -- to get at this is -- is to look at the history. we've cited a string of court of appeals cases in a footnote in our opening brief, and over time, it's been very consistent that the courts of appeals have treated the anti-injunction act as a jurisdictional provision. again, if the court agrees with our statutory construction, you don't need to reach this issue. but they have -- in fact, one of those cases, the hansen case, the district court in that case had dismissed the complaint under federal rule of civil procedure 12(b)(6). the court of appeals vacated and sent it back with instructions to dismiss under 12(b)(1), which is the subject matter jurisdiction provision. 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 that we had offered. >> on your statutory 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 68 and, therefore, wouldn't be governed by the instruction in section 6671(a), which answers the question about the applicability of the act for most penalties. the ones that we've identified, and i may be overlapping a little bit with mr. long here, one is 26 u.s.c. 857, which poses certain penalties in connection with the administration of real estate investment trusts. there are provisions that mr. long identified in his brief, sections 6038(a) through (c) of the code, which 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 -- 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 respondents argue that there are other collateral consequences such as for people on probation who are disobeying the law, if they don't buy health insurance they would be disobeying the law and could be subject to having their supervised release revoked. >> yes. that is not a correct reading of the statute, justice sotomayor. the only consequence that

ensues is the tax penalty. and the -- we have made a representation, and it was a carefully made representation, in our brief that it is the interpretation of the agencies charged with interpreting this statute, the treasury department and the department of health and human services, that there is no other consequence apart from the tax penalty. and i do think, if i could talk for a couple of minutes about the argument that was discussed as to whether this can be conceived of as a suit just challenging the requirement, which is entirely stand-alone based on inferences drawn from the exemptions. i 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 exemptions. there are exemptions to the penalty and exemptions to the subsection (a) requirement. but the -- but i think, not

only as a practical matter, but as a textural 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 just bear with me for one minute here, it's at page 11a of the appendix to our brief. it provides that 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 that someone who has gone to an official of the united states and obtained an exemption would, nonetheless, be in a position of being a law breaker. we think another way in which you can get to the same conclusion slightly differently is by considering the provision on the prior page, 10a, which is 5000a -- 5000a(e)(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 healthcare 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 healthcare through a different system. and it doesn't make any sense to think that persons getting their health care through the indian health service are violating the law because - exempt only from the penalty, but still under a legal obligation to have insurance, when the whole point of this is that they're supposed to be in a clinic-based system. >> is your whole point 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 that my friends from the nib are trying to draw from it. and there is an additional textural indication of that, which one can find at page 13 of our reply brief. this is a provision that is 42 u.s.c. a, section 18022(e). this is a provision that provides for a certification that certain individuals can get. and it's the paragraph starting with the words "other provisions," contains the quote. and it says, "an individual with a certification that the individual is exempt from the requirement under section 5000a, by reason of section 5000a(e)(1) of such code, is entitled to a certificate that allows for enrollment in a particular program for this category of people." but you can see here, congress is saying it's an exemption

under 5000a(e)(1), which is the exemption from the penalty, and not the underlying requirement is, as congress says, an exemption from the requirement of section 5000a. >> sub-section a says directly, "an applicable individual shall ensure that the individual has the minimum essential coverage." and you are saying it doesn't really mean that, that if you're not subject to the penalty, you're not under the obligation to maintain the minimum essential coverage? >> that's correct. and we think that is what congress is saying, both in the provision i just pointed to, your honor, and by virtue of the way -- 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. >> suppose it makes it easy for the government to drop the other shoe in the future, right? you have been under the law subject to this mandate all along. you have 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 - you cannot infer from the fact that someone is exempt from the penalty, that they are still under an obligation to have insurance. that's just not the fairest reading of the statute. >> could i - >> i'm sorry, 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 obligated 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 person should give the answer "no." >> and that's because - >> that if they don't pay the tax, they violated a federal law.

