PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-2347
LIBERTY UNIVERSITY, INCORPORATED, a Virginia Nonprofit
Corporation; MICHELE G. WADDELL; JOANNE V. MERRILL,
Plaintiffs − Appellants,
and
MARTHA A. NEAL; DAVID STEIN, M.D.; PAUSANIAS ALEXANDER; MARY T.
BENDORF; DELEGATE KATHY BYRON; JEFF HELGESON,
Plaintiffs,
v.
TIMOTHY GEITHNER, Secretary of the Treasury of the United
States, in his official capacity; KATHLEEN SEBELIUS, Secretary
of the United States Department of Health and Human Services, in
her official capacity; HILDA L. SOLIS, Secretary of the United
States Department of Labor, in her official capacity; ERIC H.
HOLDER, JR., Attorney General of the United States, in his
official capacity,
Defendants − Appellees.
−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−-------
MOUNTAIN STATES LEGAL FOUNDATION; REVERE AMERICA FOUNDATION,
Amici Supporting Appellants,
AMERICAN CIVIL LIBERTIES UNION; AMERICAN CIVIL LIBERTIES UNION
OF VIRGINIA, INCORPORATED; AMERICAN NURSES ASSOCIATION; AMERICAN
ACADEMY OF PEDIATRICS, INCORPORATED; AMERICAN MEDICAL STUDENT
ASSOCIATION; CENTER FOR AMERICAN PROGRESS, d/b/a Doctors for
America; NATIONAL HISPANIC MEDICAL ASSOCIATION; NATIONAL
PHYSICIANS ALLIANCE; HARRY REID, Senate Majority Leader; NANCY
PELOSI, House Democratic Leader; DICK DURBIN, Senator, Assistant
Majority Leader; CHARLES SCHUMER, Senator, Conference Vice
Chair; PATTY MURRAY, Conference Secretary; MAX BAUCUS, Senator,
Committee on Finance Chair; TOM HARKIN, Senator, Committee on
Health, Education, Labor and Pensions Chair; PATRICK LEAHY,
Senator, Committee on the Judiciary Chair; BARBARA MIKULSKI,
Senator, HELP Subcommittee on Retirement and Aging Chair; JOHN
D. ROCKEFELLER, IV, Senator, Committee on Commerce Chair; STENY
HOYER, Representative, House Democratic Whip; JAMES E. CLYBURN,
Representative, Democratic Assistant Leader; JOHN B. LARSON,
Representative, Chair of Democratic Caucus; XAVIER BECERRA,
Representative, Vice Chair of Democratic Caucus; JOHN D.
DINGELL, Representative, Sponsor of House Health Care Reform
Legislation; HENRY A. WAXMAN, Representative, Ranking Member,
Committee on Energy and Commerce; FRANK PALLONE, JR.,
Representative, Ranking Member, Commerce Subcommittee on Health;
SANDER M. LEVIN, Representative, Ranking Member, Committee on
Ways and Means; FORTNEY PETE STARK, Representative, Ranking
Member, Ways and Means Subcommittee on Health; ROBERT E.
ANDREWS, Representative, Ranking Member, Education and Workforce
Subcommittee on Health; JERROLD NADLER, Representative, Ranking
Member, Subcommittee on Constitution; GEORGE MILLER,
Representative, Ranking Member, Education and the Workforce
Committee; JOHN CONYERS, JR., Representative, Ranking Member,
Committee on the Judiciary; JACK M. BALKIN, Knight Professor of
Constitutional Law and the First Amendment, Yale Law School;
GILLIAN E. METZGER, Professor of Law, Columbia Law School;
TREVOR W. MORRISON, Professor of Law, Columbia Law School;
AMERICAN ASSOCIATION OF PEOPLE WITH DISABILITIES; THE ARC OF THE
UNITED STATES; BREAST CANCER ACTION; FAMILIES USA; FRIENDS OF
CANCER RESEARCH; MARCH OF DIMES FOUNDATION; MENTAL HEALTH
AMERICA; NATIONAL BREAST CANCER COALITION; NATIONAL ORGANIZATION
FOR RARE DISORDERS; NATIONAL PARTNERSHIP FOR WOMEN AND FAMILIES;
NATIONAL SENIOR CITIZENS LAW CENTER; NATIONAL WOMEN'S HEALTH
NETWORK; THE OVARIAN CANCER NATIONAL ALLIANCE; AMERICAN HOSPITAL
ASSOCIATION; ASSOCIATION OF AMERICAN MEDICAL COLLEGES;
FEDERATION OF AMERICAN HOSPITALS; NATIONAL ASSOCIATION OF PUBLIC
HOSPITALS AND HEALTH SYSTEMS; CATHOLIC HEALTH ASSOCIATION OF THE
UNITED STATES; NATIONAL ASSOCIATION OF CHILDREN'S HOSPITALS;
CHRISTINE O. GREGOIRE, Governor; DR. DAVID CUTLER, Deputy, Otto
Eckstein Professor of Applied Economics, Harvard University; DR.
HENRY AARON, Senior Fellow, Economic Studies Bruce and Virginia
MacLaury Chair, The Brookings Institution; DR. GEORGE AKERLOF,
Koshland Professor of Economics, University of
California−Berkeley, 2001 Nobel Laureate; DR. STUART ALTMAN, Sol
C. Chaikin Professor of National Health Policy, Brandeis
University; DR. KENNETH ARROW, Joan Kenney Professor of
Economics and Professor of Operations Research, Stanford
2
University 1972 Nobel Laureate; DR. SUSAN ATHEY, Professor of
Economics, Harvard University, 2007 Recipient of the John Bates
Clark Medal for the most influential American economist under
age 40; DR. LINDA J. BLUMBERG, Senior Fellow, The Urban
Institute, Health Policy Center; DR. LEONARD E. BURMAN, Daniel
Patrick Moynihan Professor of Public Affairs at the Maxwell
School, Syracuse University; DR. AMITABH CHANDRA, Professor of
Public Policy Kennedy School of Government, Harvard University;
DR. MICHAEL CHERNEW, Professor, Department of Health Care
Policy, Harvard Medical School; DR. PHILIP COOK, ITT/Sanford
Professor of Public Policy, Professor of Economics, Duke
University; DR. CLAUDIA GOLDIN, Henry Lee Professor of
Economics, Harvard University; DR. TAL GROSS, Department of
Health Policy and Management, Mailman School of Public Health,
Columbia University; DR. JONATHAN GRUBER, Professor of
Economics, MIT; DR. JACK HADLEY, Associate Dean for Finance and
Planning, Professor and Senior Health Services Researcher,
College of Health and Human Services, George Mason University;
DR. VIVIAN HO, Baker Institute Chair in Health Economics and
Professor of Economics, Rice University; DR. JOHN F. HOLAHAN,
Director, Health Policy Research Center, The Urban Institute;
DR. JILL HORWITZ, Professor of Law and Co −Director of the
Program in Law & Economics, University of Michigan School of
Law; DR. LAWRENCE KATZ, Elisabeth Allen Professor of Economics,
Harvard University; DR. FRANK LEVY, Rose Professor of Urban
Economics, Department of Urban Studies and Planning, MIT; DR.
PETER LINDERT, Distinguished Research Professor of Economics,
University of California, Davis; DR. ERIC MASKIN, Albert O.
Hirschman Professor of Social Science at the Institute for
Advanced Study, Princeton University, 2007 Nobel Laureate; DR.
ALAN C. MONHEIT, Professor of Health Economics, School of Public
Health, University of Medicine & Dentistry of New Jersey; DR.
MARILYN MOON, Vice President and Director Health Program,
American Institutes for Research; DR. RICHARD J. MURNANE,
Thompson Professor of Education and Society, Harvard University;
DR. LEN M. NICHOLS, George Mason University; DR. HAROLD POLLACK,
Helen Ross Professor of Social Service Administration,
University of Chicago; DR. MATTHEW RABIN, Edward G. and Nancy S.
Jordan Professor of Economics, University of
California−Berkeley, 2001 Recipient of the John Bates Clark
Medal for the most influential American economist under age 40;
DR. JAMES B. REBITZER, Professor of Economics, Management, and
Public Policy, Boston University School of Management; DR.
MICHAEL REICH, Professor of Economics, University of California
at Berkeley; DR. THOMAS RICE, Professor, UCLA School of Public
Health; DR. MEREDITH ROSENTHAL, Department of Health Policy and
Management, Harvard University, Harvard School of Public Health;
3
DR. CHRISTOPHER RUHM, Professor of Public Policy and Economics,
Department of Economics, University of Virginia; DR. JONATHAN
SKINNER, Professor of Economics, Dartmouth College, and
Professor of Community and Family Medicine, Dartmouth Medical
School; DR. KATHERINE SWARTZ, Professor, Department of Health
Policy and Management, Harvard School of Public Health; DR.
KENNETH WARNER, Dean of the School of Public Health and Avedis
Donabedian Distinguished University Professor of Public Health,
University of Michigan; DR. PAUL N. VAN DE WATER, Senior Fellow,
Center on Budget and Policy Priorities; DR. STEPHEN ZUCKERMAN,
Senior Fellow, The Urban Institute; NATIONAL WOMEN'S LAW CENTER;
AMERICAN ASSOCIATION OF UNIVERSITY WOMEN; AMERICAN FEDERATION OF
STATE, COUNTY AND MUNICIPAL EMPLOYEES; AMERICAN MEDICAL WOMEN'S
ASSOCIATION; ASIAN & PACIFIC ISLANDER AMERICAN HEALTH FORUM;
BLACK WOMEN'S HEALTH IMPERATIVE; CHILDBIRTH CONNECTION; IBIS
REPRODUCTIVE HEALTH; INSTITUTE OF SCIENCE AND HUMAN VALUES;
MARYLAND WOMEN'S COALITION FOR HEALTH CARE REFORM; MENTAL HEALTH
AMERICA; NATIONAL ASIAN PACIFIC AMERICAN WOMEN'S FORUM; NATIONAL
ASSOCIATION OF SOCIAL WORKERS; NATIONAL COALITION FOR LGBT
HEALTH; NATIONAL COUNCIL OF JEWISH WOMEN; NATIONAL COUNCIL OF
WOMEN'S ORGANIZATIONS; NATIONAL EDUCATION ASSOCIATION; NATIONAL
LATINA INSTITUTE FOR REPRODUCTIVE HEALTH; OLDER WOMEN'S LEAGUE;
PHYSICIANS FOR REPRODUCTIVE CHOICE AND HEALTH; RAISING WOMEN'S
VOICES; SARGENT SHRIVER NATIONAL CENTER ON POVERTY LAW;
SOUTHWEST WOMEN'S LAW CENTER; WIDER OPPORTUNITIES FOR WOMEN;
WOMEN'S LAW CENTER OF MARYLAND, INCORPORATED; WOMEN'S LAW
PROJECT,
Amici Supporting Appellees.
Appeal from the United States District Court for the Western
District of Virginia, at Lynchburg. Norman K. Moon, Senior
District Judge. (6:10-cv-00015-nkm-mfu)
Argued: May 10, 2011 Decided: September 8, 2011
Before MOTZ, DAVIS, and WYNN, Circuit Judges.
Vacated and remanded by published opinion. Judge Motz wrote the
opinion, in which Judge Wynn concurred. Judge Wynn wrote a
concurring opinion. Judge Davis wrote a dissenting opinion.
4
ARGUED: Mathew D. Staver, LIBERTY COUNSEL, Orlando, Florida, for
Appellants. Neal Kumar Katyal, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellees. ON BRIEF: Anita L.
Staver, LIBERTY COUNSEL, Orlando, Florida; Stephen M. Crampton,
Mary E. McAlister, LIBERTY COUNSEL, Lynchburg, Virginia, for
Appellants. Tony West, Assistant Attorney General, Beth S.
Brinkmann, Deputy Assistant Attorney General, Mark B. Stern,
Alisa B. Klein, Samantha L. Chaifetz, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C.; Timothy J. Heaphy, United States
Attorney, Roanoke, Virginia, for Appellees. Joel Spector,
MOUNTAIN STATES LEGAL FOUNDATION, Lakewood, Colorado, for
Mountain States Legal Foundation, Amicus Supporting Appellants.
Brian S. Koukoutchos, Mandeville, Louisiana; Charles J. Cooper,
David H. Thompson, COOPER & KIRK, PLLC, Washington, D.C., for
Revere America Foundation, Amicus Supporting Appellants.
Rebecca Glenberg, AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA,
Richmond, Virginia; Daniel Mach, Heather L. Weaver, AMERICAN
CIVIL LIBERTIES UNION, Washington, D.C.; Andrew D. Beck,
Brigitte Amiri, AMERICAN CIVIL LIBERTIES UNION, New York, New
York, for American Civil Liberties Union and American Civil
Liberties Union of Virginia, Incorporated, Amici Supporting
Appellees. Ian Millhiser, CENTER FOR AMERICAN PROGRESS,
Washington, D.C., for American Nurses Association, American
Academy of Pediatrics, Incorporated, American Medical Student
Association, Center for American Progress, d/b/a Doctors for
America, National Hispanic Medical Association, and National
Physicians Alliance, Amici Supporting Appellees. Professor
Walter Dellinger, Washington, D.C.; Professor H. Jefferson
Powell, GEORGE WASHINGTON UNIVERSITY LAW SCHOOL, Washington,
D.C., for Senate Majority Leader Harry Reid, House Democratic
Leader Nancy Pelosi, and Congressional Leaders and Leaders of
Committees of Relevant Jurisdiction, Amici Supporting Appellees.
Gillian E. Metzger, Trevor W. Morrison, New York, New York;
Andrew J. Pincus, Charles A. Rothfeld, Paul W. Hughes, Michael
B. Kimberly, MAYER BROWN LLP, Washington, D.C., for
Constitutional Law Professors, Amici Supporting Appellees.
Rochelle Bobroff, Simon Lazarus, NATIONAL SENIOR CITIZENS LAW
CENTER, Washington, D.C., for American Association of People
with Disabilities, The ARC of the United States, Breast Cancer
Action, Families USA, Friends of Cancer Research, March of Dimes
Foundation, Mental Health America, National Breast Cancer
Coalition, National Organization for Rare Disorders, National
Partnership for Women and Families, National Senior Citizens Law
Center, National Women’s Health Network, and The Ovarian Cancer
National Alliance, Amici Supporting Appellees. Sheree R.
Kanner, Catherine E. Stetson, Dominic F. Perella, Michael D.
Kass, Sara A. Kraner, HOGAN LOVELLS US LLP, Washington, D.C.;
5
Melinda Reid Hatton, Maureen D. Mudron, AMERICAN HOSPITAL
ASSOCIATION, Washington, D.C.; Ivy Baer, Karen Fisher,
ASSOCIATION OF AMERICAN MEDICAL COLLEGES, Washington, D.C.;
Jeffrey G. Micklos, FEDERATION OF AMERICAN HOSPITALS,
Washington, D.C.; Larry S. Gage, President, NATIONAL ASSOCIATION
OF PUBLIC HOSPITALS AND HEALTH SYSTEMS, Washington, D.C.; Lisa
Gilden, Vice President, General Counsel/Compliance Officer, THE
CATHOLIC HEALTH ASSOCIATION OF THE UNITED STATES, Washington,
D.C.; Lawrence A. McAndrews, President and Chief Executive
Officer, NATIONAL ASSOCIATION OF CHILDREN’S HOSPITALS,
Alexandria, Virginia, for American Hospital Association,
Association of American Medical Colleges, Federation of American
Hospitals, National Association of Public Hospitals and Health
Systems, Catholic Health Association of the United States, and
National Association of Children’s Hospitals, Amici Supporting
Appellees. Kristin Houser, Adam Berger, Rebecca J. Roe, William
Rutzick, SCHROETER, GOLDMARK & BENDER, Seattle, Washington, for
Christine O. Gregoire, Governor of Washington, Amicus Supporting
Appellees. Richard L. Rosen, ARNOLD & PORTER LLP, Washington,
D.C., for Economic Scholars, Amici Supporting Appellees. Marcia
D. Greenberger, Emily J. Martin, Judith G. Waxman, Lisa
Codispoti, NATIONAL WOMEN’S LAW CENTER; Melissa Hart, UNIVERSITY
OF COLORADO LAW SCHOOL, Boulder, Colorado, for National Women's
Law Center, American Association of University Women, Amerian
Federation of State, County and Municipal Employees, American
Medical Women's Association, Asian & Pacific Islander American
Health Forum; Black Women's Health Imperative, Childbirth
Connection, Ibis Reproductive Health, Institute of Science and
Human Values, Maryland Women's Coalition for Health Care Reform,
Mental Health America, National Asian Pacific American Women's
Forum, National Association of Social Workers, National
Coalition for LGBT Health, National Council of Jewish Women,
National Council of Women's Organizations, National Education
Association, National Latina Institute for Reproductive Health,
Older Women's League, Physicians for Reproductive Choice and
Health, Raising Women's Voices, Sargent Shriver National Center
on Poverty Law, Southwest Women's Law Center, Wider
Opportunities for Women, Women's Law Center of Maryland,
Incorporated, and Women's Law Project, Amici Supporting
Appellees.
6
DIANA GRIBBON MOTZ, Circuit Judge:
Liberty University and certain individuals brought this
suit to enjoin, as unconstitutional, enforcement of two
provisions of the recently-enacted Patient Protection and
Affordable Care Act. The challenged provisions amend the
Internal Revenue Code by adding: (1) a “penalty” payable to the
Secretary of the Treasury by an individual taxpayer who fails to
maintain adequate health insurance coverage and (2) an
“assessable payment” payable to the Secretary of the Treasury by
a “large employer” if at least one of its employees receives a
tax credit or government subsidy to offset payments for certain
health-related expenses. The district court upheld these
provisions, ruling that both withstood constitutional challenge.
Because this suit constitutes a pre-enforcement action seeking
to restrain the assessment of a tax, the Anti-Injunction Act
strips us of jurisdiction. Accordingly, we must vacate the
judgment of the district court and remand the case with
instructions to dismiss for lack of jurisdiction.
I.
A.
On March 23, 2010, the President signed into law the
Affordable Care Act, a comprehensive bill spanning 900 pages,
which institutes numerous changes to the financing of health
7
care in the United States. See Pub. L. No. 111-148. Liberty
and some individuals (collectively “plaintiffs”) challenge only
two provisions of the Act.
1.
The first amends the Internal Revenue Code (sometimes “the
Code”) by adding § 5000A (“the individual mandate”). 1 See id.,
§ 1501(b). The individual mandate requires an “applicable
individual” to “ensure” that beginning after 2013, the
individual “is covered under minimum essential coverage.”
I.R.C. § 5000A(a). The individual mandate lists a number of
health insurance programs that qualify for “minimum essential
coverage”: government- and employer-sponsored plans, individual
market plans, and other health plans recognized as adequate.
§ 5000A(f)(1). If an individual “taxpayer” fails to obtain the
required coverage, the “taxpayer” is subject to a “penalty.”
§ 5000A(b)(1).
The Affordable Care Act uses the Internal Revenue Code’s
existing tax collection system to implement the penalty. Only a
“taxpayer” is subject to the penalty, id., and the Code defines
a “taxpayer” as “any person subject to any internal revenue
tax.” Id. § 7701(a)(14). A taxpayer must include the penalty
1
The Affordable Care Act itself refers to the provision as
the “Requirement to maintain minimum essential coverage.” Pub.
L. No. 111-148, § 1501. Because plaintiffs refer to it as the
individual mandate throughout their complaint and briefs, we
often do so as well.
8
payment with his regularly-filed income tax return.
§ 5000A(b)(2). The taxpayer owes the penalty only if he fails
to maintain minimum coverage for a continuous period of three
months or longer. § 5000A(e)(4)(A). The individual mandate
also makes a taxpayer liable for a penalty imposed on his
“dependent,” as defined in § 152 of the Code. § 5000A(b)(3)(A).
Akin to the joint liability of spouses for income taxes, I.R.C.
§ 6013(d)(3), a taxpayer is also jointly liable for a spouse’s
penalty if filing a joint income tax return. § 5000A(b)(3)(B).
A taxpayer subject to the penalty owes the greater of: (1)
a “flat dollar amount” equal to $95 for the taxable year
beginning 2014, $325 for 2015, $695 for 2016, and $695 indexed
to inflation for every year thereafter; or (2) a graduated
percentage (1% in 2014, 2% in 2015, and 2.5% every year
thereafter) of the amount by which the “taxpayer’s household
income,” as defined by the Code, exceeds “gross income specified
in” I.R.C. § 6012(a)(1) (the amount of income triggering the
requirement to file a tax return). See § 5000A(c)(2), (3). But
the penalty may not exceed the cost of the “national average
premium for qualified health plans” of a certain level of
coverage. § 5000A(c)(1).
Section 5000A(g)(1) authorizes the Secretary of the
Treasury (“the Secretary”) to assess and collect the penalty “in
the same manner as an assessable penalty under subchapter B of
9
chapter 68” of the Internal Revenue Code, which in turn contains
penalties that the Secretary is to “assess[] and collect[] in
the same manner as taxes.” Id. § 6671(a). Accordingly, the
Affordable Care Act provides the Secretary with all the civil
enforcement tools of the Internal Revenue Code subject to only
one express limitation: the Secretary may not seek collection
of the penalty by “fil[ing] [a] notice of lien with respect to
any property” or “levy[ing] on [a taxpayer’s] property.”
§ 5000A(g)(2)(B).
2.
The other provision of the Act challenged by plaintiffs
amends the Internal Revenue Code by adding § 4980H (the
“employer mandate”). Pub. L. No. 111-148, § 1513. That
provision imposes an “assessable payment” on “any applicable
large employer” if a health exchange notifies the employer that
at least one “full-time employee” obtains an “applicable premium
tax credit or cost-sharing reduction.” I.R.C. § 4980H(a), (b).
An “applicable premium tax credit or cost-sharing reduction”
consists of either (1) a tax credit to assist a low-income
individual with financing premiums for qualified health plans or
(2) a government subsidy to help finance an individual’s share
of out-of-pocket health care costs, as provided by the
Affordable Care Act. § 4980H(c)(3).
10
Section 4980H calculates the assessable payment differently
depending on whether the employer offers adequate health
insurance coverage to its employees. If the employer fails to
offer adequate coverage to its full-time employees, the
“assessable payment” is calculated by multiplying $2,000
(increased yearly by the rate of inflation), by the number of
total full-time employees, prorated over the number of months an
employer is liable. § 4980H(a), (c)(1), (c)(5). If, however,
the employer does offer adequate insurance coverage, the
“assessable payment” is calculated by multiplying $3,000 by the
number of employees receiving the “applicable premium tax credit
or cost-sharing reduction,” prorated on a monthly basis and
subject to a cap. § 4980H(b)(1), (2).
A large employer must pay these assessments “upon notice
and demand by the Secretary.” § 4980H(d)(1). The Secretary has
the authority to assess and collect the exaction in the “same
manner as an assessable penalty” provided by subchapter B of
Chapter 68 of the Code. Id.
B.
On March 23, 2010, the day the President signed the
Affordable Care Act into law, plaintiffs filed this action to
enjoin the Secretary and other government officials from
enforcing the Act. In their complaint, plaintiffs allege the
following facts.
11
One of the individual plaintiffs, Michele G. Waddell,
asserts that she “has made a personal choice not to purchase
health insurance coverage” and does not want to do so in the
future. Waddell maintains that she pays for needed health care
services as she uses them. Another individual plaintiff, Joanne
V. Merill, asserts that she too has “elected not to purchase
health insurance coverage” and does not want to do so. Both
Waddell and Merill contend that the individual mandate requires
them “to either pay for health insurance coverage” or “face
significant penalties.”
They seek to enjoin the Secretary from assessing or
collecting the exaction prescribed for failure to comply with
the individual mandate. Waddell and Merill assert that, “as
part of his oversight of the Internal Revenue Service,” the
Secretary has the “power to collect” the penalties “as part of
an individual[‘s] income tax return.” They describe the
individual mandate as imposing a “penalty in the form of a tax
. . . on any taxpayer” who fails to maintain minimum essential
coverage. They further allege that the “Taxing and Spending
Clause . . . only grants Congress the power to impose taxes upon
certain purchases, not to impose taxes upon citizens who choose
not to purchase something such as health insurance.” Similarly,
Waddell and Merrill repeatedly assert that the individual
mandate assesses “a direct tax that is not apportioned according
12
to Census data or other population-based measurement,” in
violation of Congress’s Taxing Power. Accordingly, they ask to
be “free from improper taxation [that] is likely to cause
significant financial hardships.” They also contend that the
individual mandate exceeds Congress’s authority under the
Commerce Clause of the Constitution.
