https://www justice gov/file/904426/download

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 23, 2011 Decided November 8, 2011

No. 11-5047

SUSAN SEVEN-SKY, ALSO KNOWN AS SUSAN SEVENSKY, ET

AL.,
APPELLANTS

v.

ERIC H. HOLDER, JR., ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia
(No. 1:10-cv-00950)

Edward L. White III, pro hac vice, argued the cause for
appellants. With him on the briefs were Jay Alan Sekulow,
Colby M. May, Miles Landon Terry, and James M. Henderson
Sr.

David B. Kopel was on the brief for amici curiae

Independence Institute in support of appellants.

Dale L. Wilcox and Michael Bekesha were on the brief for

amicus curiae Judicial Watch, Inc. in support of appellants.

Lawrence J. Joseph was on the brief for amici curiae

 2

American Physicians & Surgeons, Inc., et al. in support of

appellants.

Paul D. Clement, Erin E. Murphy, Louis F. Hubener,

Deputy Solicitor General, Office of the Attorney General for the
State of Florida, Bill Cobb, Deputy Attorney General for Civil
Litigation, Office of the Attorney General for the State of Texas,
Luther Strange, Attorney General, Office of the Attorney
General for the State of Alabama, Gregory F. Zoeller, Attorney
General, Office of the Attorney General for the State of Indiana,
Derek Schmidt, Attorney General, Office of the Attorney
General for the State of Kansas, William J. Schneider, Attorney
General, Office of the Attorney General for the State of Maine,
Bill Schuette, Attorney General, Office of the Attorney General
for the State of Michigan, Jon Bruning, Attorney General,
Office of the Attorney General for the State of Nebraska, Wayne
Stenehjem, Attorney General, Office of the Attorney General for
the State of North Dakota, Marty J. Jackley, Attorney General,
Office of the Attorney General for the State of South Dakota,
Michael DeWine, Attorney General, Office of the Attorney
General for the State of Ohio, Thomas W. Corbett, Jr., Acting
Attorney General, Office of the Attorney General for the
Commonwealth of Pennsylvania, Robert M. McKenna, Attorney
General, Office of the Attorney General for the State of
Washington, and J.B. Van Hollen, Attorney General, Office of
the Attorney General for the State of Wisconsin. Katherine J.
Spohn, Special Counsel to the Attorney General, Office of the
Attorney General for the State of Nebraska, entered an
appearance.

Robert A. Levy, Ilya Shapiro, Hans Bader, Steven J.

Lechner, Timothy Sandefur, Charles J. Cooper, David H.
Thompson, Geoffrey D. Talmon and Brian Koukoutchos were on
the brief for amici curiae Cato Institute, et al. in support of
appellants.
 3

Patrick T. Gillen was on the brief for amicus curiae

CatholicVote.org.

Grant M. Lally and Deborah N. Misir were on the brief for

amicus curiae Caesar Rodney Institute in support of appellants.

Beth S. Brinkmann, Deputy Assistant Attorney General,

U.S. Department of Justice, argued the cause for appellees.
With her on the briefs were Tony West, Assistant Attorney
General, Ronald C. Machen Jr., U.S. Attorney, and Mark B.
Stern, Alisa B. Klein, Samantha L. Chaifetz and Dina B. Mishra,
Attorneys. R. Craig Lawrence, Assistant U.S. Attorney, entered
an appearance.

Rochelle Bobroff was on the brief for amici curiae

American Association of People with Disabilities, et al. in
support of appellees.

Ian Millhiser was on the brief for amici curiae American

Nurses Association, et al. in support of appellees.

Stacy Canan and Michael Schuster were on the brief for

amicus curiae AARP in support of appellees.

Marcia D. Greenberger and Melissa Hart were on the brief

for amici curiae The National Women's Law Center, et al. in
support of appellees.

Jeffrey A. Lamken and Robert K. Kry were on the brief for

amici curiae Law Professors Barry Friedman, et al. in support
of appellees.

Martha Coakley, Attorney General, Office of the Attorney

General for the Commonwealth of Massachusetts, and Carol
Iancu, Assistant Attorney General, were on the brief for amicus
 4

curiae Commonwealth of Massachusetts in support of appellees.

Andrew J. Pincus, Charles A. Rothfeld, Michael B.

Kimberly and Paul W. Hughes were on the brief for amici curiae
Constitutional Law Professors in support of appellees.

Elizabeth B. Wydra was on the brief for amicus curiae

Constitutional Accountability Center in support of appellees.

Patrick J. Szymanski, Judith A. Scott, Walter Kamiat, Mark

Schneider, and Scott Kronland were on the brief for amici
curiae Service Employees International Union, et al. in support
of appellees.

Hadrian R. Katz and Matthew A. Eisenstein were on the

brief for amici curiae Economic Scholars in support of
appellees.

Catherine E. Stetson, Dominic F. Perella, Melinda Reid

Hatton, and Jeffrey G. Micklos were on the brief for amici
curiae American Hospital Association, et al. in support of
appellees.

Douglas F. Gansler, Attorney General, Office of the

Attorney for the State of Maryland, John B. Howard Jr., Deputy
Attorney General, Joshua N. Auerbach, Assistant Attorney
General, Kamala D. Harris, Attorney General, Office of the
Attorney General for the State of California, Travis LeBlanc,
Special Assistant Attorney General, George C. Jepsen, Attorney
General, Office of the Attorney General for the State of
Connecticut, Joseph R. Biden, III, Attorney General, Office of
the Attorney General for the State of Delaware, Irvin B. Nathan,
Attorney General, Office of the Attorney General for the District
of Columbia, Todd S. Kim, Solicitor General, David M. Louie,
Attorney General, Office of the Attorney General for the State
 5

of Hawaii, Tom Miller, Attorney General, Office of the Attorney

General for the State of Iowa, Eric T. Schneiderman, Attorney
General, Office of the Attorney General for the State of New
York, John R. Kroger, Attorney General, Office of the Attorney
General for the State of Oregon, and William H. Sorrell,
Attorney General, Office of the Attorney General for the State
of Vermont, were on the brief for amici curiae State of
Maryland, et al. in support of appellees.

Alan B. Morrison was on the brief for amici curiae

Mortimer Caplin & Sheldon Cohen in support of appellees.

Robin S. Conrad, K. Lee Blalack II, and Brian Boyle were

on the brief for amicus curiae Chamber of Commerce of the
United States of America in support of neither party.

Before: KAVANAUGH, Circuit Judge, and EDWARDS and

SILBERMAN, Senior Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge

SILBERMAN, with whom Senior Circuit Judge EDWARDS
concurs.

Concurring opinion filed by Senior Circuit Judge

EDWARDS.

Opinion dissenting as to jurisdiction and not deciding the

merits filed by Circuit Judge KAVANAUGH.

SILBERMAN, Senior Circuit Judge: The district court

rejected appellants’ challenge to the Patient Protection and
Affordable Care Act. They appeal. Despite questions raised as
to our subject matter jurisdiction, we conclude we have
jurisdiction, and we affirm the district court’s conclusion that
the Act is constitutional.
 6

I.

Since so much has already been written by our sister

circuits about the issues presented by this case–which will
almost surely be decided by the Supreme Court–we shall be
sparing in adding to the production of paper.

Suffice it to say that the Affordable Care Act sought to

reform our nation’s health insurance and health care delivery
markets with the aims of improving access to those markets and
reducing health care costs and uncompensated care. Other
courts of appeals have described its provisions at length. See
Thomas More Law Ctr. v. Obama, 651 F.3d 529, 534-35 (6th
Cir. 2011); Florida v. U.S. Dep’t of Health and Human Servs.,
648 F.3d 1235, 1249-62 (11th Cir. 2011).

This suit, like others, involves a challenge to the “minimum

essential coverage provision,” which requires all “applicable
individual[s]” to purchase and maintain “minimum essential
coverage”–i.e., required essential health benefits in an insurance
plan–for each month beginning in January 2014. This
requirement is commonly called the “individual mandate.” Any
“taxpayer” who “fails to meet the requirement” must pay a
“shared responsibility payment,” labeled a “penalty,” which will
be calculated by using the lesser of either a percentage of the
taxpayer’s income or the national average premium for the
lowest-level plan providing “minimum essential coverage.”1

Congress made specific findings why, in its judgment, the

1
26 U.S.C. § 5000A(a) (individual mandate); id. § 5000A(b)-
(c) (penalty provision).
 7

individual mandate regulates commerce.2 Congress determined

that decisions about whether and when to purchase health
insurance, and how to pay for health care services, are inherently
economic. And Congress found that without the mandate,
uninsured individuals, in the aggregate, would consume costly
health care services and pass on those costs to other market
participants. Without the mandate, in Congress’s view, other
reforms–namely prohibitions on denying health insurance
coverage to individuals with pre-existing medical conditions
(the “guaranteed issue requirement”) or using an individual’s
medical history to justify higher insurance premiums (the
“community rating requirement”)–would increase average
premiums, exacerbate adverse selection problems, and
discourage individuals from obtaining coverage until they were
sick.

Appellants, four United States citizens and federal

taxpayers, seek declaratory and injunctive relief to prevent
various U.S. Government officials and agencies from enforcing
the minimum essential coverage provisions. They argue that the
mandate exceeds Congress’s authority under the Commerce
Clause and substantially burdens appellants Susan Seven-Sky’s
and Charles Edward Lee’s religious exercise, in violation of the
Religious Freedom Restoration Act.3

The district court granted the Government’s motion to

dismiss. It upheld the minimum essential coverage provisions
under the Commerce Clause and the Necessary and Proper
Clause as a regulation of economic activity that substantially

2
These findings are codified at 42 U.S.C. § 18091(a)(1)-(3)
and discussed extensively in other opinions. See Florida, 648 F.3d at
1244-47.
3
42 U.S.C. § 2000bb et seq.
 8

affects the health insurance and health care markets and as an

essential element of a broader regulatory scheme. Mead v.
Holder, 766 F. Supp. 2d 16, 33-35 (D.D.C. 2011). It also
rejected appellants’ Religious Freedom Restoration Act claim.4
Id. at 42-43.

Appellants filed a timely appeal. We affirm.

II.

At the outset, we are obliged to consider whether we have

jurisdiction over this case. It is argued by one amicus5 that the
Anti-Injunction Act–which states, with some exceptions, that
“no suit for the purpose of restraining the assessment or
collection of any tax shall be maintained in any court by any
person”–restrains us from entertaining the merits of this suit.6
Indeed, the Fourth Circuit has recently held as much. See
Liberty Univ., Inc. v. Geithner, No. 10-2347, 2011 WL 3962915,
at *1 (4th Cir. Sept. 8, 2011). According to our sister circuit, no
suits to challenge the individual mandate or the penalty can be
brought until the mandate comes into effect in 2014, plaintiffs
fail to comply, the IRS imposes a penalty, and plaintiffs bring a
refund action against the IRS. See id. at *4. Although both
appellants and the Government–the parties to this case–insist we
do have jurisdiction, we, of course, have an independent duty to

4
We affirm the dismissal of appellants’ Religious Freedom
Restoration Act claim, because we agree with the district court’s
reasoning that appellants failed to allege facts showing that the
mandate will substantially burden their religious exercise. See Mead,
766 F. Supp. 2d at 41-43.
5
See Br. for Amici Curiae Mortimer Caplin & Sheldon Cohen
in Supp. of Appellees and Affirmance.
6
26 U.S.C. § 7421(a) (emphasis added).
 9

examine that question, see Steel Co. v. Citizens for a Better

Env’t, 523 U.S. 83, 95 (1998), and we have previously
recognized that the Anti-Injunction Act is a limitation on our
subject-matter jurisdiction, see Gardner v. United States, 211
F.3d 1305, 1311 (D.C. Cir. 2000).

The jurisdictional issue brings two interrelated questions.

First, whether the Anti-Injunction Act itself, by using the words
“any tax,” applies to the shared responsibility payment.
Second–even if the Anti-Injunction Act does not apply with its
own force–does the Affordable Care Act invoke it by stating that
the shared responsibility payment is to be “assessed and
collected in the same manner” as penalties that are subject to the
Anti-Injunction Act.

The Anti-Injunction Act, a part of the Internal Revenue

Code, only bars pre-enforcement challenges to the assessment
and collection of taxes. As is well known, Congress, in passing
the Affordable Care Act, pointedly rejected proposals to
designate the shared responsibility payment as a “tax,” instead
labeling it a “penalty.”7 That Congress called numerous other
provisions in the Act “taxes” indicates that its decision to use the
word “penalty” here was deliberate.8 And congressional
findings never suggested that Congress’s purpose was to raise
revenue. The Government estimates the penalty would raise $4
billion, but congressional findings emphasize that the aim of the
shared responsibility payment is to encourage everyone to

7
26 U.S.C. § 5000A(b); H.R. 3962, § 501, 111th Cong.
(2009); H.R. 3200, § 401, 111th Cong. (2009); S. 1796, § 1301, 111th
Cong. (2009); see also Liberty Univ., 2011 WL 3962915 at *24
(Davis, J., dissenting).
8
See Thomas More, 651 F.3d 529, 551 (6th Cir. 2011)
(Sutton, J., concurring) (surveying usage).
 10

purchase insurance; the goal is universal coverage, not revenues

from penalties.9 Though the shared responsibility payment
penalty is codified as part of the Internal Revenue Code,
Congress prohibited the IRS from using traditional criminal
enforcement or levying powers to collect the payment.10
Covered persons have a legal obligation to purchase minimum
coverage, but it is rather obvious that this provision’s success
depends, much more than a typical tax obligation, on voluntary
compliance.

The key question, therefore, is whether Congress intended

the term “any tax” in the Anti-Injunction Act to sweep beyond
exactions that Congress designated as “taxes” elsewhere in the
Internal Revenue Code. The Fourth Circuit is of the view that
“any tax” includes any exaction collected by the IRS, even if
Congress called it a “penalty.” Liberty Univ., 2011 WL
3962915 at *6. We disagree. Both the Anti-Injunction Act and
the shared responsibility payment are part of the Internal
Revenue Code. When Congress uses the same word–here,
“tax”–in the same context, we presume Congress intends the
same meaning throughout. See Erlenbaugh v. United States,
409 U.S. 239, 243-44 (1972). And when Congress wants a “tax”
in one statute to include more than the exactions it labels taxes
in other statutes, it says so. For instance, a “tax” under the
Bankruptcy Code means anything that functions like a tax, not
just anything Congress labeled a “tax,” only because Congress
directed that terms used in the Bankruptcy Code shall have
special meanings. United States v. Reorganized CF & I
Fabricators of Utah, Inc., 518 U.S. 213, 219-20 (1996). By
analogy, if Congress says that a sum owed at customs is not a
penalty, that designation controls for purposes of a customs

9
42 U.S.C. § 18091(a)(2)(A), (C), & (I).
10
26 U.S.C. § 5000A(g)(2).
 11

jurisdictional statute. See Helwig v. United States, 188 U.S. 605,

610, 613 (1903).

Nothing we have seen suggests that Congress intended for

“any tax” in the Anti-Injunction Act to include exactions
unrelated to taxes that Congress labeled “penalties.”11 The Anti-
Injunction Act does not define the word “tax.” But it does not
indicate in any way that the term “tax” can be given a different
meaning than in the rest of the Internal Revenue Code. The only
Supreme Court case to consider the meaning of “any tax” dates
to 1883, and suggested that a “tax” meant anything collected as
a tax–even if collected erroneously or illegally–so long as “it
was claimed by the proper public officers” to be a “tax.” Snyder
v. Marks, 109 U.S. 189, 192 (1883). Since the Government
denies that the shared responsibility payment is a tax, Snyder, at
least, suggests that we should credit the Government. See
Liberty Univ., 2011 WL 3962915 at *31 (Davis, J., dissenting).

Importantly, aside from the Fourth Circuit’s recent decision,

no court has ever held that “any tax” under the Anti-Injunction
Act includes exactions that Congress deliberately called
“penalties.” Bailey v. George, 259 U.S. 16 (1922), and Bailey
v. Drexel Furniture Co. (Child Labor Tax Case), 259 U.S. 20
(1922), two cases upon which the Fourth Circuit relied heavily,
are not to the contrary. In Bailey v. George, the Supreme Court
held that the Anti-Injunction Act barred a pre-enforcement
challenge to the Child Labor Tax, which Congress had expressly
labeled a tax. 259 U.S. at 20. Then, in Child Labor Tax Case,
a refund action, the Supreme Court held that the Child Labor
Tax was so regulatory in function that it ceased to be a “tax” for
constitutional purposes. 259 U.S. at 38. These cases stand for

11
The Act also has no legislative history. Bob Jones Univ. v.
Simon, 416 U.S. 725, 736 (1974).
 12

the proposition that exactions that Congress intended to enact as

taxes are “tax[es]” within the meaning of the Anti-Injunction
Act, but may not be “taxes” for constitutional purposes.12 See
Liberty Univ., 2011 WL 3962915 at *28 (Davis, J., dissenting).
They do not address our issue, which raises a quite different
question: whether an exaction that Congress intended as a
“penalty” is also a “tax” within the meaning of the Anti-
Injunction Act.

Other parts of the Internal Revenue Code reinforce our view

that Congress did not intend for the Anti-Injunction Act to cover
penalties unconnected to tax liability or enforcement. Taxes and
penalties carry distinct meanings in the Code, and Congress has
been deliberate when it wants certain penalties to be treated as
taxes. See Liberty Univ., 2011 WL 3962915 at *24 (Davis, J.,
dissenting). As we discuss further below, Congress expressly
defined taxes to include penalties for nonpayment of taxes
imposed under Chapter 68, subchapter A and “assessable
penalties” imposed under Chapter 68, subchapter B.13 Congress
understandably treated Chapter 68 penalties as taxes, because,
unlike the shared responsibility payment, they are imposed for
impeding or otherwise failing to comply with tax payment and
reporting obligations. See Thomas More, 651 F.3d at 540; cf.
Mobile Republican Assembly v. United States, 353 F.3d 1357,

12
Similarly, Lipke v. Lederer, 259 U.S. 557 (1922), merely
held that the Anti-Injunction Act does not always apply even if
Congress labels an exaction a “tax.” There, Congress made clear, in
the rest of a criminal statute, that it did not really intend the exaction
to be a tax. Id. at 561-62. That is different from our situation, where
Congress repeatedly expressed its intention that the shared
responsibility payment was to be a “penalty.”
13
26 U.S.C. § 6665(a) (stating that “taxes” also refer to
Chapter 68, subchapter A penalties); id. § 6671(a) (stating that “taxes”
also refer to Chapter 68, subchapter B penalties).
 13

1362 (11th Cir. 2003) (treating penalties imposed for violating

conditions of non-profit organizations’ tax-exempt status as
“taxes” because those conditions determine whether the
organization is liable for taxes).14

Granted, the Code also refers to “any tax (including any

interest, additional amounts, additional tax, and assessable
penalties)” imposed by Title 26 when describing the IRS’s
assessment authority. See, e.g., 26 U.S.C. § 6201. The Fourth
Circuit and the dissent reason that because the IRS is
empowered to assess taxes (including assessable penalties), and
because the Anti-Injunction Act bars any suit to restrain the
assessment of taxes, anything codified in the Internal Revenue
Code and assessed by the IRS is subject to the Anti-Injunction
Act. See Liberty Univ., 2011 WL 3962915 at *6, 11. We think
that inference leaps too far. The term “assessable penalties” in
the Code is generally used to refer to Chapter 68, subchapter B
penalties (entitled “Assessable Penalties”), not any type of
penalty. See, e.g., id. § 4083(d)(3)(B); id. § 6671; id. § 6684; id.
§ 6688; id. § 6695. Nothing in this language suggests that
penalties assessed by IRS but unrelated to taxes–as opposed to
interest, additional amounts, additional tax, and assessable
penalties commonly found in Chapter 68, subchapter B–would
fall under this provision. And if this language truly transformed
all penalties into taxes merely because they were codified in the
Tax Code and assessed by the IRS, Congress’s deliberate efforts
to treat the shared responsibility payment as a penalty, not a tax,

14
The Fourth Circuit has also held that all premiums due under
the Coal Act–which is outside Chapter 68, subchapter B of the
Code–are “taxes” for purposes of the Anti-Injunction Act, but it
reached that conclusion only after assuming, without analysis, that the
definition of a “tax” under the bankruptcy law is the same as the Anti-
Injunction Act. In re Leckie Smokeless Coal Co., 99 F.3d 573, 583
(4th Cir. 1996).
 14

would be inexplicable. See Liberty Univ., 2011 WL 3962915 at

*32-33 (Davis, J., dissenting).

Our interpretation is also supported by judicial construction

of the Tax Injunction Act, a statute that uses similar language to
the Anti-Injunction Act to bar suits to restrain the assessment or
collection of state taxes. See 28 U.S.C. § 1341 (“The district
courts shall not enjoin, suspend or restrain the assessment, levy
or collection of any tax under State law where a plain, speedy
and efficient remedy may be had in the courts of such State.”);
Enochs v. Williams Packing & Nav. Co., 370 U.S. 1, 6 (1962).
It is well established that Congress used the term “tax” in the
Tax Injunction Act to mean assessments made for the purpose
of raising revenues, not regulatory “penalties” intended to
encourage compliance with a law.15 That distinction is in
keeping with the aim of the Anti-Injunction Act and Tax
Injunction Act, i.e. to avoid federal judicial interference with tax
revenues upon which federal and state budgets depend. See
Nat’l Private Truck Council, Inc. v. Oklahoma Tax Comm’n,
515 U.S. 582, 586 (1995); Williams Packing, 370 U.S. at 7.