>> but as long as they pay the penalty - >> if they pay the tax, then they are in compliance with the law. >> why do you keep saying tax? [laughter] >> if they pay the tax penalty, they're in compliance with the law. >> thank you. >> thank you, justice breyer. >> the penalty. >> right. that's 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 when the person wants medical care - goes to the emergency room, and the hospital says, well, fine, you are 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 same reason i just gave. i think that the -- that the

answer in that situation is that that person, assuming that person -- well, if that person is eligible for medicaid, they may well not be in a situation where they are going to face any tax penalty and therefore - >> no, they are not facing the tax penalty. >> right, right. >> so the hospital will have to continue to give them care and pay for it themselves, and not require them to be enrolled in medicaid. >> right. >> will they be able to take this out and say, well, you really should -- you have a moral obligation to do it. the congress of the united states has said, you have to enroll? no, they can't say? >> i do think it's -- 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, but i thought the people who were eligible for medicaid weren't subject to the penalty. am i wrong? i could be just factually wrong. >> well, it all -- the penalty is keyed to income. >> yes. >> and it's keyed to a number of things. one is, are -- are you making

so little money that you aren't obligated to file a tax return. and if you're in that situation, you are not subject to the penalty. it's also if the cost of insurance would be more than 8 percent of your income, you aren't subject to the penalty. so there -- there -- 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 eligibility requirements are in the state. >> but those people below - >> but as a general matter, for people below the poverty line it's almost inconceivable that they are ever going to be subject to the penalty, and they would, after the act's medicaid reforms go into place, be eligible for medicaid. >> so is your point that the tax -- so, what we want to do is get money from these people. most of them get the money by buying the insurance and that will help pay. but if they don't, they are 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. and 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 what the heart of what you are saying? >> that's the essence they called it a penalty. they didn't give any other textural instruction in the affordable care act or in the internal revenue code or that that penalty should be treated as a tax for the anti- injunction act purpose. >> you agree with mr. long, and, in fact, you just agreed with justice breyer that one of the purposes of the provision is to raise revenue. >> it will -- well, it will raise revenue. it has 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 -- of any penalty, that it will raise some revenue, but even though that's the case, there still needs to be textural instruction in the statute that this penalty should be treated as a tax for anti- injunction act purposes, and that's what is 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 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, i think, suggested in one of his questions to mr. long, all of the other doctrines that are an exhaustion of remedies and related doctrines would still be there. the united states would rely on them in those circumstances. and -- and so, i don't think the answer is that they can all go to court, no. >> well, why is it - >> two former -- two former commissioners of the irs have filed a brief saying that your interpretation is going to lead to a flood of litigation. are they wrong on that? >> yes. we don't -- you know -- we've -- we've taken this position, after very careful consideration, and we've assessed the institutional interests of the united states and we think we are in the right place.

>> but tell me something, why isn't this case subject to the same bars that - that you list in your brief? the tax court, at least so far, considers constitutional challenges to statutes, so why aren't we -- why isn't this case subject to a dismissal for failure to exhaust? >> because we don't - because the exhaustion 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. katsas. >> mr. chief justice, and may it please the court. let me begin with the question whether the anti-injunction act is jurisdictional. justice 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 non-

jurisdictional in reed elsevier. that statute said no suit shall be instituted. this statute says no suit shall be maintained. no - >> they are different things. this said the reed elsevier statute says immediately after instituted unless a >> unless the copyright is registered. and this goes -- this goes to the character of the lawsuit. the statute in reed elsevier says, register your copyright and then come back to court. >> why isn't that like a filing fee, before you can maintain a suit for copyright infringement, you have to register your copyright? >> it -- it's a precondition to filing suit. the -- the analogous precondition here is pay your taxes and then come back to court. the point is - >> no -- that -- that -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 barring. it's not permitting -- 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 -- it has to be the same challenge, justice sotomayor, or else south carolina v. 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 and to 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 davis v. passman you said that a remedial limitation doesn't go - >> it does seem strange to think of a -- a law that says no court can entertain a certain action and give a certain remedy as merely a claim processing rule.