Liberty, a private Christian university located in
Lynchburg, Virginia, challenges the “employer mandate” as a tax
that will impose “tax penalties” on it because it has employees
who will likely receive a tax credit or cost-sharing reduction.
Liberty alleges that these “significant penalties” will cause it
to suffer “substantial financial hardship.” According to
Liberty, the employer mandate constitutes an “unapportioned
direct tax upon employers in violation of” the Constitution, and
“[i]mposition of the tax infringes upon Liberty University’s
rights to be free from improper taxation.” Liberty also asserts
that the employer mandate exceeds Congress’s authority under the
Commerce Clause.
For relief, plaintiffs ask for an injunction restraining
all defendants, including the Secretary of the Treasury, from
“acting in any manner to implement, enforce, or otherwise act
under the authority” of the Affordable Care Act. They seek a
declaration that the Act is unconstitutional and assert that
13
they have no “adequate remedy at law to correct” the continuing
constitutional violation.
Before the district court, the Secretary moved to dismiss
the case, contending inter alia that the federal tax Anti-
Injunction Act (AIA), I.R.C. § 7421(a), barred the district
court from reaching the merits because the challenged penalty is
to “be assessed and collected” in the same manner as a tax and
other penalties to which the AIA clearly applies. The court
rejected this argument, holding that Congress did not intend to
“convert the[se] penalties into taxes for purposes of the Anti-
Injunction Act.” The court reasoned that (1) Congress did not
specifically extend the term “tax” in the AIA to include the
challenged exactions; and (2) the exactions did not qualify as a
“tax” for purposes of the AIA because they “function as
regulatory penalties.” After rejecting the AIA argument and the
Secretary’s other jurisdictional contentions, the district court
concluded that the challenged exactions are “valid exercise[s]
of federal power under the Commerce Clause” and dismissed the
complaint for failure to state a claim upon which relief can be
granted.
Plaintiffs then filed this appeal, asserting that the
district court erred as a matter of law in upholding the
Affordable Care Act. The Secretary argued to the contrary,
specifically declining to attack the district court’s “threshold
14
determination[]” as to “the applicability of the Anti-Injunction
Act.” The Secretary did, however, maintain that Congress’s
Taxing Power under Article I, § 8, cl. 1 of the Constitution
authorized the exactions imposed by the challenged mandates
because those mandates “operate as taxes.” Because the
Secretary’s contention as to the constitutionality of the
mandates under the Taxing Power suggested that the AIA bar might
apply to this suit, we ordered the parties to file supplemental
briefs to address the applicability of the AIA. In these
briefs, both the Secretary and plaintiffs contend that the AIA
does not bar this action. We disagree.
We initially explain why we believe that the plain language
of the AIA bars our consideration of this challenge. We then
address the parties’ contrary arguments: first those offered by
the Secretary (and largely adopted by the dissent), then those
advanced by plaintiffs.
II.
A.
We note at the outset the inescapable fact that federal
courts are courts of limited jurisdiction. They possess “only
that power authorized by Constitution and statute, which is not
to be expanded by judicial decree.” See Kokkonen v. Guardian
Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (internal
15
citations omitted). Accordingly, a federal court has an
“independent obligation” to investigate the limits of its
subject-matter jurisdiction. See Arbaugh v. Y&H Corp., 546 U.S.
500, 514 (2006). This is so even when the parties “either
overlook or elect not to press” the issue, Henderson v.
Shinseki, 131 S. Ct. 1197, 1202 (2011), or attempt to consent to
a court’s jurisdiction, see Sosna v. Iowa, 419 U.S. 393, 398
(1975). Our obligation to examine our subject-matter
jurisdiction is triggered whenever that jurisdiction is “fairly
in doubt.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1945 (2009).
As part of the Internal Revenue Code, the AIA provides that
“no suit for the purpose of restraining the assessment or
collection of any tax shall be maintained in any court by any
person.” I.R.C. § 7421(a). 2 The parties concede, as they must,
that, when applicable, the AIA divests federal courts of
subject-matter jurisdiction. The Supreme Court has explicitly
so held. See Enochs v. Williams Packing & Navigation Co., 370
U.S. 1, 5 (1962).
2
The Declaratory Judgment Act authorizes a federal court to
issue a declaratory judgment “except with respect to Federal
taxes.” 28 U.S.C. § 2201(a). In Bob Jones Univ. v. Simon, 416
U.S. 725, 732 n.7 (1974), the Court held that “the federal tax
exception to the Declaratory Judgment Act is at least as broad
as the Anti-Injunction Act.” Accordingly, our holding as to the
Anti-Injunction Act applies equally to plaintiffs’ request for
declaratory relief.
16
By its terms the AIA bars suits seeking to restrain the
assessment or collection of a tax. Thus, the AIA forbids only
pre-enforcement actions brought before the Secretary of the
Treasury or his delegee, the Internal Revenue Service (IRS), has
assessed or collected an exaction. A taxpayer can always pay an
assessment, seek a refund directly from the IRS, and then bring
a refund action in federal court. See United States v.
Clintwood Elkhorn Mining Co., 553 U.S. 1, 4-5 (2008).
The parties recognize that plaintiffs here have brought a
pre-enforcement action. Moreover, although Congress has
provided numerous express exceptions to the AIA bar, see I.R.C.
§ 7421(a), the parties do not claim that any of these exceptions
applies here. Resolution of the case at hand therefore turns on
whether plaintiffs’ suit seeks to restrain the assessment or
collection of “any tax.”
B.
A “tax, in the general understanding of the term,” is
simply “an exaction for the support of the government.” United
States v. Butler, 297 U.S. 1, 61 (1936). An exaction qualifies
as a tax even when the exaction raises “obviously negligible”
revenue and furthers a revenue purpose “secondary” to the
primary goal of regulation. United States v. Sanchez, 340 U.S.
42, 44 (1950); see also Bob Jones, 416 U.S. at 741 n.12. Thus,
the term “tax” can describe a wide variety of exactions. See
17
Trailer Marine Transp. Corp. v. Rivera Vazquez, 977 F.2d 1, 5
(1st Cir. 1992) (surveying cases that have regularly “applied
the label ‘tax’” to a “range of exactions,” even those that
“might not be commonly described as taxes”).
The Supreme Court has concluded that the AIA uses the term
“tax” in its broadest possible sense. This is so because the
AIA aims to ensure “prompt collection of . . . lawful revenue”
by preventing taxpayers from inundating tax collectors with pre-
enforcement lawsuits over “disputed sums.” Williams Packing,
370 U.S. at 7-8. Thus, an exaction constitutes a “tax” for
purposes of the AIA so long as the method prescribed for its
assessment conforms to the process of tax enforcement. See
Snyder v. Marks, 109 U.S. 189, 192 (1883) (defining a “tax” in
the AIA as any exaction “in a condition [of being] collected as
a tax”). Specifically, the AIA prohibits a pre-enforcement
challenge to any “exaction [that] is made under color of their
offices by revenue officers charged with the general authority
to assess and collect the revenue.” Phillips v. CIR, 283 U.S.
589, 596 (1931) (citing Snyder, 109 U.S. at 192); see also Bob
Jones, 416 U.S. at 740 (applying the AIA bar when IRS action is
authorized by “requirements of the [Internal Revenue Code]”).
The Supreme Court has steadfastly adhered to this broad
construction, notably in holding that the AIA bars pre-
enforcement challenges to exactions that do not constitute
18
“taxes” under the Constitution. Compare Bailey v. George, 259
U.S. 16 (1922) with Bailey v. Drexel Furniture Co., 259 U.S. 20
(1922). In Bailey v. Drexel Furniture, a refund action, the
Court held unconstitutional as beyond Congress’s Taxing Power a
“so-called tax,” finding it was in truth “a mere penalty, with
the characteristics of regulation and punishment.” 259 U.S. at
38. Yet the Court held the very same provision a “tax” for
purposes of the AIA and so dismissed a pre-enforcement challenge
to the exaction. See Bailey v. George, 259 U.S. at 20. In
recent years, the Court has expressly affirmed these holdings,
reiterating that the term “tax” in the AIA encompasses penalties
that function as mere “regulatory measure[s] beyond the taxing
power of Congress” and Article I of the Constitution. Bob
Jones, 416 U.S. at 740.
The Court’s broad interpretation of the AIA to bar
interference with the assessment of any exaction imposed by the
Code entirely accords with, and indeed seems to be mandated by,
other provisions of the Internal Revenue Code. The AIA does not
use the term “tax” in a vacuum; rather, it protects from
judicial interference the “assessment . . . of any tax.” I.R.C.
§ 7421(a) (emphasis added). The Secretary’s authority to make
such an “assessment . . . of any tax” derives directly from
another provision in the Code, which charges the Secretary with
making “assessments of all taxes (including interest, additional
19
amounts, additions to the tax, and assessable penalties) imposed
by this title.” § 6201(a) (emphases added); see also § 6202
(“assessment of any internal revenue tax” includes assessment of
“penalties”). Thus, for purposes of the very assessment
authority that the AIA protects, Congress made clear that
“penalties” (as well as “interest, additional amounts, [and]
additions to the tax”) count as “taxes.” Congress must have
intended the term “tax” in the AIA to refer to this same broad
range of exactions. See Erlenbaugh v. United States, 409 U.S.
239, 243 (1972) (“[A] legislative body generally uses a
particular word with a consistent meaning in a given context.”).
In sum, the AIA forbids actions that seek to restrain the
Secretary from exercising his statutory authority to assess
exactions imposed by the Internal Revenue Code. See, e.g., Bob
Jones, 416 U.S. at 740 (holding AIA barred suit challenging IRS
regulatory action when action was authorized by “requirements of
the [Internal Revenue Code]”); Mobile Republican Assembly v.
United States, 353 F.3d 1357, 1362 & n.5 (11th Cir. 2003)
(holding AIA barred suits challenging “penalties imposed” for
violating disclosure conditions of tax-exempt status); In re
Leckie Smokeless Coal Co., 99 F.3d 573, 583 & n.12 (4th Cir.
1996) (holding AIA applied to “premiums” assessed and collected
by the Secretary under color of the Internal Revenue Code); cf.
Fed. Energy Admin. v. Algonquin SNG, Inc., 426 U.S. 548, 558 n.9
20
(1976) (holding AIA did not bar challenge to “fees” because fees
not “assessed under” the Internal Revenue Code). The exaction
imposed for failure to comply with the individual mandate
constitutes a “tax[]” as defined in the Code’s assessment
provisions. See I.R.C. §§ 6201(a), 6202, 5000A(g)(1). For
these reasons, the AIA bars this action. 3
III.
The Secretary’s contrary contention primarily relies on the
fact that the individual mandate labels the imposed exaction a
“penalty,” not a “tax.” § 5000A(b). For the Secretary, the
Sixth Circuit, see Thomas More Law Center v. Obama, -- F.3d --
(6th Cir. 2011) [No. 10-2388], and now our friend in dissent,
this “penalty” label renders the AIA inapplicable.
A.
Indisputably, the AIA bars pre-enforcement challenges even
when Congress has “exhibit[ed] its intent” that a challenged
3
Although both parties generally contend that the AIA does
not bar this suit, neither offers any reason why the challenge
to the employer mandate escapes the AIA bar. There is good
reason for that. Because Congress placed the employer mandate
in the Internal Revenue Code, triggering the Secretary’s
authority to assess and collect payment, all of the reasons set
forth in the text as to why the AIA bars a pre-enforcement
challenge to the individual mandate also apply to the employer
mandate. We additionally note that Congress waived none of the
Secretary’s collection tools in imposing the employer mandate
and labeled the exaction a “tax” in certain subsections. See
§ 4980H(b)(2), (c)(7), (d)(1). Accordingly, the AIA clearly
bars Liberty’s challenge to the employer mandate.
21
exaction function as a “penalty.” Compare Bailey v. Drexel, 259
U.S. at 38, with Bailey v. George, 259 U.S. at 20. The term
“penalty” therefore describes a category of exaction to which
the Supreme Court has already applied the AIA. 4 Given this
history, it seems inconceivable that Congress would intend to
exclude an exaction from the AIA merely by describing it as a
“penalty.”
To be sure, Congress called the penalty at issue in the
Bailey cases a “tax.” That fact, however, only aids the
Secretary if there is something talismanic about the label
“penalty” that removes a challenged exaction from the scope of
the AIA. The Secretary has cited no case even remotely
supporting such a proposition. In fact, the Supreme Court has
repeatedly instructed that congressional labels have little
bearing on whether an exaction qualifies as a “tax” for
4
This is not to elide the general distinction between taxes
and penalties. We agree with the Sixth Circuit’s general
observation that there are “contexts” in which “the law treats
‘taxes’ and ‘penalties’ as mutually exclusive.” Thomas More, --
- F.3d at ___ (slip op. at 11) (citing one bankruptcy and two
constitutional cases). The question here is whether the AIA is
one of these “contexts.” Neither the Secretary nor the Sixth
Circuit cites a single case suggesting that it is. The dissent
relies on some bankruptcy cases in an attempt to import the
distinction between a revenue-raising “tax” and a regulatory
“penalty” from that context. To accept the dissent’s view would
place us at odds with the Supreme Court’s explicit holding, in
the context of the AIA, that the distinction between “regulatory
and revenue-raising” exactions has been “abandoned.” Bob Jones,
416 U.S. at 741 & n.12.
22
statutory purposes. See, e.g., Helwig v. United States, 188
U.S. 605, 613 (1903) (holding “use of words” does not “change
the nature and character of the enactment” in the context of the
revenue laws); 5 see also United States v. Reorganized CF & I
Fabricators of Utah, Inc., 518 U.S. 213, 220 (1996) (requiring a
court to look “behind the label placed on the exaction and
rest[] its answer directly on the operation of the provision”);
United States v. Sotelo, 436 U.S. 268, 275 (1978) (holding
exaction’s “penalty” label not dispositive, but its “essential
character” controls, in determining whether exaction is a tax
for bankruptcy purposes); United States v. New York, 315 U.S.
510, 515-16 (1942) (stressing that the term “tax” includes “any
pecuniary burden laid upon individuals . . . for the purpose of
5
Helwig does not, as the dissent contends, support its view
that an exaction’s label controls. The Court in Helwig
acknowledged that Congress may expressly classify an exaction as
a “penalty or in the nature of one, with reference to the
further action of the officers of the government, or with
reference to the distribution of the moneys thus paid, or with
reference to its effect upon the individual,” and that “it is
the duty of the court to be governed by such statutory
direction.” 188 U.S. at 613 (emphasis added). The Court then
identified statute after statute illustrating the various ways
in which Congress has historically directed a “duty,”
“additional duty,” or “penalty” to be treated “with reference
to” a specified governmental action. Id. at 614-19. Congress
has provided no such direction “with reference to” the AIA, and
Helwig makes clear that a mere label describing an exaction does
not constitute such direction. See id. at 613 (explaining that
“describing” an exaction “as ‘a further sum’ or ‘an additional
duty’ will not work a statutory alteration of the nature of the
imposition”).
23
supporting the government, by whatever name it may be called”
(internal quotation omitted and emphasis added)).
Indeed, the Court has specifically found an exaction’s
label immaterial to the applicability of the AIA. See Lipke,
259 U.S. 557 (1922). In Lipke, the Supreme Court held that the
“mere use of [a] word” to describe a challenged exaction was
“not enough to show” whether a “tax was laid.” Id. at 561. The
Court concluded that one of the challenged exactions, although
labeled a “tax,” functioned in reality to “suppress crime” and
so fell outside the AIA bar. Id. Moreover, notwithstanding the
“penalty” and “special penalty” labels of the other challenged
exactions, neither the majority nor Justice Brandeis in dissent
gave these labels any import in determining the applicability of
the AIA. Compare id. at 561-62 with id. at 563-65 (Brandeis,
J., dissenting).
In light of this history, it is not surprising that no
federal appellate court, except the Sixth Circuit in Thomas
More, has ever held that the label affixed to an exaction
controls, or is even relevant to, the applicability of the AIA. 6
6
We certainly respect the views of the courts, trumpeted by
the dissent, that have held the AIA inapplicable to suits like
the one at hand. We note, however, that even unanimity among
the lower courts is not necessarily predictive of the views of
the Supreme Court. See CBOCS West, Inc. v. Humphries, 553 U.S.
442, 472 (2008) (Thomas, J., dissenting) (collecting cases where
the Supreme Court has “reject[ed]” a “view uniformly held by the
courts of appeals”).
24
Nonetheless, the Secretary and the dissent insist that the label
of an exaction does control in determining if the AIA bar
applies. We first address the Secretary’s argument on this
point and then the dissent’s.
The Secretary acknowledges that when “passing on the
constitutionality of a tax law,” a court places no weight on the
“precise form of descriptive words” attached to the challenged
exaction. Nelson v. Sears, Roebuck & Co., 312 U.S. 359, 363
(1941) (internal quotation omitted) (emphasis added). But
citing the twin Bailey cases as authority, the Secretary
contends that the opposite rule must apply for purposes of the
AIA, i.e. that for purposes of the AIA, the “precise form of
descriptive words” given an exaction becomes dispositive.
The Secretary’s reliance on the twin Bailey cases is
mystifying. In fact, they provide no support for his position.
In Bailey v. Drexel Furniture, 259 U.S. at 38, a refund action,
the Court held that an exaction exceeded Congress’s
constitutional taxing authority, while on the same day, in
Bailey v. George, 259 U.S. at 16, it dismissed a pre-enforcement
challenge to the same exaction, characterizing it as a “taxing
statute” for purposes of the AIA. When dismissing the pre-
enforcement action, the Court did not state or suggest that it
classified the challenged statute as a “taxing statute” because
Congress labeled it as such. Nor does it seem plausible that
25
the Court implicitly relied on that label, given that it had
never before and has never since found an exaction’s label
controlling for statutory purposes. See, e.g., Reorganized CF &
I, 518 U.S. at 220; Sotelo, 436 U.S. at 275; Lipke, 259 U.S. at
561; Helwig, 188 U.S. at 613. Rather, only one explanation of
the twin Bailey cases coheres with the Court’s precedents: the
term “tax” in the AIA reaches any exaction assessed by the
Secretary pursuant to his authority under the Internal Revenue
Code -- even one that constitutes a “penalty” for constitutional
purposes.
The dissent’s contention that the Supreme Court’s reliance
on the statutory label in Bailey v. George is so “obvious” that
it required no explanation by the Court strikes us as unsound.
It seems doubtful that the Court departed from its normal
practice of ignoring statutory labels without explaining why it
was doing so. Instead, the more likely -- and just as
“straightforward” -- explanation is that the Court described the
exaction as a “taxing statute” because Congress had charged the
tax collector with assessing the challenged exaction. See
Snyder, 109 U.S. at 192. 7 Contrary to the dissent’s belief, this
7
The dissent argues that the statement in Snyder, 109 U.S.
at 192-93, that the term “tax” in the AIA refers to those
exactions “claimed by the proper public officers to be a tax,”
makes relevant the Secretary’s present litigation position that
the AIA does not bar this lawsuit. The most fundamental problem
with this argument is that the Secretary still does “claim” that
26
holding did not require the Court to perform any elaborate
“functional analysis,” but rather to recognize simply that the
challenged exaction formed part of the general revenue laws.
The dissent’s related contention -- that our interpretation
of Bailey v. George brings that case into conflict with Lipke,
in which the Supreme Court held that the AIA did not bar a
certain pre-enforcement challenge -- also misses the mark. In
Lipke, the Court faced a challenge to the Secretary’s assessment
of an exaction imposed pursuant to the National Prohibition Act,
a statute “primarily designed to define and suppress crime.”
259 U.S. at 561 (emphasis added). Congress had enacted the
statute to “prohibit intoxicating beverages” and authorized the
tax collector to enforce a “tax” against persons who in
violation of this criminal statute illegally manufactured or
sold liquor. 41 Stat. 318. The National Prohibition Act,
however, did not authorize the collector to make an assessment
under his general revenue authority; rather, it converted him
the challenged exaction is a “tax,” albeit one authorized by the
Constitution’s Taxing Clause. See Appellee’s Br. at 58. We
cannot hold that the AIA does not apply to this “tax” merely
because the Secretary has changed his stance on the AIA and now
contends that the exaction is a tax only for constitutional
purposes. To give the Secretary’s lawyers such a veto over the
AIA bar would abdicate our “independent obligation” to assure
ourselves of our own jurisdiction. Arbaugh, 546 U.S. at 514.
Moreover, Congress called the exaction in the employer mandate a
“tax.” See 26 U.S.C. § 4980H(b)(2), (c)(7), (d)(1). The
argument is for this reason, too, fatally flawed.
27
into a federal prosecutor. Specifically, it (1) conferred upon
the collector an array of prosecutorial powers, subject to the
control of the Attorney General, and (2) predicated the
enforcement of the challenged tax on proof of criminal guilt.
41 Stat. 305, 317-18. The Lipke Court held that the AIA did not
bar a pre-enforcement challenge to this exaction because
“guarantees of due process” required pre-enforcement review of
“penalties for crime.” 262 U.S. at 562.
Lipke thus casts no doubt on our conclusion that the term
“tax” in the AIA reaches any exaction imposed by the Code and
assessed by the tax collector pursuant to his general revenue
authority. Lipke held only that when Congress converts the tax
assessment process into a vehicle for criminal prosecution, the
Due Process Clause prohibits courts from applying the AIA. See
United States v. One Ford Coupe Auto., 272 U.S. 321, 329 (1926)
(characterizing Lipke as “merely” a “due process” case); see
also Bob Jones, 416 U.S. at 743 (describing Lipke as permitting
pre-enforcement review of “tax statutes” that function as
“adjuncts to the criminal law”); Lynn v. West, 134 F.3d 582,
594-95 (4th Cir. 1998) (citing Lipke for proposition that courts
possess jurisdiction to enjoin “a tax that is in reality a
criminal penalty”). Of course, the individual mandate imposes
no such criminal penalty, and thus presents no constitutional
impediment to applying the AIA.
28
In sum, the Supreme Court has itself emphasized that Lipke
creates only a narrow constitutional limitation, not applicable
here, on the holding of the twin Bailey cases that the AIA
reaches a broader range of exactions than does the term “tax” in
the Constitution. See Bob Jones, 416 U.S. at 741 n.12 (citing
Lipke and noting, in the context of the AIA, that the Court has
since “abandoned” any distinction between “revenue-raising”
taxes and “regulatory” penalties). Yet the theory propounded by
the Secretary and the dissent -- that a label transforms a
constitutional “tax” into a “penalty” for AIA purposes –- would
yield an AIA that reaches fewer exactions than does the
Constitution. As former Commissioners of the IRS noted in
criticizing this argument, this is the “opposite of what the
Supreme Court held” in the twin Bailey cases. See Brief for
Mortimer Caplin & Sheldon Cohen as Amici Curiae Supporting
Appellees at 24, Seven-Sky v. Holder, No. 11-5047 (D.C. Cir.
July 1, 2011). The Secretary all but acknowledges this fact,
admitting that the Bailey cases show only the “converse” of the
position that he now propounds. We cannot upend the Supreme
Court’s settled framework for determining if an exaction is a
tax for statutory purposes on the basis of a theory for which
the Secretary musters only cases that hold the “converse.”
B.
29
Perhaps in recognition of the dearth of case law supporting
their argument, the Secretary and the dissent rely heavily on an
inference they draw from the structure of the Internal Revenue
Code to support their position.