* * *

The nature of appellants’ challenge also demonstrates why

15
Chamber of Commerce v. Edmonson, 594 F.3d 742, 761-62
(10th Cir. 2010); RTC Commercial Assets Trust 1995-NP3-1 v.
Phoenix Bond & Indem. Co., 169 F.3d 448, 457 (7th Cir. 1999); Ben
Oehrleins and Sons and Daughter, Inc. v. Hennepin Cnty., 115 F.3d
1372, 1382-83 (8th Cir. 1997); Travelers Ins. Co. v. Cuomo, 14 F.3d
708, 713-14 (2d Cir. 1993) (overruled on other grounds). Courts do
not defer to the labels states–as opposed to Congress–bestow on
exactions, because the meaning of a “tax” under the Tax Injunction
Act is a question of federal, not state, law. See Edmonson, 594 F.3d
at 761.
 15

the Anti-Injunction Act, by its own terms, does not apply to this
suit. Appellants have brought suit for the purpose of enjoining
a regulatory command, the individual mandate, that requires
them to purchase health insurance from private companies,
produces no revenues for the Government, and imposes
obligations independent of the shared responsibility payment.
They seek injunctive and declaratory relief to prevent anyone
from being subject to the mandate, irrespective of whether they
intend to comply with it, and irrespective of the means Congress
chooses to implement it. The harms appellants allege–the cost
of purchasing health insurance from private companies, and
violation of their religious belief that insurance expresses
skepticism in God’s ability to provide–exist as a result of the
mandate, not the penalty. True, appellants also say that they do
not intend to comply with the mandate, and that the penalty
would be a serious financial burden. But that harm affects only
the limited class of individuals who fail to comply when the
mandate goes into effect.

The individual mandate and the shared responsibility

payment create different legal obligations, for different
categories of people, at different times. The mandate–described
as the “requirement to maintain minimum essential coverage” in
the statute–imposes a legal obligation on “applicable
individual[s]” to purchase and maintain minimum health care
coverage from an insurance company for each month beginning
January 2014.16 Foreign citizens, illegal aliens, prisoners, and
those who qualify for religious exemptions are not considered
“applicable individual[s].”17

By contrast, the penalty provisions are not symmetrical with

16
26 U.S.C. § 5000A(a).
17
Id. § 5000A(d)(2)-(4).
 16

the mandate. Although some who fail to comply with the

individual mandate must pay a penalty (the “shared
responsibility payment”) to the IRS, others–taxpayers who
cannot afford coverage, or who fall below the filing threshold,
members of Indian tribes, and any applicable individual whom
the Secretary of Health and Human Services deems to have
suffered a hardship–do not.18 Moreover the purchase of health
insurance is not to be directed to the Government, as is true of
taxes, but rather to private insurers; it is only the penalty that
flows to the Government.

That appellants’ suit centers on the mandate is critical. The

Anti-Injunction Act only bars suits that seek to restrain the IRS’s
assessment and collection of taxes. It has never been applied to
bar suits brought to enjoin regulatory requirements that bear no
relation to tax revenues or enforcement. Indeed, we have held
that the Act does not apply to an IRS regulation that does not, by
its terms, pertain to the assessment or collection of taxes.
Foodservice and Lodging Inst., Inc. v. Regan, 809 F.2d 842, 846
(D.C. Cir. 1987) (allowing challenge to enjoin an IRS regulation
regarding employers’ reporting of tips).

It has been suggested that Bob Jones University v. Simon,

416 U.S. 725 (1974), and Alexander v. “Americans United”
Inc., 416 U.S. 752 (1974), support the application of the Anti-
Injunction Act to this case. Those cases involved constitutional
challenges to IRS letter-rulings revoking nonprofit
organizations’ tax-exempt status. In Bob Jones, the petitioner
challenged the constitutionality of an IRS letter-ruling
withdrawing its tax-exempt status by arguing that the ruling’s
true motivation was “to regulate the admissions policies of

18
Id. § 5000A(b), (e). Violators will only owe the penalty
starting in April 2015, when it must be enclosed with their tax returns.
 17

private universities,” not “to protect the revenues.” 416 U.S. at

739. Plaintiffs similarly challenged the constitutionality of
eliminating tax-exempt status for organizations engaged in
political lobbying in “Americans United.” 416 U.S. at 755-57.
In both cases, plaintiffs argued–superficially similar to our
appellants–that the IRS’s letter-rulings were really regulatory
prohibitions, and that plaintiffs’ object was not to restrain the
assessment and collection of tax revenues, but to ensure that
donors seeking tax deductions would continue to contribute to
their organizations. Id. at 760-61; Bob Jones, 416 U.S. at 738.

The Supreme Court rejected these arguments in both cases.

It began with the proposition–not at issue here–that plaintiffs
cannot evade the Anti-Injunction Act merely by pleading
constitutional claims. “Americans United,” 416 U.S. at 759-60;
Bob Jones, 416 U.S. at 740-41. More importantly, it
reasoned–and this is the crucial distinction to our case–that the
Anti-Injunction Act applied because challenges to IRS letter-
rulings revoking tax-exempt status are inextricably linked to the
assessment and collection of taxes. “Americans United,” 416
U.S. at 760-61; Bob Jones, 416 U.S. at 738-40. Plaintiffs’
arguments that their suits were for the purpose of ensuring
contributions, not impeding tax revenues, were also defeated by
plaintiffs’ own pleadings, since the only injuries plaintiffs
identified involved tax liability. “Americans United,” 416 U.S.
at 761; Bob Jones, 416 U.S. at 738-39; cf. Liberty Univ., 2011
WL 3962915 at *14 (describing similar pleadings by plaintiffs
in that case). It does not follow from those cases that plaintiffs
can never bring a pre-enforcement challenge to a discrete
regulatory requirement that imposes obligations unrelated to tax
revenues if Congress, in a separate provision, chooses to tax
some of those who violate it.

To be sure, it has been held that suits that do not directly

seek to restrain tax assessment or collection are nonetheless
 18

barred if they are directed at the means by which the IRS

achieves those ends. Koin v. Coyle, 402 F.2d 468, 469 (7th Cir.
1968). Accordingly, the Anti-Injunction Act bars suits to
prevent the IRS from using evidence it had allegedly obtained
illegally as the basis for a tax assessment, id.; suits to enjoin IRS
agents from disclosing information in corporate tax returns to
third parties as part of an audit investigation, Kemlon Prods. and
Dev. Co. v. United States, 638 F.2d 1315, 1316, 1318, 1320 (5th
Cir. 1981); suits to enjoin local officials from giving the IRS
information about narcotics traffickers used by the IRS to make
jeopardy assessments, Lewis v. Sandler, 498 F.2d 395, 398-99
(4th Cir. 1974), and suits to enjoin the IRS from using particular
methodologies to calculate tax deficiencies, Campbell v.
Guetersloh, 287 F.2d 878, 879, 880-81 (5th Cir. 1961). But
those cases merely stand for the proposition that the Act bars
suits that interfere with ancillary functions to tax collection.
Mandating the purchase of health insurance is plainly not such
a function.

* * *

In short, we are not persuaded by the Fourth Circuit’s

reasoning. We think that the Anti-Injunction Act does not, by
its terms, cover the shared responsibility payment under the term
“any tax.” Our dissenting colleague, however, raises another,
more substantial, objection: That Congress affirmatively
intended for the Anti-Injunction Act to apply to the shared
responsibility payment, because the Affordable Care Act directs
that the penalty be “assessed and collected in the same manner
as an assessable penalty under subchapter B of chapter 68.” 26
U.S.C. § 5000A(g)(1). Since penalties included in that
subchapter are “taxes” for purpose of the Anti Injunction Act,
the dissent maintains that the shared responsibility payment can
only be “assessed and collected in the same manner” as those
penalties if it, too, is insulated from pre-enforcement challenges.
 19

The Government argues that “assessed and collected in the

same manner” has a more limited meaning; it does not speak to
the availability of pre-enforcement review. We agree. “As used
in the Internal Revenue Code . . . the term assessment involves
a recording of the amount the taxpayer owes the Government,”
and “is essentially a bookkeeping notation” that is “made by
recording the liability of the taxpayer in the office of the
Secretary.” Hibbs v. Winn, 542 U.S. 88, 100 (2004) (internal
quotation marks and citations omitted). The term “collection”
refers to the IRS’s “actual imposition of a tax against a
plaintiff.” Cohen v. United States, 650 F.3d 717, 726 (D.C. Cir.
2011) (en banc). It begins with notice that a taxpayer is liable
for an unpaid amount and a demand that the taxpayer pay it.
The IRS ordinarily receives that sum when the taxpayer submits
payment through any accepted means. If the taxpayer continues
to refuse to pay, the IRS can employ various collection methods,
including liens and levies on the taxpayer’s property.19 These
terms, in analogous contexts, have been held to exclude the
timing of challenges. “Assessing and collecting” a penalty “in
the same manner” as a tax, for instance, does not require the
same statute of limitations to apply to each. See, e.g., Sage v.
United States, 908 F.2d 18, 23-25 (5th Cir. 1990).

The phrase “in the same manner,” which modifies

“assessment and collection,” moreover, is used throughout the
Code to refer to methodology and procedures. For instance, the
“[m]ethod of adjustment” for an adjustment made to correct an
error is to “assess[] and collect[], or refund[] or credit[], the
amount thereof in the same manner as if it were a deficiency.”
26 U.S.C. § 1314(b) (emphasis added). A qualified issuer of
forest conservation bonds is liable for any tax refund amount not

19
See 26 U.S.C. § 6303 (notice); id. § 6311 (means of
payment); id. § 6321 (liens); id. § 6331 (levies).
 20

used for forestry conservation purposes, and “[a]ny such amount

shall be assessed and collected in the same manner as tax
imposed by this chapter, except that subchapter B of chapter 63
(relating to deficiency procedures) shall not apply in respect of
such assessment or collection.” Id. § 54B(h)(3)(A) (emphasis
added). And “[a]ny underpayment of tax by a partner by reason
of failing to comply” with certain requirements “shall be
assessed and collected in the same manner as if such
underpayment were on account of a mathematical or clerical
error.” Id. § 6241(b) (emphasis added). These directions tell the
IRS how to calculate and obtain certain sums, not when to do so.
See Thomas More, 651 F.3d at 540.

There is more to weaken the dissent’s linguistic analysis.

Although the Affordable Care Act states that the shared
responsibility payment is to be assessed and collected in the
same manner as an assessable penalty under subchapter B, thus
tracking the language of Chapter 68’s sentence (assessable
penalties “shall be assessed and collected in the same manner as
taxes”), the Affordable Care Act omits the next sentence in
Chapter 68. That sentence reads 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 [subchapter B].” 26 U.S.C.
§ 6671(a). The second sentence sweeps broader than the
preceding sentence; it means subchapter B assessable
penalties–which are all directly related to taxes–are to be treated
as taxes for all purposes under the Code. That is why it has
universally been held that the Anti-Injunction Act applies to
various Chapter 68 assessable penalties.20 Similarly, the Anti-
Injunction Act applies to interest due on taxes because of

20
See Botta v. Scanlon, 314 F.2d 392, 393 (2d Cir. 1963)
(surveying cases); see also Souther v. Mihlbachler, 701 F.2d 131, 132
(10th Cir. 1983); Kelly v. Lethert, 362 F.2d 629, 633 (8th Cir. 1966);
Shaw v. United States, 331 F.2d 493, 496 (9th Cir. 1964).
 21

identical language in another section of the Code requiring that

this interest be treated as a tax.21

If penalties were equivalent to taxes for all

purposes–including the application of the Anti-Injunction
Act–the last sentence of section 6671 would be superfluous. It
is a hallowed maxim of statutory interpretation that we must
give effect, if possible, to all words in a statute. See Duncan v.
Walker, 533 U.S. 167, 174 (2001). We do not believe that
Congress somehow inadvertently omitted the last sentence in
6671 when it drafted the cross-reference to Chapter 68
assessable penalties in the shared responsibility payment
provision. Congress often indicates with specificity when it
wants other exactions in the Code to be treated as taxes.22 And
when Congress states that an exaction should be “assessed and
collected in the same manner as a tax,” omits this last sentence,
and still wishes to bar suits to restrain assessment or collection,
it has included specific provisions to do just that.23 Congress’s
deliberate decision not to do so here is telling.

21
See Nuttelman v. Vossberg, 753 F.2d 712, 714 (8th Cir.
1985) (interpreting 26 U.S.C. § 6601(e)(1)); Prof’l Eng’r, Inc. v.
United States, 527 F.2d 597, 599 (4th Cir. 1975) (similar).
22
See, e.g., 26 U.S.C. § 6601 (interest on tax treated as tax); id.
§ 6242(c)(3)(B) (payments of certain additional liabilities incurred by
partnerships “treated as an underpayment of tax”); id. § 6665
(additions to the tax, additional amounts, and penalties under Chapter
68, subchapter A treated as tax).
23
See, e.g., 26 U.S.C. § 6305(a)-(b) (directing that the
assessment and collection of Social Security-related liabilities should
be “assess[ed] and collect[ed] . . . in the same manner . . . as if such
amount were a tax,” and adding additional provisions expressly
barring “any action . . . brought to restrain or review the assessment
and collection” of those liabilities).
 22

In sum, we read the shared responsibility payment

provision, section 5000A(g)(1), as not implicating the Anti-
Injunction Act. If we had any doubt about our conclusion, we
think our dissenting colleague’s interpretation is further
foreclosed by two additional considerations. First, Congress, as
we have noted, made the mandate the Affordable Care Act
imposes on covered persons to purchase insurance analytically
and legally separate from the shared responsibility penalty.
Second, since the Anti-Injunction Act’s obvious purpose is to
protect the Government’s fisc, we think the Government’s
interpretation–that the Act is no bar to pre-enforcement judicial
review–if not a waiver, is at least entitled to deference.

We think it quite unlikely that Congress intended to

foreclose pre-enforcement judicial review of the mandate even
if Congress intended to delay review of the penalty. The scope
of the legal obligation imposed by the mandate is broader than
the scope of the enforcement mechanism of the penalty. This
divergence illustrates persuasively why the Anti-Injunction Act
would be an awkward fit–and, therefore, quite unlikely to be
what Congress intended. If the Act applied to the mandate,
those subject to the mandate but exempt from the penalty would
either have no judicial relief–because they could never bring a
refund suit–or would be able to sue when others subject to the
penalty could not.24 See South Carolina v. Regan, 465 U.S. 367,

24
Whether appellants or anyone else will fall under this
category, as individuals exempted from the penalty because they
cannot afford coverage, cannot be determined without knowing their
future household income. See 26 U.S.C. § 5000A(e)(1)(A). By that
point, of course, appellants may have lost the opportunity to bring a
pre-enforcement challenge to the mandate irrespective of whether they
are allowed to do so under the Anti-Injunction Act. Whether framed
as an issue of ripeness or remedies, the outcome is the same: The
applicability of the Anti-Injunction Act to challenges to the individual
 23

378 (1984) (holding that the Anti-Injunction Act does not apply
“to actions brought by aggrieved parties for whom [Congress]
has not provided an alternative remedy.”). To be sure, that
raises a question whether someone subject to the mandate has
standing to challenge the legality of the mandate if he or she
does not face a penalty. But it is unnecessary to decide that
question to conclude that Congress would be quite reluctant to
endorse such a strange scheme for judicial review.

Secondly, the Government’s determination that the Anti-

Injunction Act should not be interpreted to bar appellants’ suit
is entitled to deference.25 Cf. Snyder, 109 U.S. at 192. After all,
the Government is the sole beneficiary of the Act, which
facilitates the IRS’s orderly and uninterrupted collection of taxes
and protects IRS collectors from being subject to litigation
before they complete these functions. Bob Jones, 416 U.S. at
736-37.

Past Supreme Court decisions emphasizing the breadth of

the Government’s authority to determine whether it will be

mandate cannot be conflated with challenges to the minimum essential

coverage penalty.
25
Earlier in this litigation, the Government argued that the
Anti-Injunction Act barred this suit because the shared responsibility
payment is a “tax” under the Act. See Seven-Sky v. Holder, No. 1:10-
cv-00950 at 15-16 (D.D.C. Aug. 20, 2010) (memorandum of law in
support of defendants’ motion to dismiss). The Government has since
abandoned that position. It now concludes that appellants’ suit “poses
no realistic threat of . . . disruption” to the “federal government’s
administration of the Tax Code,” and that the cross-reference to
Chapter 68 assessable penalties in 5000A(g)(1) should not be read as
invoking the Anti-Injunction Act. Fed. Gov’t Supplemental Br. at 3-5,
7, Liberty Univ., Inc. v. Geithner, No. 10-2347 (4th Cir. May 31,
2011).
 24

subject to pre-enforcement suits underscore why the

Government’s position as to whether something is a “tax” under
the Anti-Injunction Act deserves deference. In Cheatham v.
United States, 92 U.S. 85 (1875), the Court explained the
purpose of the Anti-Injunction Act by stating that “the
government has the right to prescribe the conditions on which it
will subject itself to the judgment of the courts in the collection
of its revenue.” Id. at 89. And in Helvering v. Davis, 301 U.S.
619 (1937), the Court held that the predecessor to the Anti-
Injunction Act could be waived by the Government in litigation.
Id. at 639. We acknowledge that Helvering may well be an
anomaly predating more stringent jurisdictional limitations, and
that the Government has disclaimed any explicit waiver of the
Anti-Injunction Act in its recent filings before the Supreme
Court. Still, the Court has recognized that pre-enforcement suits
restraining the assessment or collection of taxes might not be
barred if they are inconsistent with the Act’s purposes. See
Williams Packing, 370 U.S. at 7; see also Bob Jones, 416 U.S.
at 740 (suggesting that if the IRS’s interpretations were without
legal basis or “unrelated to the protection of the revenues,” the
Act might not apply).

The Government’s reading of section 5000A(g)(1), the

shared responsibility payment provision, as not invoking the
Anti-Injunction Act is entitled to weight. That provision, after
all, delegates administration and enforcement powers to the IRS.
Whether Congress meant to invoke the Anti-Injunction Act
through the cross-reference in the penalty provision is a question
that goes to the timing of the Government’s enforcement
powers. The Government has advanced a perfectly plausible
reading of the statute (indeed, in our view, the better one), and
therefore we accept it.

III.
 25

Appellants’ primary argument why the individual mandate

exceeded Congress’s enumerated powers is that Congress
cannot require individuals with no connection to interstate
commerce, and no desire to purchase a product, nonetheless to
do so. Congress’s authority to regulate commerce, they say,
extends only to existing commerce, i.e. only to individuals who
take affirmative acts that bring them into, or substantially affect,
an interstate market, and only for the duration of those activities.
For this reason, the mandate also cannot be justified under the
Necessary and Proper Clause, because that clause can effectuate
only those powers that Congress actually possesses under the
Commerce Clause, not create new ones. To hold otherwise
would remove any limitations on federal power, at the expense
of state sovereignty. Congress, appellants warn, could force
individuals to buy any product, in any market, with any
penalty–from fines to criminal prosecution–for non-compliance.

The Government counters that the individual mandate is

well within the bounds of congressional power. Congress can
regulate even purely local, intrastate economic behavior so long
as, in the aggregate, it substantially affects interstate commerce.
The manner in which consumers pay for services in the
interstate health care market is such an example. Because
virtually everyone will, at some point, need health services, no
one is truly inactive, and the health services market is
inextricably intertwined with health insurance. Congress found
that those who do not purchase health insurance, and instead
self-insure, almost inevitably take health care services they
cannot afford. Hospitals, by virtue of federal law and
professional obligation, provide these services, and as a result,
$43 billion in annual costs are shifted to the insured, through
higher premiums. That, in turn, makes health insurance less
affordable and increases the total number of uninsured.
Therefore, it is argued that Congress rationally concluded that
 26

decisions about how to pay for health care, in the aggregate,

substantially affect interstate commerce. The Government
contends, moreover, that the individual mandate can be upheld
as an essential element of the Affordable Care Act’s broader
reforms, like the guaranteed issue and community rating
requirements, which all agree are within Congress’s power.
That is because Congress found that absent the mandate, the
guaranteed issue and community rating requirements would lead
individuals to wait to buy insurance until they needed care,
causing higher premiums, again reducing the number of insured,
and destroying the efficacy of Congress’s regulatory scheme.

The Government concedes the novelty of the mandate and

the lack of any doctrinal limiting principles; indeed, at oral
argument, the Government could not identify any mandate to
purchase a product or service in interstate commerce that would
be unconstitutional, at least under the Commerce Clause. But
the Government does stress that the health care market is
factually unique; there are few other markets, it says, where
participation is a virtual certainty, or where declining to buy a
product disproportionately causes a national economic problem.

A.

