Roberts, John G. Jr. - Chief Justice
CHIEF JUSTICE ROBERTS: We will hear argument this morning in Case Number 11-398, Department of Health and Human Services v. Florida. Mr. Long. ORAL ARGUMENT...
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Long, Robert - Attorney
MR. LONG: Mr. Chief Justice, and may it please the Court: The Anti-Injunction Act imposes a pay first, litigate later rule that is central to Federal tax...
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Scalia, Antonin - Associate Justice
JUSTICE SCALIA: Well, that depends, as - as the government points out on whether that derivative is a directive to to the Secretary of the Treasury as...
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Long, Robert - Attorney
MR. LONG: Why -- why should this one be directed to When you say in the same manner, he goes Well, I think I have a three-part answer to that, Justice...
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Scalia, Antonin - Associate Justice
JUSTICE SCALIA: First, the text does Well, he's assessing and collecting it in the same manner as a tax.
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Long, Robert - Attorney
MR. LONG: Well, the assessment -- the other two parts of the answer are, as a practical matter, I don't think there is any dispute in this case that if...
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Kennedy, Anthony M. - Associate Justice
JUSTICE KENNEDY: Why -- why will the administrative remedies rule not be applicable - exhaustion rule not be applicable?
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Long, Robert - Attorney
MR. LONG: Well, because if the Anti-Injunction Act doesn't apply there is -- there is no prohibition on courts restraining the assessment or collection...
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Kennedy, Anthony M. - Associate Justice
JUSTICE KENNEDY: Well, but courts apply the exhaustion rule. I'm just not following it. well, you haven't exhausted your remedies, no injunction? I mean,...
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Long, Robert - Attorney
MR. LONG: Why couldn't the court say Well, in -- you could do that, I think as a matter of -- of common law or judicially imposed doctrine, but in the...
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Kennedy, Anthony M. - Associate Justice
JUSTICE KENNEDY:
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Long, Robert - Attorney
MR. LONG: Yes, yes. -- about taxes. And the code says, first it says you must pay the tax first and then litigate. So that's the baseline. And then in...
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Roberts, John G. Jr. - Chief Justice
CHIEF JUSTICE ROBERTS: They would apply even if the rule is not jurisdictional. The only difference would be that the court could enforce it or not enforce...
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Long, Robert - Attorney
MR. LONG: Well, Helvering v. Davis was decided during a period when this Court interpreted the Anti-Injunction Act as simply codifying the pre-statutory...
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Ginsburg, Ruth Bader - Associate Justice
JUSTICE GINSBURG: And so I would Mr. Long, why don't we simply follow the statutory language? I know that you've argued that the Davis case has been overtaken...
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Long, Robert - Attorney
MR. LONG: The Anti-Injunction Act, like the Right. Well, I mean, this Court has said several times that the Tax Injunction Act was based on the Anti-Injunction...
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Ginsburg, Ruth Bader - Associate Justice
JUSTICE GINSBURG: But how is that different from no civil action for infringement shall be instituted -- "maintained and instituted"? Anything turn on...
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Long, Robert - Attorney
MR. LONG: Well, it's -- I mean -- perhaps a party could initiate an action without the act of cooperation of the court, but to maintain it from beginning...
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Sotomayor, Sonia - Associate Justice
JUSTICE SOTOMAYOR:
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Alito, Samuel A. Jr. - Associate Justice
JUSTICE ALITO: Counsel - Well, Congress said that many times, but is there any case in which the result would have been different if the Anti-Injunction...
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Long, Robert - Attorney
MR. LONG: There -- there are certainly a number of cases where the Court dismissed saying it is jurisdictional. As I read the cases, I don't think any...
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Alito, Samuel A. Jr. - Associate Justice
JUSTICE ALITO: Well, the clearest -- the clearest way of distinguishing between the jurisdictional provision and a mandatory claims processing rule is...
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Long, Robert - Attorney
MR. LONG: No. Now, I think the -- I think the best interpretation of the Court's cases is that it was interpreting a jurisdictional statute. Williams Packing,...
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Roberts, John G. Jr. - Chief Justice
CHIEF JUSTICE ROBERTS: Well, it seems - you can't separate those two points. Congress has acquiesced in what we have said only helps you if what we have...
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Long, Robert - Attorney
MR. LONG: Well, what you have said, Mr. Chief Justice, has been absolutely consistent for 50 years, since the Williams Packing case. of inconsistency was...