Section 6665(a)(2) provides the starting point for this
inference; it states that “any reference in this title to ‘tax’
imposed by this title shall be deemed also to refer to the . . .
penalties provided by this chapter,” i.e. Chapter 68. See
§ 6665(a)(2)(emphasis added); see also § 6671(a) (redundantly
stating the same for “penalties and liabilities provided by”
subchapter B of Chapter 68). According to the Secretary and the
dissent, § 6665(a)(2) necessarily implies that any “penalty”
outside of Chapter 68 does not qualify as a “tax” for purposes
of the Code. Because Congress codified the individual mandate
in Chapter 48 of the Code (entitled “Miscellaneous Excise
Taxes”) rather than Chapter 68 (entitled “Assessable
Penalties”), the Secretary and the dissent urge us to infer that
Congress did not intend the individual mandate to constitute a
“tax” for purposes of the AIA.
The fundamental difficulty with this argument is that
§ 6665(a)(2) merely clarifies that the term “tax” encompasses
the penalties contained in Chapter 68; it does not limit the
term “tax” to only these penalties. Nor can we imply such an
limitation, for courts must not “read the enumeration of one
30
case to exclude another unless it is fair to suppose that
Congress considered the unnamed possibility and meant to say no
to it.” Barnhart v. Peabody Coal Co., 537 U.S. 149, 168 (2003).
There is no evidence that in enacting the clarifying language of
§ 6665(a)(2), Congress intended to exclude a “penalty” codified
outside of Chapter 68 from also qualifying as a “tax.” See
United States v. Sischo, 262 U.S. 165, 169 (1923) (holding no
inference can be made to imply an exclusion when Congress enacts
an “extension,” rather than “restriction,” of a term).
Furthermore, the suggestion that we infer from § 6665(a)(2)
a categorical exclusion from the term “tax” of all non-Chapter
68 penalties violates Congress’s express instructions. In
§ 7806(b) of the Code, Congress has forbidden courts from
deriving any “inference” or “implication” from the “location or
grouping of any particular section or provision or portion of
this title.” I.R.C. § 7806(b). The argument of the Secretary
and the dissent demands that we draw precisely such a forbidden
“inference,” for under their theory, the character of a penalty
turns entirely on the Chapter in which it is “locat[ed].” 8
8
Contrary to the dissent’s contention, this conclusion does
not “reject the legal force” of § 6665(a)(2). When Congress
expressly directs that the location of a provision matters, as
it has in § 6665(a)(2), then a court need not infer anything and
Congress’s direction controls. But to adopt the position of the
Secretary and the dissent, a court would have to infer that an
exaction is not to be treated as a tax from the exaction’s place
31
Moreover, the Secretary’s newly-minted position that
Congress has implicitly excluded any “penalty” codified outside
of Chapter 68 from qualifying as a “tax” contradicts his
previous interpretation of the AIA. In Mobile Republican
Assembly, 353 F.3d 1357, the Secretary defended against a pre-
enforcement challenge to an exaction imposed by I.R.C. § 527(j),
for failure to comply with the conditions attached to tax-exempt
status. The district court held the AIA inapplicable for
precisely the reasons that the Secretary now espouses, i.e.
because Congress had labeled the exaction a “penalty” and
codified it outside of Chapter 68. See National Federation of
Republican Assemblies v. United States, 148 F. Supp. 2d 1273,
1280 (S.D. Ala. 2001). But the Secretary appealed, insisting
that the AIA did apply because the challenged “penalty” was to
be “assessed and collected in the same manner as taxes.” Br. of
Appellant at 32, Mobile Republican Assembly, 353 F.3d 1357 (Feb.
18, 2003) (No. 02-16283), 2003 WL 23469121. The Eleventh
Circuit agreed and dismissed the suit because the exaction was
based “squarely upon the explicit language of the Internal
Revenue Code” and “form[ed] part of the overall tax subsidy
scheme.” 353 F.3d at 1362 n.5.
in the Code (here Chapter 48 rather than Chapter 68). It is
this inference that the Code forbids.
32
The Secretary fails to explain his change in position or
even refer to the Eleventh Circuit’s holding that the AIA
applies to “penalties” codified outside of Chapter 68. Instead,
the Secretary’s argument boils down to his intuition, accepted
by the Sixth Circuit and the dissent, that “Congress said one
thing in sections 6665(a)(2) and 6671(a), and something else in
section 5000A [the individual mandate], and we should respect
the difference.” Thomas More, --- F.3d at ___ [No. 10-2388,
slip op. at 12].
But we can easily “respect the difference” in congressional
wording without holding plaintiffs’ challenge exempt from the
AIA bar. The legislative history of § 6665(a)(2) makes clear
that Congress inserted that provision in the course of
reorganizing and codifying the revenue laws in 1954, and did so
merely to declare explicitly what had been implicit -- that the
term “tax” for purposes of the Code also refers to “penalties”
imposed by the Code. See H.R. Rep. No. 83-1337, at A420 (1954)
(noting that predecessor to § 6665(a)(2) “conforms to the rules
under existing law” and “contain[s] no material changes to
existing law”); S. Rep. No. 83-1622, at 595-96 (1954) (same). 9
9
Congress originally inserted the text of § 6665 as § 6659
of the 1954 Code, see Internal Revenue Code of 1954, Pub. L. No.
83-289, § 6659(a)(2), 68A Stat. 1, 827 (1954), but relocated it
to § 6665 in 1989 without making any changes to it, see Omnibus
Reconciliation Act of 1989, Pub. L. No. 101-239, tit. VII,
33
Given this history, we cannot interpret § 6665(a)(2) as working
any substantive change to the Code; rather, it simply “mak[es]
explicit what” was already “implied” by the Code. Sischo, 262
U.S. at 169; see also Walters v. Nat’l Ass’n of Radiation
Survivors, 473 U.S. 305, 317-18 (1985). That Congress did not
repeat this clarifying language when it enacted the individual
mandate, which is not part of any reorganization or
recodification of the Code, demonstrates nothing. 10
Rather, Congress well knew that the Code had for decades
expressly provided that for purposes of the Secretary’s
assessment power, the term “tax” “includ[es] . . . penalties.”
I.R.C. § 6201(a). Specific direction that the term “tax” in the
AIA encompass the individual mandate “penalty” was therefore
unnecessary. Cf. Bob Jones, 416 U.S. at 741-42 (noting that
Congress intended AIA to adapt to evolving “complexity of
federal tax system”). Put another way, § 6201 specifically
provides the Secretary with authority to make “assessments of
§ 7721(a), (c)(2), 103 Stat. 2106, 2399 (1989) (codified at
I.R.C. § 6665(a)).
10
This does not mean that § 6665(a)(2), which includes
Chapter 68 penalties within the term “tax” throughout the Code,
serves no purpose. For example, § 6665(a)(2) may well be
necessary to authorize a taxpayer to pursue a civil suit for the
illegal “collection of Federal tax” against a collector who
intentionally misinterprets the Code in collecting a Chapter 68
“penalty.” See I.R.C. § 7433(a); cf. Sylvester v. United
States, 978 F. Supp. 1186, 1189 (E.D. Wis. 1997); Le Premier
Processors, Inc. v. United States, 775 F. Supp. 897, 902 n.6
(E.D. La. 1990).
34
all taxes (including . . . penalties),” and the AIA specifically
bars judicial interference with the Secretary’s power to make
“assessment . . . of any tax.” Given that Congress has not
provided to the contrary, these two provisions taken together
mandate the conclusion that the AIA bars this suit seeking to
“restrain” an “assessment” of the exaction challenged here,
regardless of the exaction’s label.
The Secretary’s contrary “label” argument not only fails to
persuade, it also requires a strained interpretation of the
Code. The Secretary urges us to take the view that Congress
intended the individual mandate to constitute the only exaction
imposed by the lengthy Internal Revenue Code that does not
qualify as a “tax.” 11 The consequences of this counterintuitive
argument extend well beyond the AIA. For example, accepting the
Secretary’s contention that the label “penalty” exempts the
individual mandate from provisions applicable to “taxes” would
inexplicably eliminate a host of procedural safeguards against
abusive tax collection. See, e.g., §§ 7217(a) (prohibiting
11
The Secretary yet again employs faulty reasoning to reach
this remarkable conclusion. He contends that three other
exactions labeled as penalties and codified outside Chapter 68 -
- I.R.C. §§ 5114(c)(3), 5684(b), 5761(e) -- constitute “taxes”
for purposes of the AIA because they shall be “assessed,
collected, and paid in the same manner as taxes, as provided in
section 6665(a).” But the only meaningful difference between
these provisions and the individual mandate is the addition of
the phrase, “as provided in section 6665(a),” which refers only
to the previous clause and does not incorporate the separate,
unreferenced parts of § 6665(a).
35
executive branch officials from requesting IRS officials to
“conduct or terminate an audit . . . with respect to the tax
liability” of any particular taxpayer), 7433(a) (providing civil
damages for unauthorized “collection of Federal tax”), 7435
(providing civil damages for unauthorized enticement of
disclosure concerning the “collection of any tax”). We will not
presume that Congress intended such an anomalous result, and we
certainly cannot infer this intent on the basis of a mere label.
C.
The Secretary’s remaining contentions, some of which are
adopted by the dissent, are brief and unsupported by any statute
or case law. All are policy arguments, relying on the
Secretary’s view of what the 2010 Congress, in enacting the
individual mandate, assertedly “would regard” as “mak[ing]
sense,” or “would not have wanted,” or as the dissent would have
it, what the 2010 Congress “intended.” According to the
Secretary and the dissent, these policy concerns demonstrate
that the 2010 Congress could not have wanted the AIA to bar pre-
enforcement challenges to the individual mandate.
The most fundamental difficulty with this contention is its
focus on the “intent” of the 2010 Congress in enacting the
individual mandate. Our task is not to divine the intent of the
2010 Congress but simply to determine whether the term “tax” in
the AIA encompasses the exaction challenged here. To resolve
36
this question, we must look to the text of the AIA and the
intent of the Congresses that enacted and re-enacted that
statute, just as the Supreme Court has done in its AIA cases.
See, e.g., South Carolina v. Regan, 465 U.S. 367, 375 (1984);
Bob Jones, 416 U.S. at 741-42; Snyder, 109 U.S. at 191.
Once we conclude that the term “tax” in the AIA does
encompass a challenged exaction, we can go no further. For the
terms of the AIA declare that courts, save for specific
statutory exceptions, not applicable here, may entertain “no
suit for the purpose of restraining the assessment or collection
of any tax.” 26 U.S.C. § 7421(a) (emphasis added). This
expansive language leaves no room for a court to carve out
exceptions based on the policy ramifications of a particular
pre-enforcement challenge. The Supreme Court said as much in
Bob Jones, repudiating its old cases that had embraced a
“departure from the literal reading of the Act” based on
“exceptional circumstances.” 416 U.S. at 743. In doing so, the
Court instructed that courts must give the AIA “literal force,
without regard to the . . . nature of the pre-enforcement
challenge.” Id. at 742.
Of course, the 2010 Congress could have exempted the
individual mandate from the AIA. But to date it has not
provided for such an exemption, and surely we cannot hold it has
implicitly done so. To infer an intent on the part of the 2010
37
Congress to exempt this pre-enforcement challenge from the
otherwise-applicable AIA bar would be tantamount to finding an
implicit repeal of that bar; such an approach would violate the
“cardinal rule” that “repeals by implication are not favored.”
TVA v. Hill, 437 U.S. 153, 189 (1978) (applying the implicit
“repeal” doctrine to the TVA’s argument that “the Act cannot
reasonably be interpreted as applying to [the challenged]
federal project”); see also United States v. United Continental
Tuna Corp., 425 U.S. 170, 169 (1976) (holding that courts must
be “hesitant to infer that Congress,” in enacting a later
statute, “intended to authorize evasion of a [prior] statute”).
Given that the terms of the AIA encompass the exaction imposed
by § 5000A(b), the “only permissible justification” for
exempting that exaction is if the individual mandate is
“irreconcilable” with the AIA. Hill, 437 U.S. at 189.
Obviously, it is not.
Accordingly, it is simply irrelevant what the 2010 Congress
would have thought about the AIA; all that matters is whether
the 2010 Congress imposed a tax. If it did, then the AIA bars
pre-enforcement challenges to that tax. After all, were we to
embrace the argument pressed by the Secretary and the dissent
that the AIA applies only when a subsequent Congress has
exhibited an intent for it to apply, we would impermissibly
render the AIA little more than a non-binding suggestion to
38
future Congresses, devoid of independent legal force. See Tuna
Corp., 425 U.S. at 169 (holding that courts must require
explicit “expression by Congress” that it intends the
“compromise or abandonment of previously articulated policies”).
The Supreme Court has rejected this very view, holding that the
AIA establishes a nearly irrebuttable presumption that no tax
may be challenged in any pre-enforcement action. See Bob Jones,
416 U.S. at 743-46.
Even taken on their own terms, however, the proffered
policy arguments fail. Neither the Secretary nor the dissent
has identified any persuasive evidence that the 2010 Congress in
fact intended to permit pre-enforcement challenges to the
individual mandate. 12 The best evidence of what Congress
12
The Secretary offers only congressional floor statements
as evidence of this supposed congressional intent. In those
statements, two Senators contemplated a potential onslaught of
challenges to the individual mandate but, as the Secretary puts
it, “never suggested that the only way for an individual to
obtain review would be . . . [through] a refund action.” The
Supreme Court has long held that such statements are of little
assistance in ascertaining congressional intent. See, e.g.,
Grove City College v. Bell, 465 U.S 555, 567 (1984). Moreover,
the floor statements relied on here are irrelevant, because at
most they signal an acknowledgment of potential lawsuits, not an
endorsement of challenges seeking pre-enforcement injunctive
relief.
The dissent goes even a step further than the Secretary,
inferring an AIA exception because drafts of what became the
Affordable Care Act had previously called the challenged
exaction a “tax.” The Supreme Court has warned against such an
approach, cautioning courts not to read much into Congress’s
unexplained decision to change wording in a final bill. See
39
intended, of course, is the legislation it actually enacted.
See Carcieri v. Salazar, 129 S. Ct. 1058, 1066-67 (2009).
Congress could have enacted an exemption from the AIA bar; it
did so in other instances. See, e.g., I.R.C. §§ 4961(c)(1)
(second-tier tax exempt from AIA), 6703(c)(1) (penalty exempt
from AIA upon satisfying statutory conditions), 7421(a) (listing
several exactions and procedures exempt from AIA). But Congress
has provided so such exemption here. Alternatively, Congress
could have crafted a specific route to pre-enforcement judicial
review. See Sigmon Coal Co. v. Apfel, 226 F.3d 291, 301 (4th
Cir. 2000); see also Clinton v. City of New York, 524 U.S. 417,
428-29 (1998). Again, it did not do so here. Thus, Congress
knows how to exempt a specific exaction from the AIA bar, and
that it did not do so here strongly undermines the contention
that Congress intended such an exemption.
Trailmobile Co. v. Whirls, 331 U.S. 40, 61 (1947) (noting that
the “interpretation of statutes cannot safely be made to rest
upon mute intermediate legislative maneuvers”). Moreover, the
dissent errs in suggesting that our holding “ignores” this
wording change; rather, we simply hold that change irrelevant to
the AIA bar. Congress’s decision to call the challenged
exaction a “penalty” may affect its treatment under sections of
the Code that expressly distinguish “taxes” from “penalties,”
e.g. those pertaining to the timing of interest accrual. See
Latterman v. United States, 872 F.2d 564, 569-70 (3d Cir. 1989).
Or Congress’s wording change may have simply carried political
benefits. See Florida v. HHS, 716 F. Supp. 2d 1120, 1142-43
(N.D. Fla. 2010). No evidence, however, indicates that the
change was intended to exempt the individual mandate from the
AIA.
40
Nor do the Secretary’s policy arguments, which the dissent
embraces, demonstrate that the AIA should not apply here. The
Secretary contends that “it makes sense that Congress would
regard it as unnecessary to apply the AIA bar” to the individual
mandate because, in the mandate, Congress prohibited the
Secretary from using his “principal tools” to “collect unpaid
taxes.” Maybe so. But the Secretary’s argument ignores the
fact that the AIA bars challenges seeking to restrain the
“assessment or collection of any tax.” I.R.C. § 7421(a)
(emphasis added). Congress’s intent to waive some of the
Secretary’s collection tools does not in any way evidence that
it would want to invite pre-enforcement challenges to the
Secretary’s remaining collection powers or all of his assessment
authority. And the Supreme Court has left no doubt that
restraining even “one method of collection” triggers the AIA’s
prohibition on injunctive suits. United States v. Am. Friends
Serv. Comm., 419 U.S. 7, 10 (1974).
Alternatively, the Secretary argues that because the
individual mandate “is ‘integral’ to the [Affordable Care Act’s]
guaranteed-issue and community-rating provisions” and has a
“delayed . . . effective date,” Congress would have “wanted”
early resolution of challenges to it and “did not intend the AIA
to prohibit pre-enforcement challenges.” This argument ignores
that any holding that the AIA bar does not apply to the
41
individual mandate might have serious long-term consequences for
the Secretary’s revenue collection. The Congressional Budget
Office projects that 34 million people will remain uninsured in
2014 and thus potentially subject to the challenged “penalty.”
Letter from Douglas W. Elmendorf, CBO Director, to Hon. Harry
Reid, Senate Majority Leader, at table 4 (Dec. 19, 2009). To
exempt the individual mandate from the AIA would invite millions
of taxpayers -- each and every year -- to refuse to pay the
§ 5000A(b) exaction and instead preemptively challenge the IRS’s
assessment.
Moreover, some of those taxpayers will undoubtedly possess
a host of non-constitutional, individual grounds upon which to
challenge the assessment of the § 5000A(b) exaction. As former
IRS Commissioners warned in a recent brief, allowing these suits
would severely hamper IRS collection efforts. See Brief for
Mortimer Caplin & Sheldon Cohen as Amici Curiae Supporting
Appellees at 12-15, Seven-Sky v. Holder, No. 11-5047 (D.C. Cir.
July 1, 2011). This would threaten to interrupt the IRS’s
collection of $4 billion annually from the challenged exaction.
See Letter from Elmendorf to Reid at table 4. Moreover, those
challenges could impede the collection of other income taxes by
preemptively resolving -- in litigation over the exaction
imposed by § 5000A(b) -- issues basic to all tax collection,
42
such as a taxpayer’s adjusted gross income. 13 See I.R.C.
§ 5000A(c)(2)(B); C.I.R. v. Sunnen, 333 U.S. 591, 597-98 (1948)
(issue preclusion “applicable in the federal income tax field”).
Thus, while the Secretary and the dissent may be correct
that we could resolve this one lawsuit with few adverse revenue
consequences, the holding necessary to reach the merits here
could, in the long-run, wreak havoc on the Secretary’s ability
to collect revenue. If Congress is persuaded by the Secretary’s
present litigation position, it can craft a specific AIA
exception for constitutional challenges to the individual
mandate. See I.R.C. § 7428(a) (inserting, after Bob Jones, an
exemption for the exact sort of pre-enforcement challenge the
Bob Jones Court had held barred by the AIA). Until it does so,
however, we are bound by its directive that we entertain “no
suit” restraining the assessment of “any tax.” § 7421(a).
IV.
Having dispensed with the Secretary’s arguments, we turn
finally to the arguments pressed by plaintiffs.
A.
13
Other issues raised by the individual mandate that are
common to many taxes include certain deductions from income
taxes (§ 5000A(c)(4)(C)(i)), child dependency determinations
(§ 5000A(b)(3)(A)), joint liability for spouses
(§ 5000A(b)(3)(B)), the income level triggering a taxpayer’s
duty to file a return (§ 5000A(c)(2)(B)), and family size for
deduction purposes (§ 5000A(c)(4)(A)).
43
Plaintiffs initially contend that the AIA bar does not
apply because this “case does not seek to restrain the
assessment or collection of a tax.” The plaintiff university in
Bob Jones tendered precisely the same initial argument. Its
“first” contention was that the AIA did not apply because its
suit was not brought “for the purpose of restraining the
assessment or collection of any tax.” 416 U.S. at 738. The
Supreme Court held that the university’s complaint “belie[d]
[this] notion.” Id. So it is here. For, in their complaint,
plaintiffs characterize the individual mandate as a “tax” and
ask for a judicial invalidation of this “tax[] upon citizens who
choose not to purchase something such as health insurance.”
They assert that the individual mandate provision, although
labeled a “penalty,” is a “tax” not apportioned as required by
Article I of the Constitution, and a “tax” beyond the scope of
congressional power under the Sixteenth Amendment of the
Constitution. Thus, as in Bob Jones, plaintiffs’ complaint
belies their initial contention. 14
14
Moreover, Bob Jones forecloses an argument that the AIA
allows a challenge to the requirement that an individual
maintain insurance, i.e. § 5000A(a), separate from a challenge
to the penalty for noncompliance with this requirement, i.e.
§ 5000A(b). Some district courts have accepted this argument.
See, e.g., Goudy-Bachman v. U.S. Dep’t of Health & Human Servs.,
764 F. Supp. 2d 684, 695 (M.D. Pa. 2011); Thomas More Law Center
v. Obama, 720 F. Supp. 2d 882, 891 (E.D. Mich. 2010). But
invalidation of the individual mandate would necessarily
preclude the Secretary from exercising his statutory authority
44
Plaintiffs’ remaining contention as to why the AIA does not
bar their challenge to the individual mandate is that it imposes
an unconstitutional regulatory penalty “not designed to raise
revenue,” which assertedly violates the Commerce Clause, the
Taxing and Spending Clause, and unspecified “other
constitutional rights.” The problem with this argument is that
a claim that an exaction is an unconstitutional regulatory
penalty does not insulate a challenge to it from the AIA bar.
Again, in Bob Jones, the Court confronted and rejected precisely
this argument.
Like plaintiffs here, the university in Bob Jones asserted
that the IRS’s “threatened action” would “violate [its
constitutional] rights.” Id. at 736 (asserting various First
and Fourteenth Amendment rights). In fact, in its brief to the
Supreme Court, the university made an argument identical to that
here. The university maintained that “what the government would
have the University do . . . involves not revenue but rather
unconstitutional compulsion,” Brief for Petitioner at 28, Bob
Jones Univ. v. Simon, 416 U.S. 725 (1973) (No. 72-1470), 1973 WL
172321. This mirrors the plaintiffs’ contention here that the
to assess the accompanying penalty. Moreover, in Bob Jones, the
Court held that the AIA barred a challenge to the IRS’s
interpretation of I.R.C. § 501(c)(3), even though that provision
itself did not impose any tax; only when coupled with § 501(a)
(making a 501(c)(3) organization exempt from income taxes) did
tax consequences result. 416 U.S. at 738.
45
mandate is “not designed to raise revenue” but instead to
unconstitutionally “compel[]” specific behavior. Just as the
Bob Jones Court held the university’s argument foreclosed by the
twin Bailey cases, see 416 U.S. at 740-41, we must hold
plaintiffs’ identical argument foreclosed by those cases.
For in Bob Jones, the Supreme Court not only reaffirmed the
twin Bailey cases as setting forth the proper course by which a
taxpayer could challenge an exaction but also explained that it
had “abandoned . . . distinctions” between “regulatory and
revenue-raising taxes.” Id. at 741 n.12. The Court held that
the AIA bar applied even to an exaction implementing a social
policy unless a plaintiff could demonstrate that the IRS “has no
legal basis” in the Code for assessing the exaction or seeks an
objective “unrelated to the protection of the revenues.” Id. at
740. Plaintiffs cannot and do not make any contention that the
IRS has “no legal basis” in the Code for assessing the penalty
in § 5000A or that this exaction is “unrelated to the protection
of the revenues.”
In sum, we find plaintiffs’ argument that the AIA does not
apply here wholly unpersuasive.
B.
Perhaps recognizing the weakness of their argument as to
the inapplicability of the AIA, plaintiffs principally contend
that a narrow judicially-created exception to the AIA permits
46
pursuit of their action seeking a pre-enforcement injunction
against enforcement of the individual mandate.