As is apparent, appellants have brought a facial challenge

to the individual mandate. Appellants recognize that a facial
challenge theoretically must establish “that no set of
circumstances exists under which the [law] would be valid.”
United States v. Salerno, 481 U.S. 739, 745 (1987). But unlike
the plaintiffs before the Sixth Circuit, appellants were careful to
avoid conceding there were any valid applications of the law.
Cf. Thomas More, 651 F.3d at 556, 561-62, 564 (Sutton, J.,
concurring). Instead, appellants’ theory of the Commerce
Clause would invalidate virtually all conceivable applications of
the mandate.
 27

Since, according to appellants, Congress only has the power

to regulate individuals who are affirmatively acting in ways that
affect a market, and for the duration of their activity, Congress
also categorically lacks authority to compel individuals to
maintain participation in a market into the future. No one
currently active in the health insurance market will necessarily
be active in 2014, when the mandate goes into effect, or remain
active in that market in perpetuity, absent the mandate. Nor do
appellants here concede that Congress could impose a mandate
to require individuals to purchase insurance when they arrive at
a hospital for treatment and maintain that insurance indefinitely.
The requirement to maintain coverage into the future, under
their theory, dooms the mandate in its entirety.

To be sure, some applications of the mandate might

conceivably be constitutional even under appellants’ theory–for
instance, if the mandate were limited to compelling those
individuals presently active in the health insurance market to
purchase another month or year of coverage. But viewing those
applications in isolation may be different from considering them
in the context of a law that, under appellants’ theory,
predominantly consists of invalid applications that exceed
Congress’s authority. Though facial challenges are
presumptively disfavored, the Supreme Court nonetheless
invalidated the Gun-Free School Zones Act in toto in United
States v. Lopez, 514 U.S. 549 (1995), even after suggesting there
were circumstances in which the law might have been
constitutionally applied (e.g. if the gun had, in fact, traveled in
interstate commerce). Id. at 561-62, 567. Perhaps facial
invalidation was justified because the Supreme Court assumed
that in practice, most applications of the law would be
unconstitutional, or because differentiating between
constitutional and unconstitutional applications would be too
 28

difficult.26 But Lopez is silent on this point, as are subsequent

cases. That cautions against assigning dispositive significance
to the issue here, and we do not.

We think we are obliged to confront the gravamen of

appellants’ argument as to the scope of the Commerce Clause.

B.

Appellants’ central objection to the mandate is that

Congress, for the first time, has actually commanded that all
Americans purchase a product, health insurance, that many of
them have never purchased before, never wish to purchase, and
may never need. Appellants do not question that Congress can
regulate the interstate health care and health insurance markets,
or that Congress reasonably could conclude that decisions about
whether to purchase health insurance substantially affect
interstate commerce. The contested issue here is whether the
Government can require an immensely broad group of
people–all Americans, including uninsured persons with no
involvement in the health insurance and health care markets–to
buy health insurance now, based on the mere likelihood that
most will, at some point, need health care, thus virtually
inevitably enter that market, and consequently substantially
affect the health insurance market. Appellants say that Congress
cannot regulate based on such sweeping generalizations. Only
individuals who are voluntarily engaging in an “activity” related
to interstate commerce–not the uninsured, who are
“inactive”–are within the scope of the Commerce Clause.

The mandate, it should be recognized, is indeed somewhat

novel, but so too, for all its elegance, is appellants’ argument.

26
See Richard H. Fallon, Jr., Fact and Fiction About Facial
Challenges, 99 Calif. L. Rev. 915, 945, 959 (2011).
 29

No Supreme Court case has ever held or implied that Congress’s

Commerce Clause authority is limited to individuals who are
presently engaging in an activity involving, or substantially
affecting, interstate commerce.

We look first to the text of the Constitution. Article I, § 8,

cl. 3, states: “The Congress shall have Power . . . To regulate
Commerce with foreign Nations, and among the several States,
and with the Indian Tribes.” (emphasis added). At the time the
Constitution was fashioned, to “regulate” meant, as it does now,
“[t]o adjust by rule or method,” as well as “[t]o direct.”27 To
“direct,” in turn, included “[t]o prescribe certain measure[s]; to
mark out a certain course,” and “[t]o order; to command.”28 In
other words, to “regulate” can mean to require action, and
nothing in the definition appears to limit that power only to
those already active in relation to an interstate market. Nor was
the term “commerce” limited to only existing commerce. There
is therefore no textual support for appellants’ argument. So we
turn to Supreme Court decisions.

The Framers, in using the term “commerce among the

states,” obviously intended to make a distinction between
interstate and local commerce, but Supreme Court jurisprudence
over the last century has largely eroded that distinction. See
Lopez, 514 U.S. at 553-61; id. at 568-75 (Kennedy, J.,
concurring). Today, the only recognized limitations are that (1)
Congress may not regulate non-economic behavior based solely
on an attenuated link to interstate commerce, and (2) Congress

27
Samuel Johnson, 2 Dictionary of the English Language 1619
(4th ed. 1773) (reprinted 1978) (emphasis added) (hereinafter
Johnson); see also T. Sheridan, A Complete Dictionary of the English
Language (2d ed.) (1789) (same).
28
Johnson 514.
 30

may not regulate intrastate economic behavior if its aggregate

impact on interstate commerce is negligible. See United States
v. Morrison, 529 U.S. 598, 610, 615-19 (2000); Lopez, 514 U.S.
at 558-61, 566-67. Those limitations are quite inapposite to the
constitutionality of the individual mandate, which certainly is
focused on economic behavior–if only decisions whether or not
to purchase health care insurance or to seek medical care–that
does substantially affect interstate commerce.

To be sure, a number of the Supreme Court’s Commerce

Clause cases have used the word “activity” to describe behavior
that was either regarded as within or without Congress’s
authority.29 But those cases did not purport to limit Congress to
reach only existing activities. They were merely identifying the
relevant conduct in a descriptive way, because the facts of those
cases did not raise the question–presented here–of whether
“inactivity” can also be regulated. See Florida, 648 F.3d at
1286. In short, we do not believe these cases endorse the view
that an existing activity is some kind of touchstone or a
necessary precursor to Commerce Clause regulation.

We think the closest Supreme Court precedent to our case

is Wickard v. Filburn, 317 U.S. 111 (1942). There, a farmer ran
afoul of his allowed wheat acreage under the Agricultural
Adjustment Act of 1938 by growing additional wheat, not for
sale, but to feed his family and his livestock. Id. at 114-15, 118-
19. Filburn argued that the Act was unconstitutional as applied
to him because he was not using the excess wheat for any
activity in the interstate market. The Supreme Court
unanimously rejected this claim. It held that even growing
wheat for personal consumption, not for sale in any market,
could affect the national price, and therefore was within

29
See, e.g., Gonzales v. Raich, 545 U.S. 1, 17, 26 (2005);
Morrison, 529 U.S. at 610-13; Lopez, 514 U.S. at 558-61.
 31

Congress’s commerce power. Id. at 127-28. This conclusion

was not only because his wheat might be diverted into the
national market, as was recognized in Gonzales v. Raich, 545
U.S. 1, 18-19 (2005). Justice Jackson said even “if we assume
that it is never marketed, it supplies a need of the man who grew
it which would otherwise be reflected by purchases in the open
market. Home-grown wheat in this sense competes with wheat
in commerce. The stimulation of commerce is a use of the
regulatory function quite as definitely as prohibitions or
restrictions thereon.” Wickard, 317 U.S. at 128 (emphasis
added). Justice Jackson thus recognized that the Act “force[d]
some farmers into the market to buy what they could provide for
themselves.” Id. at 129. Although a regulation limited the size
of the farms covered, the logic of the opinion would apply to
force any farmer, no matter how small, into buying wheat in the
open market. See Raich, 545 U.S. at 20. Wickard, therefore,
comes very close to authorizing a mandate similar to ours, at
least indirectly, and the farmer’s “activity” could be as
incidental to the regulation as simply owning a farm.

Indeed, were “activities” of some sort to be required before

the Commerce Clause could be invoked, it would be rather
difficult to define such “activity.” For instance, our drug and
child pornography laws, criminalizing mere possession, have
been upheld no matter how passive the possession, and even if
the owner never actively distributes the contraband, on the
theory that possession makes active trade more likely in the
future.30 And in our situation, as Judge Sutton has cogently
demonstrated, many persons regulated by the mandate would
presumably be legitimately regulated, even if activity was a
precursor, once they sought medical care or health insurance.

30
See Raich, 545 U.S. at 19; United States v. Sullivan, 451
F.3d 884, 891-92 (D.C. Cir. 2006); United States v. Forrest, 429 F.3d
73, 78-79 (4th Cir. 2005).
 32

Thomas More, 651 F.3d at 560-61 (Sutton, J., concurring). The

Supreme Court has repeatedly rejected these kinds of
distinctions in the past–disavowing, for instance, distinctions
between “indirect” and “direct” effects on interstate
commerce–because they were similarly unworkable. See
Wickard, 317 U.S. at 119-20; see also Lopez, 514 U.S. at 569-71
(Kennedy, J., concurring).

Appellants have sought to avoid this logic by asserting that

even if one could be obliged to buy insurance when one sought
medical care, one cannot be obliged to keep it. Although that
argument, as we have noted, avoids the facial challenge
objection, it strikes us as rather unpersuasive on the merits.
Congress, which would, in our minds, clearly have the power to
impose insurance purchase conditions on persons who appeared
at a hospital for medical services–as rather useless as that would
be–is merely imposing the mandate in reasonable anticipation of
virtually inevitable future transactions in interstate commerce.

* * *

Since appellants cannot find real support for their proposed

rule in either the text of the Constitution or Supreme Court
precedent, they emphasize both the novelty of the mandate and
the lack of a limiting principle. The novelty–assuming Wickard
doesn’t encroach into that claim–is not irrelevant. The Supreme
Court occasionally has treated a particular legislative device’s
lack of historical pedigree as evidence that the device may
exceed Congress’s constitutional bounds.31 But appellants’
proposed constitutional limitation is equally novel–one that only
the Eleventh Circuit has recently–and only partially–endorsed.

31
See, e.g., Free Enter. Fund v. Pub. Co. Accounting Oversight
Bd., 130 S. Ct. 3138, 3159 (2010); Printz v. United States, 521 U.S.
898, 905 (1997).
 33

Florida, 648 F.3d at 1285-88. Moreover, the novelty cuts

another way. We are obliged–and this might well be our most
important consideration–to presume that acts of Congress are
constitutional. Morrison, 529 U.S. at 607. Appellants have not
made a clear showing to the contrary.

We acknowledge some discomfort with the Government’s

failure to advance any clear doctrinal principles limiting
congressional mandates that any American purchase any product
or service in interstate commerce. But to tell the truth, those
limits are not apparent to us, either because the power to require
the entry into commerce is symmetrical with the power to
prohibit or condition commercial behavior, or because we have
not yet perceived a qualitative limitation. That difficulty is
troubling, but not fatal, not least because we are interpreting the
scope of a long-established constitutional power, not
recognizing a new constitutional right. Cf. Caperton v. A.T.
Massey Coal Co., Inc., 129 S. Ct. 2252, 2272 (2009) (Roberts,
C.J., dissenting). It suffices for this case to recognize, as noted
earlier, that the health insurance market is a rather unique one,
both because virtually everyone will enter or affect it, and
because the uninsured inflict a disproportionate harm on the rest
of the market as a result of their later consumption of health care
services.

Appellants’s related argument is that upholding the mandate

would turn the Commerce Clause into a federal police power, at
the expense of state sovereignty. But the distinctions that
separate national and local spheres have been understood as
those between intrastate and interstate commerce, and between
traditional, non-economic areas of state concern and those
involving commerce. Morrison, 529 U.S. at 617-19. Appellants
have not argued that health care and health insurance are
uniquely state concerns, and decades of established federal
legislation in these areas suggest the contrary. See United States
 34

v. South-Eastern Underwriters Ass’n, 322 U.S. 533, 539 (1944);

Florida, 648 F.3d at 1302-03. Nor do we think states’ powers
over health and general welfare make the health care industry a
traditional state concern. Moreover, if Congress can regulate
even instances of purely local conduct that were never intended
for, or entered, an interstate market, we think Congress can also
regulate instances of ostensible inactivity inside a state. The
aggregate effect of that behavior, after all, is just as injurious to
interstate commerce. Finally, appellants’ position would not
preserve state sovereignty. A state that requires all its citizens
to purchase health insurance is making them “active” in the
interstate market; if the state thereby cedes control over its
health care policy to the federal government, its experimentation
is tantamount to a relinquishment of its own power. Thomas
More, 651 F.3d at 561-62 (Sutton, J., concurring); cf. Veazie v.
Moor, 14 How. 568, 574 (1853).

* * *

Appellants’ view that an individual cannot be subject to

Commerce Clause regulation absent voluntary, affirmative acts
that enter him or her into, or affect, the interstate market
expresses a concern for individual liberty that seems more
redolent of Due Process Clause arguments. But it has no
foundation in the Commerce Clause. The shift to the
“substantial effects” doctrine in the early twentieth century
recognized the reality that national economic problems are often
the result of millions of individuals engaging in behavior that, in
isolation, is seemingly unrelated to interstate commerce. See
Lopez, 514 U.S. at 555-56. That accepted assumption
undermines appellants’ argument; its very premise is that the
magnitude of any one individual’s actions is irrelevant; the only
thing that matters is whether the national problem Congress has
identified is one that substantially affects interstate commerce.
Indeed, in case after case, a version of appellants’ argument–that
 35

Congress’s power to regulate national economic problems, even

those resulting from the aggregated effects of intrastate activity,
only extends to particular individuals if they have also
affirmatively engaged in interstate commerce–has been rejected
on that basis. See United States v. Wrightwood Dairy Co., 315
U.S. 110, 121 (1942) (surveying cases). Whether any
“particular person . . . is, or is not, also engaged in interstate
commerce,” the Supreme Court expressly held, is a mere
“fortuitous circumstance” that has no bearing on Congress’s
power to regulate an injury to interstate commerce. Id.

Wickard is very much in that vein. In Wickard, it mattered

not that Filburn’s annual wheat output was trivial in relation to
national production. Nor did it matter that Filburn was being
penalized for behavior that had only the most tenuous impact on
interstate commerce in of itself, since Filburn never intended the
wheat to be used for commercial purposes, never sold it, and
used it only to sustain his home farm. It was also irrelevant that
the wheat quota could compel even those farmers with no
intention of selling any wheat, in any market, to enter the
interstate market. All that mattered were the overall dynamics
of the wheat market–in other words, generalizations about likely,
future economic behavior. If farmers like Filburn all exceeded
their quotas, the mechanics of the wheat market made it
inevitable that the interstate market would be impacted–either by
the likelihood that the high price of wheat Congress was trying
to maintain would induce some unspecified number of farmers
to sell wheat at market after all, or the probability that farmers
who had enough wheat for their own use would stop buying
wheat at market. Either way, these economic forecasts–and not
any affirmative acts by people like Filburn–were enough to
sustain the law. 317 U.S. at 117, 126-28.

Cases since Wickard have minimized the significance of

any particular individual’s behavior yet further. They have
 36

repeatedly confirmed that the actual impact of any one

individual’s conduct on interstate commerce is immaterial, so
long as a rational basis exists for believing that a congressional
enactment, as a whole, substantially relates to interstate
commerce. Raich, 545 U.S. at 17-19; Lopez, 514 U.S. at 557.
A single individual need not even be engaged in any economic
activity–i.e. not participating in any local or interstate market–so
long as the individual is engaged in some type of behavior that
would undercut a broader economic regulation if left
unregulated. Raich, 545 U.S. at 36 (Scalia, J., concurring). And
a single individual need not even be engaging in the harmful
activity that Congress deems responsible for a national
economic problem; it is enough that in general, most do. Thus,
when Congress finds that organized crime harms interstate
commerce, and that most loan sharks are part of organized
crime, Congress can regulate even those individual loan sharks
who are not part of organized crime. See Perez v. United States,
402 U.S. 146, 147, 153-57 (1971). Similarly, it is irrelevant that
an indeterminate number of healthy, uninsured persons will
never consume health care, and will therefore never affect the
interstate market. Broad regulation is an inherent feature of
Congress’s constitutional authority in this area; to regulate
complex, nationwide economic problems is to necessarily deal
in generalities. Congress reasonably determined that as a class,
the uninsured create market failures; thus, the lack of harm
attributable to any particular uninsured individual, like their lack
of overt participation in a market, is of no consequence.

That a direct requirement for most Americans to purchase

any product or service seems an intrusive exercise of legislative
power surely explains why Congress has not used this authority
before–but that seems to us a political judgment rather than a
recognition of constitutional limitations. It certainly is an
encroachment on individual liberty, but it is no more so than a
command that restaurants or hotels are obliged to serve all
 37

customers regardless of race, that gravely ill individuals cannot

use a substance their doctors described as the only effective
palliative for excruciating pain, or that a farmer cannot grow
enough wheat to support his own family.32 The right to be free
from federal regulation is not absolute, and yields to the
imperative that Congress be free to forge national solutions to
national problems, no matter how local–or seemingly
passive–their individual origins. See Heart of Atlanta Motel,
Inc. v. United States, 379 U.S. 241, 258-59 (1964).

For the foregoing reasons, we affirm the decision of the

district court.

So ordered.

32
Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241,
258-59 (1964); Raich, 545 U.S. at 6-7; Wickard, 317 U.S. at 128; see
also Thomas More, 651 F.3d at 557 (Sutton, J., concurring).
 EDWARDS, Senior Circuit Judge, concurring: Congress’s
authority to legislate under the Commerce Clause is not without
limits. If nothing else, there are boundaries that emanate from
the Necessary and Proper Clause, see U.S. Const. art. I, § 8, cl.
18, which serve as principled limitations on Congress’s
authority under the Commerce Clause. As Justice Scalia
explained in his concurrence in Gonzales v. Raich, 545 U.S. 1
(2005), Congress may regulate economic activities that have a
substantial effect on interstate commerce and also enact laws to
make a valid regulation of commerce effective. See id. at
37–39. With respect to the latter category, “[t]he relevant
question is simply whether the means chosen are ‘reasonably
adapted’ to the attainment of a legitimate end under the
commerce power.” Id. at 37 (citation omitted). “[T]he power
to enact laws enabling effective regulation of interstate
commerce can only be exercised in conjunction with
congressional regulation of an interstate market, and it extends
only to those measures necessary to make the interstate
regulation effective.” Id. at 38. Congress’s power to make a
regulation of the interstate market effective “is not a power that
threatens to obliterate the line between ‘what is truly national
and what is truly local.’” Id. (citation omitted).
 KAVANAUGH, Circuit Judge, dissenting as to jurisdiction
and not deciding the merits:

The Affordable Care Act is unusually significant federal

legislation that will affect all Americans. One provision of
the Act requires most Americans to maintain health insurance
or else pay a tax penalty when they file their annual tax
returns. That provision – commonly referred to as the
individual mandate – is codified in the Tax Code and takes
effect in 2014. The tax penalty for those without health
insurance is capped at the average price of a health insurance
plan. The tax penalty is the only sanction for failing to have
health insurance. And the IRS – and only the IRS – may
assess, collect, and enforce the tax penalty.

Plaintiffs contend that Congress lacks constitutional

authority to mandate that citizens purchase health insurance.
The Government responds that Congress possesses the
requisite authority under the Commerce and Necessary and
Proper Clauses of Article I, Section 8 of the Constitution.
The Government alternatively asserts that this provision
creates nothing more than a routine tax incentive authorized
by the Taxing Clause of Article I, Section 8.

For judges, there is a natural and understandable

inclination to decide these weighty and historic constitutional
questions. But in my respectful judgment, deciding the
constitutional issues in this case at this time would contravene
an important and long-standing federal statute, the Anti-
Injunction Act, which carefully limits the jurisdiction of
federal courts over tax-related matters.

Enacted in 1867, the Anti-Injunction Act, with a few

exceptions, denies courts jurisdiction over pre-enforcement
suits that would restrain “the assessment or collection of any
tax.” 26 U.S.C. § 7421(a). The Supreme Court has strictly
interpreted that Act as a firm bulwark against premature
 2
judicial interference with tax assessment and collection. As
the Court has stressed time and again, although the Act may
seem an inconvenient technicality in the context of a
particular case, it is essential to the overall system of orderly
and prompt federal tax administration.

Under the Anti-Injunction Act, a taxpayer seeking to

challenge a tax law must first pay the disputed tax and then
bring a refund suit, at which time the courts will consider the
taxpayer’s legal arguments. Or a taxpayer may raise legal
arguments in defending against an IRS enforcement action.
But a taxpayer may not bring a pre-enforcement suit. In this
case, the individual mandate takes effect in 2014, so taxpayers
without health insurance must start paying tax penalties on
their tax returns in 2015. The Anti-Injunction Act means,
therefore, that a suit challenging the individual mandate
cannot be entertained until 2015, unless Congress acts before
then to exempt these suits from the Act.

The Anti-Injunction Act applies here because plaintiffs’

pre-enforcement suit, if successful, would prevent the IRS
from assessing or collecting tax penalties from citizens who
do not have health insurance. To be sure, the Affordable Care
Act labels its exaction for failure to have health insurance as a
tax “penalty” and not as a “tax.” But the Anti-Injunction Act
still applies. That’s because the Affordable Care Act requires
that the tax penalty for failure to maintain health insurance
“be assessed and collected in the same manner as an
assessable penalty under subchapter B of chapter 68” of the
Tax Code. 26 U.S.C. § 5000A(g)(1). And penalties under
subchapter B of chapter 68 in turn must “be assessed and
collected in the same manner as taxes.” 26 U.S.C. § 6671(a)
(emphasis added). It follows from those two provisions,
taken together, that these Affordable Care Act penalties must
be assessed and collected “in the same manner as taxes.”
 3
Taxes are insulated from pre-enforcement suits by the Anti-
Injunction Act. In order for the Affordable Care Act penalties
to be assessed and collected “in the same manner as taxes,”
the assessment and collection of these Affordable Care Act
penalties likewise must be insulated from pre-enforcement
suits by the Anti-Injunction Act.