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Kagan, Elena - Associate Justice
JUSTICE KAGAN: And since - Well, even since Williams Packing, there was South Carolina v. Regan. And that case can also be understood as a kind of equitable...
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Long, Robert - Attorney
MR. LONG: Well, again, I mean, I think the best understanding of South Carolina v. Regan is not that its an equitable exception, but it's the court interpreting...
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Sotomayor, Sonia - Associate Justice
JUSTICE SOTOMAYOR: Mr. Long, in Bowles, the Court looked to the long history of appellate issues as being jurisdictional, in its traditional sense, not...
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Long, Robert - Attorney
MR. LONG: No. No, Justice Sotomayor, because in many of these amendments which have come in the '70s and the '90s and the 2000's, Congress has actually...
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Sotomayor, Sonia - Associate Justice
JUSTICE SOTOMAYOR: And it's But doesn't that just prove that it knows that the Court will impose a claim processing rule in many circumstances, and so,...
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Long, Robert - Attorney
MR. LONG: Well, but Congress says, notwithstanding 7421, the Court "shall have jurisdiction to restrain the assessment and collection of taxes in very...
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Sotomayor, Sonia - Associate Justice
JUSTICE SOTOMAYOR: Could you go back to the question that Justice Alito asked. that this is not jurisdictional, what is the parade of horribles that you...
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Long, Robert - Attorney
MR. LONG: Right. Assuming we find What kinds of cases do Well, first of all, I think you would be saying that for the refund statute, as well as for the...
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Sotomayor, Sonia - Associate Justice
JUSTICE SOTOMAYOR: That wasn't my question.
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Long, Robert - Attorney
MR. LONG:
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Sotomayor, Sonia - Associate Justice
JUSTICE SOTOMAYOR: I'm sorry. My question was if we deem this a mandatory claim processing rule -
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Long, Robert - Attorney
MR. LONG:
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Sotomayor, Sonia - Associate Justice
JUSTICE SOTOMAYOR: imagine courts will reach on what grounds? government does its job and comes in and raises the AIA as an immediate defense -
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Long, Robert - Attorney
MR. LONG: Right. -- what cases do you Assuming the Well, that's -
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Sotomayor, Sonia - Associate Justice
JUSTICE SOTOMAYOR: -- where can a Court then reach the question, despite -
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Long, Robert - Attorney
MR. LONG: That would certainly be the first class of cases, it occurs to me, where, if the government does not raise it in a timely way, it could be waived....
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Sotomayor, Sonia - Associate Justice
JUSTICE SOTOMAYOR: Assumes the lack of competency of the government, which I don't, but what other types of cases?
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Scalia, Antonin - Associate Justice
JUSTICE SCALIA: Mr. Long, I don't think you are going to come up with any, but I think your response is you could say that about any jurisdictional rule....
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Long, Robert - Attorney
MR. LONG: And you think there should Well, and, Justice Scalia, I mean, honestly, I can't predict what would happen, but I would say that not all people...
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Breyer, Stephen G. - Associate Justice
JUSTICE BREYER: And I think there would I just don't want you to lose the second half of your argument. And we have spent all the time so far on jurisdiction....
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Long, Robert - Attorney
MR. LONG:
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Breyer, Stephen G. - Associate Justice
JUSTICE BREYER: to a tax. Right. It is attached to a health care requirement.
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Long, Robert - Attorney
MR. LONG:
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Breyer, Stephen G. - Associate Justice
JUSTICE BREYER: Right. -- so why does it fall within that word? -- and this is not attached
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Long, Robert - Attorney
MR. LONG: Well, I mean, the first point is -- our initial submission is you don't have to determine that this is a tax in order to find that the Anti-Injunction...
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Breyer, Stephen G. - Associate Justice
JUSTICE BREYER: So that's one - But that doesn't mean the AIA applies. exceptions, but it doesn't mean the AIA applies. I mean -- and then they provide...
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Long, Robert - Attorney
MR. LONG: But I would like to know what you So specifically on the argument that it -- it is actually a tax, even setting aside the point that it should...
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Scalia, Antonin - Associate Justice
JUSTICE SCALIA: There -- there is at least some doubt about it, Mr. Long, for the reasons that Justice Breyer said, and I -- I thought that we -- we had...