what the -- the court is being ousted from -- 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 limits. >> how do you deal with this case and our gonzalez -- 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 -- gonzalez v. thaler rests on a special rule that applies with respect to

appeals from one article iii court to another. that's -- that explains gonzalez and it explains bowles 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 rule and understandings governing appeals from one article iii 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 reed elsevier as one consideration. >> and we haven't relied on it in other cases. >> and another -- another consideration in reed elsevier that cuts in our favor is the presence of exceptions. you said three in reed elsevier cut against jurisdictional characterization. here there are 11. and - >> 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 it begs the difference -- 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. >> yes. >> and so what congress is trying to do is to say there is a procedure here that 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 judge -judges substituting their idea of what is a proper equitable defense of when there should be an exception made about da, da, da for the basic rule. no. okay? and so there is strong reason that is there. you tried to apply that reason to the copyright law. you can't find it. registration for the copyright register is not the life's blood of anything.

copyright law exists regardless. so the reasoning isn't 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 -- that is -- has a significant role in my mind of finding that it is jurisdictional. plus the fact that we have said it nonstop since that northrop or whatever that other case is. >> justice breyer, as to reasoning, you -- you give an argument -- you give an argument why as a policy matter it might make sense to have a non-jurisdictional statute. but of course this court's recent cases time and again say congress has to clearly rank the statute as non- jurisdictional 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 wanted to ask the question in case you wanted to answer the policy question. >> as to policy -- as to policy i think helvering against davis is the refutation 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 the holding in davis and the holding in all of the equitable exception cases like williams packing. the government - >> so why don't we say - 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. it's a contradiction in terms. i don't disagree. >> it is a contradiction in terms. all of your cases analyze the situation as if the 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 argument available to him affirmatively gave it up. this is not just a forfeiture where a government lawyer is -- through inadvertence fails to raise an argument. this is a case where the government - >> they raised it and then gave it up. >> they made it below. they know what it is.

and not only are they not pursuing it here, they are affirmatively pursuing an argument on the other side. >> mr. katsas, is your basic position when we are 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 -- it has to either say that or at least be directed to the courts which is a formulation you have 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 would -- i mean, i suppose one could try to make a distinction between this case and reed elsevier by focusing on 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 of what judge does. >> i don't think so, justice kagan, because we -- we have an adversarial system, not an inquisitorial one. the parties maintain their

lawsuits i think is the more natural way of thinking of it. if i could turn -- 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 -- a federal requirement to buythat 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 extend the anti- injunction act, not just to taxes which is how the statute is written, but to free- standing nontax legal duties. and it's just - >> the whole point - the whole point of the suit is to prevent the collection of penalties. >> of taxes, mr. chief justice. >> well, prevent of the collection of taxes. but the idea that the mandate is something separate from

whether you want to call it a penalty or tax just doesn't seem to make much sense. >> it's entirely separate, and let me explain to you why. >> it's a command. a mandate is a command. if there is nothing behind the command. it's sort of well 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 exhortation, 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 - >> why would you have a requirement that is completely toothless? 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 the 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. >> what would that look like? what would the argument be as to what the injury was? >> the injury -- when that subject to the mandate, that person is required to purchase health insurance. that is a forced acquisition of an unwanted good. it's a classic pocketbook injury. thatven if i'm wrong about 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 iii standing in order to maintain a suit and the question of who is subject to a legal obligation. and you've said in your cases that even if there may be no one who has standing to challenge a 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 we are wrong about everything i've said so far, the states clearly fall within the exception recognized in south carolina v. regan. they are injured by the mandate because the mandate forces 6

million new people onto their medicaid rolls. but they are not directly subject to the mandate, nor could they violate the mandate and incur a penalty. >> could i just understand, mr. katsas, when the states say that they are injured, are they talking about the people who are eligible now 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. think there could be future eligibles who would enroll because they are 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

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 -- will show up in greater numbers. i mean, presumably the state wants to cover people whom it has declared eligible for this benefit. >> they -- 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. and in any event - >> why would somebody not choose to obtain it? why -- 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? >> i -- i don't know, justice ginsburg. all i know is that the difference between current enrollees and people who could enroll but have not is, as i said, on the -- is a $600 million delta. and - >> 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 -- i mean, there is 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 -- in the sense of lujan. they are coerced in the sense of bennett v. spear. those people are enrolling because they are under a legal obligation to do so. the second argument made against the states' 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 -- i'm a little bit confused. and this is what i'm confused about.