That straightforward chain of logic convincingly

demonstrates that the Anti-Injunction Act poses a
jurisdictional bar to our deciding this case at this time.

Moreover, there is an alternative and independent reason

that the Anti-Injunction Act applies here. Section 6201 of the
Tax Code defines the IRS’s authority for assessment and
collection of taxes to include assessment and collection of the
civil penalties in the Tax Code that are assessed by the IRS –
what are statutorily known as “additional amounts,”
“additions to the tax,” and “assessable penalties.” Section
6201 specifically requires the IRS to assess “all taxes
(including interest, additional amounts, additions to the tax,
and assessable penalties) imposed by this title.” 26 U.S.C.
§ 6201(a); see 26 U.S.C. §§ 6301-6303 (collection). The
Affordable Care Act imposes a civil “penalty” for failure to
have health insurance; the penalty is to be “assessed” by the
IRS; and it is to be assessed “in the same manner as an
assessable penalty under subchapter B of chapter 68.” The
Affordable Care Act penalty is therefore an “assessable
penalty” for purposes of Section 6201. Under Section 6201, it
is also, then, a tax for purposes of the IRS’s assessment
authority. The Anti-Injunction Act in turn bars pre-
enforcement suits to restrain assessment or collection of taxes.
Because Section 6201 classifies the Affordable Care Act
penalty as a tax for assessment and collection purposes, it
follows that the Anti-Injunction Act bars pre-enforcement
 4
suits to restrain the assessment or collection of the Affordable
Care Act penalty.

That reasoning independently demonstrates that the Anti-

Injunction Act precludes us from deciding this case at this
time.

In sidestepping the Anti-Injunction Act, the majority

opinion relies heavily on the fact that Congress used the word
“penalty” rather than “tax” in the Affordable Care Act. But
the majority opinion’s surface appraisal fails to take account
of the basic text and structure of the Tax Code. The Tax Code
contains numerous penalties for violations of requirements set
forth in the Code. Congress often uses the “penalty” label so
as to have a greater coercive effect on behavior that Congress
wants to encourage or discourage. But critical for present
purposes (and overlooked by the majority opinion) is that the
Tax Code equates tax penalties to taxes for numerous
administrative purposes, including for assessment and
collection by the IRS. Here, the text of the Tax Code
establishes both that the Affordable Care Act penalty must be
“assessed and collected in the same manner as taxes” (Section
6671) and that the Affordable Care Act penalty is a “tax” for
purposes of the IRS’s assessment power (Section 6201). By
equating tax penalties to taxes for these purposes, each
provision independently makes clear that these Affordable
Care Act penalties, like taxes, are insulated from pre-
enforcement suits by the Anti-Injunction Act.

The Tax Code is never a walk in the park. But the

statutory analysis here leads to a firm conclusion that the
Anti-Injunction Act bars this suit.

The fact that the Tax Code equates tax penalties to taxes
for IRS assessment and collection purposes is known by
Members of Congress who work on tax-related legislation –
 5
in particular, the Members and staff of the Senate Finance
Committee and the House Ways and Means Committee.
Those Members and staff are likewise familiar with the Anti-
Injunction Act. Those Tax Code specialists, and their
counterparts in the Executive Branch, were deeply involved in
crafting the Affordable Care Act. Over the years, Congress
has carved out many exceptions to the Anti-Injunction Act to
permit pre-enforcement challenges to tax laws, particularly in
situations where delay would cause disruption or hardship. In
this Act, moreover, Congress specifically relieved taxpayers
from certain enforcement mechanisms that the IRS ordinarily
may employ to enforce tax obligations. But Congress did not
relieve taxpayers from the Anti-Injunction Act’s bar against
pre-enforcement suits. We must respect Congress’s decision.
Unless Congress creates an exception for these Affordable
Care Act cases – which Congress could still do at any time –
this suit cannot be decided by the federal courts until 2015.

Notwithstanding the text of the Anti-Injunction Act,

some have argued that compelling prudential considerations
demand that the courts decide this constitutional issue now.
But prudential considerations cannot trump the text of a
statute setting forth limits on a court’s jurisdiction. In any
event, in my judgment, the relevant prudential considerations
favor our waiting until 2015. 1

1
In this court, no States are plaintiffs. We therefore need not
consider whether the Anti-Injunction Act would apply differently to
a State’s challenges to the individual mandate. Regardless, States
may not have standing to challenge the individual mandate, for
reasons the Fourth Circuit explained. See Virginia v. Sebelius, 656
F.3d 253 (4th Cir. 2011).
 6
I

The Affordable Care Act was passed by Congress and

signed into law by President Obama on March 23, 2010. The
Act initiated a series of major changes to the American health
insurance and health care markets.

Although the following is an over-simplification, the

Act’s most important provisions are five: (1) an increase in
federal spending, including through Medicaid, on health care
for lower-income families and individuals; (2) the creation of
state-run “exchanges” designed to help individuals without
employer-provided or other health insurance obtain insurance
more easily and cheaply than they can now on the open
market; (3) a requirement that most employers provide health
insurance to their employees or pay higher taxes than they
otherwise would; (4) banning insurers from denying coverage
or charging higher rates to individuals with pre-existing
conditions or health problems; and (5) a mandate that most
citizens maintain health insurance or else pay a tax penalty on
their tax returns.

Plaintiffs take exception to that last element: the mandate

that individuals maintain health insurance or else pay a tax
penalty on their tax returns. Plaintiffs argue that Congress
lacks authority to impose such a mandatory-purchase
requirement under the Commerce Clause, the Necessary and
Proper Clause, or the Taxing Clause, which are the
constitutional bases cited by the Government to justify the
mandate. Plaintiffs point out that a federal mandatory-
purchase requirement is unprecedented in American history.
Although some States have imposed similar mandates for
their citizens to maintain health insurance or auto insurance,
for example, plaintiffs explain that the Federal Government
 7
does not possess a general police power over its citizens and
has not previously employed such mandates.

The Tax Code is codified in Title 26 of the United States

Code. (The terms “Tax Code,” “Internal Revenue Code,” and
“Title 26” are synonymous.) Title 26 contains 11 subtitles,
which in turn are subdivided into chapters numbered 1
through 100.

Within Title 26 is Subtitle D, which is entitled

“Miscellaneous Excise Taxes.” Within Subtitle D is chapter
48, which is entitled “Maintenance of Minimum Essential
Coverage.” Within chapter 48 is Section 5000A, which is
entitled “Requirement to maintain minimum essential
coverage” and contains the individual mandate provision at
issue in this case.

Section 5000A provides in relevant part:

(a) Requirement to maintain minimum essential

coverage. – An applicable individual shall for each
month beginning after 2013 ensure that the individual,
and any dependent of the individual who is an
applicable individual, is covered under minimum
essential coverage for such month.
(b) Shared responsibility payment. –
(1) In general. – If a taxpayer who is an applicable
individual, or an applicable individual for whom the
taxpayer is liable under paragraph (3), fails to meet the
requirement of subsection (a) for 1 or more months,
then, except as provided in subsection (e), there is
hereby imposed on the taxpayer a penalty with respect
to such failures in the amount determined under
subsection (c).
 8
(2) Inclusion with return. – Any penalty imposed by
this section with respect to any month shall be
included with a taxpayer’s return under chapter 1 for
the taxable year which includes such month.

Section 5000A further provides that the amount of the tax

penalty is capped at the average price of a health insurance
plan. The section also specifies who is covered and who is
exempt. For example, lower-income individuals and illegal
aliens are not required to pay a penalty for failing to have
health insurance.

Importantly, Section 5000A(g)(1) sets forth how the tax

penalties will be assessed, collected, and paid:

The penalty provided by this section shall be paid upon

notice and demand by the Secretary, and except as
provided in paragraph (2), shall be assessed and collected
in the same manner as an assessable penalty under
subchapter B of chapter 68. 2

As explained more fully below, the cross-referenced provision

– subchapter B of chapter 68 – in turn provides that tax
penalties “shall be assessed and collected in the same manner
as taxes.” 26 U.S.C. § 6671(a) (emphasis added).

2
Section 5000A(g)(1) refers to “paragraph (2)” of Section
5000A(g). Paragraph (2) precludes the IRS from using some of its
more aggressive enforcement tools, such as levies, notices of liens,
or criminal prosecution, when a citizen fails to have health
insurance and fails to pay the required tax penalty. The IRS’s
primary enforcement tool under this statute for those who do not
have health insurance and fail to pay the required penalty consists
of offsets to tax refunds.
 9
To promote compliance with the individual mandate,
Congress did not enact criminal penalties enforceable by the
Department of Justice. Nor did Congress impose civil
penalties enforceable through civil or administrative
complaints brought by the Department of Justice or the
Department of Health and Human Services, for example.
Instead, Congress established a tax penalty that is codified in
the Tax Code, paid on individual tax returns, and assessed,
collected, and enforced by the IRS. 3 And most importantly
for present purposes, Congress employed cross-references
making clear that the penalty must be “assessed and collected
in the same manner as taxes.”

By requiring that the Affordable Care Act penalties be

assessed and collected in the same manner as taxes, Section
5000A(g)(1) triggers the threshold question before us: Do we
have jurisdiction to hear this pre-enforcement suit in light of
the Anti-Injunction Act, which states that “no suit for the
purpose of restraining the assessment or collection of any tax
shall be maintained in any court”?

Enacted in 1867, the Anti-Injunction Act bars pre-

enforcement challenges to tax laws, subject to certain
statutory exceptions not relevant here. The Act requires a
taxpayer who objects to a tax law to first pay the tax and then
assert his or her legal objections in a suit for refund. See 26
U.S.C. §§ 7421(a), 7422. Alternatively, a taxpayer may raise
legal arguments in defense of non-payment during a

3
When I refer in this opinion to the Affordable Care Act
penalties, I am referring only to the penalty in Section 5000A for
failure to maintain health insurance. This case does not call upon
us to examine the various other taxes and penalties imposed by the
wide-ranging Affordable Care Act.
 10
deficiency or enforcement proceeding. But a taxpayer may
not bring a pre-enforcement suit.

As legal challenges to the Affordable Care Act’s

individual mandate first popped up in district courts around
the country, the Executive Branch initially took the position
that the suits were all barred by the Anti-Injunction Act.
Indeed, by my count, the Executive Branch told 10 separate
district courts that the Anti-Injunction Act barred these cases.
The Executive Branch argued that the courts could not decide
the constitutionality of the Affordable Care Act’s individual
mandate until 2015 (in tax refund or enforcement suits after
the mandate has taken effect).

The Executive Branch later changed its mind about the

Anti-Injunction Act, however, presumably because of an
understandable policy desire to have courts resolve the
constitutional question about the individual mandate sooner
rather than later.

That said, courts cannot avoid the Anti-Injunction Act.

As the Supreme Court has long and repeatedly held, the Anti-
Injunction Act is jurisdictional. Jurisdiction goes to a court’s
authority to decide a case, and courts must consider
jurisdictional issues even when the defendant does not raise
them. See Arbaugh v. Y & H Corp., 546 U.S. 500, 506-07
(2006). 4

4
Both sides before us want this case decided now and contend
that the Anti-Injunction Act does not bar this suit. The amicus brief
of former IRS Commissioners Mortimer Caplin and Sheldon
Cohen, submitted by able counsel Alan Morrison, cogently argued
the opposite position. The Court is grateful to amici and counsel
for their assistance.
 11
Because the Anti-Injunction Act is jurisdictional, courts
must apply the Act even when the Executive Branch
affirmatively waives or does not assert it, and even when the
parties jointly ask the courts to decide the relevant merits
issues immediately. See Enochs v. Williams Packing &
Navigation Co., 370 U.S. 1, 5 (1962) (“The object of
§ 7421(a) is to withdraw jurisdiction from the state and
federal courts to entertain suits seeking injunctions
prohibiting the collection of federal taxes.”); id. at 7
(“Otherwise, the District Court is without jurisdiction, and the
complaint must be dismissed.”).

The text of the Anti-Injunction Act manifests its

jurisdictional status. The Act says that “no suit for the
purpose of restraining the assessment or collection of any tax
shall be maintained in any court.” As the Supreme Court has
explained, statutes like the Anti-Injunction Act that govern “a
court’s adjudicatory capacity” or that “speak to the power of
the court rather than to the rights or obligations of the parties”
are jurisdictional. See Henderson ex rel. Henderson v.
Shinseki, 131 S. Ct. 1197, 1202 (2011); Reed Elsevier, Inc. v.
Muchnick, 130 S. Ct. 1237, 1243 (2010) (citation and internal
quotation marks omitted). 5

Moreover, when “a long line of this Court’s decisions left

undisturbed by Congress has treated a similar requirement as
jurisdictional, we will presume that Congress intended to
follow that course.” Henderson, 131 S. Ct. at 1203 (citation

5
In recent years, the Court has carefully analyzed whether
certain provisions governing a lawsuit’s timing relate to claims
processing rather than jurisdiction. See, e.g., Bowles v. Russell, 551
U.S. 205 (2007); Eberhart v. United States, 546 U.S. 12 (2005);
Kontrick v. Ryan, 540 U.S. 443 (2004). In so doing, the Court has
reiterated that statutes like the Anti-Injunction Act that speak to the
power of the court remain jurisdictional.
 12
and internal quotation marks omitted). That interpretive
principle certainly applies here: Since the Anti-Injunction
Act’s enactment in 1867, the Supreme Court has consistently
ruled that the Act is jurisdictional. See Jefferson County v.
Acker, 527 U.S. 423, 434 (1999) (“The federal statute
Congress had in plain view was an 1867 measure depriving
courts of jurisdiction over suits brought ‘for the purpose of
restraining the assessment or collection’ of any federal tax.”);
Bob Jones Univ. v. Simon, 416 U.S. 725, 749-50 (1974)
(affirming Fourth Circuit’s holding that the District Court
lacked jurisdiction under the Anti-Injunction Act); Enochs v.
Williams Packing, 370 U.S. at 5 (“The object of § 7421(a) is
to withdraw jurisdiction from the state and federal courts to
entertain suits seeking injunctions prohibiting the collection
of federal taxes.”); Dodge v. Osborn, 240 U.S. 118, 119, 122
(1916) (affirming dismissal of suit to enjoin assessment and
collection of taxes on jurisdictional grounds); Brushaber v.
Union Pacific Railroad Co., 240 U.S. 1, 10 (1916) (discussing
inapplicability of the Anti-Injunction Act in order to “put out
of the way a question of jurisdiction”); see also Snyder v.
Marks, 109 U.S. 189, 194 (1883) (referring to the
“government” and not the Executive Branch alone in saying
that the Anti-Injunction Act was “enacted under the right
belonging to the government to prescribe the conditions on
which it would subject itself to the judgment of the courts in
the collection of its revenues”); Cheatham v. United States, 92
U.S. 85, 88-89 (1876) (same). 6

6
This Court has also recognized the jurisdictional status of the
Act. See, e.g., Gardner v. United States, 211 F.3d 1305, 1311
(D.C. Cir. 2000) (“The District Court must dismiss for lack of
subject matter jurisdiction any suit that does not fall within one of
the exceptions to the Anti-Injunction Act.”); Nat’l Taxpayers
Union, Inc. v. United States, 68 F.3d 1428, 1435 (D.C. Cir. 1995)
 13
What is more, the Executive Branch itself agrees that the
Anti-Injunction Act is jurisdictional. It is true that the
Executive Branch now argues that the Act does not bar suits
involving the tax penalties at issue in this case. But the
Executive Branch has not suggested that the Court can skip
the Anti-Injunction Act question altogether and proceed
directly to the Commerce and Taxing Clause issues. Indeed,
the Executive Branch has expressly rejected that proposition
and has recently reaffirmed its position that the Anti-
Injunction Act is jurisdictional. See Reply Brief for United
States at 2-3, Dep’t of Health & Human Services v. Florida,
No. 11-398 (U.S. Oct. 26, 2011).

The jurisdictional status of the Anti-Injunction Act

reflects the Constitution’s separation of powers in operation.
Under the Constitution, Congress possesses the power to tax
and spend, as well as the power of the purse over
appropriations of money. Congress zealously guards those
prerogatives. Here, Congress has not afforded discretion to
the Executive Branch to waive or forfeit the Anti-Injunction
Act’s bar with respect to the assessment and collection of
taxes. Rather, by making the Anti-Injunction Act
jurisdictional, Congress has commanded courts to abide by
the Act even when the Executive Branch might not assert it.

(same). Indeed, every court of appeals has found the Act

jurisdictional.
The Supreme Court has consistently held that the related State
Tax Injunction Act, 28 U.S.C. § 1341, is likewise jurisdictional.
See Levin v. Commerce Energy, Inc., 130 S. Ct. 2323, 2335 n.10
(2010) (“This Court and others have continued to regard the Act as
jurisdictional.”); Hibbs v. Winn, 542 U.S. 88, 107 (2004) (TIA is a
“jurisdictional bar”); Arkansas v. Farm Credit Services of Central
Arkansas, 520 U.S. 821, 823 (1997) (same); California v. Grace
Brethren Church, 457 U.S. 393, 396 (1982) (TIA “deprived the
District Court of jurisdiction to hear these challenges”).
 14
Congress has thereby ensured that the flow of revenue is not
interrupted by litigation.

Therefore, even when the Executive Branch does not

assert or affirmatively tries to waive the Anti-Injunction Act,
we cannot overlook it. To do otherwise would contravene the
basic separation of powers tenets that underlie jurisdictional
principles. When Congress has established a jurisdictional
limit on the courts’ power, especially in cases involving
monies due to the Federal Government, it would be
inconsistent with our constitutional structure for a court to
grant the Executive Branch authority to waive or forfeit that
jurisdictional limitation.

In a drive-by attempt to crack the solid wall of precedent

holding that the Anti-Injunction Act is jurisdictional, some
have cited Helvering v. Davis, 301 U.S. 619, 639-40 (1937).
But that case involved a suit by a shareholder against a private
corporation, not against the Government. The case shows
simply that the Anti-Injunction Act does not necessarily apply
in private litigation between a corporation and its
shareholders. See Brief for United States at 29 n.18,
Alexander v. “Americans United” Inc., 416 U.S. 752 (1974)
(No. 72-1371) (similarly describing Helvering v. Davis). 7
That scenario obviously does not encompass this case. In any
event, even if this jurisdictional bar were relaxed when the
Executive Branch affirmatively waived the Act, the Executive
Branch has recently reiterated to the Supreme Court that it has
not asserted, and will not assert, any Helvering v. Davis-based
waiver in these cases. See Reply Brief for United States at 6,

7
On other occasions prior to Helvering v. Davis, the Court
likewise held that the Anti-Injunction Act did not pose a
jurisdictional bar to private litigation between a shareholder and a
corporation. See Brushaber, 240 U.S. at 10; Pollock v. Farmers’
Loan & Trust Co., 157 U.S. 429, 554 (1895).
 15
Dep’t of Health & Human Services v. Florida, No. 11-398.
As revealed by the many Supreme Court cases before and
since that have described the Anti-Injunction Act as
jurisdictional, the Court’s 1937 Helvering v. Davis decision
did not undermine the jurisdictional status of the Act.

The majority opinion nominally acknowledges that we

must address the Anti-Injunction Act but says we should defer
to the Executive Branch’s analysis of why the Act does not
apply. The majority opinion cites no relevant authority
suggesting that courts should defer to the Executive Branch’s
interpretation of jurisdictional statutes such as the Anti-
Injunction Act. Not even the Executive Branch has argued
that it should receive such deference. The majority opinion’s
approach appears to be nothing more than a roundabout way
of saying that courts can essentially pass over the Anti-
Injunction Act when the Executive Branch claims the Act
does not bar a suit. That approach is functionally equivalent
to saying that the Act is not jurisdictional. But that’s
incorrect. We must independently analyze the Act, and we
cannot just defer to the Executive’s interpretation of it.

In sum, the Anti-Injunction Act is jurisdictional. The text

of the Act speaks to the power of the courts, which means it is
jurisdictional. And the Supreme Court has repeatedly held
that the Act is jurisdictional. We therefore must address the
Anti-Injunction Act. 8

8
The Supreme Court has held that the Anti-Injunction Act
does not apply in cases where the Government’s argument in
support of the tax is frivolous. See Enochs v. Williams Packing,
370 U.S. at 7; Bob Jones, 416 U.S. at 745. The Supreme Court has
also made clear that the Anti-Injunction Act applies to pre-
enforcement suits only where there is an adequate alternative
remedy, such as a refund suit. See South Carolina v. Regan, 465
 16
II

To determine whether the Anti-Injunction Act bars this

suit at this time, we start with the text of the Act:

Except as provided in sections 6015(e), 6212(a) and (c),

6213(a), 6225(b), 6246(b), 6330(e)(1), 6331(i), 6672(c),
6694(c), and 7426(a) and (b)(1), 7429(b), and 7436, no
suit for the purpose of restraining the assessment or
collection of any tax shall be maintained in any court
by any person, whether or not such person is the person
against whom such tax was assessed.