That exception allows a plaintiff to escape the AIA bar if
he demonstrates that (1) equity jurisdiction otherwise exists,
i.e. irreparable injury results if no injunction issues, and
that (2) “it is clear that under no circumstances could the
[Secretary] ultimately prevail.” Williams Packing, 370 U.S. at
7. 15 When making the latter determination, a court must take
“the most liberal view of the law and the facts” in favor of the
Secretary. Id. It is difficult to see how any irreparable
injury justifies the injunctive relief requested here. But even
assuming equity jurisdiction does exist here, plaintiffs cannot
meet the stringent standard of proving with certainty that the
Secretary has “no chance of success on the merits.” Bob Jones,
416 U.S. at 745.
In rejecting the university’s contention that it would
prevail on the merits, the Bob Jones Court explained that the
sole case in which a plaintiff had met this exacting standard
was Miller v. Standard Nut Margarine Co., 284 U.S. 498 (1932).
That case is a far cry from the case at hand. In Standard Nut,
15
The Court has carved out one other exception to the AIA
for “aggrieved parties for whom [Congress] has not provided an
alternative remedy.” See Regan, 465 U.S. at 378. That
exception clearly does not assist plaintiffs because, as the
Secretary concedes, they may challenge the individual mandate in
a refund action. See Bob Jones, 416 U.S. at 746.
47
a tax collector attempted to assess a tax that federal courts
had already held in a proper post-enforcement action did not
apply to the plaintiff’s product. Id. at 510. By contrast, to
date, no court has even considered the validity of the
individual mandate in a post-enforcement action, let alone held
it invalid in such a proceeding. Moreover, in pre-enforcement
actions, the courts of appeals have divided as to the
constitutionality of the individual mandate. Compare Florida v.
HHS, --- F.3d --- (11th Cir. 2011) (invalidating mandate) with
Thomas More, --- F.3d --- (upholding mandate). Given this
history and the presumption of constitutionality a federal court
must afford every congressional enactment, see United States v.
Morrison, 529 U.S. 598, 607 (2000), we can hardly hold that the
Secretary has “no chance of success on the merits.” Bob Jones,
416 U.S. at 745.
V.
In closing, we recognize “that Congress has imposed” a
potentially “harsh regime” on some taxpayers. Id. at 749.
However, as in Bob Jones, the question of whether these concerns
“merit consideration” is a matter for Congress to weigh. Id. at
750. Unless and until Congress tells us otherwise, we must
respect the AIA’s bar to the “intrusion of the injunctive power
48
of the courts into the administration of the revenue.” Regan,
465 U.S. at 388 (O’Connor, J., concurring).
For all these reasons, we vacate the judgment of the
district court and remand the case to that court to dismiss for
lack of subject-matter jurisdiction.
VACATED AND REMANDED
49
WYNN, Circuit Judge, concurring:
I.
I concur in Judge Motz’s fine opinion holding that the
Anti-Injunction Act applies to this case. I therefore agree
that it should be remanded to the district court for dismissal.
I note that my distinguished colleague, after vigorously
dissenting from the majority’s holding that the AIA applies,
chose to exercise his prerogative to address the merits. 1 While
I think that his position on the Commerce Clause is persuasive,
were I to reach the merits, I would uphold the constitutionality
of the Affordable Care Act on the basis that Congress had the
authority to enact the individual and employer mandates under
its plenary taxing power. 2 However, my conclusion that the
1
The majority opinion vacates the district court’s decision
and remands plaintiffs’ lawsuit for dismissal. Judge Davis
dissents from the majority’s dismissal of plaintiffs’ suit on
AIA grounds; nonetheless, on the merits, he, too, would dismiss
plaintiffs’ lawsuit.
2
Justices and judges have previously spoken on the merits
after stating that the court lacked jurisdiction; my approach
today is therefore nothing new. See Stolt-Nielsen S.A. v.
AnimalFeeds Int’l Corp., 130 S. Ct. 1758, 1777 (2010) (Ginsburg,
J., dissenting) (“The Court errs in addressing an issue not ripe
for judicial review . . . . I would dismiss the petition as
improvidently granted. Were I to reach the merits, I would
adhere to the strict limitations the Federal Arbitration Act
(FAA), 9 U.S.C. § 1 et seq., places on judicial review of
arbitral awards. § 10. Accordingly, I would affirm the
judgment of the Second Circuit, which rejected petitioners’ plea
for vacation of the arbitrators’ decision.”); Pennzoil Co. v.
50
mandates are (constitutional) taxes inevitably leads back to the
AIA’s bar to this case.
II.
A.
Plaintiffs contend that “[t]he Taxing and Spending or
General Welfare Clause does not vest Congress with the authority
to enact the mandates.” Opening Brief of Appellants Liberty
University, Michele G. Waddell and Joanne J. Merrill at 40,
Liberty Univ. v. Geithner, No. 10-2347. I disagree. The
individual and employer mandate provisions are independently
authorized by Congress’s constitutional power to “lay and
collect Taxes, Duties, Imposts and Excises, to pay the Debts and
provide for the common Defence and general Welfare of the United
States . . . .” U.S. Const. art. I, § 8, cl. 1.
Texaco, Inc., 481 U.S. 1, 23 (1987) (Marshall, J., concurring in
the judgment) (“Were I to reach the merits I would reverse for
the reasons stated in the concurring opinions of Justices
Brennan and Stevens, in which I join. But I can find no basis
for the District Court’s unwarranted assumption of jurisdiction
over the subject matter of this lawsuit, and upon that ground
alone I would reverse the decision below.”); Veterans for Common
Sense v. Shinseki, 644 F.3d 845, 900 (9th Cir. 2011) (Kozinski,
J., dissenting) (determining that court lacked jurisdiction but
also analyzing claims on their merits); Patel v. Holder, 563
F.3d 565, 569 (7th Cir. 2009) (majority opinion doing same); cf.
Helvering v. Davis, 301 U.S. 619, 639-40 (1937) (noting the
belief of Justices Cardozo, Brandeis, Stone, and Roberts that
the case should be dismissed but nevertheless reaching the
merits in an opinion authored by Justice Cardozo).
51
“A tax, in the general understanding of the term, and as
used in the Constitution, signifies an exaction for the support
of the government.” United States v. Butler, 297 U.S. 1, 61
(1936). Stated differently, a tax is a “pecuniary burden laid
upon individuals or property for the purpose of supporting the
government.” United States v. New York, 315 U.S. 510, 515-16
(1942) (quoting New Jersey v. Anderson, 203 U.S. 483, 492
(1906)).
Before analyzing whether the exactions in question were
authorized under Congress’s taxing power, it is useful first to
clarify that neither an exaction’s label nor its regulatory
intent or effect is germane to the constitutional inquiry. To
determine whether an exaction constitutes a tax, the Supreme
Court has instructed us to look not at what an exaction is
called but instead at what it does. Nelson v. Sears, Roebuck &
Co., 312 U.S. 359, 363 (1941) (stating that when “passing on the
constitutionality of a tax law,” a court is “‘concerned only
with its practical operation, not its definition or the precise
form of descriptive words which may be applied to it’”) (quoting
Lawrence v. State Tax Comm’n, 286 U.S. 276, 280 (1932)); see
also United States v. New York, 315 U.S. at 515-16 (stating that
an exaction meeting the definition of a tax will be construed as
such regardless of “whatever name it may be called”). This
makes sense, given that the Constitution itself uses four
52
different terms to refer to the concept of taxation: taxes,
imposts, duties, and excises. U.S. Const. art. I, § 8, cl. 1. 3
Accordingly, the Supreme Court has characterized
legislative acts as “taxes” without regard to the labels used by
Congress. See, e.g., United States v. Sotelo, 436 U.S. 268, 275
(1978) (deeming an exaction labeled a “penalty” in the Internal
Revenue Code a tax for bankruptcy purposes); License Tax Cases,
72 U.S. (5 Wall.) 462, 470-71 (1866) (sustaining under the
taxing power a federal statute requiring the purchase of a
license before engaging in certain businesses and stating that
“the granting of a license . . . must be regarded as nothing
more than a mere form of imposing a tax”); see also In re Leckie
Smokeless Coal Co., 99 F.3d 573, 583 (4th Cir. 1996) (holding
that, for purposes of the AIA, “premiums” constituted taxes).
Further, a tax—regardless of its label—“does not cease to
be valid merely because it regulates, discourages, or even
definitely deters the activities taxed.” United States v.
Sanchez, 340 U.S. 42, 44 (1950). As long as a statute is
“productive of some revenue,” Congress may exercise its taxing
power without “collateral inquiry as to the measure of the
regulatory effect [of the statute in question].” Sonzinsky v.
3
Congress also does not have to invoke the source of
authority for its enactments. “The question of the
constitutionality of action taken by Congress does not depend on
recitals of the power which it undertakes to exercise.” Woods
v. Cloyd W. Miller Co., 333 U.S. 138, 144 (1948).
53
United States, 300 U.S. 506, 514 (1937). And if “the
legislation enacted has some reasonable relation to the exercise
of the taxing authority conferred by the Constitution, it cannot
be invalidated because of the supposed motives which induced
it.” United States v. Doremus, 249 U.S. 86, 93 (1919).
I recognize that some cases from the 1920s and 1930s
suggest that taxes are either regulatory or revenue-raising and
that the former are unconstitutional. See, e.g., Bailey v.
Drexel Furniture Co., 259 U.S. 20, 37-44 (1922) (holding that a
tax on goods made by child labor was an unconstitutional
penalty). However, both older and newer opinions indicate that
the revenue-versus-regulatory distinction was short-lived and is
now defunct. See, e.g., United States v. Kahriger, 345 U.S. 22,
28 (1953) (upholding tax on bookmakers and stating, “It is
conceded that a federal excise tax does not cease to be valid
merely because it discourages or deters the activities taxed.”),
overruled in part on other grounds, Marchetti v. United States,
390 U.S. 39 (1968); Sonzinsky, 300 U.S. at 514 (1937 case
upholding a tax on firearm dealers despite registration
provision and alleged regulatory effects); Doremus, 249 U.S. at
95 (1919 case upholding the Narcotic Drugs Act, which taxed and
regulated sales of narcotics); McCray v. United States, 195 U.S.
27, 59 (1904) (upholding tax on colored margarine and stating,
“Since . . . the taxing power conferred by the Constitution
54
knows no limits except those expressly stated in that
instrument, it must follow, if a tax be within the lawful power,
the exertion of that power may not be judicially restrained
because of the results to arise from its exercise.”).
It is not surprising that this distinction did not endure,
given that taxes can, and do, both regulate and generate revenue
at the same time. Indeed, as the Supreme Court recognized in
Sonzinsky, “[e]very tax is in some measure regulatory. To some
extent it interposes an economic impediment to the activity
taxed as compared with others not taxed. But a tax is not any
the less a tax because it has a regulatory effect . . . .” 300
U.S. at 513. And “[i]n like manner every rebate from a tax when
conditioned upon conduct is in some measure a temptation. But
to hold that motive or temptation is equivalent to coercion is
to plunge the law in endless difficulties.” Chas. C. Steward
Mach. Co. v. Davis, 301 U.S. 548, 589-90 (1937). Accordingly,
in Bob Jones University v. Simon, 416 U.S. 725 (1974), the
Supreme Court recognized that, while in some early cases it
“drew what it saw at the time as distinctions between regulatory
and revenue-raising taxes,” the Court “subsequently abandoned
such distinctions.” Id. at 741 n.12, overruled in part on other
grounds by South Carolina v. Ragan, 465 U.S. 367, 379 (1984).
Courts, therefore, do not look to labels, regulatory
intent, or regulatory effect. Instead, we must consider whether
55
something that operates as a tax is authorized under Congress’s
taxing power, which has been described as “very extensive,”
License Tax Cases, 72 U.S. at 471, and indeed “virtually without
limitation.” United States v. Ptasynski, 462 U.S. 74, 79
(1983). As Justice Cardozo recognized in Helvering,
The discretion [to tax and spend for the general
welfare] belongs to Congress, unless the choice is
clearly wrong, a display of arbitrary power, [or] not
an exercise of judgment. This is now familiar law.
“When such a contention comes here we naturally
require a showing that by no reasonable possibility
can the challenged legislation fall within the wide
range of discretion permitted to the Congress.”
301 U.S. at 640-41 (quoting Butler, 297 U.S. at 67).
There are essentially three features that a tax must
exhibit to be constitutional. First, to pass constitutional
muster, a tax must bear “some reasonable relation” to raising
revenue. Doremus, 249 U.S. at 93. The amount of revenue raised
is irrelevant: A tax does not cease to be one “even though the
revenue obtained is obviously negligible, or the revenue purpose
of the tax may be secondary.” Sanchez, 340 U.S. at 44
(citations omitted). Instead, the measure must simply be
“productive of some revenue.” Sonzinsky, 300 U.S. at 514
(upholding tax that raised $5,400 in revenue in 1934).
Second, to be constitutional, a tax must be imposed for the
general welfare. Congress enjoys wide discretion regarding what
is in the general welfare. “The discretion . . . is not
56
confided to the courts. The discretion belongs to Congress,
unless the choice is clearly wrong, a display of arbitrary
power, not an exercise of judgment.” Helvering, 301 U.S. at
640. Therefore, in determining whether a congressional
enactment furthers the general welfare, “courts should defer
substantially to the judgment of Congress.” South Dakota v.
Dole, 483 U.S. 203, 207 (1987).
Finally, even if an exaction is rationally related to
raising revenue and furthers the general welfare, to be
constitutional, it must not infringe upon another constitutional
right. For example, a tax may not infringe on an individual’s
right to be free from double jeopardy by further punishing
criminal conduct. See Dep’t of Revenue of Montana v. Kurth
Ranch, 511 U.S. 767, 780-83 (1994) (concluding that a drug tax
was actually a criminal penalty based on its high rate, its
deterrent purpose, and a criminal prohibition on the taxed
activity and holding that the tax consequently violated the
Double Jeopardy Clause of the Fifth Amendment).
B.
Turning now to the case at hand, the provisions at issue
are the exaction provisions in the individual and employer
mandates. I would conclude, after examining their practical
operation, that these provisions impose taxes.
57
The individual mandate exaction in 26 U.S.C. § 5000A(b)
amends the Internal Revenue Code to provide that a non-exempted
individual who fails to maintain a minimum level of insurance
must pay a “penalty.” Notably, while the individual mandate in
some places uses the term “penalty,” some form of the word “tax”
appears in the statute over forty times. 26 U.S.C. § 5000A.
For example, it references taxpayers and their returns, includes
amounts due under the provision in the taxpayer’s tax return
liability, calculates the penalty by reference to household
income for tax purposes, and allows the Secretary of the
Treasury to enforce the provision like other taxes (with several
procedural exceptions). Id. Yet, as explained above, the label
applied to an exaction is irrelevant; instead, in assessing an
exaction’s constitutionality, we look to its practical
operation.
The practical operation of the individual mandate provision
is as a tax. Individuals who are not required to file income
tax returns are not required to pay the penalty. Id.
§ 5000A(e)(2). The amount of any penalty owed is generally
calculated by reference to household income and reported on an
individual’s federal income tax return. Id. § 5000A(b)-(c). 4
4
The statute prescribes monthly penalties in an amount
calculated by identifying a specified “percentage of the excess
of the taxpayer’s household income for the taxable year over the
amount of gross income specified in section 6012(a)(1)” unless
58
Taxpayers filing jointly are jointly liable for the penalty.
Id. § 5000A(b)(3)(B). And the Secretary of the Treasury is
empowered to enforce the provision like a tax, albeit with
several procedural exceptions. 5 Id. § 5000A(g). The individual
mandate exaction, codified in the Internal Revenue Code,
therefore functions as a tax.
Looking next at the employer mandate exaction in 26 U.S.C.
§ 4980H, it amends the Internal Revenue Code to impose an
“assessable payment” on large employers if a health exchange
notifies the employer that at least one full-time employee
obtains a premium tax credit or cost-sharing reduction. Id. §
4980H(a)–(b). The amount of the assessable payment is
calculated differently based on whether the employer offers
adequate health insurance coverage to its employees. Id. §
that calculation produces an amount that is less than certain
statutorily defined thresholds. 26 U.S.C. § 5000A(c)(2).
Ultimately, the penalty owed by a taxpayer is equal to the
lesser of either the sum of the monthly penalties owed by the
taxpayer or the cost of the “national average premium for
qualified health plans which have a bronze level of coverage,
provide coverage for the applicable family size involved, and
are offered through Exchanges for plan years beginning in the
calendar year with or within which the taxable year ends.” Id.
§ 5000A(c)(1).
5
The fact that Congress considered it necessary to exempt
the individual mandate exaction from some traditional tax
collection procedures like criminal liability and liens
evidences that the exaction is a tax. 26 U.S.C. § 5000A(g)(2).
Otherwise, there would be no need to except the exaction from
some of the standard tax collection procedures, which otherwise
apply.
59
4980H(a)–(c). And instead of the term “penalty,” the employer
mandate uses the terms “assessable payment” and “tax.” Id. §
4980H(b). Like the individual mandate exaction, the practical
operation of this provision is as a tax that is assessed and
collected in the same manner as other Internal Revenue Code
penalties treated as taxes. 6 Id. § 4980H(d).
Having concluded that the individual and employer mandates
operate as taxes, 7 to determine whether they are constitutional,
I must consider whether they: 1) are reasonably related to
raising revenue; 2) serve the general welfare; and 3) do not
infringe upon any other right.
The individual and employer exactions are surely related to
raising revenue. The Congressional Budget Office estimated that
the individual mandate exaction will generate approximately $4
billion annually, and the employer mandate exaction, $11 billion
annually, by 2019. Letter from Douglas W. Elmendorf, Dir.,
Cong. Budget Office, to Hon. Nancy Pelosi, Speaker, U.S. House
of Representatives, tbl. 4 (Mar. 20, 2010), available at
http://www.cbo.gov/ftpdocs/113xx/doc11379/AmendReconProp.pdf;
6
No exceptions to the standard collection procedures exist
in the case of the employer mandate. 26 U.S.C. § 4980H(d).
7
Since the Supreme Court long ago established that Congress
did not have to invoke the word “tax” to act within its taxing
power, Congress’s use of other verbiage in portions of the
individual and employer mandates, and most notably in the
“penalty” provision of the individual mandate, sheds little
light on Congressional intent. See Nelson, 312 U.S. at 363.
60
see also Patient Protection and Affordable Care Act, Pub. L. No.
111-148, § 1563(a), 124 Stat. 119, 270 (stating that the
Affordable Care Act “will reduce the Federal deficit”). Not
only will the exactions raise significant amounts of revenue,
but the revenue raised can cover the “[h]igher government costs
attributable to the uninsured . . . implicitly paid for by the
insured . . . through increased taxes or reductions in other
government services as money is spent on the uninsured.” Brief
Amici Curiae of Economic Scholars in Support of Defendants-
Appellees at 13, Liberty Univ. v. Geithner, No. 10-2347. In
other words, as Judge Davis notes in his opinion, “[b]ecause the
uninsured effectively force the rest of the nation to insure
them with respect to basic, stabilizing care, this penalty is
something like a premium paid into the federal government, which
bears a large share of the shifted costs as the largest insurer
in the nation.” Post at 125. Clearly, then, the exactions bear
“some reasonable relation” to raising revenue. Doremus, 249
U.S. at 93. See also Sonzinsky, 300 U.S. at 514 (upholding tax
that raised $5,400 in revenue).
Further, the individual and employer mandate exactions
serve the general welfare. The Affordable Care Act is aimed at,
among other things, reducing the number of the uninsured as well
as the cost of those who remain uninsured imposed on those who
are insured. Congress found that, nationwide, hospitals
61
provided $43 billion in uncompensated care to the uninsured in
2009 and that these costs were shifted onto insured individuals,
“increas[ing] family premiums by on average over $1,000 a year.”
42 U.S.C. § 18091(a)(2)(F). It also found that “[b]y
significantly reducing the number of the uninsured, the
[individual mandate], together with the other provisions of
th[e] Act, will lower health insurance premiums.” Id. By
encouraging individuals to purchase health insurance and
employers to provide it, the individual and employer mandates
alleviate the costs associated with providing uncompensated care
to the uninsured and lower health insurance premiums. Such cost
reductions and expansions in access to health insurance surely
constitute contributions to the general welfare.
Finally, neither the exaction in the individual mandate nor
that in the employer mandate infringes on other rights. The
exactions do not, for example, operate to impose duplicative
criminal penalties in violation of the prohibition against
double jeopardy. See Kurth Ranch, 511 U.S. at 780-83 (“Taxes
imposed upon illegal activities are fundamentally different from
taxes with a pure revenue-raising purpose that are imposed
despite their adverse effect on the taxed activity.”). The
provisions lack the punitive character of other measures the
Supreme Court has held to be penalties. Id.; see also, e.g.,
Bailey, 259 U.S. at 36. And the provisions do not appear to
62
violate any other rights: No one has a right to be free from
taxation. 8
C.
It bears mention that the individual and employer mandate
exactions do not run afoul of the constitutional requirement
that “[n]o Capitation, or other direct, Tax shall be laid,
unless in Proportion to the Census or Enumeration herein before
directed to be taken.” U.S. Const. art. I, § 9, cl. 4. This
clause has its origins in the Constitutional Convention’s
slavery debates. The Northern states consented to count a slave
as three-fifths of a person for allocating representatives in
Congress in exchange for a corresponding increase in the tax
liability of Southern states. Brian Galle, The Taxing Power,
the Affordable Care Act, and the Limits of Constitutional
Compromise, 120 Yale L.J. Online 407, 414 (Apr. 5, 2011),
http://yalelawjournal.org/2011/4/5/galle.html. Even at that
time, the definition of “direct” tax was unclear. Id.; Springer
v. United States, 102 U.S. 586, 596 (1880) (“It does not appear
8
Additionally, any contention that the individual mandate
violates either the First, Fifth, or Tenth Amendment is, in my
opinion, meritless. See post at 134-40; Florida ex rel. Atty.
Gen. v. U.S. Dep’t of Health & Human Servs., --- F.3d ---, 2011
WL 3519178, at *113-17 (11th Cir. Aug. 12, 2011) (Marcus, J.,
dissenting).
63
that an attempt was made by any one to define the exact meaning
of the language employed.”).
It is therefore understandable that the Supreme Court has
demonstrated reluctance to strike a tax based solely on the
direct/indirect distinction. See Knowlton v. Moore, 178 U.S.
41, 83 (1900) (“[I]t is no part of the duty of this court to
lessen, impede, or obstruct the exercise of the taxing power by
merely abstruse and subtle distinctions as to the particular
nature of a specified tax, where such distinction rests more
upon the differing theories of political economists than upon
the practical nature of the tax itself.” (quoting Nicol v. Ames,
173 U.S. 509, 515 (1899)). Indeed, the Supreme Court restricted
the meaning of “direct” taxes to capitation, or head taxes, and
taxes on the ownership of real property. Springer, 102 U.S. at
602; Veazie Bank v. Fenno, 75 U.S. (8 Wall.) 533, 544 (1869).
Taxes on personal property have also been held to be direct.
Pollock v. Farmers’ Loan & Trust Co., 158 U.S. 601, 637 (1895),
superseded on other grounds by constitutional amendment, U.S.
Const. amend. XVI, as recognized in Brushaber, 240 U.S. 1.
The Supreme Court has never struck down a federal tax as an
unapportioned capitation tax. And the Supreme Court has
repeatedly upheld a variety of federal taxes as indirect and
therefore outside the apportionment requirement. See Knowlton,
178 U.S. at 83 (upholding a federal estate tax); Bromley v.
64
McCaughn, 280 U.S. 124, 138 (1929) (upholding a federal gift
tax); United States v. Mfrs. Nat’l Bank of Detroit, 363 U.S.
194, 199 (1960) (upholding a federal estate tax collected on an
insurance policy). As the Supreme Court has explained, “[a] tax
laid upon the happening of an event, as distinguished from its
tangible fruits, is an indirect tax which Congress . . .
undoubtedly may impose.” Tyler v. United States, 281 U.S. 497,
502 (1930).
The individual and employer mandate exactions are not
capitation taxes; nor are they direct taxes that must be
apportioned. Far from being imposed without regard to
circumstance, they will be imposed only upon taxpayers who can
afford, but fail to maintain, health insurance, or upon
employers who fail to provide adequate and affordable insurance.
See 26 U.S.C. §§ 4980H, 5000A. As taxes “laid upon the
happening of an event,” the individual and employer mandate
exactions are clearly indirect. See Tyler, 281 U.S. at 502.