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Long, Robert - Attorney
MR. LONG: Well, I mean, the Anti-Injunction Act applies not only to every tax in the code, but, as far as I can tell, to every tax penalty in the code.
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Ginsburg, Ruth Bader - Associate Justice
JUSTICE GINSBURG: Mr. Long, you -- you said before -- and I think you were quite right -- that the Tax Injunction Act is modeled on the Anti-Injunction...
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Long, Robert - Attorney
MR. LONG: And this is not a Well, in -- in Bob Jones the Court said that they had gotten out of the business of trying to determine whether an exaction...
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Sotomayor, Sonia - Associate Justice
JUSTICE SOTOMAYOR: And this one But Bob Jones involved a statute where it denominated the exaction as a tax.
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Long, Robert - Attorney
MR. LONG: That's -
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Sotomayor, Sonia - Associate Justice
JUSTICE SOTOMAYOR: Here we have one where the Congress is not denominating it as a tax; it's denominating it as a penalty.
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Long, Robert - Attorney
MR. LONG: That's -- that's absolutely right, and that's obviously why, if it were called a tax, there would be absolutely no question that the Anti-Injunction...
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Sotomayor, Sonia - Associate Justice
JUSTICE SOTOMAYOR: Absolutely. But even the section of the Code that you referred to previously, the one following 7421, the AIA, it does very clearly...
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Long, Robert - Attorney
MR. LONG: Yes, that's -- it does, that is correct, and there are many other places in the Code where -
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Breyer, Stephen G. - Associate Justice
JUSTICE BREYER: The best collection I've found in your favor, I think, is in Mortimer Caplin's brief on page 16, 17. So -- I got my law clerk to look all...
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Long, Robert - Attorney
MR. LONG: So I ask Well, I mean, there are penalties in the Internal Revenue Code that you really couldn't say are related in any -- in any close way to...
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Kagan, Elena - Associate Justice
JUSTICE KAGAN: So there are Mr. Long, aren't there places in this Act -- fees and penalties -- that were specifically put under the Anti-Injunction Act?...
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Long, Robert - Attorney
MR. LONG: Wouldn't that Well, I mean, Congress didn't use the language the Anti-Injunction Act shall apply - It does not say that here.
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Kagan, Elena - Associate Justice
JUSTICE KAGAN: No, but it -- it in section and in section 9010 -
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Long, Robert - Attorney
MR. LONG: Right.
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Kagan, Elena - Associate Justice
JUSTICE KAGAN: -- it specifically referred to the part of the Code where the Anti-Injunction Act is.
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Long, Robert - Attorney
MR. LONG: Right, all of subtitle F, which picks up lots of administration and procedure provisions, but those -- those are fees, and they are not -- Congress...
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Kennedy, Anthony M. - Associate Justice
JUSTICE KENNEDY: It's easier to talk about this case if we just forget the words "for the purpose of restraining assessment and collection." that brings...
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Long, Robert - Attorney
MR. LONG: Is that sort of language I I can see it with Does It does strike me, honestly, as a bit unusual, but this is an old statute. -- the core language...
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Ginsburg, Ruth Bader - Associate Justice
JUSTICE GINSBURG: Mr. Long, there's another argument that has been made that I would like you to address, and that is all this talk about tax penalties...
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Long, Robert - Attorney
MR. LONG: Well, I think that argument doesn't work for two reasons. I mean, first, if you look at the Plaintiff's own complaint, they clearly challenge...
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Alito, Samuel A. Jr. - Associate Justice
JUSTICE ALITO: At page 122 of the Joint Appendix they Why is that?
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Ginsburg, Ruth Bader - Associate Justice
JUSTICE GINSBURG: If that's -- if that's the problem, it's easier to amend the complaint. can just take that out of the complaint. turn on that.
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Long, Robert - Attorney
MR. LONG: They So it can't Well, yes, I mean, it's -- or another complaint would be filed, but, still, I think that's a serious problem. different complaint,...
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Alito, Samuel A. Jr. - Associate Justice
JUSTICE ALITO: Well, they say they want to obey the law, and they say that your argument puts them in the position of having to disobey the law in order...
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Long, Robert - Attorney
MR. LONG: Well, I mean, first of all, I can't find that in the record, in their declarations. don't see a statement that they will, you know, never incur...