26 U.S.C. § 7421(a) (emphasis added). The Supreme Court

has repeatedly held that the Act bars pre-enforcement
challenges to tax laws. The Court has interpreted “the
principal purpose of this language to be the protection of the
Government’s need to assess and collect taxes as
expeditiously as possible with a minimum of pre-enforcement
judicial interference, and to require that the legal right to the

U.S. 367, 381 (1984). Here, the Government’s position on the

constitutional issue is obviously not frivolous, and a tax refund or
enforcement suit is available to litigate the constitutional claims.
Plaintiffs do not mount any meaningful contention otherwise.
I bring that point up now because some have suggested that the
existence of those “exceptions” to the Anti-Injunction Act
undermines the conclusion that it is jurisdictional. That suggestion
reflects a misunderstanding of the concept of jurisdiction. Courts
must consider a jurisdictional statute even when not raised. But the
status of a statute as jurisdictional does not disable the courts from
interpreting the statute and Congress’s intent by means of the usual
tools of statutory construction. See, e.g., id. (“the Act was intended
to apply only when Congress has provided an alternative avenue for
an aggrieved party to litigate its claims on its own behalf”).
 17
disputed sums be determined in a suit for refund.” Bob Jones
Univ. v. Simon, 416 U.S. 725, 736 (1974) (internal quotation
marks omitted). 9 By preventing pre-enforcement suits, the
Act assures the United States of “prompt collection of its
lawful revenue.” Enochs v. Williams Packing & Navigation
Co., 370 U.S. 1, 7 (1962). A “collateral objective” of the Act,
the Court has said, is “protection of the collector from
litigation pending a suit for refund.” Bob Jones, 416 U.S. at
737 (citation and internal quotation marks omitted). 10

Of course, the exaction in this particular case is

statutorily labeled as a Tax Code “penalty,” not a “tax.” Does
the Anti-Injunction Act still apply? Yes, as we learn from a
straightforward reading of the cross-references in the relevant
statutory provisions. (I caution the reader that some of the
following is not for the faint of heart.)

The majority opinion places heavy rhetorical reliance on

the fact that Congress labeled the individual mandate
provision as a “penalty” and not a “tax.” That is a red
herring. Congress often chooses the label “penalty” instead of
“tax” because the “penalty” label suggests violation of a legal
rule and thus has a more powerful effect in altering

9
As an alternative to the refund suit, a resistant taxpayer who
does not pay a required tax or penalty may face an IRS enforcement
action seeking to collect the unpaid taxes or penalties. In those
proceedings, the taxpayer generally may raise constitutional or
statutory arguments as defenses to the underlying payment
obligation.
10
Federal law not only bars pre-enforcement suits to enjoin
the assessment or collection of taxes, but also bars pre-enforcement
suits seeking declaratory judgments “with respect to Federal taxes.”
28 U.S.C. § 2201(a). In Bob Jones, the Supreme Court held that
“the federal tax exception to the Declaratory Judgment Act is at
least as broad as the Anti-Injunction Act.” 416 U.S. at 733 n.7.
 18
underlying behavior that Congress wants to encourage or
discourage. 11 Congress thus has created numerous Tax Code
civil penalties that apply when a taxpayer fails to comply with
legal requirements set forth in the Code. See, e.g., 26 U.S.C.
§ 527(j)(1) (penalty for failure of political organization to
make required disclosures); 26 U.S.C. § 6672 (penalty for
willful failure to meet requirement to collect, truthfully
account for, and pay over tax); 26 U.S.C. § 6723 (penalty for
failure to make timely report of information).

At the same time, the Tax Code is loaded with provisions

that treat those Tax Code penalties as taxes for various
administrative purposes, including for assessment, collection,
and payment. See, e.g., 26 U.S.C. §§ 6665(a), 6671(a). 12 The
majority opinion’s fixation on the “penalty” label causes it to
neglect the basic text and structure of the Tax Code. The
question here cannot be resolved without examining whether
this is one of the places in the Tax Code that requires tax

11
See, e.g., OFFICE OF TAX POLICY, DEP’T OF THE
TREASURY, REPORT TO THE CONGRESS ON PENALTY AND
INTEREST PROVISIONS OF THE INTERNAL REVENUE CODE 36
(1999) (“[P]enalties clearly signal that noncompliance is not
acceptable behavior. . . . In establishing social norms and
expectations, subjecting the noncompliant behavior to any penalty
may be as important as the exact level of the penalty . . . .”); EXEC.
TASK FORCE FOR THE COMMISSIONER’S PENALTY STUDY, REPORT
ON CIVIL TAX PENALTIES at II-4 (1989) (penalty is adverse
consequence for failure to comply with a rule); id. at III-1
(“Penalties as a consequence of violating a standard of behavior
remind taxpayers of their duty.”); id. at X-1 (“Penalties are a tool
for change.”).
12
Professor Bittker stated: “Virtually all civil penalties are
assessed, collected, and subject to statutes of limitations in the same
manner as taxes.” BORIS I. BITTKER ET AL., FEDERAL INCOME
TAXATION OF INDIVIDUALS ¶ 50.03 (3d ed. 2002). Assessment is
the actual recording of the tax by the IRS. See 26 U.S.C. § 6203.
 19
“penalties” to be treated as “taxes.” Contrary to the
suggestion in the majority opinion, the fact that the exaction
here is labeled as a “penalty” only begins the Anti-Injunction
Act analysis; it does not end it.

To begin, all agree that the Anti-Injunction Act would bar

this suit if the individual mandate provision of the Affordable
Care Act were either (i) labeled as a “tax” or (ii) labeled as a
“penalty” but codified in chapter 68 subchapter B of the Tax
Code. Subchapter B of chapter 68 is entitled “Assessable
Penalties.” Section 6671 provides that chapter 68 subchapter
B penalties are to be “assessed and collected in the same
manner as taxes.”

The analytical question in this case arises because the

exaction associated with the individual mandate of the
Affordable Care Act is labeled as a “penalty” but is codified
not in chapter 68 of the Tax Code, but rather in chapter 48 of
Subtitle D, which is entitled “Miscellaneous Excise Taxes.” 13

13
It appears that Congress was of two minds about whether
this exaction should be called an “excise tax” and placed in chapter
48 of Subtitle D, which is entitled “Miscellaneous Excise Taxes,”
or called a penalty and placed in chapter 68 subchapter B, which is
entitled “Assessable Penalties.” See STAFF OF JOINT COMMITTEE
ON TAXATION, JCX-27-10, ERRATA FOR JCX-18-10, at 2 (2010)
(the Section 5000A “penalty is an excise tax”). Congress ended up
placing it in chapter 48 of Subtitle D but calling it a penalty, cross-
referencing chapter 68 subchapter B, and providing that the penalty
must be assessed and collected by the IRS in the same manner as
taxes. That untidiness might have been cleaned up had there been a
House-Senate conference on this legislation. Some extraordinary
electoral circumstances short-circuited that process. But it is
telling, in any event, that both (i) excise taxes in chapter 48 of
Subtitle D and (ii) assessable penalties in chapter 68 subchapter B
are conceded by all parties to be subject to the Anti-Injunction Act.
It would be quite odd – structurally speaking – to conclude that
 20
For that reason, some have been misled into assuming that the
Anti-Injunction Act does not apply to the Affordable Care
Act’s penalty for failure to have health insurance. That is a
mistake, however, because the Affordable Care Act’s
individual mandate provision cross-references chapter 68. In
particular, Section 5000A provides that the Affordable Care
Act’s penalties for failing to have health insurance must be
assessed and collected in the same manner as chapter 68
subchapter B penalties. Those chapter 68 subchapter B
penalties in turn must be assessed and collected in the same
manner as taxes.

The relevant language of the Affordable Care Act states:

The penalty provided by this section shall be paid upon

notice and demand by the Secretary, and except as
provided in paragraph (2), shall be assessed and
collected in the same manner as an assessable penalty
under subchapter B of chapter 68.

26 U.S.C. § 5000A(g)(1) (emphasis added). The cross-

referenced provision – chapter 68 subchapter B – in turn
states in relevant part:

The penalties and liabilities provided by this

subchapter shall be paid upon notice and demand by the
Secretary, and shall be assessed and collected in the
same manner as taxes. Except as otherwise provided,
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.

26 U.S.C. § 6671(a) (emphasis added).

because the individual mandate provision is a mix of both, suddenly

the Anti-Injunction Act does not apply.
 21
When we put those two sections together, we see that
these Affordable Care Act penalties must be assessed and
collected in the same manner as taxes. To be sure, Congress
carefully avoided the dreaded T-word (“tax”) in the
Affordable Care Act’s mandate provision itself, Section
5000A. Instead, Section 5000A cross-references chapter 68
subchapter B, which in turn says assessable penalties “shall be
assessed and collected in the same manner as taxes.” 26
U.S.C. § 6671(a).

But as we learn in logic class, when A=B and B=C, then

A=C. So it is here: The Affordable Care Act requires that its
penalty “be assessed and collected in the same manner as an
assessable penalty under subchapter B of chapter 68,” and
chapter 68 subchapter B penalties in turn must be “assessed
and collected in the same manner as taxes.” It follows that
these Affordable Care Act penalties must be assessed and
collected in the same manner as taxes.

Turning back, then, to the Anti-Injunction Act: That Act

refers specifically to “the assessment or collection of any tax,”
and it requires that taxes be assessed and collected without
pre-enforcement judicial interference. It follows that these
Affordable Care Act penalties – which, as we have
determined, must be “assessed and collected in the same
manner as taxes” – likewise must be assessed and collected
without pre-enforcement judicial interference. Otherwise, one
could not say that the Affordable Care Act penalties were
being assessed and collected in the same manner as taxes, as
the statute requires.

To conclude that the Anti-Injunction Act does not apply

here, one would have to say that a tax that may be challenged
in pre-enforcement suits is “assessed and collected in the
same manner” as a tax that is insulated from pre-enforcement
 22
suits. Such an argument is implausible and untenable, for
three main reasons.

First, when the Anti-Injunction Act applies, it bars pre-

enforcement suits – that is, taxpayer suits before the tax is
assessed and collected. In those situations, the tax is typically
collected by the IRS when the taxpayer submits his or her tax
return, see 26 U.S.C. §§ 6151, 6201, 6202, 6302, and thus
before the taxpayer brings a lawsuit challenging the tax and
seeking a refund. If the Anti-Injunction Act did not apply,
however, the taxpayer could sue to block assessment and
collection of the tax and refuse to pay the tax on his or her tax
return. The taxpayer in that latter circumstance would
generally pay any tax only after the litigation concluded. So
as a temporal and practical matter, a tax is typically assessed
and collected by the IRS much earlier – namely, before any
lawsuit – when the Anti-Injunction Act applies. Two taxes
are not assessed and collected in the same manner when they
are assessed and collected years apart, and when one is
assessed and collected by the IRS before any litigation,
whereas the other is assessed and collected by the IRS only
after the completion of litigation.

After all, the timing of tax assessment and collection is

critical to tax collection generally, see, e.g., 26 U.S.C. § 6151,
and to the Anti-Injunction Act in particular. Two of the main
statutory duties imposed on taxpayers are to file a tax return
on time and to pay the tax liability on time. The whole theory
of the Anti-Injunction Act rests on the fact that there is a
significant difference for purposes of the Government’s tax
assessment and collection efforts between a tax assessed and
collected in Year 1 and a tax assessed and collected in Year 2,
for example. See Bob Jones, 416 U.S. at 747 (“powerful”
government interest in “protecting the administration of the
tax system from premature judicial interference”). That
 23
explains why the Supreme Court has described the objective
of the Act as ensuring “prompt collection” of revenue, not
merely eventual collection of revenue. Enochs v. Williams
Packing, 370 U.S. at 7. So it would be rather odd to turn
around here and say that temporal differences are irrelevant
and that two taxes assessed and collected years apart are in
fact “assessed and collected in the same manner.”

Second, the difference is not just the timing of assessment

and collection, but also the means of assessment and
collection. When the Anti-Injunction Act applies, a tax will
generally be assessed and collected by the IRS with
submission of the taxpayer’s tax return. See 26 U.S.C.
§§ 6151, 6201, 6301, 6302. By contrast, if the Anti-
Injunction Act did not apply, a tax could be assessed and
collected only after the litigation was resolved in favor of the
IRS (if it was resolved in favor of the IRS), by means of a
payment to the IRS in the wake of the court order. A tax
assessed and collected by the IRS with a taxpayer’s tax return
and a tax assessed and collected by the IRS not with the tax
return but rather following a court order cannot persuasively
be characterized, in my judgment, as being “assessed and
collected in the same manner.”

In that regard, keep in mind that the individual tax return

is absolutely central to the IRS’s assessment and collection of
taxes. Tax returns are the means by which most taxpayers
self-assess and pay their taxes, and the means by which much
of the Government’s tax revenue is collected. 14 The tax

14
The Supreme Court has recognized that point many times.
See Hibbs v. Winn, 542 U.S. 88, 101 n.3 (2004) (“Income taxes, by
contrast, are typically self-assessed in the United States. As anyone
who has filed a tax return is unlikely to forget, the taxpayer, not the
taxing authority, is the first party to make the relevant calculation of
income taxes owed.”); United States v. Galletti, 541 U.S. 114, 122
 24
return thus forms the foundation of the IRS’s assessment and
collection process. A method of tax assessment and
collection in which the IRS cannot rely on the individual tax
return to assess and collect a tax but instead must engage in
litigation to win the right to assess and collect a tax is a
significantly different manner of assessment and collection –
particularly when conceivably multiplied millions of times
over for each affected individual tax return. Taxes assessed
and collected through these two widely divergent methods
cannot reasonably be said to be “assessed and collected in the
same manner.” See United States v. American Friends
Service Committee, 419 U.S. 7, 10 (1974) (referring to
withholding as method of collection and saying that Anti-
Injunction Act applies even when only one method of
collection of taxes would be restrained by a suit). 15

(2004) (“The Federal tax system is basically one of self-assessment,

whereby each taxpayer computes the tax due and then files the
appropriate form of return along with the requisite payment. In
most cases, the Secretary accepts the self-assessment and simply
records the liability of the taxpayer.”) (internal quotation marks and
citation omitted); Commissioner v. Lane-Wells Co., 321 U.S. 219,
223 (1944) (“The purpose is not alone to get tax information in
some form but also to get it with such uniformity, completeness,
and arrangement that the physical task of handling and verifying
returns may be readily accomplished.”); see also BITTKER ET AL.,
FEDERAL INCOME TAXATION OF INDIVIDUALS ¶ 44.01 (“The
importance of the tax return as the basic document on which the
self-assessment system rests is attested by the number of statutory
provisions requiring returns to be filed; specifying their filing dates;
attaching legal consequences to the fact of filing, the date of filing,
and the information included; and imposing penalties for filing
negligent or fraudulent returns and for failing to file.”).
15
The Affordable Care Act prohibits the IRS from using some
of its traditional enforcement tools to enforce payment of the tax
penalties. The majority opinion suggests that the IRS’s ability to
 25
Third, when the Anti-Injunction Act applies, the tax will
be collected by the IRS and will be repaid to the taxpayer only
if the taxpayer succeeds in the subsequent refund lawsuit.
However, if the Anti-Injunction Act did not apply and the
taxpayer succeeded in the pre-enforcement lawsuit, the tax
would never be collected by the IRS at all. I find it quite
difficult to say that a tax that is assessed and collected by the
IRS but then returned to the taxpayer some years later is
“assessed and collected in the same manner” as a tax that is
never assessed or collected by the IRS at all. Common sense
tells us that those two scenarios are not equivalent in terms of
their manner of assessment and collection.

use only a subset of its traditional tax enforcement tools casts doubt
on the conclusion that the Anti-Injunction Act applies. I
respectfully have difficulty with that reasoning. The key point, as I
see it, is that the penalty may be enforced only by the IRS, not by
the U.S. Attorney or by other federal agencies. The fact that the
IRS cannot use all of its traditional enforcement tools does not
make it any less an IRS-enforced provision.
Perhaps the most important takeaway from the fact that
Congress prevented the IRS from employing everything in its
toolbox when enforcing the Affordable Care Act penalty provision
is the following: Congress focused specifically on how this tax
penalty would be collected and enforced. And Congress
determined that some of the usual IRS enforcement tools were out
of bounds. But Congress nonetheless did not allow taxpayers to
bring pre-enforcement suits challenging the law and seeking to
restrain assessment and collection of the tax penalty. Congress did
not exempt the individual mandate provision from the Anti-
Injunction Act. Congress’s careful delineation of proper and
improper enforcement tools suggests that Congress acted
knowingly in not creating an exception to the Anti-Injunction Act
for pre-enforcement constitutional challenges to the individual
mandate provision.
 26
The distinction is no mere technicality. If the IRS can be
deprived of expected revenues by the mere filing of a lawsuit
($4 billion annually in this instance), then the Government
will face increased short-term budgetary problems and
potentially higher near-term deficits, as well as greater
difficulties in planning for future appropriations. The Anti-
Injunction Act was designed in part to alleviate those
problems. Finding a tax that is collected now to be equivalent
to a tax that is never collected thus thwarts the Act’s central
design.

In short, the Affordable Care Act dictates that its

penalties be assessed and collected in the same manner as
chapter 68 subchapter B penalties. Chapter 68 subchapter B
penalties in turn must be assessed and collected “in the same
manner as taxes.” Taxes are insulated from pre-enforcement
suits by the Anti-Injunction Act. In order for the Affordable
Care Act’s penalties to be assessed and collected in the same
manner as the chapter 68 subchapter B penalties and thus in
the same manner as taxes, the Affordable Care Act’s penalties
likewise must be insulated from pre-enforcement suits by the
Anti-Injunction Act. 16

16
One other aspect of Section 5000A buttresses the
conclusion that a taxpayer cannot bring a pre-enforcement suit
challenging the individual mandate. Section 5000A(g)(1) provides
that the tax penalties for failing to have health insurance “shall be
paid upon notice and demand by the Secretary.” That same
language – “shall be paid upon notice and demand by the
Secretary” – is found in the general penalty provision in chapter 68
subchapter B. See 26 U.S.C. § 6671(a). The requirement that
penalties “shall be paid upon notice and demand by the Secretary”
generally indicates that the Secretary may assess and demand
payment of the tax penalties without pre-enforcement judicial
interference, whether by a pre-enforcement suit or a deficiency
 27
Absent any statutory cross-references or definitions, the
term “tax” in the Anti-Injunction Act might not itself cover
the tax penalties at issue here. But the Affordable Care Act’s
cross-reference to chapter 68 establishes that these tax
penalties – like the tax penalties in chapter 68 – must be
“assessed and collected in the same manner as taxes.”
Because of the cross-reference, and because taxes subject to
pre-enforcement suits are not assessed and collected in the
same manner as taxes insulated from pre-enforcement suits,
the Anti-Injunction Act bars us from exercising jurisdiction
over this case. 17

proceeding in Tax Court. Cf. 26 U.S.C. § 6213. (If the taxpayer

still refuses to pay after notice and demand, then the IRS and the
taxpayer will have to resolve the dispute in enforcement
proceedings.) After all, if a pre-enforcement suit could be filed to
block payment of the penalties, then the tax penalties would not be
paid “upon notice and demand by the Secretary,” as the statute
requires. Absent any textual indication to the contrary, this
language further suggests that a taxpayer may not bring a pre-
enforcement suit challenging the individual mandate.
17
That conclusion finds further support when we examine
how the Anti-Injunction Act applies to other Tax Code penalties
that, like the Affordable Care Act penalty, are codified outside of
chapter 68 but cross-reference chapter 68. For example, Sections
5114, 5684, and 5761 of the Tax Code impose tax penalties for
violation of certain laws related to liquor and tobacco; all provide
that the penalties “shall be assessed, collected, and paid in the same
manner as taxes, as provided in section 6665(a).”
Section 6665(a), which is in chapter 68, in turn states that
“penalties provided by this chapter shall be paid upon notice and
demand and shall be assessed, collected, and paid in the same
manner as taxes.” (Section 6665(a) thus echoes Section 6671(a),
the similarly worded section in chapter 68 cross-referenced by the
Affordable Care Act.) The Government agrees that the tax
penalties imposed under Sections 5114, 5684, and 5761 are subject
 28
B

In arguing that the Anti-Injunction Act does not apply

here, the majority opinion relies in part on a strained
interpretation of Section 6671(a) of chapter 68 subchapter B.

Recall that Section 5000A provides that Affordable Care

Act penalties for those without health insurance must be
assessed and collected in the same manner as penalties under
chapter 68 subchapter B, which in turn must be assessed and
collected in the same manner as taxes. The relevant cross-
referenced provision in chapter 68 subchapter B is Section
6671(a), which states:

The penalties and liabilities provided by this subchapter

shall be paid upon notice and demand by the Secretary,

to the Anti-Injunction Act and thus insulated from pre-enforcement

suits. See Supplemental Brief for United States at 4, Liberty Univ.
v. Geithner, No. 10-2347, 2011 WL 3962915 (4th Cir. Sept. 8,
2011). But those provisions and their cross-references to chapter
68 cannot logically be distinguished from the Affordable Care Act
and its cross-reference to chapter 68. In all of the statutes, after all,
a tax “penalty” is imposed by a Tax Code provision outside chapter
68. All of those provisions require that the tax penalty be assessed
and collected in the same manner as taxes. Therefore, all of those
provisions – including the tax penalty in the Affordable Care Act –
are subject to the Anti-Injunction Act and insulated from pre-
enforcement suits. The Government counters that Sections
5114(c)(3), 5684(b), and 5761(e) all expressly refer to “taxes” in
cross-referencing Section 6665(a) and thus are distinguishable from
Section 5000A. But that is not a relevant distinction. As we have
seen, Section 5000A(g)(1) accomplishes that same result by
referring to Section 6671(a), which in turn refers to “taxes.”
Therefore, Section 5114, 5684, 5761, and 5000A penalties are all
subject to the Anti-Injunction Act and insulated from pre-
enforcement suits.
 29
and shall be assessed and collected in the same manner as
taxes. Except as otherwise provided, 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.