Nor are they property taxes, since they will not be assessed
based on the ownership of property.
Indeed, the Supreme Court has so limited the application of
the Direct Tax Clause that the Sixth Circuit concluded that it
“relates solely to taxation generally for the purpose of revenue
only, and not impositions made incidentally under the commerce
clause exerted either directly or by delegation, as a means of
65
constraining and regulating what may be considered by the
Congress as pernicious or harmful to commerce.” Rodgers v.
United States, 138 F.2d 992, 995 (6th Cir. 1943). Since the
individual and employer mandate exactions are neither capitation
nor property taxes, the Direct Tax Clause is inapplicable, and
the individual and employer mandate taxes stand.
III.
In sum, I concur in Judge Motz’s fine opinion holding that
the AIA applies here. Our distinguished colleague vigorously
dissents from our holding and presents a credible basis for
upholding the constitutionality of the Affordable Care Act under
the Commerce Clause. However, were I to rule on the merits, for
the reasons given in this opinion, I would uphold the
constitutionality of the Affordable Care Act on the basis that
Congress had the authority to enact the individual and employer
mandates, which operate as taxes, under its taxing power.
Accordingly, I must agree with Judge Motz that the AIA bars this
suit.
66
DAVIS, Circuit Judge, dissenting:
Today we are asked to rule on the constitutionality of core
provisions of the Patient Protection and Affordable Care Act.
Appellants advance several arguments against the Act, chief
among them their claim that Congress exceeded its power when it
sought to require all individuals (with narrow exceptions) to
obtain a certain minimum of health insurance coverage starting
in 2014. 26 U.S.C. § 5000A. In particular, appellants urge that
the Commerce Clause, which authorizes Congress “To regulate
Commerce . . . among the several States,” U.S. Const. art. I, §
8, cl. 3, allows only regulation of economic activity. Thus,
they contend, Congress cannot regulate appellants’ “decision not
to purchase health insurance and to otherwise privately manage
[their] own healthcare,” which they characterize as “inactivity
in commerce,” Appellants’ Br. 1. They also contend that
upholding the Act under the Commerce Clause would “create an
unconstitutional national police power that would threaten all
aspects of American life,” id. at 11, suggesting in particular
that “Congress could require that people buy and consume
broccoli at regular intervals” or that “everyone above a certain
income threshold buy a General Motors automobile,” Appellants’
Reply Br. 9 (quoting Florida ex rel. Bondi v. Dep’t of Health
and Human Servs., --- F. Supp. 2d ----, ----, 2011 WL 285683, at
*24 (N.D. Fla. Jan. 31, 2011), aff’d in part and rev’d in part
67
sub nom. Florida v. U.S. Dept. of Health & Human Servs., ---
F.3d ----, 2011 WL 3519178 (11th Cir. Aug. 12, 2011)).
Appellants bring a similar facial challenge to the Act’s
employer mandate, and they also assert Free Exercise,
Establishment Clause, and Equal Protection claims against the
Act.
My good colleagues in the majority hold that the Anti-
Injunction Act strips us of jurisdiction in this case. For
reasons I explain at length below, I disagree. As I reject the
reasoning and the result of the majority’s jurisdictional
analysis, I am entitled to reach the merits of appellants’
claims. Reaching the merits, I would hold that the challenged
provisions of the Act are a proper exercise of Congress’s
authority under the Commerce Clause to regulate the interstate
markets for health services and health insurance. I do not
believe that constitutional review of the Act requires courts to
decide whether the Commerce Clause discriminates between
activity and inactivity. But even if I were to assume appellants
were “inactive,” I could not accept appellants’ contention that
a distinction between “activity” and “inactivity” is vital to
Commerce Clause analysis. I would therefore affirm the district
court’s dismissal of appellants’ suit.
Appellants raise two major concerns about upholding the
Act: first, they believe that individual liberty is infringed
68
when the federal government is permitted to regulate involuntary
market participants; second, they fear that our liberty will be
further eroded in the future, as a ruling sustaining the Act
would permit Congress to establish arbitrary purchase mandates.
Because I take these concerns very seriously, I explain at some
length why the Act is a far more limited exercise of federal
power than appellants fear.
I. Anti-Injunction Act
A. My View
The majority concludes that the Anti-Injunction Act (AIA)
applies to the challenged provisions of the Affordable Care Act,
depriving us of subject-matter jurisdiction. Although the
parties argue that we have jurisdiction, “federal courts have an
independent obligation to . . . raise and decide jurisdictional
questions that the parties either overlook or elect not to
press.” Henderson ex rel. Henderson v. Shinseki, --- U.S. ---, -
--, 131 S. Ct. 1197, 1202 (2011).
Before today, nine federal judges had expressly considered
the application of the Anti-Injunction Act, and all nine held it
inapplicable to the Affordable Care Act’s mandates. See Thomas
More Law Center v. Obama, --- F.3d ----, ----, 2011 WL 2556039,
at *6-*8 (6th Cir. June 29, 2011); Goudy-Bachman v. United
States Dept. of Health & Human Servs., 764 F. Supp. 2d 684, 695-
97 (M.D. Pa. 2011); Liberty University, Inc. v. Geithner, 753 F.
69
Supp. 2d 611, 627-29 (W.D. Va. 2010); United States Citizens
Ass’n v. Sebelius, 754 F. Supp. 2d 903, 909 (N.D. Ohio 2010);
Florida ex rel. McCollum v. United States Dept. of Health &
Human Servs., 716 F. Supp. 2d 1120, 1130-44 (N.D. Fla. 2010);
Thomas More Law Center v. Obama, 720 F. Supp. 2d 882, 890-91
(E.D. Mich. 2010); Virginia ex rel. Cuccinelli v. Sebellius, 702
F. Supp. 2d 598, 603-605 (E.D. Va. 2010). Although the two
circuit courts that have considered challenges to the mandates
have split, all six members of those panels agreed that the
courts should reach the merits; only the Sixth Circuit panel
thought it necessary to discuss the AIA. Florida v. U.S. Dept.
of Health & Human Servs., --- F.3d ----, 2011 WL 3519178 (11th
Cir. Aug. 12, 2011) (reaching the merits without raising the
applicability of the AIA); Thomas More Law Center, --- F.3d at -
---, 2011 WL at *6-*8 (expressly holding the AIA does not
apply). For the following reasons, I agree with these judges and
would hold that the AIA does not strip us of jurisdiction in
this case.
The Anti-Injunction Act, originally enacted in 1867,
directs that “no suit for the purpose of restraining the
assessment or collection of any tax shall be maintained in any
court by any person,” certain enumerated exceptions aside. 26
70
U.S.C. § 7421(a). 1 Thus, we have jurisdiction only if the penalty
provisions attached to the challenged mandates do not constitute
“tax[es]” for purposes of the AIA. 2
The Sixth Circuit recently held that the individual
mandate’s penalty provision was not a “tax” within the meaning
of the AIA. Thomas More Law Center, --- F.3d at ----, 2011 WL at
*6-*8. Its reasoning is straightforward: Congress spoke only of
“tax[es]” in the Anti-Injunction Act, while it deemed the amount
owed by those in violation of the individual mandate a
“penalty.” See id. at *7; compare 26 U.S.C. § 7421(a) with id. §
5000A(b), (c), (e), (g). And Congress did not simply use the
term “penalty” in passing: Congress refers to the exaction no
fewer than seventeen times in the relevant provision, and each
time Congress calls it a “penalty.”
1
Although appellants also requested declaratory relief, the
Declaratory Judgment Act “enlarged the range of remedies
available in the federal courts but did not extend their
jurisdiction.” Skelly Oil Co. v. Phillips Petroleum Co., 339
U.S. 667, 671 (1950); In re Leckie Smokeless Coal Co., 99 F.3d
573, 582 (4th Cir. 1996). In any case, the Declaratory Judgment
Act expressly excludes claims “with respect to Federal taxes.”
28 U.S.C. § 2201(a). The Supreme Court has held this exclusion
to be “at least as broad as the Anti-Injunction Act.” Bob Jones
Univ. v. Simon, 416 U.S. 725, 732 n.7 (1974).
2
This question of statutory interpretation is wholly
distinct from the constitutional question concerning Congress’s
power under the Taxing and Spending Clause, U.S. Const. art. I,
§ 8, cl. 1, to enact these mandates. Because I would hold the
Act constitutional under the Commerce Clause, I need not and do
not reach the latter issue.
71
In fact, Congress considered earlier versions of the
individual mandate that clearly characterized the exaction as a
“tax” and referred to it as such more than a dozen times. See
H.R. 3962, § 501, 111th Cong. (2009) (“impos[ing] a tax” in
section entitled “Tax on individuals without acceptable health
care coverage,” and repeatedly referring to this exaction as a
“tax”); H.R. 3200, § 401, 111th Cong. (2009) (same); S. 1796, §
1301, 111th Cong. (2009) (“impos[ing] a tax” in section entitled
“Excise tax on individuals without essential health benefits
coverage,” and repeatedly referring to exaction as a “tax”).
Congress deliberately deleted all of these references to a “tax”
in the final version of the Act and instead designated the
exaction a “penalty.” As the Supreme Court noted in INS v.
Cardoza-Fonseca, “[f]ew principles of statutory construction are
more compelling than the proposition that Congress does not
intend sub silentio to enact statutory language that it has
earlier discarded in favor of other language.” 480 U.S. 421,
442-43 (1987). Thus, it seems odd for the majority to ignore
Congress’s deliberate drafting decision to call the exaction a
“penalty” rather than a “tax.”
When Congress has wished “penalties” to be treated as
“taxes,” it has said so expressly. In Subchapter A of Chapter 68
of the Internal Revenue Code, Congress directed that “any
reference in this title [Title 26 of the United States Code (the
72
Internal Revenue Code)] to ‘tax’ imposed by this title shall be
deemed also to refer to the additions to the tax, additional
amounts, and penalties provided by this chapter.” Id. §
6665(a)(1). Likewise, in Subchapter B of that chapter, Congress
instructed that “any reference in this title to ‘tax’ imposed by
this title shall be deemed also to refer to the penalties and
liabilities provided by this subchapter.” Id. § 6671(a). Yet,
Congress chose to place the individual mandate and its “penalty”
provisions not in Chapter 68 but in Chapter 48, which contains
no such instructions. Though Congress did provide that this
penalty “be assessed and collected in the same manner as an
assessable penalty under subchapter B of chapter 68,” and
Chapter 68 “penalties” are treated as “taxes,” the term
“assessment and collection like a tax” does not imply that the
penalty should be treated as a tax for any and all other
purposes. Id. § 5000A(g)(1). As the Sixth Circuit recently
observed, “Congress said one thing in sections 665(a)(2) and
6671(a), and something else in section 5000A, and we should
respect the difference.” Thomas More, 2011 WL at *7.
“Where, as here, resolution of federal law turns on a
statute and the intention of Congress, we look first to the
statutory language and then to the legislative history if the
statutory language is unclear.” Blum v. Stenson, 465 U.S. 886,
896 (1984). Courts look to legislative history first to see
73
whether it indicates that Congress intended a particular result
and then, if not, to find evidence of the purposes of the
statute. Cf. Dolan v. United States Postal Service, 546 U.S.
481, 486 (2006) (“Interpretation of a word or phrase depends
upon reading the whole statutory text, considering the purpose
and context of the statute . . . .”). Even if the statutory text
were unclear here, legislative history indicates that the AIA
should not apply.
Legislative history of the Affordable Care Act reveals that
Congress never considered application of the Anti-Injunction
Act. Nowhere in the Act’s voluminous legislative history can I
find a single reference to the AIA. And when members of Congress
discussed the inevitable judicial review of the Affordable Care
Act, no one appears to have contemplated that the AIA might bar
such review for the five years, post-enactment, that would have
to elapse before a tax refund suit could be brought.
Looking, then, to legislative purpose, it appears that
immediate judicial review of the individual mandate would do
little to frustrate the aims of the AIA. The Anti-Injunction Act
was intended to “protect[] the expeditious collection of
revenue.” South Carolina v. Regan, 465 U.S. 367, 376 (1984).
Revenue from the individual mandate’s penalty provision will not
be assessed and collected until the year after the mandate
becomes operative—2015. Judicial review of the mandate in 2011
74
most assuredly will not frustrate “the expeditious collection of
revenue” four years later. I also note that Congress forbid the
Internal Revenue Service from employing its primary enforcement
mechanisms to collect this penalty: the IRS may not seek the
institution of criminal prosecutions by the Justice Department
or impose a lien or levy on an individual’s property for failure
to pay the penalty. 26 U.S.C. § 5000A(g)(2). This indicates that
Congress had scant concern for “the expeditious collection of
revenue” from the penalty provision.
A failure to provide immediate judicial review in reliance
on a rather strained construction of the AIA, on the other hand,
might undermine the core purpose of the Affordable Care Act. In
the absence of a conclusive ruling from the federal courts, some
individuals may well decide for themselves that the Act is
unconstitutional and thus can be ignored. In the case of an
ordinary tax this would simply result in some lost revenue and
the costs of tax prosecutions; here, it would push the nation
farther from Congress’s goal of attaining near-universal health
insurance coverage. And, as leaving the constitutionality of the
Act unsettled would seem likely to create uncertainty in the
health insurance and health care industries, which might depress
these major sectors of the economy, it seems that application of
the AIA would be at cross-purposes with the Act’s reforms. Thus,
I believe that there is ample reason for me to conclude that
75
Congress had no design that the Anti-Injunction Act might apply
to the individual mandate’s penalty provisions.
The question of our jurisdiction over appellants’ challenge
to the analogous penalty attached to the employer mandate
presents a closer question. That exaction is termed “an
assessable payment” in the provision that imposes it, but it is
then twice referred to as a “tax” in later, qualifying
provisions. Compare Id. § 4980H(a) with id. § 4980H(b)(2),
(c)(7). “The . . . ambiguity of statutory language is determined
by reference to the language itself, the specific context in
which that language is used, and the broader context of the
statute as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337,
341 (1997). Given these mixed references, and mindful of the
Supreme Court’s warning in United States v. Am. Trucking Ass’ns,
310 U.S. 534, 542 (1940), that “[t]o take a few words from their
context and with them thus isolated to attempt to determine
their meaning, certainly would not contribute greatly to the
discovery of the purpose of the draftsmen of a statute,” I find
the text of the employer mandate provision ambiguous on the
application of the Anti-Injunction Act.
Thus, I would again look to legislative history and
Congressional purpose. Cf. SEC v. C.M. Joiner Leasing Corp., 320
U.S. 344, 350-51 (1943) (Jackson, J.) (explaining that our
canons of statutory construction “long have been subordinated to
76
the doctrine that courts will construe the details of an act in
conformity with its dominating general purpose, will read text
in the light of context and will interpret the text so far as
the meaning of the words fairly permits so as to carry out in
particular cases the generally expressed legislative policy”).
For the reasons stated above, I would hold that Congress did not
intend the Anti-Injunction Act to block timely judicial review
of the employer mandate provisions. Accordingly, I would hold
that we have jurisdiction to consider all of appellants’ claims.
B. The Majority’s View
The majority’s contrary conclusion relies on two arguments,
neither of which I find convincing. First, the majority contends
that “the Supreme Court has repeatedly instructed that
congressional labels have little bearing on whether an exaction
qualified as a ‘tax’ for statutory purposes” and that “the Court
has specifically found an exaction’s label immaterial to the
applicability of the AIA,” displacing the ordinary methods of
statutory interpretation with a functional analysis of the
challenged exactions. Ante pp. 22-24. Thus, in the majority’s
view, “it is simply irrelevant what the 2010 Congress would have
thought about the AIA; all that matters is whether the 2010
Congress imposed a tax.” Ante p. 38. Second, the majority
asserts that “[t]he Supreme Court has concluded that the AIA
uses the term ‘tax’ in its broadest possible sense” and thus
77
that this functional analysis sweeps quite broadly: the majority
holds that “the AIA prohibits a pre-enforcement challenge to any
exaction that is made under color of their offices by revenue
officers charged with the general authority to assess and
collect the revenue.” Ante p. 18 (internal quotation marks and
braces omitted).
1.
The majority’s functional approach hinges on its
interpretation of two Supreme Court cases from 1922: Bailey v.
George, 259 U.S. 16 (1922), and Lipke v. Lederer, 259 U.S. 557
(1922). I read these cases differently from the manner in which
the majority reads them. Because the majority’s view of George
and Lipke brings these cases into conflict, I believe my
approach, which harmonizes them, is preferable.
The majority asserts that in Lipke “the Court . . .
specifically found an exaction’s label immaterial to the
applicability of the AIA.” Ante p. 24. The Lipke Court held that
“[t]he mere use of the word ‘tax’ in an act primarily designed
to define and suppress crime is not enough to show that within
the true intendment of the term a tax was laid.” 259 U.S. at 561
(emphases added). That is, “[t]he mere use of the word ‘tax’” in
a criminal statute—particularly where, as in the statute at
issue in Lipke, the word “tax” is immediately followed by the
word “penalty”—is not dispositive of Congress’s “true inten[t]”
78
regarding application of the AIA. Id. This is an ordinary
exercise in statutory interpretation, not an instruction from
the Court to disregard Congressional designations as “immaterial
to the applicability of the AIA.” Ante p. 24.
The Court did go on to examine the function of the
exaction, noting that “[w]hen by its very nature the imposition
is a penalty, it must be so regarded,” but it did not do so in
the course of an ordinary application of the AIA. Lipke, 259
U.S. at 561. Rather, it is clear that the Court considered the
function of the exaction because that function (as a criminal
penalty) was relevant to the Court’s due process concerns. It
was to resolve this constitutional problem, not simply to
construe the word “taxes” in the AIA, that the Court looked to
the exaction’s function.
Thus, the Court reasoned,
Before collection of taxes levied by statutes enacted
in plain pursuance of the taxing power can be
enforced, the taxpayer must be given fair opportunity
for hearing; this is essential to due process of law.
And certainly we cannot conclude, in the absence of
language admitting of no other construction, that
Congress intended that penalties for crime should be
enforced through the secret findings and summary
action of executive officers. The guaranties of due
process of law and trial by jury are not to be
forgotten or disregarded.
Id. at 562 (emphasis added). This passage strongly indicates
that the Court was applying the canon of constitutional
avoidance, construing the exaction at issue together with the
79
AIA so as not to run afoul of due process. Cf. South Carolina v.
Regan, 465 U.S. 367, 398-400 (1984) (O’Connor, J., concurring in
the judgment) (relying on doctrine of constitutional avoidance
to interpret the AIA not to apply to original jurisdiction of
the Supreme Court). The functional analysis was required by the
Court’s constitutional concerns, as due process is triggered
when the penalty is criminal, whatever its designation by
Congress. As the AIA was simply being interpreted to accord with
the constitutional mandate of due process—which binds Congress
and thus of course requires that we look beyond Congressional
labels to the nature and function of the exaction—Lipke did not
establish a new methodology for construing “taxes” under the
AIA. Instead, it recognized that the term “taxes” in the AIA is
flexible, like nearly all statutory language, and may admit to
alternative constructions. And it affirmed that a court’s goal
when applying the AIA, like any other statute, is to do so in
accord with the “true intendment” of Congress. Id. at 561.
This reading of Lipke harmonizes it with the two Bailey
cases. As the majority explains, the Supreme Court considered a
tax refund suit in Bailey v. Drexel Furniture Co. and held the
Child Labor Tax Law unconstitutional as a “penalty” rather than
a “tax.” 259 U.S. 20, 38-39 (1922). The same day, in Bailey v.
George, the Court dismissed, pursuant to the AIA (§ 3224,
precursor to the modern AIA), a pre-collection suit alleging the
80
Child Labor Tax Law was unconstitutional. 259 U.S. 16 (1922).
The George Court’s reasoning is extremely brief (in a one-page
opinion): “The averment that a taxing statute is
unconstitutional does not take this case out of [the AIA].” Id.
at 20. The question, of course, is why the statute, though an
unconstitutional exercise of the taxing power per Drexel
Furniture, is still “a taxing statute” for purposes of the AIA.
My answer is the more straightforward one: it constitutes a
“taxing statute” for purposes of the AIA because it purported to
be a taxing statute and appeared to be one on its face—that is,
because it was designated as a taxing statute by Congress. See
Drexel Furniture, 259 U.S. at 34 (noting exaction was called
“Tax on Employment of Child Labor,” part of “An act to provide
revenue . . .”). Thus, the Court provided no explanation because
it relied on the most obvious reason for deeming the statute at
issue a “taxing statute.” The majority disagrees, arguing that
“the Court never mentioned the statutory label” in George and
that “it [does not] seem plausible that the Court implicitly
relied on that label, given that it had never before and has
never since found an exaction’s label controlling for statutory
purposes.” Ante pp. 25-26.
Under the majority’s approach, the George Court must have
conducted a functional analysis of the exaction and determined
that it qualified as a tax. Yet this supposed functional
81
analysis appears nowhere in the opinion. It is difficult to
believe that the Court would not bother to specify any criteria
for determining when an exaction is functionally a tax, given
that the Court had just held the statute not to qualify as a tax
for constitutional purposes in Drexel Furniture. If the George
Court were relying on anything beyond the face of the statute,
surely the Court would have provided some explanation of why the
enactment qualified as a tax under the AIA but not under the
Taxing and Spending Clause.
More troubling still, the majority’s reading of George
brings it into conflict with Lipke. Under the majority’s
approach, the Court in George must have simply recognized that
“the AIA . . . [reaches] any exaction that is made under color
of their offices by revenue officers charged with the general
authority to assess and collect the revenue.” Ante 18 (internal
quotation marks and braces omitted). But these criteria fail to
distinguish the “penalty” in Lipke, which was held to be outside
the AIA. The “penalty” in Lipke also met the majority’s
criteria: the National Prohibition Act simply doubled taxes
already assessed and collected by the Commissioner, 41 Stat.
305, 317-18 (1919), which were laid down in the Revenue Act of
1918 “on all distilled spirits,” and were “to be paid by the
distiller or importer when withdrawn, and collected under the
provisions of existing law,” 40 Stat. 1057, 1105, Title VI – Tax
82
on Beverages, § 600(a). That the Court found the exaction
tantamount to a criminal penalty does not change this. 3 Thus, by
the majority’s understanding of the AIA, there should have been
no room for constitutional avoidance, and the Court in Lipke
should have held the AIA applicable and refused jurisdiction. 4
The majority seems to recognize that Lipke may appear
problematic, but it contends that it is not. It argues that
“Lipke held only that when Congress converts the tax assessment
process into a vehicle for criminal prosecution, the Due Process
Clause prohibits courts from applying the AIA.” Ante p. 28. That
3
The majority attempts to sidestep this conflict, nicely
arguing that the Act “did not authorize the collector to make an
assessment under his general revenue authority” because “it
converted him into a federal prosecutor.” Ante p. 27. But the
constitutional failings of the Act does not change the fact that
the Commissioner would be collecting the challenged tax “under
his general revenue authority.” The Act did not provide any
separate mechanism for the assessment and collection of this
tax, or even expressly assign those duties to the Commissioner;
it simply stated that “a tax shall be assessed . . . and
collected . . . in double the amount now provided by law” from
those illegally manufacturing or selling alcohol. Thus, the
Commissioner could only perform such assessments and collections
under the “general revenue authority” granted by the Internal
Revenue Code. 41 Stat. at 318. That such assessments violated
due process does not change the fact that the revenue officers
doing the assessment would be acting “under color of their
offices.” Ante p. 18 (internal quotation marks omitted).
4
This was the view of the dissenting opinion in Lipke,
which relied on George. See Lipke, 259 U.S. at 563 (Brandeis,
J., dissenting) (“The relief should therefore be denied,
whatever the construction of section 35, tit. 2, of the Volstead
Act, and even if it be deemed unconstitutional. Compare Bailey
v. George, 259 U. S. 16, 42 Sup. Ct. 419, 66 L. Ed. 816, decided
May 15, 1922.”).
83
was the core holding of Lipke, yes, but the question is whether
the Court’s construction of the AIA in reaching that holding
accords with the majority’s rigid interpretative regime
constructed ninety years later. 5 Under the majority’s proposed
construction, the term “tax” in the AIA reaches all exactions
which the Commissioner is empowered to collect. Ante pp. 19-20.