there -- there is a challenge to the individual mandate. >> yes. >> all right. what is - 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 -- the principal theory for state standing is 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, but - >> yes. that's what i'm - >> okay. let me -- let me try to >> i'm confused by it. >> let me try it this way -- may i finish the thought? >> go ahead. >> in south carolina v. regan, the state was not subject to the tax at issue. the state was harmed because -- 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. >> thank you, mr. chief justice. >> mr. long, you have 5 minutes remaining. >> everyone agrees that the section 5000a penalty shall be assessed and collected in the same manner as taxes. and the parties' principal 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 -- if you look at chapters 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 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 -- and 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 confer jurisdiction to restrain the assessment and collection of taxes. that's not true. in footnote 11 of our opening brief, we cite several. i'll simply mention section 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 the time that such prohibition is enforced, may be enjoined by a proceeding in the proper court, 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 of the deficiency has been filed, and then only in respect of the

deficiency that is the subject of such petition." >> and 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 - and it's certainly an argument in your favor. the -the over-arching thing in my mind is it's -- it's up to congress within leeway. and they did not use that word "tax," and they did have a couple of exceptions. and it is true that all this language that you quote -- you know, 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 this subchapter. and we look over here and it's a penalty and liability provided by a different law, which says collect it through the subchapter, and it has nothing to do with the irc. see? so we've got it in a separate place, we can see pretty clearly 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? you see? i'm trying to get you to focus on that kind of argument. >> i mean, i think i'm following you, but -- 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 still clearly -- it's assessed and collected in the same manner as the penalty in that subchapter, and those penalties are collected in the same manner as taxes. >> yes, yes. >> and so that's -- i think it's - it's rather detailed, but i think it's a rather clear indication that the anti- injunction act applies. the -- 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've 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 in jurisdictional terms. as i read bowles and john r. sand & gravel, the -- the gist of these decisions was not any special sort of rule about appeals, it's that when we have that situation, which i would submit applies as much to federal taxes as it does to appeals from federal district courts when we have this degree of -- 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 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. >> thank you. >> we will continue argument in this case tomorrow. >> the supreme court continues to hear oral arguments this week in a series of cases about the health care law. the court will provide same-day audio expected at around 1:00 p.m. eastern each day and we will have it for you on c-span 3. this morning, the court will look at whether the individual mandate to purchase health care coverage is constitutional. wednesday, two questions -- in the morning, it individual mandate portion of the law is unconstitutional, and the rest of the law survive? wednesday afternoon, is the -- expansion of medicaid coverage an intrusion on states? for more coverage, go to c- span.org. >> in march of 1979, c-span began televising the u.s. house of representatives to households nationwide, and today, are

content of politics and carl -- common affairs, of books, and history, is available on tv, radio, and online. >> we are talking now about the supreme court but they are the ones that changed this country inevitably with what we call the march toward progress, the march toward knocking down the walls of discrimination, that prevented us in the past in 1964 civil rights act in public accommodations, so people to skin was not white could go into restaurants and hotels, public accommodations, the 65 act for voting rights, 68 act, public accommodations, 1973 act that said women were going to be treated equally, americans with disabilities act who said the disabled will be part of the american family -- all of that is the march to progress in, my friends, the one organization, institution, that protect it is the supreme court of the united states. >> c-span -- created by

america's cable companies as a public service. >> the house is in this morning at 10:00 a.m. eastern. after morning our speeches, the plan to work on federal communications commission regulations in the afternoon. live house coverages here on c- span. on c-span2, the senate is also in at 10:00 a.m. eastern and will debate repealing tax cuts for oil and gas companies. and on c-span 3 this morning, military commanders in charge of cyberspace, missile defense, and the nation's nuclear arsenal, testified before the senate armed services committee about defense programs. live coverage starts at 9:30 a.m. eastern. and coming up on "washington journal,", we will continue the discussion of this week's supreme court oral arguments on the health care law. our guests are dahliahw