The first sentence of Section 6671(a) is key for purposes

of the Affordable Care Act’s cross-reference and for my
analysis above that the Anti-Injunction Act applies here. The
Affordable Care Act and the first sentence of Section 6671(a)
together mean that the Affordable Care Act’s penalties for
failure to have health insurance must be assessed and
collected in the same manner as taxes. As explained above,
these tax penalties (in chapter 68 and thus also in the
Affordable Care Act) can be assessed and collected in the
same manner as taxes only if they are insulated from pre-
enforcement suits under the Anti-Injunction Act, as taxes are.

The majority opinion focuses on the second sentence of

Section 6671(a). The second sentence equates the penalties in
chapter 68 subchapter B to taxes for all Tax Code purposes.
As the majority opinion states, that second sentence therefore
appears to independently make the Anti-Injunction Act
applicable to chapter 68 subchapter B penalties. The majority
opinion also states that the second sentence of Section
6671(a) – unlike the first sentence – does not apply to the
Affordable Care Act’s penalties. From that, however, the
majority opinion draws the incorrect conclusion that the Anti-
Injunction Act does not apply to the Affordable Care Act’s
tax penalties.

The majority opinion’s focus on the second sentence of

Section 6671(a) is a diversion. As explained above, Section
6671(a)’s first sentence on its own dictates that the Anti-
Injunction Act applies to chapter 68 subchapter B penalties –
 30
and thus also to the Affordable Care Act’s individual mandate
penalties, which must be assessed and collected in the same
manner as chapter 68 subchapter B penalties.

Indeed, when the Government initially told district courts

around the country that the Anti-Injunction Act barred these
suits, it too relied on the first sentence of Section 6671(a).
See Memorandum in Support of United States’ Motion to
Dismiss at 15, Mead v. Holder, 766 F. Supp. 2d 16 (D.D.C.
2011) (No. 1:10-cv-950) (“It does not matter whether the
payment sought to be enjoined is labeled a ‘penalty’ rather
than a ‘tax.’ With exceptions immaterial here, the penalty is
‘assessed and collected in the same manner’ as other
assessable penalties under the Internal Revenue Code, I.R.C.
§ 5000A(g)(1), and, like these other penalties, falls within the
bar of the AIA. I.R.C. § 6671(a).”) (some citations
omitted). 18

18
The majority opinion suggests that I am breaking new
ground in interpreting the first sentence of Section 6671(a) in this
way. The majority opinion is incorrect. Many cases analyzing
other Tax Code penalties encompassed by Section 6671(a) have
concluded that the Anti-Injunction Act applies to those penalties
because of the requirement in the first sentence of Section 6671(a)
that the penalties be assessed and collected in the same manner as
taxes. See, e.g., Kelly v. Lethert, 362 F.2d 629, 633 (8th Cir. 1966);
Nat’l Commodity & Barter Ass’n v. United States, 625 F. Supp.
920, 921 (D. Colo. 1986); Griffith v. Commissioner, 598 F. Supp.
405, 406 (N.D. Ohio 1983); Crouch v. Commissioner, 447 F. Supp.
385, 386 (N.D. Cal. 1978); McAllister v. Dudley, 148 F. Supp. 548,
550-51 (W.D. Pa. 1956).
A leading treatise similarly states: “[B]ecause § 6671(a)
provides that penalties shall be assessed and collected as taxes, the
Anti-Injunction Act bars taxpayers from seeking to enjoin the
assessment of penalties.” BITTKER ET AL., FEDERAL INCOME
TAXATION OF INDIVIDUALS ¶ 51.10. It appears, moreover, that no
 31
The second sentence of Section 6671(a), to which the
majority opinion points, applies to more than just assessment
and collection of taxes. That sentence equates chapter 68
subchapter B penalties to taxes for the full panoply of rights
and obligations under the Tax Code. The second sentence
thus gives taxpayers numerous rights with respect to
imposition of chapter 68 subchapter B tax penalties that
taxpayers possess with respect to imposition of taxes – to take
just one example, the right to bring a civil action for damages
against an IRS employee who violates any Tax Code
provision in collecting a tax. 26 U.S.C. § 7433(a).

To be sure, the second sentence of Section 6671(a) is so

broadly written that it arguably also makes chapter 68
subchapter B penalties equivalent to taxes for purposes of
assessment and collection – which the first sentence
specifically accomplishes. The majority opinion finds that
redundancy problematic. But such redundancy is not unusual.
It is common, after all, for a list of specific statutory
requirements or prohibitions to accompany a general statutory
requirement or prohibition that encompasses the specific. 19

case decided before the current litigation has ever said that the first
sentence of Section 6671(a) on its own is insufficient to make the
Anti-Injunction Act applicable to a Tax Code penalty.
19
See, e.g., Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 226-
27 (2008) (“Congress may have simply intended to remove any
doubt that officers of customs or excise were included in ‘law
enforcement officers.’ . . . In any event, we do not woodenly apply
limiting principles every time Congress includes a specific example
along with a general phrase.”) (brackets omitted); Norfolk &
Western Railway Co. v. American Train Dispatchers’ Ass’n, 499
U.S. 117, 129 (1991); Harrison v. PPG Industries, Inc., 446 U.S.
578, 580 n.1, 589 (1980); see also Springer v. Philippine Islands,
277 U.S. 189, 206 (1928) (“Where a statute contains a grant of
power enumerating certain things which may be done and also a
 32
Focusing on the plain text, as we must: The Affordable
Care Act says that its tax penalties must be assessed and
collected in the same manner as chapter 68 subchapter B
penalties. The first sentence of Section 6671(a) definitively
establishes that chapter 68 subchapter B tax penalties are to be
assessed and collected in the same manner as taxes. Even if
the second sentence would have accomplished that same
result for chapter 68 subchapter B penalties, the first sentence
makes “double sure,” a routine approach to legislative
drafting. 20 And that first sentence – combined with the

general grant of power which standing alone would include these

things and more, the general grant may be given full effect if the
context shows that the enumeration was not intended to be
exclusive.”).
20
See Microsoft Corp. v. i4i Ltd. Partnership, 131 S. Ct.
2238, 2249 (2011) (“There are times when Congress enacts
provisions that are superfluous . . . .”) (quoting Corley v. United
States, 129 S. Ct. 1558, 1572-73 (2009) (Alito, J., dissenting));
DePierre v. United States, 131 S. Ct. 2225, 2232 (2011)
(“Accordingly, Congress’ choice to use the admittedly redundant
term ‘cocaine base’ to refer to chemically basic cocaine is best
understood as an effort to make clear that clause (iii) does not apply
to offenses involving powder cocaine or other nonbasic cocaine-
related substances.”); Abbott v. United States, 131 S. Ct. 18, 29
(2010) (“This reading gives effect to the statutory language
commanding that all § 924(c) offenders shall receive additional
punishment for their violation of that provision, a command
reiterated three times.”) (emphasis added); Conn. Nat’l Bank v.
Germain, 503 U.S. 249, 253-54 (1992) (“Redundancies across
statutes are not unusual events in drafting, and so long as there is no
‘positive repugnancy’ between two laws, a court must give effect to
both. . . . We have stated time and again that courts must presume
that a legislature says in a statute what it means and means in a
statute what it says there.”) (citation omitted); Crandon v. United
States, 494 U.S. 152, 174 (1990) (Scalia, J., concurring in
judgment) (“superfluous exceptions (to ‘make assurance doubly
 33
Affordable Care Act’s cross-reference – establishes that the
Affordable Care Act’s tax penalties must be assessed and
collected in the same manner as taxes and therefore insulated
from pre-enforcement suits.

The majority opinion’s reference to the redundancy (or

surplusage) principle here is further flawed because that
principle carries force only when there are two alternative
interpretations, one of which would eliminate the redundancy
or surplusage. But under the majority opinion’s own
approach, the entire first sentence of Section 6671(a) would
be surplusage. Cf. Microsoft Corp. v. i4i Ltd. Partnership,
131 S. Ct. 2238, 2248 (2011) (“Here, no interpretation of §
282 – including the two alternatives advanced by Microsoft –
avoids excess language.”). Indeed, the majority opinion’s
invocation of the redundancy principle with regard to the
second sentence of Section 6671(a) is particularly misplaced
given that the entirety of Section 6671(a) – both the first and
second sentences – is already redundant of Section 6665(a).
Section 6665(a), after all, separately establishes that all
chapter 68 penalties (not just those in chapter 68 subchapter
B) are to be assessed, collected, and otherwise treated as
taxes.

The truth is that the broad language of the second

sentence of Section 6671(a) makes redundancy with the first

sure’) are a more common phenomenon than the insertion of utterly

pointless language”); Shook v. D.C. Fin. Responsibility & Mgmt.
Assistance Auth., 132 F.3d 775, 782 (D.C. Cir. 1998) (“Sometimes
Congress drafts statutory provisions that appear preclusive of other
unmentioned possibilities – just as it sometimes drafts provisions
that appear duplicative of others – simply, in Macbeth’s words, ‘to
make assurance double sure.’ That is, Congress means to clarify
what might be doubtful – that the mentioned item is covered –
without meaning to exclude the unmentioned ones.”).
 34
sentence inevitable here. The lesson from the redundancy in
these sections and elsewhere in the Tax Code is not to read
provisions out of the statute or contrary to their plain
meaning, as the majority opinion would have us do. Rather,
we should read the provisions according to their terms,
recognizing that Congress often wants to make “double sure”
– a technique so common that it has spawned its own Latin
canon, ex abundanti cautela. See Fort Stewart Schools v.
FLRA, 495 U.S. 641, 646 (1990) (“It might reasonably be
argued, of course, that these two exceptions are indeed
technically unnecessary, and were inserted out of an
abundance of caution – a drafting imprecision venerable
enough to have left its mark on legal Latin (ex abundanti
cautela).”); see also WILLIAM SHAKESPEARE, MACBETH act 4,
scene 1 (“But yet I’ll make assurance double sure”). 21

In short, the first sentence of Section 6671(a) on its own

dictates that chapter 68 subchapter B penalties are to be
assessed and collected in the same manner as taxes. Because
Affordable Care Act penalties must be assessed and collected
21
Indeed, the Constitution employs this approach. See United
States v. Wiltberger, 18 U.S. 76, 115 n.a (1820) (Marshall, C.J.) (“It
seems highly probable that the expression ‘maritime jurisdiction,’
in the constitution, was borrowed from the language of those
commissions, and was introduced ex abundanti cautelâ, and
superadded to the term ‘admiralty,’ in order to obviate any doubt as
to the full extent of the authority meant to be conferred.”); Brown v.
United States, 12 U.S. 110, 150-51 (1814) (Story, J., dissenting)
(“If the constitution had been silent as to letters of marque and
captures, it would not have narrowed the authority of congress.
The authority to grant letters of marque and reprisal, and to regulate
captures, are ordinary and necessary incidents to the power of
declaring war. It would be utterly ineffectual without them. The
expression, therefore, of that which is implied in the very nature of
the grant, cannot weaken the force of the grant itself. The words
are merely explanatory, and introduced ex abundanti cautela.”).
 35
in the same manner as chapter 68 subchapter B penalties, the
Affordable Care Act’s penalties likewise must be assessed
and collected in the same manner as taxes. To be assessed
and collected in the same manner as taxes, all of these tax
penalties must be insulated from pre-enforcement suits. If we
are to give effect to the plain text of the statute, the Anti-
Injunction Act must bar pre-enforcement suits challenging the
Affordable Care Act’s penalties for failure to have health
insurance. 22

III

In the alternative, in analysis somewhat similar to the

Fourth Circuit’s, I would conclude that the Anti-Injunction
Act applies here because of the definition of the IRS’s
assessment authority provided by Section 6201 of the Tax
Code. That section defines “assessable penalties” to be
“taxes” for purposes of the IRS’s assessment authority. The
Affordable Care Act’s penalty is an assessable penalty and is
therefore a tax for purposes of the IRS’s assessment authority
under Section 6201. The Anti-Injunction Act bars suits to
restrain assessment or collection of taxes. It thus bars this
suit. 23

22
The majority opinion reasons that Congress could easily
have said in Section 5000A: “The Anti-Injunction Act applies to
these tax penalties.” True, but Congress could just as easily have
said: “The Anti-Injunction Act does not apply to these tax
penalties.” Congress did neither. We must analyze the statutory
terms that Congress employed, not those that we wish Congress had
employed.
23
The Fourth Circuit relied on Section 6201 to conclude that
the Anti-Injunction Act barred a pre-enforcement suit challenging
the Affordable Care Act’s individual mandate. See Liberty Univ. v.
Geithner, No. 10-2347, 2011 WL 3962915 (4th Cir. Sept. 8, 2011).
 36
To spell this out, let’s again go to the text. Section 6201
authorizes and requires the IRS 24 to make “assessments of all
taxes (including interest, additional amounts, additions to the
tax, and assessable penalties) imposed by this title.” 26
U.S.C. § 6201(a). Importantly, Section 6201 thus defines
taxes for assessment purposes as “including” additional
amounts, additions to the tax, and assessable penalties, which
are the three kinds of civil penalties imposed by the Tax Code
and assessed by the IRS. 25

Of particular relevance here, Section 6201 defines

“taxes” to include “assessable penalties” that are “imposed by
this title.” Subchapter B of chapter 68 of the Tax Code is
entitled “Assessable Penalties.” The Affordable Care Act
requires that the “penalty” for failure to have health insurance
be “assessed and collected in the same manner as an
assessable penalty under subchapter B of chapter 68.” 26

Although I do not agree with every detail of the Fourth Circuit’s

reasoning, I do agree with its bottom-line conclusion that Section
6201 defines the Affordable Care Act penalty to be a tax for
purposes of the IRS’s assessment authority, which in turn means
that the Affordable Care Act penalty is insulated from pre-
enforcement suits by the Anti-Injunction Act.
24
The statute refers to the Secretary of the Treasury, who in
turn has delegated assessment and collection responsibility to the
IRS, specifically to the Commissioner of Internal Revenue. See 26
U.S.C. § 7701(a)(11)(B); see also, e.g., 26 C.F.R. §§ 301.6201-1,
301.7701-9 (2011). For convenience, I will refer here to the IRS.
25
The Anti-Injunction Act generally does not apply to
penalties that are imposed outside of the Tax Code and enforced by
federal government officials or agencies other than the IRS. See
FEA v. Algonquin SNG, Inc., 426 U.S. 548, 558 n.9 (1976) (Act
does not apply in case involving penalties imposed by the
President); Mulford v. Smith, 307 U.S. 38, 46-47 (1939) (Act does
not apply in case involving penalties imposed by Secretary of
Agriculture).
 37
U.S.C. § 5000A(g)(1). Because the Affordable Care Act
penalty is a Tax Code “penalty” that is to be “assessed” by the
IRS – and, moreover, is to be assessed “in the same manner
as” a chapter 68 subchapter B “assessable penalty” – it is an
“assessable penalty.” Because the Affordable Care Act
penalty is an assessable penalty and because Section 6201
classifies assessable penalties as taxes for purposes of the
IRS’s assessment power, the Affordable Care Act penalty is a
tax for purposes of the IRS’s assessment authority under
Section 6201.

The Anti-Injunction Act in turn 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.” 26
U.S.C. § 7421(a). Given that Section 6201 defines
“assessments of all taxes” to include assessment of the
Affordable Care Act penalty at issue here, and given that the
Anti-Injunction Act bars suits to restrain the “assessment
. . . of any tax,” the Anti-Injunction Act bars a suit to restrain
the assessment of these Affordable Care Act tax penalties just
as it bars a suit to restrain the assessment of taxes. Therefore,
plaintiffs’ suit is barred by the Anti-Injunction Act. 26

26
That’s not all. Sections 6301, 6302, and 6303 provide that
the IRS must collect any tax that has been assessed pursuant to
Sections 6201-6203. Because the IRS’s collection duty tracks the
IRS’s assessment duty, the IRS’s collection duty necessarily
encompasses all of the penalties that have been assessed by the IRS
pursuant to Sections 6201-6203. Given that (i) these Affordable
Care Act penalties are taxes for purposes of the IRS’s assessment
power and (ii) the statute in turn requires the IRS to collect all
assessments, it follows that the Affordable Care Act’s penalties are
taxes for purposes of the IRS’s collection authority. So plaintiffs’
suit, if successful, would prevent the IRS from collecting taxes as
defined by Sections 6301, 6302, and 6303. And the Anti-Injunction
 38
How does the majority opinion respond to this? The
majority opinion simply asserts that the Affordable Care
penalty is not an assessable penalty under Section 6201 and
thus is not covered by that section. I find the majority
opinion’s reasoning on this point quite unpersuasive.

The majority opinion insists that the only “assessable

penalties” in the Tax Code are those listed in chapter 68
subchapter B. That is incorrect. Section 6201 – which
defines the IRS’s assessment authority – speaks of “assessable
penalties” imposed “by this title,” not just of assessable
penalties imposed by chapter 68 of the title. 27 Indeed, there
are numerous “assessable penalties” in the Tax Code that are
outside of chapter 68. For example, chapter 61 contains
several assessable penalties, and the IRS itself states that the
“assessable penalties” in the Code are not all in chapter 68.
See INTERNAL REVENUE MANUAL 20.1.9.1.1 (Apr. 22, 2011)
(a number of penalties in Sections 6038-6038C of chapter 61
“are assessable penalties and are not covered by deficiency
procedures”); see also 26 U.S.C. §§ 6038(b), 6038A(d),
6038B(c), 6038C(c).

Act bars suits to restrain the “collection of any tax.” Therefore,

plaintiffs’ suit is barred by the Anti-Injunction Act for that
additional reason as well.
27
The majority opinion also suggests that all the penalties in
chapter 68 relate to late filing, erroneous reporting, and insufficient
payment. But that’s inaccurate as well. See, e.g., 26 U.S.C.
§ 6720A (chapter 68 penalty for sale of diesel fuel that does not
meet EPA regulations); 26 U.S.C. § 6720C (chapter 68 penalty for
failure to notify health plan of cessation of eligibility for COBRA
premium assistance). In any event, the majority opinion’s claim on
that point is irrelevant because Section 6201 plainly defines taxes to
include all assessable penalties “imposed by this title,” not just by
chapter 68 of the title.
 39
Moreover, if the Affordable Care Act “penalty” is not an
“assessable penalty,” what kind of Tax Code civil penalty
does the majority opinion think it is? The two other options
are an “additional amount” or an “addition to the tax.” After
all, additional amounts, additions to the tax, and assessable
penalties are the civil penalties imposed by the Tax Code and
assessed by the IRS. Numerous provisions of the Code refer
to additional amounts, additions to the tax, and assessable
penalties as the universe of Tax Code civil penalties that are
assessed by the IRS. See, e.g., 26 U.S.C. §§ 860(h), 6155(a),
6201(a), 6202, 6321, 6324A(a), 6601(e)(2), 6602, 7122(b),
7522(a). But all three categories of civil penalties are defined
by Section 6201 to be “taxes” for purposes of the IRS’s
assessment authority. So even if the Affordable Care Act
penalty were an additional amount or an addition to the tax, it
would still be a tax under Section 6201 and the Anti-
Injunction Act would still apply. The majority opinion’s
effort to wriggle out of Section 6201 is futile.