Yet, the Lipke Court held that the AIA did not reach such an
exaction. Though the majority would prefer that Lipke “create[d]
only a narrow constitutional limitation” to the AIA, ante p. 28,
the Court’s holding is simply not framed as creating an
exception to the AIA. Rather, the Court explained that it
“constru[ed]” the term “tax” in the AIA (in accord with
“Congress[’s] inten[t]”) and held that it was not so broad. 229
U.S. at 561-62. The majority’s view of the AIA, and its
corresponding interpretation of these cases, inescapably places
George and Lipke in conflict.
My reading of these cases, which is fully consistent with
my approach to the AIA, harmonizes them. Under my view of Lipke,
the AIA’s “taxes” is recognized to be, like any statutory
language, a flexible term that must be interpreted in accord
with Congressional intent and, when applicable, bounding
5
Indeed, the rigidity of the majority’s approach prompts a
reminder that we confront here the court’s statutory
jurisdiction, not its Article III jurisdiction. Congress grants,
and Congress restricts, as it chooses, the statutory
jurisdiction of the lower federal courts.
84
constitutional mandates. In many cases, Congress’s decision to
designate something a “tax” will prove dispositive—indeed, the
designation did so in Bailey v. George. Lipke simply reflects
the recognition that Congress’s use of the word “tax” in an
otherwise non-tax provision (followed closely by the word
“penalty”) does not invariably mandate that the AIA be applied—
constitutional concerns can override congressional designations.
This is fully in accord with my view of the AIA and its relation
to subsequent enactments, particularly an expansive programmatic
enactment such as the ACA that would alter the fabric of many
layers of American life. 6
The majority cites several other cases for the proposition
that we are to ignore Congressional designations when applying
the AIA, instead asking only whether an exaction is
intrinsically a tax according to its “nature and character.”
Ante p. 23 (quoting Helwig v. United States, 188 U.S. 605, 613
(1903)). I will briefly discuss two of them.
Helwig v. United States, for instance, concerned the
interaction of a statute that imposed “a further sum” when
6
In this regard, Justice O’Connor nicely captured the
essential purpose of the AIA when she declared: “The AIA
‘depriv[es] courts of jurisdiction to resolve abstract tax
controversies . . . .’” South Carolina v. Regan, 465 U.S. 367,
386 (1984) (O’Connor, J., concurring in the judgment); and see
id. at 392 (“the Act generally precludes judicial resolution of
all abstract tax controversies . . .”). The essential issues
presented in this case are about as far from “abstract tax
controversies” as one can get.
85
importers declared a value more than 10% lower than customs’
subsequent appraisal and a statute that gave federal district
courts exclusive jurisdiction over “penalties” and
“forfeitures.” The passage the majority excerpted from is quite
instructive:
Although the statute . . . terms the money demanded as
“a further sum,” and does not describe it as a
penalty, still the use of those words does not change
the nature and character of the enactment. Congress
may enact that such a provision shall not be
considered as a penalty or in the nature of one, with
reference to the further action of the officers of the
government, or with reference to the distribution of
the moneys thus paid, or with reference to its effect
upon the individual, and it is the duty of the court
to be governed by such statutory direction, but the
intrinsic nature of the provision remains, and, in the
absence of any declaration by Congress affecting the
manner in which the provision shall be treated, courts
must decide the matter in accordance with their views
of the nature of the act.
188 U.S. 605, 612-13 (emphases added). Thus, the Court
emphasized that it looked to “the nature and character of the
enactment” only “in the absence of any declaration by Congress”
giving direction to the court. Far from supporting the
majority’s claim that “[t]he Supreme Court has repeatedly
instructed that congressional labels have little bearing on
whether an exaction qualifies as a ‘tax’ for statutory
purposes,” Helwig indicates that Congressional labels that
direct the court may of course be dispositive. Terming an
exaction “a further sum” did not help the Court determine
86
whether or not that sum was a “penalty”; but Congress’s
expressly considering calling an exaction a “tax” and then
deleting the dozens of references to a “tax” and instead
designating it a “penalty” (as Congress did in the course of its
enactment of the ACA) does help courts determine whether
Congress wished us to view the exaction as a “tax” for purposes
of the AIA. 7 Though Congress did not expressly reference the AIA
here—and, judging from the legislative history, may well not
have considered application of the AIA specifically—it did
consider whether to attach all the trappings of a “tax” to the
exaction (including, among many others provisions, the AIA), and
decided instead to specify the ones it wanted. The AIA is not
among them.
7
The majority focuses on Helwig’s use of the phrase “with
reference to,” suggesting that Helwig would have us consider
Congressional direction here only if it is expressly labeled as
being made “‘with reference to” the AIA.” Ante 23 n.5. But that
very sentence in Helwig goes on to describe such direction as
“any declaration by Congress affecting the manner in which the
provision shall be treated.” 188 U.S. at 613 (emphasis added).
The following citations to “statute after statute” which the
majority references are part of the Court’s analysis, the Court
tells us, because it must determine whether the “words [employed
by Congress] are not regarded by Congress as imposing a penalty
and [thus] should not be so treated by the court,” for “[i]f it
clearly appear that it is the will of Congress that the
provision shall not be regarded as in the nature of a penalty,
the court must be governed by that will.” Id. I do not mean to
suggest that Helwig teaches that “an exaction’s label controls,”
ante p. 23 n.5, only that any Congressional direction that
indicates “the will of Congress” on the application of the AIA
should be considered.
87
The majority’s second citation for that proposition, United
States v. Reorganized CF & I Fabricators of Utah, Inc., 518 U.S.
213, (1996), is much like Helwig. There the Court determined
whether a “tax” imposed on certain funding deficiencies
constituted an “excise tax” for Chapter 11 purposes (as “an
excise tax” was accorded higher priority than ordinary claims).
It prefaced its discussion by recognizing that “Congress could
have included a provision in the Bankruptcy Code calling [the
relevant] exaction an excise tax . . . ; the only question is
whether the exaction ought to be treated as a tax (and, if so,
an excise) without some such dispositive direction.” Id. at 219.
Its ultimate conclusion considered legislative history of the
exaction at issue and “conclude[d] that the 1978 Act reveals no
congressional intent to reject generally the interpretive
principle that characterizations in the Internal Revenue Code
are not dispositive in the bankruptcy context . . . .” Id. at
224. Here, where Congress provided one of the most direct
signals it can of its intentions—it expressly considered calling
the exaction a “tax” and ultimately decided not to do so—Helwig
and Reorganized CF & I would direct us to follow Congress’s
direction and treat an exaction denominated a “penalty” as a
penalty and not as a tax for purposes of the AIA.
2.
88
Second, the majority’s approach relies upon its assertion
that “[t]he Supreme Court has concluded that the AIA uses the
term ‘tax’ in its broadest possible sense” and thus that “the
AIA prohibits a pre-enforcement challenge to any exaction that
is made under color of their offices by revenue officers charged
with the general authority to assess and collect the revenue.”
Ante p. 18 (internal quotation marks and braces omitted).
This definition is far from self-evident. As the majority
concedes, taxes and penalties are distinguished in some federal
statutory “contexts.” Ante p. 22 n.4. In the very case discussed
above, Reorganized CF & I Fabricators, which dates from 1996,
the Court adopted these definitions for its “functional” inquiry
of the exaction at issue: “A tax is an enforced contribution to
provide for the support of government; a penalty . . . is an
exaction imposed by statute as punishment for an unlawful act.”
518 U.S. at 224. The majority reasons that “[n]either the
Secretary nor the Sixth Circuit cites a single case suggesting
that [this distinction applies to the AIA].” Ante p. 22 n.4. Of
course, Lipke, on which the majority relies, is one major AIA
case that distinguishes between taxes and penalties. And, as the
Court in Reorganized CF & I Fabricators borrowed its definitions
of “tax” and “penalty” from a “somewhat different context,” it
appears that these definitions are not particularly context-
specific. 518 U.S. at 224. Thus, if a court is to perform a
89
“functional examination” of its own, why would it not use these
well-settled definitions, under which the Affordable Care Act’s
exaction would clearly be a penalty (for noncompliance with the
individual mandate)?
By my count, the majority puts forward three affirmative
arguments favoring the “broadest possible” definition for the
word “taxes” in the AIA: (1) Snyder v. Marks, 109 U.S. 189
(1883), established a broad definition of “tax” under the AIA;
(2) the twin Bailey cases show that the AIA is “broader” than
the taxing clause; and (3) the fact that the IRS grants the
Secretary the authority to make “assessments of all taxes
(including interest, additional amounts, additions to the tax,
and assessable penalties) imposed by this title” implies that
the AIA, which generally protects the Government’s interest in
effecting unfettered tax assessments, must apply to all
exactions. 26 U.S.C. § 6201(a) (emphasis added). I find these
arguments unpersuasive.
First, Snyder does not establish the broad definition the
majority cites it for. The Court explains that “tax” “meant that
which is in condition to be collected as a tax, and is claimed
by the proper public officers to be a tax.” 109 U.S. at 192
(emphasis added). Thus, Snyder clearly makes relevant the
Commissioner’s designation of an exaction and, reasonably
viewed, requires that the Commissioner “claim[]” an exaction “to
90
be a tax.” Here, of course, the Secretary of the Treasury is a
party before us and supports Congress’s designation of the
mandate as a “penalty” rather than a “tax.” 8
Second, the Bailey cases have already been dealt with at
length above. I agree that they show that the AIA is “broader”
than the taxing clause when applied to exactions that are
designated by Congress as “taxes”—in the limited sense that they
include some exactions that purport to be taxes yet are
unconstitutional—but they do no more than that.
As for the majority’s final argument, it seems to require a
logical leap. I reproduce the relevant paragraph for ease of
reference:
The Court’s broad interpretation of the AIA to
bar interference with the assessment of any exaction
imposed by the Code entirely accords with, and indeed
seems to be mandated by, other provisions of the
Internal Revenue Code. The AIA does not use the term
“tax” in a vacuum; rather, it protects from judicial
interference the “assessment . . . of any tax.”
I.R.C. § 7421(a) (emphasis added). The Secretary’s
authority to make such an “assessment . . . of any
tax” derives directly from another provision in the
Code, which charges the Secretary with making
“assessments of all taxes (including interest,
additional amounts, additions to the tax, and
assessable penalties) imposed by this title.” §
6201(a) (emphases added); see also § 6202 (“assessment
8
The majority believes the “fundamental problem with this
argument is that the Secretary still does ‘claim’ that the
challenged exaction is a ‘tax,’ albeit one authorized by the
Constitution’s Taxing Clause.” Ante p. 26-27 n.7. As Snyder is
discussing the use of the word “tax” in the precursor to the
modern AIA, I read Snyder to refer to the Commissioner’s
designation with respect to the statute.
91
of any internal revenue tax” includes assessment of
“penalties”). Thus, for purposes of the very
assessment authority that the AIA protects, Congress
made clear that “penalties” (as well as “interest,
additional amounts, [and] additions to the tax”) count
as “taxes.” Congress must have intended the term
“tax” in the AIA to refer to this same broad range of
exactions. See Erlenbaugh v. United States, 409 U.S.
239, 243 (1972) (“[A] legislative body generally uses
a particular word with a consistent meaning in a given
context.”).
Ante p. 19-20 (large emphasis mine).
I agree, of course, that “for purposes of the [Secretary’s]
assessment authority,” Congress made clear that the ‘penalties’
. . . count as ‘taxes.’” Indeed, where Congress has wished
“penalty” to be treated as a “tax,” it has said so. See, e.g.,
26 U.S.C. §§ 6665(a)(2), 6671(a) (directing that “tax” be
“deemed also to refer to . . . penalties” in Chapter 68 of the
Internal Revenue Code). It is not at all surprising that
Congress has employed this shorthand when defining the
Secretary’s authorities.
The problematic leap is this: simply because the AIA
generally protects the Secretary’s assessment authority does not
mean that the AIA must apply to all exactions. The many
exemptions included in the AIA as currently codified show that
Congress has often wished to exempt certain exactions from the
AIA. As a matter of statutory interpretation, it seems improper
for a court to insist that “taxes” means any exaction (despite
the fact that Congress does not say so) and thereby to undercut
92
Congress’s deliberate decision to reject designating an exaction
as a “tax” and instead to call it a “penalty.” Given that we
have been cited no cases that would require such a large
redrafting of the AIA—other “penalties” to which the AIA have
been applied were placed in Chapter 68, which expressly directs
that all references to “tax” in the IRC are to refer also to the
Chapter’s “penalties”—I believe that this “broadest possible”
interpretation of the AIA is unwarranted and unwise.
The majority appears to reject the legal force of sections
6665(a)(2) and 6671(a), arguing that section 7806(b) “forbid[s]
courts from deriving any ‘inference’ or ‘implication’ from the
‘location or grouping of any particular section or provision or
portion of this title.’” Ante p. 31. This puzzles me, as it is
absolutely clear that sections 6665(a)(2) and 6671 have the
force of law. Section 6665(a)(2) directs that “any reference in
this title to ‘tax’ imposed by this title shall be deemed also
to refer to . . . penalties provided by this chapter.” This
instructs courts that Congress wished to make the word “penalty”
inclusive of the word “tax” in this particular chapter (Chapter
68). Congress remains free to do otherwise in other chapters;
indeed, it chose not to do so in Chapter 48, in which the
individual mandate is found. Giving force to section 6665(a)(2)
in no way contradicts section 7806(b) by drawing a prohibited
implication from the “location or grouping” of Internal Revenue
93
Code (IRC) provisions. Section 7806(b) prohibits inferences
drawn from the location or group itself; instructions can still
flow from section 6665(a)(2) that are to apply only to a
specified chapter. This seems to me to be beyond serious doubt.
Likewise, section 7806(b) does not prohibit courts interpreting
one provision of the IRC from looking to other provisions of the
IRC and noting that, where Congress has desired a particular
result, it has stated so. To suggest that a court cannot draw
the traditional inference from Congress’s decision to define
“penalty” as inclusive of “tax” in other chapters and its
failure to do so here seems wholly unwarranted by section
7806(b). 9
In the final analysis, the majority’s approach essentially
imposes a clear-statement rule on Congress, making the AIA
applicable to all exactions, regardless of statutory language
and in disregard of apparent Congressional intent, unless
Congress had the foresight to expressly exempt an exaction from
the AIA. The majority concedes, as it must, that the 111th
Congress could have exempted the individual mandate from the
AIA, but it suggests that the only way Congress could avoid the
9
I do not suggest that “we [should] infer from § 6665(a)(2)
a categorical exclusion from the term ‘tax’ of all non-Chapter
68 penalties.” Ante p. 31 (emphasis added). Rather, the fact
that Congress has directed us to treat some “penalties” as
“taxes” simply makes it less likely that Congress desired this
result where it enacted no such direction (and in fact expressly
rejected the term “tax” for the term “penalty”).
94
AIA’s bar on immediate judicial review of the ACA is by amending
the AIA itself to include an express exemption for the ACA or
(in what amounts to the same thing) by referencing the AIA by
name in the ACA. That is, the majority seems to believe that a
clear-statement rule is operative here, and that absent a clear
statement regarding the inapplicability of the AIA, it must
apply to any and all exactions. Given that the Supreme Court has
never recognized such a clear-statement rule, it seems to me
that this turns the ordinary principles of statutory
interpretation on their head.
As Justice Kennedy recently recognized for a plurality of
the Court, clear-statement rules are designed to “avoid
applications of otherwise unambiguous statutes that would
intrude on sensitive domains in a way that Congress is unlikely
to have intended had it considered the matter.” Spector v.
Norwegian Cruise Line Ltd., 545 U.S. 119, 139 (2005) (plurality
op.). Justice Kennedy even warned in his plurality opinion
against “convert[ing] the clear statement rule from a principle
of interpretive caution into a trap for an unwary Congress.” Id.
That seems to be precisely what the majority does today.
Presumably because the majority believes such a clear-
statement rule applies, it asserts that “[t]o infer an intent on
the part of the 2010 Congress to implicitly exempt this pre-
enforcement challenge from the AIA bar would be tantamount to
95
inferring an implicit repeal of that bar.” Ante p. 37. But our
case is nothing like implicit repeal cases like TVA v. Hill, 437
U.S. 153 (1978), which the majority cites in that paragraph. In
Hill, the Court considered whether continued federal
appropriations for a dam after notice that construction was
being challenged under the Endangered Species Act worked an
implicit repeal of the Act with respect to the dam. In an
implicit repeal case, the Court is forced to consider whether
Congressional action definitively to the contrary of an earlier
enactment works an implied repeal. In our case, on the other
hand, we are simply asking whether Congress created with the ACA
the sort of exaction to which the earlier act (the AIA) applies.
This requires us to construe both the word “taxes” under the AIA
and the word “penalty” in the ACA, applying our ordinary tools
of statutory interpretation. We look first to the text itself,
and, after finding that it is at best ambiguous, we look to
legislative history and Congressional purpose. Because the
application of the AIA to the ACA is in doubt—this is precisely
the question we are deciding sua sponte—our case is nothing like
implicit repeal cases.
Of course, my approach fully recognizes that the AIA has
legal force. But, as the AIA can undoubtedly be sidestepped by
any Congress as it creates a new exaction (at the very least, in
the majority’s view, by a clear statement that the AIA is not to
96
apply), the AIA is non-binding on future Congresses. When courts
determine the application of the AIA to the ACA, they are only
considering the application of one Congressional enactment to a
later one. Because one Congress cannot bind a later one, the
111th Congress was fully within its prerogative to indicate,
even if only implicitly, that the AIA should not apply. See
United States v. Winstar Corp., 518 U.S. 839, 872 (1996)
(plurality op.) (quoting Blackstone for “the centuries-old
concept that one legislature may not bind the legislative
authority of its successors”). The independent legal force of
the AIA does not spring from the fact that it can trap future,
unwary Congresses, but rather from the fact that we must seek to
harmonize its terms with that of future legislation. That is,
the AIA is not binding on Congress, it is binding on us, the
judiciary.
Finally, as for the majority’s suggestion that policy
arguments favor its position because a contrary holding “might
have serious long-term consequences for the Secretary’s revenue
collection,” ante p. 41, I would simply note again that the
Secretary of the Treasury is a party before us and argues that
the AIA does not apply. Indeed, I cannot find a Supreme Court
case where the AIA has been applied over the objection of the
Secretary.
3.
97
The majority suggests that the issue presented here is one
of “context,” and I agree. The majority accepts “the Sixth
Circuit’s general observation that there are ‘contexts’ in which
the law treats ‘taxes’ and ‘penalties’ as mutually exclusive”
and explains that “[t]he question here is whether the AIA is one
of these ‘contexts.’” Ante p. 22 n.4 (internal quotation marks
omitted). To my mind, the proper question is not whether “taxes”
and “penalties” are always “mutually exclusive” under the AIA,
but whether Congress, in creating a later-enacted exaction,
intended to create a “tax” for purposes of the AIA. But the more
important question of “context” is this: whether, in light of
the context provided by Congress’s deliberate decision to
designate the individual mandate’s exaction a “penalty” rather
than a “tax” and the evidence of Congress’s desire to erect no
jurisdictional bar to immediate judicial review of the ACA, we
should nonetheless interpret the ACA as creating a “tax” within
the meaning of the AIA. My effort here, to marshal the
historical, jurisprudential, interpretive, and, yes, commonsense
factors necessary to answer this question, persuades me that we
should not. Given this larger context, I do not believe that one
interpretation of near century-old AIA cases—cases that fail to
devote enough space to the AIA analysis to even spell out their
reasoning—should carry the day. If the Supreme Court’s
98
vacillations concerning the proper interpretation of the AIA
teach us anything, they teach us that context matters. 10
* * * *
Because I do not believe that Lipke and George instruct
courts to eschew our ordinary methods of statutory
interpretation and I do not agree that the AIA reaches all
exactions though by its terms it is limited to “taxes,” I cannot
join the majority. Where Congress expressly rejected the term
“tax” in favor of “penalty,” and where it appears that
application of the AIA would do little to further the purposes
of the AIA, but would do much to frustrate the Affordable Care
Act’s reforms desired by the Congress that approved the Act, I
would hold that the AIA does not strip us of jurisdiction. Thus,
I would reach (and I do indeed reach) the merits of appellants’
challenges.
II. The Act
10
Justice Powell summarized the history of the AIA as
follows, in part:
[T]he Court's unanimous opinion in Williams Packing
indicates that the case was meant to be the capstone
to judicial construction of the Act. It spells an end
to a cyclical pattern of allegiance to the plain
meaning of the Act, followed by periods of uncertainty
caused by a judicial departure from that meaning, and
followed in turn by the Court's rediscovery of the
Act's purpose.
Bob Jones Univ., 416 U.S. at 742. Rediscoveries of congressional
intent abound in the law and should not surprise us.
99
After a months-long national debate, the Patient Protection
and Affordable Care Act was signed into law on March 23, 2010.
Pub. L. No. 111-148, 124 Stat. 119, amended by The Health Care
and Education Reconciliation Act of 2010, Pub. L. No. 111-152,
124 Stat. 1029 (2010). The Affordable Care Act is comprised of a
half-dozen initiatives designed to reduce the costs of health
care and the number of Americans who remain uninsured.
First, the Act creates “health benefit exchanges” in each
state, which are regulated to increase transparency concerning
premium increases and claim denials and which offer market-based
incentives tied to increases in efficiency and better health
outcomes. 42 U.S.C. § 18031(e), (g).
Second, the Act prevents insurers from rejecting applicants
with preexisting conditions (the “guaranteed issue” requirement)
and bars insurers from charging higher premiums to those with
serious medical conditions or a history of past illness (the
“community rating” requirement). Id. §§ 300gg – 300gg-3.
Third, the Act makes more Americans eligible for Medicaid,
and to many of those who earn too much to receive Medicaid it
grants tax credits to subsidize the cost of insurance premiums
and pledges federal dollars to reduce out-of-pocket expenses.
Id. §§ 1396a(10)(A)(i)(VIII), 18071; 26 U.S.C. § 36B.
Fourth, the Act requires that individuals keep up “minimum
essential [health insurance] coverage.” Id. § 5000A. In
100
particular, it directs that “[a]n applicable individual shall
for each month beginning after 2013 ensure that the individual,
and any [applicable] dependent . . ., is covered under minimum
essential coverage for such month.” Id. Appellants term this the
“individual mandate,” and it is the chief target of their suit.
Appellants’ Br. 3. Congress found that hospitals provided $43
billion in uncompensated care to the uninsured in 2009, and that
these costs were shifted onto insured individuals, “increas[ing]
family premiums by on average over $1,000 a year.” 42 U.S.C. §
18091(a)(2)(F). It also found that, “[b]y significantly lowering
the number of the insured, the [minimum coverage] requirement,
together with the other provisions of th[e] Act, will lower
health insurance premiums.” Id.
Congress created two religious exemptions to the individual
mandate: a religious conscience exemption and a health-care
sharing ministry exemption. 26 U.S.C. § 5000A(d)(2). I discuss
the particulars of these exemptions in Part VIII, where I
consider appellants’ First Amendment claims.
Fifth, the Act created tax incentives making it more
affordable for small businesses to offer health insurance to
their employees. Id. § 45R.
Finally, the Act required “applicable large employers . . .
to offer to its full-time employees (and their dependents) the
opportunity to enroll in minimum essential coverage under an
101
eligible employer-sponsored plan” if at least one full-time
employee is receiving federal subsidies for health insurance.
Id. § 4980H(a). Appellants call this the “employer mandate.”
Appellants’ Br. 3.
Appellants Michele Waddell, Joanne Merrill, and Liberty
University assert an array of constitutional challenges to the
Act’s individual and employer mandates and request declaratory
and injunctive relief. They allege that the mandates are outside
Congress’s Article I powers and that the individual mandate’s
religious exemptions effect violations of the First Amendment’s
Free Exercise and Establishment Clauses as well as the equal
protection component of the Fifth Amendment’s Due Process
Clause. Appellants’ chief contention is that the individual
mandate was not validly enacted pursuant to Congress’s commerce
power because it regulates what they call “inactivity.” Id. at
1. The district court carefully parsed appellants’ arguments and
dismissed their suit pursuant to Federal Rule of Civil Procedure
12(b)(6), concluding that appellants had failed to state a
legally sufficient claim. Liberty University, Inc. v. Geithner,
753 F. Supp. 2d 611 (W.D. Va. 2010). For the following reasons,
I would affirm.