In sum, the Affordable Care Act penalties at issue here

are defined to be taxes for purposes of the IRS’s assessment
power under Section 6201. That necessarily means that these
penalties also are taxes for purposes of the Anti-Injunction
Act’s protection against pre-enforcement suits seeking to
restrain the IRS’s assessment of “any tax.” For that
alternative and independent reason, the Anti-Injunction Act
bars the Court from deciding this suit. 28

28
Section 7421 of the Code codifies the Anti-Injunction Act.
The companion provision, Section 7422, requires exhaustion of
administrative remedies for taxpayers who bring tax refund suits.
Section 7422 provides: “No suit or proceeding shall be maintained
in any court for the recovery of any internal revenue tax alleged to
have been erroneously or illegally assessed or collected, or of any
penalty claimed to have been collected without authority, or of any
 40
IV

Trying a different approach, the majority opinion

separately contends that the Anti-Injunction Act does not
apply to plaintiffs’ suit even if the Affordable Care Act
penalties are taxes for purposes of the Anti-Injunction Act.
According to the majority opinion, plaintiffs are challenging
only the mandate to purchase health insurance and not the tax
penalties imposed for violating the mandate (even though the
mandate is enforced solely through these tax penalties). The
majority opinion argues that the Anti-Injunction Act does not

sum alleged to have been excessive or in any manner wrongfully

collected, until a claim for refund or credit has been duly filed”
with the IRS. 26 U.S.C. § 7422(a) (emphasis added). Section
7422, by its terms, contemplates that taxpayers who pay tax
penalties may challenge those penalties in refund suits against the
IRS. The juxtaposition of the Anti-Injunction Act (Section 7421)
and the refund suit provision (Section 7422) reinforces the general
principle that taxpayers are to pay first and litigate later, including
with respect to tax penalties such as those contained in Section
5000A of the Affordable Care Act. See Enochs v. Williams
Packing & Navigation Co., 370 U.S. 1, 7 (1962) (Anti-Injunction
Act requires “that the legal right to the disputed sums be
determined in a suit for refund” and thereby ensures the
Government “prompt collection of its lawful revenue”).
It has been suggested that Section 7422’s express reference to
penalties might indicate that Section 7421 does not cover penalties,
because Section 7421 refers only to taxes. But my analysis of
Section 7421 does not rely on the term “tax” in isolation (in which
case that critique might have some force). Rather, my analysis
relies on two independent and alternative statutory cross-references
which make clear that the Affordable Care Act’s penalties for
failing to have health insurance are taxes for purposes of the IRS’s
assessment and collection power (Section 6201) and are to be
assessed and collected “in the same manner as taxes” (Section
6671).
 41
apply when a plaintiff purports to challenge the regulatory
purpose or effect of a tax. That is the same reasoning this
Court adopted to get around the Anti-Injunction Act in our
1973 decision in Americans United. The problem for the
majority opinion here is that the Supreme Court emphatically
rejected this Court’s reasoning in that case, calling it
“unpersuasive” and “circular.” Alexander v. “Americans
United” Inc., 416 U.S. 752, 760-62 (1974), rev’g 477 F.2d
1169 (D.C. Cir. 1973); see also Bob Jones Univ. v. Simon,
416 U.S. 725 (1974). There is no call for a sequel.

The majority opinion’s effort to characterize plaintiffs’

suit as a challenge to the mandate and not to the tax penalty is
wrong on the facts and wrong on the law. It is wrong on the
facts because plaintiffs’ complaint repeatedly and
unmistakably asks for relief from the Affordable Care Act’s
tax penalties. 29 It is wrong on the law because, in any event,

29
Contrary to the majority opinion’s suggestion, plaintiffs’
complaint seeks to restrain the assessment and collection of the tax
penalties. Plaintiffs’ complaint requests “a permanent injunction
against the enforcement of the individual mandate provisions.”
First Amended Complaint at 26, Mead v. Holder, 766 F. Supp. 2d
16 (D.D.C. 2011) (No. 1:10-cv-950). Of course, the “enforcement”
contemplated by the statute is the assessment and collection of the
tax penalties by the IRS. Therefore, the injunctive relief that
plaintiffs are seeking to obtain “against the enforcement of the
individual mandate provisions” is an injunction barring the IRS
from assessing and collecting the Affordable Care Act tax penalties
for failing to have health insurance.
The complaint also describes in detail the burden that the
Affordable Care Act tax penalties would impose on plaintiffs’
household finances – details supporting plaintiffs’ request for
injunctive relief against the tax penalty. See id. at 6-16 (stating
each plaintiff “will be forced to pay – under strong objection – the
annual shared responsibility payment” and estimating each
plaintiff’s shared responsibility payment for “each taxable year”);
 42
the Supreme Court has squarely held that a taxpayer cannot
avoid the Anti-Injunction Act by purporting to challenge the
regulatory purpose or effect of a tax.

Regulatory taxes regulate behavior by imposing higher

taxes on disfavored behavior and lower taxes on favored
behavior. See Sonzinsky v. United States, 300 U.S. 506, 513
(1937). In cases involving regulatory taxes, the Supreme
Court has flatly rejected evasion of the Anti-Injunction Act
through the kind of semantics employed by the majority
opinion here. In both Bob Jones and Americans United, the
plaintiff non-profit organizations argued that they were
challenging the IRS’s termination of their tax-exempt status
for allegedly engaging in disfavored conduct (race
discrimination in one case and improper lobbying in the
other), not the increased taxes they would have to pay because
of the denial of their tax-exempt status. The organization in
Americans United even offered to pay its extra taxes
regardless of the outcome of the case in order to show that it
was not seeking to avoid payment of taxes. See 416 U.S. at
760. The Supreme Court held that the Anti-Injunction Act
still barred the suits, stating that taxpayers cannot end-run the
Anti-Injunction Act by claiming that they object to a tax law’s
regulatory effect and not the tax itself. The Court further
stated that taxpayers cannot evade the Anti-Injunction Act by
claiming that the Government’s purpose in imposing the tax
was to regulate behavior more than to raise revenue. The key
inquiry, according to the Supreme Court, is the suit’s impact

id. at 6-16 (each plaintiff is “compelled to adjust” his or her

“finances now, by setting aside money, and will continue to do so,
to pay the annual shared responsibility payment”); id. at 3 (“The
total amount of shared responsibility payments that Plaintiffs must
prepare themselves to pay through 2020 may be greater than
$27,265 depending upon their income levels during each taxable
year and cost of living adjustments.”).
 43
on tax collection: whether the taxpayers’ suit, if successful,
would reduce the plaintiffs’ taxes – or indeed “anyone’s
taxes.” Id. If so, then the Anti-Injunction Act applies. See
Bob Jones, 416 U.S. at 738-42; Americans United, 416 U.S. at
760-62.

The Supreme Court later summarized that principle this

way: “Because the suit would have restrained the collection
of income taxes from the taxpayer and its contributors, as well
as the collection of federal social security and unemployment
taxes from the taxpayer, the Court concluded that the suit was
an action to restrain the assessment or collection of any tax
within the meaning of the Anti-Injunction Act.” South
Carolina v. Regan, 465 U.S. 367, 375 (1984) (internal
quotation marks omitted). 30

Bob Jones and Americans United therefore mean the

following: If the only sanction attached to a federal law that
regulates private behavior is the imposition of a civil tax
exaction that falls within the coverage of the Anti-Injunction
Act, then the Anti-Injunction Act applies and, absent a
recognized exception, precludes a pre-enforcement suit
challenging that law. The Anti-Injunction Act cannot be
evaded by characterizing the suit as a challenge only to the

30
The Supreme Court has also held that “the constitutional
nature of a taxpayer’s claim” is of “no consequence under the Anti-
Injunction Act.” Americans United, 416 U.S. at 759. The Court
has repeated the same point in several other cases. See, e.g., United
States v. Clintwood Elkhorn Mining Co., 553 U.S. 1, 10 (2008)
(“This is so even though the Anti-Injunction Act’s prohibitions
impose upon the wronged taxpayer requirements” that “the
taxpayer must succumb to an unconstitutional tax, and seek
recourse only after it has been unlawfully exacted.”); see also
United States v. American Friends Service Committee, 419 U.S. 7,
11 (1974); Bailey v. George, 259 U.S. 16, 20 (1922).
 44
regulatory aspect of a tax. The Act is more than a pleading
hurdle. A regulatory tax, at least so long as it actually would
raise some revenue, is a tax within the meaning of the Anti-
Injunction Act. See Bob Jones, 416 U.S. at 738-48. 31

In attempting to distinguish away Bob Jones and

Americans United, the majority opinion says those cases
apply only if the regulation and tax are “inextricably linked.”
Maj. Op. at 17. But the Supreme Court did not use that
phrase in its opinions in Bob Jones and Americans United,
and it is unclear what the majority opinion here intends it to
mean. What the Supreme Court did say is that a suit
challenging a regulatory tax is barred by the Anti-Injunction
Act if the suit would restrain the IRS’s assessment or

31
The Court has long rejected arguments that a Due Process
Clause violation occurs when a statute compels a taxpayer to pay an
allegedly unconstitutional or otherwise illegal tax before being able
to challenge its legality in a refund suit. See Bob Jones, 416 U.S. at
746-47 (rejecting university’s argument that forcing it to pay some
taxes first and then litigate its claim in a refund suit “will deny it
due process of law”); see also Phillips v. Commissioner, 283 U.S.
589, 597 (1931) (summary tax collection procedure “satisfies the
requirements of due process because two alternative methods of
eventual judicial review are available to the” affected party –
“bringing an action, either against the United States or the collector,
to recover the amount paid”); Dodge v. Osborn, 240 U.S. 118, 122
(1916).
To be sure, the Due Process Clause requires an exception to
the Anti-Injunction Act when the tax is so high as to render the
purported tax not just a disincentive or civil penalty, but a criminal
prohibition. See, e.g., Lipke v. Lederer, 259 U.S. 557, 560-62
(1922); see also Bob Jones, 416 U.S. at 743; United States v. One
Ford Coupe Auto., 272 U.S. 321, 329 (1926); Graham v. Du Pont,
262 U.S. 234, 257 (1923). But otherwise, the Anti-Injunction Act
applies to regulatory taxes if the taxpayer’s suit would prevent the
IRS from assessing or collecting “anyone’s taxes.”
 45
collection of taxes. Plaintiffs’ suit here would do just that;
therefore, it is barred. 32

Moreover, the Supreme Court long ago held that the

Anti-Injunction Act applies even to a regulatory tax that
effectively prohibits (or mandates) conduct, not just one that
disincentivizes (or incentivizes) conduct. See Bailey v.
George, 259 U.S. 16 (1922); Bailey v. Drexel Furniture Co.,
259 U.S. 20 (1922). In the twin Bailey cases, the Supreme
Court recognized that the Child Labor Tax didn’t just
discourage employment of child labor; it in effect prohibited
it. The Court nonetheless held that the Anti-Injunction Act
barred a pre-enforcement suit challenging the prohibition.
That Bailey principle remains good law, as the Supreme Court
explained in Bob Jones: “Moreover, petitioner’s argument
fails to give appropriate weight to Bailey v. George, 259 U.S.
16 (1922). In that case, the Court held that the Act blocked a

32
In cases involving state taxes under the related State Tax
Injunction Act, a few lower courts have sometimes allowed
taxpayers to challenge the regulatory aspect of a regulatory
exaction. Three points concerning those State Tax Injunction Act
cases: First, this case concerns the federal Anti-Injunction Act, and
Bob Jones and Americans United are directly on point in saying
that the federal Anti-Injunction Act bars suits that purport to target
the regulatory aspect of a federal tax. Second, through its cross-
references, the federal Tax Code defines what exactions qualify as
taxes for purposes of the Anti-Injunction Act. See 26 U.S.C.
§§ 6201, 6671, 5000A. The State Tax Injunction Act does not. So
to the extent there’s a difference in case law, that difference stems
from the distinct texts and contexts of the two statutes. Third, with
respect to the State Tax Injunction Act, a recent en banc Seventh
Circuit decision authored by Judge Posner explained in detail why
it is wrong even under the State Tax Injunction Act to allow a pre-
enforcement challenge to the regulatory aspect of a state tax. See
Empress Casino Joliet Corp. v. Balmoral Racing Club, Inc., 651
F.3d 722, 730 (7th Cir. 2011).
 46
pre-enforcement suit to enjoin collection of the federal Child
Labor Tax, although the tax was challenged as a regulatory
measure beyond the taxing power of Congress. Significantly,
the Court announced Bailey v. George on the same day that it
issued Bailey v. Drexel Furniture Co., 259 U.S. 20 (1922), a
tax-refund case in which the Court struck down the Child
Labor Tax Law as unconstitutional on the grounds that the
taxpayer attempted to raise prematurely in Bailey v. George.”
416 U.S. at 740-41.

So to the extent the majority opinion here tries to argue

that there’s an Anti-Injunction Act distinction between (i) a
civil tax provision that creates a mandate or prohibition and
(ii) a tax provision that creates an incentive or disincentive,
that distinction does not work. The relevant Anti-Injunction
Act question is whether plaintiffs’ suit, if successful, would
reduce their tax liability. Here, plaintiffs’ suit, if successful,
would reduce (to zero) their tax penalties for failure to
maintain health insurance. Under Bob Jones and Americans
United, the Anti-Injunction Act therefore applies. 33

33
The majority opinion tries to attach significance to the
different ways that Congress relieved individuals from the mandate.
Some are excluded from the definition of “applicable individual”
(for example, illegal aliens), and some are “exempt” (for example,
low-income individuals). Congress used different methods in part
because other provisions of the Act distinguish the different
categories. See Patient Protection and Affordable Care Act, Pub. L.
No. 111-148, § 1302(e)(2)(B), 124 Stat. 119, 168 (2010)
(permitting certain applicable individuals who are exempt from the
penalty to enroll in catastrophic health insurance plans). In any
event, this argument is a sideshow: No matter how much the
majority opinion tries to avoid the point, plaintiffs here (and
elsewhere) have sued because they don’t want to pay tax penalties
for failure to have health insurance. And let’s consider the majority
opinion’s rather fanciful hypothetical (which is not presented by
 47
Given the clarity of the relevant Supreme Court
precedent, the Government, which otherwise now argues that
the Anti-Injunction Act does not bar this suit, still expressly
disavows the rationale set forth here by the majority opinion.
As the Solicitor General recently told the Supreme Court:
“The Anti-Injunction Act, when applicable, bars any suit
seeking relief that would necessarily preclude the assessment
or collection of taxes under the Internal Revenue Code,
regardless of the plaintiff’s professed motivation for the suit.”
Brief for United States in Opposition at 16, 22 & n.9, Liberty
Univ. v. Geithner, No. 11-438 (U.S. Oct. 18, 2011) (citing
Bob Jones, 416 U.S. at 731-32) (internal quotation marks
omitted) (emphasis added).

Finally, as a last try, the majority opinion suggests that

these Affordable Care Act tax penalties aren’t designed to
raise revenue for the Government and, for that reason, may
not qualify as taxes for purposes of the Anti-Injunction Act.
But the Court in Bob Jones held that regulatory taxes are
covered by the Anti-Injunction Act as long as they raise some
revenue. See 416 U.S. at 741 n.12, 743 n.17; cf. Sonzinsky,
300 U.S. at 514. Here, the Congressional Budget Office has
estimated the Government will collect about $4 billion a year
in revenue from the Affordable Care Act’s tax penalties on

this case): If someone who is an “applicable individual” but

exempt from the penalties nonetheless wants to challenge the Act,
is found to have standing, and prevails, the necessary implication of
that litigation victory would be to reduce taxes on those who are not
exempt. As the Americans United case made clear, however, the
Anti-Injunction Act would still bar such a suit; that case expressly
barred a suit that would reduce “anyone’s taxes,” even if it would
not reduce the plaintiff’s taxes. 416 U.S. at 760. The majority
opinion’s attempt to wring significance out of the different modes
of statutory exceptions in the individual mandate provision is
valiant but unavailing.
 48
those without health insurance. See Letter from Douglas W.
Elmendorf, Director, Cong. Budget Office, to Sen. Harry Reid
tbl.3 (Mar. 11, 2010). To put it in concrete terms, that would
pay the annual salaries of about 100,000 members of the U.S.
Military. That’s real revenue.

In short, we cannot avoid the Anti-Injunction Act either

by characterizing plaintiffs’ complaint as a challenge to the
mandate and not to the tax penalty, or by characterizing the
Government’s goal as regulating the decision to buy health
insurance rather than as raising revenue.

Plaintiffs and the Government have suggested, as have a

host of outside commentators, that the courts should decide
the constitutionality of the individual mandate provision now
because the country has a pressing need for an immediate
judicial resolution. I respect that argument. But prudential
considerations of that sort cannot override the text of a statute
that limits our jurisdiction. There is no “compelling
prudential considerations” exception to the Anti-Injunction
Act. In any event, the relevant prudential considerations on
balance support our waiting to decide this case until 2015, in
tax refund or enforcement suits that are brought after the
mandate has taken effect.

Contrary to the suggestions of some, we cannot simply

disregard the Anti-Injunction Act. The Supreme Court has
emphasized that the desire for a final judicial decision on the
constitutionality of a law cannot trump constitutional or
statutory limits on the judicial power.
 49
In Raines v. Byrd, for example, the Supreme Court
considered the constitutionality of the Line Item Veto Act, an
issue even more fundamental to government operations and
budgetary issues than the current litigation over the individual
mandate. But the Court explained that the preference for a
prompt judicial resolution of the legislation’s constitutionality
could not overcome constraints on the Court’s jurisdiction –
in that case, the Constitution’s standing requirement: “In the
light of this overriding and time-honored concern about
keeping the Judiciary’s power within its proper constitutional
sphere, we must put aside the natural urge to proceed directly
to the merits of this important dispute and to ‘settle’ it for the
sake of convenience and efficiency.” 521 U.S. 811, 820
(1997) (footnote omitted).

Some have contended, however, that Congress would

have wanted the courts to decide this case now,
notwithstanding the Anti-Injunction Act. But Congress did
not express any such alleged intent in the text of the
Affordable Care Act. The parties cite no committee report or
even an individual statement by a Member of Congress
expressing the view that courts should decide challenges to
the individual mandate immediately, despite the Anti-
Injunction Act. So even if we employ the most generous
approach to legislative history, we find no support for this
argument. Cf. Puerto Rico Dep’t of Consumer Affairs v. Isla
Petroleum Corp., 485 U.S. 495, 501 (1988) (“unenacted
approvals, beliefs, and desires are not laws”).

The invocation of presumed congressional intent is

particularly inappropriate here because Congress clearly
devoted careful attention to the tax enforcement details of the
individual mandate provision. Congress specifically barred
the IRS from using some of its traditional tools to enforce the
mandate. But Congress did not create an exception to the
 50
Anti-Injunction Act to allow pre-enforcement suits
challenging the constitutionality of the mandate. Here as
elsewhere, courts should not upend the balance Congress
struck in the statutory text.

Some have said that the health insurance industry prefers

a decision now and that Congress would have wanted courts
to accommodate that concern. That is certainly a reason
Congress could have decided – and still could decide – to
exempt this statute from the Anti-Injunction Act. 34 After all,
the voice of the health insurance industry was heard when this
legislation was crafted. But Congress did not exempt the
individual mandate provision from the Anti-Injunction Act.
We cannot rewrite the Affordable Care Act to accommodate
an alleged congressional intent to follow the apparent wishes
of the health insurance industry.

Some have suggested that the Anti-Injunction Act does

not apply because these suits have been brought so far in
advance of the mandate’s 2014 effective date. But there is no
“early-bird special” exception to the Anti-Injunction Act.
And creating such an exception would pose a host of arbitrary
line-drawing problems. The proper audience for such an
argument is Congress, which can always carve out an
exemption to the Anti-Injunction Act or set up a special
judicial review proceeding of the kind employed for the Line
Item Veto Act or the Bipartisan Campaign Reform Act. But
Congress has not done so, and we must adhere to the
congressional choice reflected in the statutory text. See Bob

34
Bob Jones squarely held that there is no “great harm”
exception to the Anti-Injunction Act. 416 U.S. 725, 745 (1974).
The Court emphasized that Congress is the proper body to create
exceptions. And indeed, after Bob Jones, Congress carved out a
narrow exception to allow pre-enforcement challenges to the IRS’s
determinations of tax-exempt status.
 51
Jones Univ. v. Simon, 416 U.S. 725, 750 (1974) (“But this
matter is for Congress, which is the appropriate body to weigh
the relevant, policy-laden considerations, such as the
harshness of the present law . . . .”).

If Congress wants the courts to decide the individual

mandate suits now, Congress can always remove the
jurisdictional limit; the Anti-Injunction Act’s jurisdictional
bar is statutory, not constitutional. Absent such congressional
action, however, we must adhere to the statutory constraints
on our jurisdiction no matter how much the parties might
want us to jump the jurisdictional rails and decide this case
now.

Even if we could alter our interpretation of the Anti-

Injunction Act based on prudential considerations, those
considerations on balance support our waiting to decide this
case until 2015 (in tax refund or enforcement suits brought
after the mandate has taken effect). By waiting, we would
respect the bedrock principle of judicial restraint that courts
avoid prematurely or unnecessarily deciding constitutional
questions.

The Supreme Court recently summarized those essential

tenets while declining to reach a vital question about the
constitutionality of Section 5 of the Voting Rights Act:

That constitutional question has attracted ardent

briefs from dozens of interested parties, but the
importance of the question does not justify our rushing to
decide it. Quite the contrary: Our usual practice is to
avoid the unnecessary resolution of constitutional
questions. We agree that the district is eligible under the
 52
Act to seek bailout. We therefore reverse, and do not
reach the constitutionality of § 5. . . .

In assessing those questions, we are keenly mindful

of our institutional role. We fully appreciate that judging
the constitutionality of an Act of Congress is the gravest
and most delicate duty that this Court is called on to
perform. The Congress is a coequal branch of
government whose Members take the same oath we do to
uphold the Constitution of the United States. . . .

We will not shrink from our duty “as the bulwark of

a limited constitution against legislative encroachments,”
The Federalist No. 78, p. 526 (J. Cooke ed. 1961) (A.
Hamilton), but it is a well-established principle governing
the prudent exercise of this Court’s jurisdiction that
normally the Court will not decide a constitutional
question if there is some other ground upon which to
dispose of the case.

Northwest Austin Municipal Utility District Number One v.

Holder, 129 S. Ct. 2504, 2508, 2513 (2009) (some citations,
internal quotation marks, and brackets omitted).