III. Constitutionality, Inactivity Aside
Putting aside appellants’ “inactivity” argument, to which I
return in Parts IV and V, I first consider whether the Act is
102
otherwise authorized under Congress’s “power to regulate
activities that substantially affect interstate commerce.”
Gonzalez v. Raich, 545 U.S. 1, 16-17 (2005). In particular, I
ask whether the Act runs afoul of the teachings of United States
v. Lopez and United States v. Morrison, two cases in which the
Supreme Court enforced limits on the Commerce Clause so as not
to “convert congressional authority under the Commerce Clause to
a general police power.” Lopez, 514 U.S. 549, 567 (1995); see
Morrison, 529 U.S. 598, 617-19 (2000).
A. Lopez and Morrison
In Lopez and Morrison the Supreme Court struck down two
congressional enactments because the objects of regulation—the
possession of guns in school zones in Lopez, violence against
women in Morrison—were noneconomic. Affirming that “Congress’
commerce authority includes the power to regulate those
activities having substantial relation to interstate commerce,
i.e., those activities that substantially affect interstate
commerce,” Lopez held that gun possession in schools did not
substantially affect interstate commerce. 514 U.S. at 559-60
(internal citations omitted). The Court worried that to identify
the effect of guns in schools on interstate commerce it “would
have to pile inference upon inference in a manner that would bid
fair to convert congressional authority under the Commerce
Clause to a general police power of the sort retained by the
103
States.” Id. at 567. If gun possession in schools were held to
be substantially related to interstate commerce simply because
such incidents harmed our “national productivity,” then
“Congress could regulate any activity that it found was related
to the economic productivity of individual citizens” and it
would be “difficult to perceive any limitation on federal power,
even in areas such as criminal law enforcement or education
where States historically have been sovereign.” Id. at 564.
Morrison further clarified the holding of Lopez. The Court
explained that “a fair reading of Lopez shows that the
noneconomic, criminal nature of the conduct at issue was central
to our decision in that case.” 529 U.S. at 610. Without “express
congressional findings regarding the effects upon interstate
commerce of gun possession in a school zone,” the Court refused
to find a substantial effect upon interstate commerce, as it
believed “the link between gun possession and . . . interstate
commerce was attenuated.” Id. at 612. The Court noted that it
has “upheld Commerce Clause regulation of intrastate activity
only where that activity is economic in nature.” Id. at 613.
Because the Morrison Court found that “[g]ender-motivated crimes
of violence are not, in any sense of the phrase, economic
activity” and that their effects on interstate commerce (many of
which were expressly enumerated by Congress) are “attenuated,”
it struck down the challenged congressional regulation of these
104
crimes. Id. at 613, 615. As it did in Lopez, the Court
emphasized that the “regulation . . . of intrastate violence . .
. has always been the province of the States” and affirmed that
“[t]he Constitution requires a distinction between what is truly
national and what is truly local.” Id. 617-18.
Without doubt, appellants are correct to insist that Lopez
and Morrison remind us that any formulation of the Commerce
Clause must admit to limiting principles that distinguish the
“truly national” from the “truly local.” But the concern
directly animating Lopez and Morrison—the noneconomic character
of the regulated activities—is not present in this case, where
the failure to obtain health insurance is manifestly an economic
fact with direct effects on the interstate markets for both
health insurance and health services. Cf. Thomas More, --- F.3d
at ----, 2011 WL at *11-12 (Martin, J.); Florida, --- F.3d, at -
---, 2011 WL at *94, *106 (Marcus, J., dissenting).
Nor can it be said that health insurance or health services
have “always been the province of the states” in the way that
education, family law, and criminal law have been. Raich, 529
U.S. at 618. Since the Social Security Act of 1965, Pub. L. No.
89-97, 79 Stat. 286, established Medicare and Medicaid benefits,
the federal government has been the single largest provider in
the interstate health insurance market and the largest purchaser
in the health services market. Federal dollars have accounted
105
for more than one-quarter of all health spending each year since
1974; in 2008, Americans spent $2.3 billion on health services,
of which the federal government paid more than $815 million—
nearly 35%. Ctrs. for Medicare & Medicaid Servs., National
Health Expenditure Amounts by Type of Expenditure and Source of
Funds: Calendar Years 1965-2019. The year 1974 also saw the
passage of the Employee Retirement Income Act (ERISA), which has
a “broadly worded” and “clearly expansive” preemption provision.
29 U.S.C. § 1144(a); Egelhoff v. Egelhoff ex rel. Breiner, 532
U.S. 141, 146 (2001). Through ERISA, as well as later enactments
like the Health Insurance Portability and Accountability Act of
1996, Pub. L. No. 104-191, 110 Stat. 1936, the federal
government has come to occupy much of the field of the
regulation of health benefits, and many state and local attempts
to regulate health insurance have been held preempted. See,
e.g., Retail Industry Leaders Ass’n v. Fielder, 475 F.3d 180
(4th Cir. 2007) (holding Maryland’s Fair Share Health Care Fund
Act, which regulated employer health care spending, preempted by
ERISA, as “ERISA establishes comprehensive federal regulation of
employers’ provisions of benefits to their employees”); but see
Metropolitan Life Ins. Co. v. Mass., 471 U.S. 724 (1985)
(holding that state mandated-benefit law survives ERISA
preemption as a law that “regulates insurance, banking, or
securities” within the meaning of ERISA’s savings clause). Given
106
nearly half a century of extensive federal involvement in the
national health insurance and health services sectors, it seems
clear that Lopez and Morrison’s interest in protecting areas of
traditional state sovereignty is not directly implicated.
That said, Lopez and Morrison do remind us that the scope
of the Commerce Clause is finite and that its jurisprudence must
admit to bounding principles. Thus courts must assure themselves
that upholding the Act under the Commerce Clause would not
effectively create a federal police power.
B. Substantial Effects
Appellants argue that if we were to hold that failure to
obtain insurance substantially affects interstate commerce, we
would be forced to find that the failure to purchase any
marketed product substantially affects interstate commerce.
Thus, they quote Florida ex rel. Bondi, where the district court
for the Northern District of Florida found the Act
unconstitutional in part because it believed that a Commerce
Clause broad enough to authorize the Act must also support
purchase mandates for broccoli or GM cars. Appellants’ Reply Br.
9 (quoting Bondi, --- F. Supp. 2d at ----, ----, 2011 WL 285683,
at *24). The Eleventh Circuit, upholding the district court on
that point, expressed similar fears that there are no
“cognizable, judicially administrable limiting principles.”
Florida, --- F. 3d at ----, 2011 WL at *54. This is not so.
107
I begin by noting that whether failure to purchase
insurance substantially affects interstate commerce relies on a
great number of factual determinations. These are to be made not
by the courts but by Congress, an institution with far greater
ability to gather and critically evaluate the relevant
information. As the Supreme Court noted in Raich, “[i]n
assessing the scope of Congress’ authority under the Commerce
Clause, . . . [our] task . . . is a modest one. We need not
determine whether respondents’ activities, taken in the
aggregate, substantially affect interstate commerce in fact, but
only whether a ‘rational basis’ exists for so concluding.” 545
U.S. at 22.
The Act’s effects on interstate commerce depend in large
part on an unusual feature of the health care market. By federal
law, a hospital participating in Medicare must stabilize any
patient who arrives at its emergency room, regardless of the
patient’s ability to pay for treatment, Emergency Medical
Treatment and Active Labor Act, 42 U.S.C. § 1395dd(b)(1), and
many states impose similar requirements, see, e.g., H.R. Rep.
No. 99-241(III), at 5 (1985), reprinted in 1986 U.S.C.C.A.N.
726, 726-27 (noting that “at least 22 states have enacted
statutes or issued regulations requiring the provision of
limited medical services whenever an emergency situation exists”
and that “many state court rulings impose a common law duty on
108
doctors and hospitals to provide necessary emergency care”). As
a result, the uninsured often receive care that they are unable
to pay for: in 2008, hospitals provided $43 billion in
uncompensated care to the uninsured. 42 U.S.C. § 18091(a)(2)(F).
To cope with these costs, hospitals increase the price of health
care services, which in turn leads to rising health insurance
premiums; Congress found that “[t]his cost-shifting increases
family premiums by on average over $1,000 a year.” Id.
Recognizing these direct effects on the health insurance
and health services markets does not require us to “pile
inference upon inference” in the way linking noneconomic acts
like the possession of guns in schools or gender-motivated
violence to interstate commerce might have done in Lopez and
Morrison. Lopez, 514 U.S. at 567; see Morrison, 529 U.S. at 615.
In Lopez, the Court rejected the Government’s argument that gun
possession in schools substantially affected interstate commerce
due to the general “costs of crime” or because “the presence of
guns in schools poses a substantial threat to the education
process,” which “in turn, will result in a less productive
citizenry.” 514 U.S. at 564. Likewise, the Court rejected
Congress’s findings in Morrison because they “follow[ed] the
but-for causal chain from the initial occurrence of violent
crime . . . to every attenuated effect upon interstate
commerce,” chiefly “deterring potential victims” from interstate
109
travel, employment, general commercial transactions,
“diminishing national productivity, increasing medical and other
costs, and decreasing the supply of and demand for interstate
products.” 529 U.S. at 615 (quoting H.R. Rep. No. 103-711, at
385 (1990), reprinted in 1994 U.S.C.C.A.N. 1803, 1853). Where
the proffered “substantial effects” in Lopez and Morrison were
attenuated, here the effects are direct: considered as a class
(per Wickard and Raich’s aggregation principle, see Wickard v.
Filburn, 317 U.S. 111, 127-28 (1942); Raich, 545 U.S. at 22;
post pp. 46-48), those who fail to purchase health insurance
will seek and receive medical care they cannot afford; the cost
of that care ($43 billion in 2008) is borne by the hospitals,
which are forced to increase the price of health care services.
And recognizing that the uninsured’s passing on $43 billion
in health care costs to the insured constitutes a substantial
effect on interstate commerce in no way authorizes a purchase
mandate for broccoli or any other vegetable. The health care
market is unique in that its product (medical care) must be
provided even to those who cannot pay, which allows some (the
uninsured) to consume care on another’s (the insured’s) dime.
Here the substantial effect on commerce comes not from simply
manipulating demand in a market, as it would in the case of a
broccoli or GM car mandate, but from correcting a massive market
failure caused by tremendous negative externalities. Thus, we
110
need not decide today whether the reasoning of Wickard and
Raich, which were both concerned in part about limiting supply
in interstate markets for fungible goods, extends to
artificially inflating demand via a purchase mandate. See
Wickard, 317 U.S. at 128 (recognizing that even wheat grown for
home consumption “overhangs the market and if induced by rising
prices tends to flow into the market and check price
increases”); Raich, 545 U.S. at 19 (noting that “high demand in
the interstate market”—and consequent higher prices—is likely to
“draw [home consumed] marijuana into that market”).
For these reasons, I would hold that the failure to obtain
health insurance substantially affects the interstate markets
for health insurance and health care services. Accord Thomas
More, --- F.3d at ----, 2011 WL at *12 (Martin, J.); id. at *24-
25 (Sutton, J.); Florida, --- F.3d at ----, 2011 WL at *106
(Marcus, J., dissenting).
IV. Universal Participation in the Health Care Market
Nor need I decide today whether the Commerce Clause
discriminates between activity and inactivity. Appellants
concede that virtually all persons will voluntarily enter into
the interstate health services market in their lifetimes, and
they concede further, as they must, that this constitutes
activity in commerce. Yet appellants insist that the Commerce
Clause requires Congress to adopt an extremely narrow time-
111
horizon: it may regulate persons seeking health care, but only
once they have sought it. Appellants’ Br. 34. A faithful
application of Wickard’s and Raich’s teachings requires us to
reject this contention.
Wickard introduced the aggregation principle into Commerce
Clause jurisprudence: “That appellee’s own contribution to the
demand for wheat may be trivial by itself is not enough to
remove him from the scope of federal regulation where, as here,
his contribution, taken together with that of many others
similarly situated, is far from trivial.” 317 U.S. at 127-28.
Raich reaffirmed this approach, noting that Commerce Clause
analysis looks to the regulated “activities, taken in the
aggregate.” 545 U.S. at 22.
Further, Raich emphasized that
Congress [need not] legislate with scientific
exactitude. When Congress decides that the “total
incidence” of a practice poses a threat to a national
market, it may regulate the entire class. See United
States v. Perez, 402 U.S. at 154-55 (“[W]hen it is
necessary in order to prevent an evil to make the law
embrace more than the precise thing to be prevented it
may do so.”). In this vein, we have reiterated that
when a general regulatory statute bears a substantial
relation to commerce, the de minimis character of
individual instances arising under that statute is of
no consequence.
Id. at 17 (some internal quotation marks and citations omitted).
Under Wickard and Raich, we are to take the view of the
legislators, not those who are regulated. Courts look at the
112
aggregated impact of an activity, not the impact of individuals;
the Commerce Clause authorizes the regulation of an “entire
class,” regardless of “the de minimis character of individual
instances.” Id. We are to put aside “the mechanical application
of legal formulas” and look instead to “the actual effects of
the activity in question upon interstate commerce.” Wickard, 317
U.S. at 120, 124. Indeed, it bears repeating, our task in
deciding Commerce Clause challenges “is a modest one” in which
we ask “only whether a ‘rational basis’ exists” for Congress to
find a substantial effect on interstate commerce. Id. at 22.
Considering that hospitals are required to provide certain
care to the uninsured, that illness and accidents are nothing if
not unpredictable, and that the costs of medical care are often
catastrophic, I have no hesitation in concluding the Congress
rationally determined that addressing the $43 billion annual
cost-shifting from the uninsured to the insured could only be
done via regulation before the uninsured are in need of
emergency medical treatment. Wickard and Raich teach that we are
to take the longer view of legislators; it is difficult to
imagine that Commerce Clause analysis would aggregate
individuals and allow regulation of entire classes but then,
when legislators confront a problem requiring a remedy before
emergencies (and their ever-growing costs) occur, refuse to
permit them to adopt the time-horizon necessary to enact a
113
solution. Accord Florida, --- F.3d at ----, 2011 WL at *93
(Marcus, J., dissenting).
Thus, as Congress rationally found virtually universal
participation in the interstate health care market over the
course of residents’ lifetimes, the Act does not present an
issue of congressional regulation of inactivity. Accord Thomas
More, --- F.3d at ----, 2011 WL at *15 (Martin, J.); id. at *27-
30 (Sutton, J.); Florida, --- F.3d at ----, 2011 WL at *93-*94
(Marcus, J., dissenting). Rather, courts are asked to pass on
regulation of voluntary participation in the interstate health
care market that, to be effective, must be preemptive. As it is
clear that the regulated behavior substantially affects
interstate commerce and appellants bring no other challenge to
Congress’s authority under the Commerce Clause, I would hold the
Act to be a proper exercise of congressional power.
V. Regulating Inactivity
But even if I were to assume that the uninsured are, in
appellants’ phrase, “inactive in commerce,” I would be bound to
uphold the Act. Despite appellants’ several arguments, the
Commerce Clause is not offended by the regulation of
“inactivity” or, in proper circumstances, by a purchase mandate.
Appellants urge that the Act is an “unprecedented attempt
to force private citizens who have decided not to participate in
commerce to engage in commerce by mandating that they purchase .
114
. . health insurance . . . .” Appellants’ Br. 3. This argument
presents two distinct questions: (1) “[w]hether Congress has
authority under the Commerce Clause to regulate a private
citizen’s inactivity in commerce”; and (2) whether such
regulation can include “forc[ing] [a] citizen to participate in
commerce by mandating that she purchase a [commodity] . . . or
pay a penalty for noncompliance.” Id. at 1. I consider these
questions in turn.
A. Regulating “Inactivity in Commerce”
Appellants characterize Mss. Waddell’s and Merrill’s
“decision not to purchase health insurance and to otherwise
privately manage her own healthcare” as “inactivity in
commerce,” which they claim is beyond the reach of the Commerce
Clause. Id. at 1. As the following brief review of the case law
will show, this broader Commerce Clause challenge—whether it
reaches non-market participants (those “inactiv[e] in
commerce”)—has already been litigated. The Supreme Court’s “case
law firmly establishes” that Congress may regulate those who
have opted not to participate in a market when their self-
provisioning, considered in the aggregate, “substantially
affect[s]” an interstate market. Raich, 545 U.S. at 17. After
explaining why appellants’ broader challenge is foreclosed, I
consider the far narrower challenge to the Act that survives.
1. Regulating Non-Market Participants
115
Nearly seventy years ago, in the famous case of Wickard v.
Filburn, the Supreme Court upheld Congress’s power under the
Commerce Clause to regulate Mr. Filburn’s private, noncommercial
production of wheat. The Court squarely confronted the question:
it began its discussion by noting that “[t]he question would
merit little consideration . . . except for the fact that this
Act extends federal regulation to production not intended in any
part for commerce but wholly for consumption on the farm.” 317
U.S. at 118. Just six years ago, the Court reaffirmed Wickard’s
vitality in Raich, explaining,
Our case law firmly establishes Congress’ power to
regulate purely local activities that are part of an
economic ‘class of activities’ that have a substantial
effect on interstate commerce. As we stated in
Wickard, “even if appellee’s activity be local and
though it may not be regarded as commerce, it may
still, whatever its nature, be reached by Congress if
it exerts a substantial economic effect on interstate
commerce.”
Raich, 545 U.S. at 17 (quoting Wickard, 317 U.S. at 125)
(emphasis added). The Raich Court made clear that “Congress can
regulate purely intrastate activity that is not itself
‘commercial,’ in that it is not produced for sale, if it
concludes that failure to regulate that class of activity would
undercut the regulation of the interstate market in that
commodity.” Id. at 18. Applying this principle, the Court upheld
the regulation of individuals who grew marijuana solely for
“home consumption”—that is, it allowed Congress to regulate
116
individuals who deliberately chose not to participate in
commerce. Id.
Thus, appellants’ true quarrel with the Act is more limited
than their language sometimes suggests. With subheadings like
“Wickard does not support the district court’s conclusion that
private economic decisions can be regulated under the Commerce
Clause,” appellants’ briefs muddy their real point. Appellants’
Br. 20. As just described, it is well settled that Congress may
regulate the private, noncommercial economic activities of non-
market participants when their self-provisioning (growing wheat
or marijuana for themselves) substantially affects an interstate
market. Appellants contend that this “firmly establishe[d]”
Commerce Clause law, Raich, 545 U.S. at 17, is inapplicable
because Wickard and Raich “involved voluntary activity, whereas
the Act regulates voluntary inactivity.” Appellants’ Br. 19. To
the extent that “voluntary inactivity” again suggests deliberate
non-participation in the market, this fails to distinguish
Raich; yet appellants also seem to be raising a different point.
“[I]t was the fact that Mr. Filburn actively grew wheat beyond
the quota, even if for personal use, that was significant in
Wickard,” as “it was that activity that constituted economic
activity. By contrast, [appellants] have exerted no effort and
used no resources.” Id. at 21. It is this “distinction between
activity and inactivity,” id. at 19—absolute inactivity, not
117
just inactivity (non-participation) in commerce—that carries the
true thrust of appellants’ argument.
2. Regulating the “Inactive”
Before I can consider this narrower argument, I must be
sure I understand exactly what appellants mean by it. Appellants
say that “Mr. Filburn actively grew wheat beyond the quota, even
if for personal use” while Ms. Waddell and Mrs. Merrill “have
exerted no effort and used no resources.” Appellants’ Br. 21.
But appellants expressly state that “Miss Waddell and Mrs.
Merrill have voluntarily and deliberately decided not to
purchase health insurance, but to instead save for and privately
manage health care.” Id. at 10 (emphasis added). It is not clear
why “sav[ing] for and privately manag[ing] health care,” a
species of what economists call “self-insurance,” 11 requires
neither “effort” nor “resources”—in fact, one would imagine that
“sav[ing]” requires “resources” (namely, money) and that
11
Cf. 42 U.S.C. § 18091(a)(2)(A) ("In the absence of the
[individual mandate], some individuals would make an economic
and financial decision to forego health insurance coverage and
attempt to self-insure . . . ."). Because individuals who self-
insure are unable to shift risk in the way that market insurance
does, self-insurance is far more common among collectives or
businesses, where it may be efficient. See generally M. Moshe
Porat, Uri Spiegel, Uzi Yaari, Uri Ben Zion, Market Insurance
Versus Self Insurance: The Tax-Differential Treatment and Its
Social Cost, 58 J. Risk & Ins. 657 (1991); Patrick L. Brockett,
Samuel H. Cox, Jr., and Robert C. Witt, Insurance Versus Self-
Insurance: A Risk Management Perspective, 53 J. Risk & Ins. 242
(1986); Isaac Ehrlich, Gary S. Becker, Market Insurance, Self-
Insurance, and Self-Protection, 80 J. Pol. Econ. 623 (1972).
118
“manag[ing]” requires some “effort.” Id. at 10, 21. Though,
unlike wheat and marijuana, insurance is intangible, appellants
do not suggest that interstate markets in intangible goods or
services are less subject to regulation under the Commerce
Clause than markets in tangible goods; thus, it is difficult to
see why the legal import of the appellants’ “sav[ing]” and
“manag[ing]” should differ from that of Mr. Filburn’s sowing and
harvesting.
But even if appellants had said nothing about saving and
managing and I accepted that Ms. Waddell and Mrs. Merrill had
truly “exerted no effort and used no resources” with respect to
health insurance—that is, that they had taken no steps to self-
insure—it is difficult to make out the legal relevance of this
point. Mr. Filburn and Ms. Raich deliberately chose to meet
their own needs rather than enter commerce and purchase goods on
the market and thus they, too, “exerted no effort and used no
resources” in connection to the relevant markets; why are they
more susceptible to Commerce Clause regulation than appellants
simply because they privately exerted effort and expended
resources for a noncommercial end?
Appellants have provided no express answer, but one is
implicit in their arguments: in choosing to act, even privately,
with notice of regulation, one can be said to consent or at
least submit to that regulation. Under this view, Wickard and
119
Raich are distinguishable because they concerned regulated
domains which individuals voluntarily entered upon the
commencement of some “activity.” Thus, appellants’ complaint
that “appellants in Raich could avoid Congress’ reach by not
manufacturing or possessing marijuana, but here the Appellants
cannot avoid Congress’ reach even if they are not doing
anything.” Appellants’ Br. 19. Appellants express concern
throughout their brief about allowing Congress to “regulate
[people] because they are legal citizens who merely exist,” id.
at 20; 12 likewise, the Eleventh Circuit majority worries that
“[i]ndividuals subjected to this economic mandate have not made
a voluntary choice to enter the stream of commerce . . . .”
Florida, --- F.3d at ---, 2011 WL at *48. So I will consider the
Commerce Clause ramifications of regulating “everyone.”
3. Federalism & Regulations Affecting Everyone
I am aware of no “substantial effect” case, in more than a
century of Commerce Clause jurisprudence, that looks beyond the
class of activities regulated to the class of persons affected.
And this is unsurprising, as the dispositive question is whether
the object of regulation substantially affects interstate
commerce; what the affected persons have done to consent (or
not) to the regulation is obviously irrelevant to that inquiry.
12
It is no coincidence that “voluntary” or “voluntarily”
appears twenty-eight times in appellants’ briefs.
120
Appellants claim that their liberty concern springs from the
principles of federalism rather than black-letter Commerce
Clause law. Though these principles serve to protect state
sovereignty and the resulting division of power helps to secure
our liberty, federalism is not an independent font of individual
rights.
As Justice Kennedy explained in his concurrence in Lopez,
“it was the insight of the Framers that freedom was enhanced by
the creation of two governments, not one,” as power could be
split between state and federal governments even before each
government’s powers were further separated among legislative,
executive, and judicial departments. 514 U.S. at 576. Thus,
“[s]tate sovereignty is not just an end in itself: ‘Rather,
federalism secures to citizens the liberties that derive from
the diffusion of sovereign power.’” New York v. United States,
505 U.S. 144, 181 (1992) (quoting Coleman v. Thompson, 501 U.S.
722, 759 (1991) (Blackmun, J., dissenting)). Federalism
“enhance[s]” our liberty by disaggregating power; it helps to
secure all our individual rights, but it does not create new
ones. The Supreme Court’s recent decision in Bond v. United
States, which granted an individual criminal defendant standing
to challenge a federal statute on the grounds that it usurped
powers reserved to the states and which discussed at length the
ways in which federalism protects individual liberty, is not to
121
the contrary. 564 U.S. ---, ---, 131 S. Ct. 2355, 2364 (2011).
Appellants provide no support for their suggestion that some
novel, heretofore unknown, individual right can spring from the
principles of federalism.
Federalism was properly invoked in Lopez and Morrison,
where, to police the division of authority between state and
federal governments, the Court struck down federal regulation of
noneconomic activity within “areas such as criminal law
enforcement or education where States historically have been
sovereign.” Lopez, 514 U.S. at 564; see Morrison, 529 U.S. at
599. Lopez and Morrison’s concern about the loss of state
authority within areas traditionally reserved to the states
implicates the division of power between state and federal
governments and thus goes to the very core of federalism.
Appellants’ individual liberty concerns do not. Appellants
suggest that allowing the Act to touch all U.S. residents,
whether or not they have voluntarily entered a regulated domain,
“threatens . . . the bedrock concept[] of . . . individual
freedom.” Appellants’ Br. 11-12. Federalism does not speak to
this issue.
Nor does any recognized individual right. Appellants’
rhetoric sometimes suggests a generalized right to be left
alone; but outside of a limited right to privacy concerning “the
most intimate and personal choices a person may make in a
122
lifetime, choices central to personal dignity and autonomy,”
including those “relating to marriage, procreation,
contraception, family relationships, child rearing, and
education,” Planned Parenthood of Se. Penn. v. Casey, 505 U.S.
833, 851 (1992), no such right exists. And any such right
springing from substantive due process would bind the states
under the Fourteenth Amendment as well as the federal government
under the Fifth, placing universal regulation outside the reach
of any government.
Moreover, an extensive body of federal laws, many passed
pursuant to the Commerce Clause, targets all U.S. residents:
federal criminal law. Indeed, Raich itself concerned the
Controlled Substances Act and the noncommercial production and
consumption of marijuana; nowhere in Raich did the Court
intimate concern that the federal government was regulating the
drug use of “everyone . . . just for being alive and residing in
the United States.” Bondi, --- F. Supp. 2d. at ---, 2011 WL
285683, at *20. Though penalties do not attach until someone has
violated the statute, the same is true of the Act’s regulation.
Of course, appellants suggest that compelling action is less
legitimate under the Commerce Clause than prohibiting action. I
take up that question next.
VI. Compelling Action
123
Having established that the regulation of “inactivity in
commerce” does not offend the Commerce Clause, I consider
whether federal commerce regulation can properly “force [a]
citizen to participate in commerce by mandating that she
purchase a [commodity] . . . or pay a penalty for
noncompliance.” Appellants’ Br. 1.
As I explained at length above, the Supreme Court has
taught that an enactment is authorized by the Commerce Clause
where Congress could rationally conclude that the object of
regulation substantially affects interstate commerce. This
inquiry looks only at the relation between the object of
regulation and interstate commerce; the content of the
regulation—what it compels or prohibits—is irrelevant. Indeed,
it has long been recognized that “[t]he power of Congress over
interstate commerce is plenary and complete in itself, may be
exercised to its utmost extent, and acknowledges no limitations
other than are prescribed in the Constitution.” Wickard, 317
U.S. at 124 (quoting United States v. Wrightwood Dairy Co., 315
U.S. 110, 119 (1942)); cf. Raich, 545 U.S. at 29 (“[S]tate
action cannot circumscribe Congress’ plenary commerce power.”).
The Necessary and Proper Clause makes clear that we are to defer
to Congress with respect to the means it employs to effectuate
legitimate ends. U.S. Const. art. I, § 8, cl. 18. In combination
with the Commerce Clause, it empowers Congress “‘to take all
124
measures necessary or appropriate to’ the effective regulation
of the interstate market.” Raich, 545 U.S. at 38 (Scalia, J.,
concurring) (quoting Shreveport Rate Cases, 234 U.S. 342, 353
(1914)).
But even if it were appropriate to review the method of
regulation Congress has chosen to employ, I would find that the
individual mandate fits well within the range of acceptable
commercial regulations.
A. The Act Does Not Compel Citizens to Enter Commerce
I first note that the Act does not “force” any citizen to
enter commerce. Appellants’ Br. 1. Instead, residents are given
a choice between obtaining health insurance (by market purchase
or otherwise) and paying a non-punitive tax penalty that, by
law, is capped at “the national average premium for qualified
health plans which have a bronze level of coverage.” 26 U.S.C. §
5000A(c)(1)(B); see id. at § 5000A(b)(1). As the average cost of
providing the most basic insurance, this amount should roughly
approximate the expected costs to the regulatory scheme (in the
form of higher premiums) occasioned by an individual’s failure
to procure insurance. Because the uninsured effectively force
the rest of the nation to insure them with respect to basic,
stabilizing care, this penalty is something like a premium paid
into the federal government, which bears a large share of the
shifted costs as the largest insurer in the nation.
125
B. History of Compelled Purchases
Even if the individual mandate were properly characterized
as compelling residents to enter the market, this has long been
an acceptable form of regulation under the Commerce Clause. For
instance, the Federal Motor Carrier Safety Administration,
acting pursuant to the Motor Carrier Act of 1980, requires that
motor carriers purchase either liability insurance or a surety
bond in order to ensure that they are able to pay for damage
they may cause. See 49 C.F.R. § 387. And the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980
(CERCLA) requires that the owner of property contaminated by a
hazardous substance “provide removal or remedial action”—likely
requiring resort to the market—on pain of liability for punitive
damages, even where the owner bears “no[] culpability or
responsibility for the contamination” and indeed is entirely
“passiv[e].” 42 U.S.C. § 9607(c)(3); Nurad, Inc. v. William E.
Hooper & Sons Co., 966 F.2d 837, 846-47 (4th Cir. 1992). CERCLA
has survived all Commerce Clause challenges, and it was
expressly held a proper exercise of Congress’s Commerce Clause
power by the Second Circuit Court of Appeals. See Freier v.
Westinghouse Elec. Corp., 303 F.3d 176, 203 (2d Cir. 2002),
cert. denied, 538 U.S. 998 (2003); cf. United States v. Olin
Corp., 107 F.3d 1506, 1511 (11th Cir. 1997) (holding CERCLA
126
constitutional Commerce Clause legislation as applied to
appellants).
Wickard itself suggests that compelled purchases are
permissible. The Court explained:
It is said, however, that this Act, forcing some
farmers into the market to buy what they could provide
for themselves, is an unfair promotion of the markets
and prices of specializing wheat growers. It is of the
essence of regulating that it lays a restraining hand
on the selfinterest of the regulated and that
advantages from the regulation commonly fall to
others. . . . And with the wisdom, workability, or
fairness, of the plan of regulation we have nothing to
do.
317 U.S. at 129 (emphasis added). When describing how
noncommercial wheat production decreased demand for market
wheat, the Court explained that it “forestall[ed] resort to the
market” and “supplies a need of the man who grew it which would
otherwise be reflected by purchases in the open market.” Id. at
127, 128. Though Wickard did not involve an express purchase
mandate, the Court understood that Mr. Filburn was effectively
being “forc[ed] . . . into the market to buy” wheat when it
rejected his Commerce Clause challenge. Id. at 129.
C. Compelled Purchases as Government’s Core Function
Finally, I pause to consider why purchase mandates—whether
they be for health insurance or broccoli—occasion such fear of
federal aggrandizement. Cf. Thomas More, --- F.3d at ----, 2011
WL at *32 (conveying author’s “lingering intuition—shared by
127
most Americans, I suspect—that Congress should not be able to
compel citizens to buy productions they do not want”) (Sutton,
J). Compelled purchases are the most fundamental function of
government of any sort, and the fact that the government here
allowed its residents additional freedom of choice over these
purchases should diminish, not exacerbate, anxieties about
federal tyranny.
Governments exist, most fundamentally, to solve collective
action problems. Core governmental functions, like the provision
of domestic peace, enforceable property rights, national
defense, and infrastructure, are assigned to government because
the market fails to produce optimal levels of such public
goods. 13 Since public goods are enjoyed by all, most individuals
refuse to purchase them themselves, hoping instead that they can
free-ride when someone else does. By forcibly collecting tax
revenue and using it to purchase public goods, governments are
able to solve this collective action problem. Thus, at root,
13
See generally R.H. Coase, The Lighthouse in Economics, 17
J.L. & Econ. 357, 357-360 (1974); Paul A. Samuelson, The Pure
Theory of Public Expenditure, 36 Rev. Econ. & Statistics 387
(1954). Public goods are goods that are "non-rival" and "non-
excludable." "Non-rival" means that enjoyment of the good by one
citizen does not reduce the enjoyment by another; "non-
excludable" means that all citizens will enjoy the good once it
is produced—none can be excluded. See, e.g., John P. Conley &
Christopher S. Yoo, Nonrivalry and Price Discrimination in
Copyright Economics, 157 U. Pa. L. Rev. 1801, 1805-11 (2009).
128
governments are formed precisely to compel purchases of public
goods.
Because hospitals are required to stabilize the uninsured,
the uninsured are able to pass along much of the cost of their
health care to the insured. 14 Solving this problem, as the Act
attempts to do, creates a public good: lower prices for health
services for all citizens. Thus, the Act compels the purchase of
a public good, just as the federal government does when it
collects taxes and uses it to fund national defense.
Indeed, it is undisputed that Congress would have had the
power under the Taxing and Spending Clause to raise taxes and
use increased revenues to purchase and distribute health
insurance for all. It seems quite odd that Congress’s attempt to
enhance individual freedom by allowing citizens to make their
own purchase decisions would give rise to such bloated concerns
about a federal power grab. Cf. Thomas More, --- F.3d at ----,
2011 WL at *31 (Sutton, J.) (“Few doubt that Congress could pass
an equally coercive law under its taxing power . . . .”).
As for the broccoli mandate appellants fear, I have
explained at several points why nothing I have written would
authorize it. But I note that mandating the purchase (but not
the consumption, which would raise serious constitutional
14
In the language of economics, the failure to obtain
insurance has "negative externalities"—negative effects on those
not responsible for the decision.
129
issues) of broccoli in order to bolster the broccoli market
would, in practical effect, be nothing new. Since the time of
the Founding Fathers, when Alexander Hamilton called for federal
subsidies for domestic manufacturers, the federal government has
used tax revenues to subsidize various industries. See Algonquin
SNG, Inc. v. Federal Energy Administration, 518 F.2d 1051, 1061
(D.C. Cir. 1975) (“From earliest days, the tariff authority
given Congress by the Constitution has been understood to apply
to the ‘protective tariff’ sponsored by Alexander Hamilton, a
measure focused . . . on the ‘non-revenue purpose’ of protecting
domestic industry against foreign competition.”), rev’d by
Federal Energy Administration v. Algonquin SNG, Inc., 426 U.S.
548 (1976). Though centralized subsidies are far more efficient
than purchase mandates—which is why a broccoli mandate is purely
fantastical—they are, in effect, the same. Since they, too, are
clearly within Congress’s power under the Taxing and Spending
Clause, allowing broccoli purchase mandates would not increase
federal power. For these reasons, I find appellants’ fears to be
unfounded. I would reject their novel and unsupported suggestion
that Commerce Clause jurisprudence ought to discriminate among
regulated persons according to the amount of effort or resources
they have expended in a given economic arena. Under seventy
years of well-settled law, it is enough that the behavior
regulated (whether characterized as activity or inactivity)
130
substantially affects interstate commerce. Appellants can cite
neither case nor constitutional text for their proposed
activity/inactivity distinction. They can explain neither why it
ought to be relevant to my Commerce Clause analysis nor why it
ought to impel courts to ignore seventy-year-old law that takes
a wholly different approach. And they cannot even provide a
sufficiently concrete definition of “activity” and “inactivity”
to allow courts to reliably apply their distinction. Because I
find the individual mandate to be within the bounds of
Congress’s commerce power defined by Wickard, Lopez, Morrison,
and Raich, I would reject appellants’ Commerce Clause challenge.
VII. Employer Mandate
Appellants also challenge the Affordable Care Act’s
employer mandate, arguing that it is not a proper exercise of
Congress’s power under the Commerce Clause. I disagree.
It is well settled that Congress may regulate terms of
employment under the Commerce Clause. See United States v.
Darby, 312 U.S. 100 (1941) (upholding minimum wage and overtime
provisions of the Fair Labor Standards Act); NLRB v. Jones &
Laughlin Steel Corp., 301 U.S. 1 (1937) (upholding National
Labor Relations Act of 1935, which forbid unfair labor
practices); cf. Employee Retirement Income Security Act of 1974,
29 U.S.C. § 1001 et seq. (regulating employer retirement plans
and preempting state regulations under the Commerce Clause); id.
131
at § 1082 et seq. (setting minimum funding standards for
employer retirement plans). This is true, of course, of
employers “engaged [solely] in intrastate commerce,” so long as
Congress could reasonably find that their intrastate activities
(considered in the aggregate) substantially affect interstate
commerce. Garcia v. San Antonio Metro. Transit Auth., 469 U.S.
528, 537 (1985); accord Darby, 312 U.S. at 118-119; Jones &
Laughlin, 301 U.S. at 36-38.
Appellants do not challenge Congress’s finding that
“employers who do not offer health insurance to their workers
gain an unfair economic advantage relative to those employers
who do provide coverage” and contribute to a negative feedback
loop in which “uninsured workers turn to emergency rooms for
health care which in turn increases costs for employers and
families with health insurance,” making it more difficult for
employers to insure their employees. H.R. Rep. No. 111-443(II),
at 985-86 (2010). Nor do appellants dispute the fact that this
amounts to a substantial effect on interstate commerce. Instead,
they attempt to distinguish the employer mandate from the wage
and overtime provisions in Darby and the fair labor practices in
Jones & Laughlin and argue that the mandate compels “private
employers [to] enter into a contract with other private parties
for a particular product.” Appellants’ Br. 25.
132
These arguments fail. Appellants cannot convincingly
distinguish Darby or Jones & Laughlin. They repeatedly suggest
that regulated employers must be involved in interstate
commerce; but, as explained above, it is well settled that
employers who conduct only intrastate business may be regulated
under the Commerce Clause so long as their economic activities,
considered in the aggregate, substantially affect interstate
commerce. Appellants emphasize the Court’s observation in Jones
& Laughlin that the National Labor Relations Act “does not
compel agreements between employers and employees.” Id. at 27
(quoting Jones & Laughlin, 301 U.S. at 31). Neither does the
employer mandate: like the minimum wage and overtime provisions
upheld in Darby, it merely requires that employment agreements
contain certain terms (or that the employer pay a penalty).
Appellants attempt to distinguish Darby by arguing that
“the wage and hour provisions in Darby . . . did not prescribe
what must be contained within the employment contract, other
than setting a floor for wages and a ceiling for hours.”
Appellants’ Br. 28. But the employer mandate, too, only “set[s]
a floor”: it requires employers to offer employees “the
opportunity to enroll in minimum essential coverage under an
eligible employer-sponsored plan,” but employers are free to
select any plan (or create their own) and provide any level of
133
coverage above the “minimum essential” level, the mandate’s
“floor.” 26 U.S.C. § 4980H(a)(1).
Appellants’ only other objection to the employer mandate is
that it allegedly forces employers to contract with third
parties. This is untrue: employers are free to self-insure, and
many do. See Employee Benefit Research Inst., Health Plan
Differences: Fully-Insured vs. Self-Insured (2009) (reporting
that 55% of employees with health insurance were enrolled in
self-insured plans in 2008); Christina H. Park, Div. of Health
Care Statistics at the Nat’l Ctr. for Health Statistics, Ctrs.
for Disease Control and Prevention, Prevalence of Employer Self-
Insured Health Benefits: National and State Variation, 57 Med.
Care Res. & Rev. 340, 352 (2000) (finding that 21% of all
private-sector employers who offered health benefits offered a
self-insured health plan in 1993; 49% of employees were enrolled
in self-insured plans). Even if employers were compelled to
enter the market to purchase health insurance, appellants’
objection would fail for the very reasons I would reject their
similar challenge to the individual mandate.
VIII. Religious Exemptions
Appellants also allege violations of the Free Exercise
Clause, the Religious Freedom Restoration Act of 1993, the
Establishment Clause, and equal protection. The Act makes two
religious exemptions: a religious conscience exemption and a
134
health-care sharing ministry exemption. 26 U.S.C. § 5000A(d)(2).
The former exempts members of a recognized religious sect in
existence since December 31, 1950 who are “conscientiously
opposed to acceptance of the benefits of any private or public
insurance which makes payments in the event of death,
disability, old-age, or retirement or makes payments toward the
cost of, or provides services for, medical care.” Id. §
1402(g)(1). The latter exempts members of a “health care sharing
ministry”—a non-profit organization in existence since December
31, 1999 with members who “share a common set of ethical or
religious beliefs and share medical expenses among members in
accordance with those beliefs and without regard to the State in
which a member resides or is employed.” Id. §
5000A(d)(2)(B)(ii).
Appellants claim that these exemptions are “religious
gerrymanders” demonstrating that the Act itself is hostile to
certain religions, Appellants’ Br. 45, and further that the
exemptions themselves are unconstitutional under the
Establishment and Equal Protection Clauses. For the following
reasons, I reject these arguments.
A. Free Exercise Clause
Appellants allege that the Act compels them to violate
their “sincerely held religious beliefs against facilitating,
subsidizing, easing, funding, or supporting abortions” and
135
prohibits the University from “providing health care choices for
employees that do not conflict with the mission of the
University and the core Christian values under which it and its
employees order their day to day lives.” Second Am. Compl. ¶
142; Pls.’ Opp’n 36. This argument is unavailing.
“[T]he right of free exercise does not relieve an
individual of the obligation to comply with a valid and neutral
law of general applicability on the ground that the law
proscribes (or prescribes) conduct that his religion prescribes
(or proscribes).” Dept. of Human Res. of Or. v. Smith, 494 U.S.
872, 879 (1990). Appellants claim that the Act is not neutral
because its religious exemptions are “the type of ‘religious
gerrymanders’ that the Supreme Court warned against in Lukumi.”
Appellants’ Br. 45 (quoting Church of Lukumi Babalu Aye, Inc. v.
City of Hialeah, 508 U.S. 520, 534 (1993)). They are not. In
Lukumi, the Supreme Court struck down city ordinances after
finding that “[t]he record in this case compels the conclusion
that the suppression of the central element of the Santeria
worship service was the object of the ordinances.” 508 U.S. at
534. Here appellants never allege that “the object of [the Act]
[wa]s to infringe upon or restrict practices because of their
religious motivation.” Id. The Act is a neutral law of general
applicability and so does not violate the Free Exercise Clause.
B. Religious Freedom Restoration Act
136
I also reject the claim that application of the individual
mandate to appellants would run afoul of the Religious Freedom
Restoration Act of 1993 (RFRA). The RFRA directs that the
“Government shall not substantially burden a person’s exercise
of religion even if the burden results from a rule of general
applicability,” unless the Government “demonstrates that
application of the burden to the person (1) is in furtherance of
a compelling governmental interest; and (2) is the least
restrictive means of furthering that compelling governmental
interest.” 42 U.S.C. § 2000bb-1.
If appellants had plead sufficient facts to demonstrate a
substantial burden to their exercise of religion, I would be
forced to consider the relevance of the RFRA to a subsequent act
of Congress. Cf. Gonzales v. O Centro Espirita Beneficente Uniao
do Vegetal, 546 U.S. 418 (2006) (applying RFRA to enforcement of
pre-RFRA provisions of the Controlled Substances Act). But
appellants have not.
To survive the Government’s 12(b)(6) motion to dismiss,
appellants’ complaint must “provide the grounds of [their]
entitlement to relief,” which “requires more than labels and
conclusions.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007) (internal quotation marks omitted). “[C]onclusory”
allegations are “not entitled to be assumed true.” Ashcroft v.
Iqbal, --- U.S. ---, ---, 129 S. Ct. 1937, 1951 (2009). Unless
137
appellants’ allegations “nudge[] their claims across the line
from conceivable to plausible, their complaint must be
dismissed.” Twombly, 550 U.S. at 570.
Here appellants merely alleged that the individual mandate
will force them to violate their “sincerely held religious
beliefs against facilitating, subsidizing, easing, funding, or
supporting abortions.” Second Am. Compl. ¶ 142. Nowhere does the
complaint explain how the Act would do this. The Act contains
provisions to ensure that federal funds are not used for
abortions (except in cases of rape or incest, or when the life
of the woman would be endangered), see Affordable Care Act §
1303; see also Exec. Order No. 13,535 of Mar. 24, 2010, 75 Fed.
Reg. 15,599 (implementing Section 1303’s abortion restrictions),
and that each state’s health benefit exchange will include at
least one plan that does not cover (non-excepted) abortions, see
Affordable Care Act § 1334(a)(6). Without additional or more
particularized allegations, I cannot say that appellants’
complaint makes it plausible that the Act “substantially burdens
[their] exercise of religion.” 42 U.S.C. § 2000bb-1(b).
C. Establishment Clause and Equal Protection
Appellants also challenge the Act’s religious exemptions
themselves, claiming that they violate the Establishment Clause
and equal protection because “they grant preferred status only
to certain religious adherents.” Appellants’ Br. 45. I disagree.
138
Like the “permissible legislative accommodation of religion”
upheld by the Supreme Court in Cutter v. Wilkinson, the Act’s
exemptions alleviate “government-created burdens on private
religious exercise,” “do[] not override other significant
interests,” and neither “confer[] . . . privileged status on any
particular religious sect, [nor] single[] out [any] bona fide
faith for disadvantageous treatment.” 544 U.S. 709, 719-23
(2005).
The religious conscience exemption simply incorporates the
exemption created by section 1402(g)(1), which has survived
every Establishment Clause challenge to it over the last forty
years. See, e.g., Droz v. Comm’r, 48 F.3d 1120, 1124 (9th Cir.
1995); Hatcher v. Comm’r, 688 F.2d 82, 83-84 (10th Cir. 1979);
Jaggard v. Comm’r, 582 F.2d 1189, 1190 (8th Cir. 1978); Palmer
v. Comm’r, 52 T.C. 310, 314-15 (1969). For the reasons set out
by our sister courts in these cases, I would reject appellants’
Establishment Clause challenge to the Act’s exemptions.
The exemptions easily survive appellants’ equal protection
challenge as well. Legislation comports with equal protection
requirements so long as it employs “a rational means to serve a
legitimate end.” City of Cleburne v. Cleburne Living Ctr., 473
U.S. 432, 442 (1985). And “where individuals in the group
affected by a law have distinguishing characteristics relevant
to interests the [legislature] has the authority to implement,
139
the courts have been very reluctant . . . to closely scrutinize
legislative choices as to whether, how, and to what extent those
interests should be pursued.” Id. at 441-42. Here Congress could
have reasonably believed that members of groups that provide
health care to their members are less likely to require public
medical care, and thus less likely to produce the externalities
the Act was designed to diminish. And Congress could have
reasonably believed that if it did not limit these exemptions to
groups formed prior to a pre-enactment date, individuals who
simply wished to avoid the individual mandate would form groups
that insincerely claimed the required religious beliefs. Thus
the distinctions Congress drew in the Act’s religious exemptions
accord all equal protection under the law.
IX. Conclusion
For the foregoing reasons, I would hold that the AIA does
not deprive federal courts of jurisdiction to adjudicate the
constitutionality of the Affordable Care Act. I would further
hold that each of appellants’ challenges to the Act lacks merit
and that, specifically, both the individual and employer
mandates pass muster as legitimate exercises of Congress’s
commerce power.
Regrettably, my fine colleagues in the majority perceive a
jurisdictional bar in this case that simply is not there.
Accordingly, I respectfully dissent.
140