Although the Northwest Austin Court was addressing the

constitutional avoidance canon, the general principles it
articulated about avoiding premature or unnecessary
constitutional decisions apply to this case as well. 35

35
The Supreme Court has repeated that point many times.
See, e.g., Elk Grove Unified School District v. Newdow, 542 U.S. 1,
11 (2004) (“The command to guard jealously and exercise rarely
our power to make constitutional pronouncements requires strictest
adherence when matters of great national significance are at stake.
Even in cases concededly within our jurisdiction under Article III,
 53
C

The principle that we avoid premature or unnecessary

constitutional decisions applies with special force here.
That’s because if we do not decide the constitutional issue
now, we may never have to decide it.

First, this case could disappear by 2015 because, by then,

Congress may fix the alleged constitutional shortcoming and
ensure that the Affordable Care Act’s individual mandate
provision fits comfortably within Congress’s Taxing Clause
power. To be clear, I do not take a position here on whether
the statute as currently written is justifiable under the Taxing
Clause or the Commerce Clause. What I am saying is that the
only potential Taxing Clause shortcoming in the current
individual mandate provision appears to be relatively slight.
And just a minor tweak to the current statutory language
would definitively establish the law’s constitutionality under

we abide by a series of rules under which we have avoided passing

upon a large part of all the constitutional questions pressed upon us
for decision.”) (citation, internal quotation marks, and brackets
omitted); Valley Forge Christian College v. Americans United for
Separation of Church & State, Inc., 454 U.S. 464, 474 (1982) (“this
Court has refrained from passing upon the constitutionality of an
act of the representative branches unless obliged to do so in the
proper performance of our judicial function”) (citation, internal
quotation marks, and brackets omitted); Ashwander v. TVA, 297
U.S. 288, 346-47 (1936) (Brandeis, J., concurring) (“The Court will
not anticipate a question of constitutional law in advance of the
necessity of deciding it. It is not the habit of the Court to decide
questions of a constitutional nature unless absolutely necessary to a
decision of the case.”) (footnote, citations, and internal quotation
marks omitted); cf. Schlesinger v. Reservists Committee to Stop the
War, 418 U.S. 208 (1974); Ex parte Levitt, 302 U.S. 633 (1937).
 54
the Taxing Clause (and thereby moot any need to consider the
Commerce Clause). 36

The only reason 37 the current statute may not suffice

under the Taxing Clause is that Section 5000A arguably does

36
Earlier in this opinion, I explained that the Anti-Injunction
Act applies to the tax penalty at issue here because of how the
various statutory provisions, cross-references, and definitions in the
Tax Code fit together. As the Supreme Court has indicated, the fact
that the Anti-Injunction Act applies does not necessarily mean the
tax penalty is permissible under the Taxing Clause. Compare
Bailey v. George, 259 U.S. 16 (1922) (pre-enforcement challenge to
exaction is barred by the Anti-Injunction Act), with Bailey v. Drexel
Furniture Co., 259 U.S. 20 (1922) (in refund suit, holding that the
same exaction is invalid under the Taxing Clause).
Plaintiffs’ suit, if successful, would reduce their payment of
taxes (and the tax is not a criminal prohibition such that the Due
Process Clause would require a pre-enforcement suit to be
available). That’s all that’s needed to find the Anti-Injunction Act
applicable. That is not necessarily all that’s needed to justify a civil
penalty under the Taxing Clause.
37
It is true that plaintiffs advance a variety of other arguments
why the Affordable Care Act’s penalties for failing to have health
insurance cannot be justified under the Taxing Clause. But those
alternative arguments all appear to be definitively foreclosed by
Supreme Court precedent. First, contrary to plaintiffs’ contention,
the Taxing Clause authorizes regulatory taxes, at least so long as
the tax raises some revenue, as it does here. See United States v.
Sanchez, 340 U.S. 42, 44-45 (1950); Sonzinsky v. United States,
300 U.S. 506, 513-14 (1937). Moreover, the fact that an exaction is
not labeled a tax does not vitiate Congress’s power under the
Taxing Clause. See License Tax Cases, 72 U.S. 462, 471 (1867)
(“The granting of a license, therefore, must be regarded as nothing
more than a mere form of imposing a tax, and of implying nothing
except that the licensee shall be subject to no penalties under
national law, if he pays it.”). Nor does it matter that Congress did
not explicitly cite the Taxing Clause when enacting the legislation.
 55
not just incentivize certain kinds of lawful behavior but also
mandates such behavior. Section 5000A provides: “An
applicable individual shall for each month beginning after
2013 ensure that the individual, and any dependent of the
individual who is an applicable individual, is covered under
minimum essential coverage for such month.” 26 U.S.C.
§ 5000A(a) (emphasis added).

Therefore, beginning in 2014, a citizen who does not

maintain health insurance might be acting illegally. 38 The
Taxing Clause has not traditionally authorized a legal
prohibition or mandate, as opposed to just a financial
disincentive or incentive. 39 Another source of constitutional

See Woods v. Cloyd W. Miller Co., 333 U.S. 138, 144 (1948) (“The
question of the constitutionality of action taken by Congress does
not depend on recitals of the power which it undertakes to
exercise.”). Finally, neither plaintiffs here nor plaintiffs in the other
Affordable Care Act cases have, so far as I am aware, argued that
the amount of the Affordable Care Act’s exaction is so high as to be
a criminal punishment and thus unjustifiable under the Taxing
Clause for that reason. Nor could they. Cf. Dep’t of Revenue of
Mont. v. Kurth Ranch, 511 U.S. 767, 778-81 (1994); Sonzinsky, 300
U.S. at 513.
38
At oral argument, counsel for the Government argued that a
citizen who refused to obtain health insurance would still be acting
lawfully. If that were true, the mandate would presumably pass
muster under the Taxing Clause. But it is not evident that the
statutory language is fairly susceptible to such an interpretation.
That said, perhaps the canon of constitutional avoidance would
allow such an interpretation of this provision and thereby squeeze it
within the Taxing Clause. Cf. Northwest Austin Municipal Utility
District Number One, 129 S. Ct. 2504.
39
The Taxing Clause and the Necessary and Proper Clause
plainly do support prohibitions and mandates related to compliance
with tax reporting, filing, and payment obligations, as opposed to
civil penalty provisions imposing prohibitions or mandates on
 56
authority – for example, the Commerce Clause – has
customarily been thought necessary to justify such
prohibitions or mandates. 40

Many have contended, however, that a legal mandate

with a civil tax penalty for non-compliance is economically
indistinguishable from a traditional regulatory tax if the
amounts of the exactions are the same. Such an argument
assumes that citizens care only about economic incentives and
not also about complying with The Law. Plaintiffs vigorously
contest that assertion. According to plaintiffs, the United
States does not necessarily consist of 310 million people who
have over-absorbed their Posner and equate (i) a traditional
regulatory tax that incentivizes or disincentivizes certain
behavior and (ii) a legal mandate or prohibition accompanied
by a tax penalty of the same amount. After all, plaintiffs say,
common sense tells us that many citizens want to be law-
abiding (and known as law-abiding), and that their desire to

underlying private behavior (for example, a mandate to have health

insurance).
40
Although the courts have not had occasion to explain this
distinction clearly (perhaps because most extant federal
prohibitions in the social policy arena have been comfortably
authorized by the Commerce Clause), the apparent difference was
once cogently described by the Solicitor General: “It may not be
easy to draw a line of demarcation between a penalty and a tax, but
the line of demarcation seems to be that, where the statute prohibits
the doing of an act and as a sanction imposes a pecuniary
punishment for violating the act, then it is a penalty, and not a tax at
all; but, where the thing done is not prohibited, but, with respect to
the privilege of doing it, an excise tax is imposed, it is none the less
a tax, even though it be, in its practical results, prohibitive.”
Argument of Solicitor General in Bailey v. Drexel Furniture Co.,
reported in 259 U.S. at 21-22.
 57
be law-abiding affects their behavior. 41 For purposes of the
Taxing Clause, mandates and prohibitions might be one step
beyond the traditional kinds of regulatory taxes that the
Taxing Clause has authorized.

But this discussion about the potential problem with the

Government’s Taxing Clause argument also shows how easily
Congress could eliminate any such potential problem. For
example, Congress might keep the current statutory language
and payment amounts and simply add a provision as basic as:
“The taxpayer has a lawful choice either to maintain health
insurance or make the payment to the IRS required by Section
5000A(a)-(c).” Or Congress might retain the exactions and
payment amounts as they are but eliminate the legal mandate
language in Section 5000A, instead providing something to
the effect of: “An applicable individual without minimum
essential coverage must make a payment to the IRS on his or
her tax return in the amounts listed in Section 5000A(c).” Or
Congress could adopt the approach from the House-passed
bill, which expressly created a tax incentive and plainly
satisfied the Taxing Clause.

Any of those options – and others as well – would ensure

that this provision operates as a traditional regulatory tax and
readily satisfies the Taxing Clause. See United States v.
Sanchez, 340 U.S. 42, 44 (1950) (even a tax with “regulatory
character and prohibitive burden” “does not cease to be valid
merely because it regulates, discourages, or even definitely

41
See OFFICE OF TAX POLICY, DEP’T OF THE TREASURY,
REPORT TO THE CONGRESS ON PENALTY AND INTEREST
PROVISIONS OF THE INTERNAL REVENUE CODE 36 (1999)
(“[P]enalties clearly signal that noncompliance is not acceptable
behavior. . . . In establishing social norms and expectations,
subjecting the noncompliant behavior to any penalty may be as
important as the exact level of the penalty . . . .”).
 58
deters the activities taxed”); Sonzinsky v. United States, 300
U.S. 506, 513 (1937) (“[A]n Act of Congress which on its
face purports to be an exercise of the taxing power is not any
the less so because the tax is burdensome or tends to restrict
or suppress the thing taxed.”); cf., e.g., Affordable Health
Care for America Act, H.R. 3962, 111th Cong. § 501 (2009)
(House-passed bill on health care reform imposing a “[t]ax on
individuals without acceptable health care coverage”);
Patients’ Choice Act, H.R. 2520, 111th Cong. §§ 301-303
(2009) (proposing to amend the Tax Code to create a
refundable tax credit for the purchase of qualifying health
insurance plans). 42

Second, but far more broadly, by 2015 Congress might

choose to eliminate Section 5000A altogether – that is,
eliminate this financial disincentive for failing to have health
insurance. Or the President might not enforce the individual
mandate provision if the President concludes that enforcing it
would be unconstitutional. 43 In one of those events, the
42
To the extent eliminating the legal mandate language would
decrease the incentive to buy health insurance, the amount of the
exaction for not having health insurance could be increased (so long
as it remains a civil exaction) if that were deemed appropriate to
maintain an equivalent incentive.
43
Under the Constitution, the President may decline to
enforce a statute that regulates private individuals when the
President deems the statute unconstitutional, even if a court has
held or would hold the statute constitutional. See Freytag v.
Commissioner, 501 U.S. 868, 906 (1991) (Scalia, J., concurring)
(the President possesses “the power to veto encroaching laws or
even to disregard them when they are unconstitutional”) (citation
omitted). Similarly, Congress may repeal or decline to pass a
statute based on its own constitutional interpretation even if the
courts have (or would have) upheld the statute as constitutional.
This power does not work in reverse, either for the President
or Congress. In other words, the President may not enforce a
 59
courts would likewise never have to opine on the
constitutional issues presented in this case.

We all recognize the legislative realities that make any

change unlikely, whether just to “fix” any potential
constitutional problem or to take more significant action with
respect to Section 5000A. After all, our constitutional system
requires action by three entities before any legislative change
may be approved – House, Senate, and Executive. Therefore,
it is much harder to pass legislation – even technical fixes –
than to block legislation. That said, there is the possibility of
such legislative action that could obviate the need for the
Judiciary to decide this immensely consequential
constitutional issue.

To be clear, federal courts do not wait to decide

constitutional cases simply because of the possibility of
congressional change to the legislation or presidential non-
enforcement of what the President concludes is an
unconstitutional law. Delay on that basis would constitute
judicial abdication, not judicial restraint. But the discussion
here has been addressing the question whether there are
compelling prudential considerations that would justify
overriding the limits of the Anti-Injunction Act and deciding
this case now. In considering that specific question, it is
relevant to note that waiting to decide might mean never

statute against a private individual when the statute is deemed

unconstitutional by the courts. Nor may Congress pass a statute
and have it enforced against private individuals simply because
Congress disagrees with the Supreme Court. In those situations,
the Judiciary has the final word on the meaning of the Constitution.
See, e.g., Boumediene v. Bush, 553 U.S. 723 (2008); Dickerson v.
United States, 530 U.S. 428 (2000); United States v. Eichman, 496
U.S. 310 (1990).
 60
having to decide, a prospect that supports adherence to the
Anti-Injunction Act.

There is an additional compelling reason to be wary of an

unnecessary or premature constitutional ruling in this case.
As I have said, the Government’s Taxing Clause argument
may have a potential problem because of the statute’s legal
mandate (although that potential problem is relatively minor
and could be easily fixed by Congress, as described above).
Indeed, no court to reach the merits has accepted the
Government’s Taxing Clause argument. As a result, those
courts have had to tackle the Government’s Commerce Clause
submission.

But the Commerce Clause issue is extremely difficult and

rife with significant and potentially unforeseen implications
for the Nation and the Judiciary. Cf. Northwest Austin
Municipal Utility District Number One, 129 S. Ct. at 2513. 44

To uphold the Affordable Care Act’s mandatory-

purchase requirement under the Commerce Clause, we would
have to uphold a law that is unprecedented on the federal
level in American history. That fact alone counsels the
Judiciary to exercise great caution. See United States v.
Lopez, 514 U.S. 549, 580, 583 (1995) (Kennedy, J.,
concurring) (“The statute before us upsets the federal balance
to a degree that renders it an unconstitutional assertion of the
commerce power, and our intervention is required. . . . If
Congress attempts that extension, then at the least we must

44
For purposes of this discussion, when referring to the
Government’s Commerce Clause argument, I am referring to both
the Commerce Clause and the supplementary Necessary and Proper
Clause.
 61
inquire whether the exercise of national power seeks to
intrude upon an area of traditional state concern. . . . The
statute now before us forecloses the States from
experimenting and exercising their own judgment in an area
to which States lay claim by right of history and expertise,
and it does so by regulating an activity beyond the realm of
commerce in the ordinary and usual sense of that term.”); see
also Printz v. United States, 521 U.S. 898, 905 (1997) (“[I]f,
as petitioners contend, earlier Congresses avoided use of this
highly attractive power, we would have reason to believe that
the power was thought not to exist.”).

In addition, the Government’s position on the Commerce

Clause carries broad implications – far broader than its
position on the Taxing Clause. Under the Government’s
Commerce Clause theory, as it freely acknowledged at oral
argument, the Government could impose imprisonment or
other criminal punishment on citizens who do not have health
insurance. That is a rather jarring prospect. The Affordable
Care Act does not impose such criminal penalties. But if we
approve the Affordable Care Act’s mandate under the
Commerce Clause, we would necessarily be approving
criminal punishment – including imprisonment – for failure to
comply not only with this Act but also with future mandatory-
purchase requirements.

Moreover, despite the Government’s effort to cabin its

Commerce Clause argument to mandatory purchases of health
insurance, there seems no good reason its theory would not
ultimately extend as well to mandatory purchases of
retirement accounts, housing accounts, college savings
accounts, disaster insurance, disability insurance, and life
insurance, for example. We should hesitate to unnecessarily
decide a case that could usher in a significant expansion of
congressional authority with no obvious principled limit.
 62
That is particularly so given that the government traditionally
has achieved its objectives in these areas through Taxing
Clause legislation that employs customary and permissible tax
incentives and disincentives on certain behavior. Cf. Lopez,
514 U.S. at 580-83 (Kennedy, J., concurring).

Unlike some other courts that have upheld the mandate

on Commerce Clause grounds and disclaimed the
implications, the majority opinion here is quite candid – and
accurate – in admitting that there is no real limiting principle
to its Commerce Clause holding. The majority opinion’s
holding means, for example, that a law replacing Social
Security with a system of mandatory private retirement
accounts would be constitutional. So would a law mandating
that parents purchase private college savings accounts. I
credit the majority opinion for its refreshing candor. But its
acknowledgement of the extraordinary ramifications of its
decision expanding Congress’s authority to impose
mandatory-purchase requirements underscores why I think we
should be cautious about barreling through jurisdictional
limits to reach the merits, as the majority opinion does here.

To try to mitigate the dramatic implications of its no-

limiting-principle holding, the majority opinion notes that
Congress is subject to a political check. That’s true, but as the
Supreme Court has told us time and again, the structural
principles of the Constitution are more than parchment
barriers; they protect individual liberty. And the courts
historically have played an important role in enforcing those
structural principles and thereby safeguarding individual
liberty. That Congress is subject to a political check does not
absolve the Judiciary of its duty to safeguard the
constitutional structure and individual liberty. See Bond v.
United States, 131 S. Ct. 2355, 2364-65 (2011); Free
Enterprise Fund v. Public Co. Accounting Oversight Bd., 130
 63
S. Ct. 3138, 3157 (2010); Clinton v. City of New York, 524
U.S. 417, 449-53 (1998) (Kennedy, J., concurring); Lopez,
514 U.S. at 575-80 (Kennedy, J., concurring); INS v. Chadha,
462 U.S. 919, 940-42, 944-59 (1983); see also Morrison v.
Olson, 487 U.S. 654, 697-734 (1988) (Scalia, J., dissenting).
Here, Congress’s being subject to a political check thus does
not do much to mitigate the fact that the majority opinion has
green-lighted a significant expansion of congressional
authority – and thus also a potentially significant infringement
of individual liberty.

Having said all of that, we should be just as cautious

about prematurely or unnecessarily rejecting the
Government’s Commerce Clause argument. The reason is
plain and needs little elaboration: Striking down a federal law
as beyond Congress’s Commerce Clause authority is a rare,
extraordinary, and momentous act for a federal court. See
Lopez, 514 U.S. at 568, 568-75 (Kennedy, J., concurring)
(exploring Commerce Clause history, which “counsels great
restraint before the Court determines that the Clause is
insufficient to support an exercise of the national power”).

The elected Branches designed this law to help provide

all Americans with access to affordable health insurance and
quality health care, vital policy objectives. This legislation
was enacted, moreover, after a high-profile and vigorous
national debate. Courts must afford great respect to that
legislative effort and should be wary of upending it.

This case also counsels restraint because we may be on

the leading edge of a shift in how the Federal Government
goes about furnishing a social safety net for those who are
old, poor, sick, or disabled and need help. The theory of the
individual mandate in this law is that private entities will do
better than government in providing certain social insurance
 64
and that mandates will work better than traditional regulatory
taxes in prompting people to set aside money now to help pay
for the assistance they might need later. Privatized social
services combined with mandatory-purchase requirements of
the kind employed in the individual mandate provision of the
Affordable Care Act might become a blueprint used by the
Federal Government over the next generation to partially
privatize the social safety net and government assistance
programs and move, at least to some degree, away from the
tax-and-government-benefit model that is common now.
Courts naturally should be very careful before interfering with
the elected Branches’ determination to update how the
National Government provides such assistance. Cf. Heart of
Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964);
NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937).

The significant implications of a Commerce Clause

decision in this case – in either side’s favor – lead to this
point: If we need not decide the Commerce Clause issue now,
we should not decide the Commerce Clause issue now. I
therefore would not strain to sidestep the Anti-Injunction Act.

To be sure, courts may not shirk their duty to “say what

the law is” in cases that are properly before them. See
Marbury v. Madison, 5 U.S. 137, 177 (1803). As the
Supreme Court has famously stated: “With whatever doubts,
with whatever difficulties, a case may be attended, we must
decide it, if it be brought before us. We have no more right to
decline the exercise of jurisdiction which is given, than to
usurp that which is not given.” Cohens v. Virginia, 19 U.S.
264, 404 (1821).

And in fulfilling their duties, courts sometimes must

decide difficult and far-reaching constitutional cases sooner
 65
rather than later. See, e.g., Dames & Moore v. Regan, 453
U.S. 654, 660 (1981); United States v. Nixon, 418 U.S. 683,
686-87 (1974); Cooper v. Aaron, 358 U.S. 1, 4-5 (1958);
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 584
(1952).

But history and precedent counsel caution before

reaching out to decide difficult constitutional questions too
quickly, especially when the underlying issues are of lasting
significance. After all, what appears to be obviously correct
now can look quite different just a few years down the road.
See W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624
(1943), overruling Minersville School District v. Gobitis, 310
U.S. 586 (1940); NLRB v. Jones & Laughlin Steel Corp., 301
U.S. 1 (1937) (Hughes, C.J.), backing away from A.L.A.
Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935)
(Hughes, C.J.).

Between now and 2015, Congress might keep the

mandate as is and the President may enforce it as is. If that
happens, the federal courts would resolve the resulting
constitutional case by our best lights and would not shy away
from a necessary constitutional decision. But history tells us
to cross that bridge only if and when we need to. Unlike the
majority opinion, I would adhere to the text of the Anti-
Injunction Act and leave these momentous constitutional
issues for another day – a day that may never come.

* * *

I have the greatest respect for my two colleagues on this

panel. But my analysis leads me decisively to the conclusion
that we lack jurisdiction because of the Anti-Injunction Act. I
therefore would vacate the judgment of the District Court and
remand with directions that the suit be dismissed for lack of
jurisdiction. I respectfully dissent.