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Alito, Samuel A. Jr. - Associate Justice
JUSTICE ALITO: Well, let me take us back to Justice Kennedy's question about the "for the purpose of" language. mean the following: the effect of. I take...
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Long, Robert - Attorney
MR. LONG: Well -- - well, I mean, this Court in the Bob Jones case, where a similar kind of argument was being made by the plaintiff in that case, said:...
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Kagan, Elena - Associate Justice
JUSTICE KAGAN: And it's -- and you can't That's just the But, Mr. Long, aren't you trying to rewrite the statute in a way? The statute has two sections....
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Long, Robert - Attorney
MR. LONG: Well, I would not argue that this statute is a perfect model of clarity, but I do think the most reasonable way to read the entire statute is...
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Sotomayor, Sonia - Associate Justice
JUSTICE SOTOMAYOR: Again, you Could you tell me why you think the Solicitor General's reading creates a problem?
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Long, Robert - Attorney
MR. LONG: Well, in going back to -- so if the result were to say simply, this is not -- oh, I'm sorry. not - The Solicitor General's reading.
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Sotomayor, Sonia - Associate Justice
JUSTICE SOTOMAYOR: So now it's That it is a jurisdictional bar, but there's an exemption for those items that Congress has designated solely as penalties...
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Long, Robert - Attorney
MR. LONG: Right. Well, I mean, I think the Solicitor General's reading would probably create the fewest problems, as I understand it. main objection to...
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Sotomayor, Sonia - Associate Justice
JUSTICE SOTOMAYOR: I mean, my -- my I mean, But that's not -- that's carrying it too far, because he says if a penalty is designated as a tax by Congress...
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Long, Robert - Attorney
MR. LONG:
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Sotomayor, Sonia - Associate Justice
JUSTICE SOTOMAYOR: So it's I'm going It's only for those Right. And not indicated that it is a tax.
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Long, Robert - Attorney
MR. LONG: And he Right.
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Sotomayor, Sonia - Associate Justice
JUSTICE SOTOMAYOR: They don't fall within the AIA.
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Long, Robert - Attorney
MR. LONG: I think my -- my take on it is if you adopted the Solicitor General's approach there are probably three penalties for alcohol and tobacco-related...
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Roberts, John G. Jr. - Chief Justice
CHIEF JUSTICE ROBERTS: General Verrilli. ORAL ARGUMENT OF DONALD B. VERRILLI, JR., Thank you, Mr. Long. ON BEHALF OF THE PETITIONERS
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Verrilli, Donald B. Jr. - Solicitor General
GENERAL VERRILLI: Mr. Chief Justice and may it please the Court: This case presents issues of great moment, and the Anti-Injunction Act does not bar the...
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Alito, Samuel A. Jr. - Associate Justice
JUSTICE ALITO: General Verrilli, today you are arguing that the penalty is not a tax. are going to be back and you will be arguing that the penalty is...
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Verrilli, Donald B. Jr. - Solicitor General
GENERAL VERRILLI: No, Justice Alito, but the Court has held in a license tax cases that something can be a constitutional exercise of the taxing power...
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Sotomayor, Sonia - Associate Justice
JUSTICE SOTOMAYOR: Today we are Well, General, you also have the Bailey child labor tax cases, because there the Court said that the tax, which was a prohibitory...
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Verrilli, Donald B. Jr. - Solicitor General
GENERAL VERRILLI: Yes. I do think, Justice Sotomayor, that, with respect to one of the arguments that my friend from the NFIB has made in of the brief,...
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Sotomayor, Sonia - Associate Justice
JUSTICE SOTOMAYOR: That's a different issue.
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Verrilli, Donald B. Jr. - Solicitor General
GENERAL VERRILLI: But on the same day - right, but on the same day as Bailey v. Drexel Furniture, the court issued Bailey v. George, which held that...
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Ginsburg, Ruth Bader - Associate Justice
JUSTICE GINSBURG: question about your argument. the second part, that is for purposes of the statute, the anti-injunction statute, this penalty does not...
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Verrilli, Donald B. Jr. - Solicitor General
GENERAL VERRILLI: Mr. Verrilli, a basic If you are right about No. I -- I apologize if I'm creating confusion about that, Justice Ginsburg. think by far...
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Kennedy, Anthony M. - Associate Justice
JUSTICE KENNEDY: That -- that is correct, although in the refund context, you have the sovereign immunity problem, in which we presume that has not been...
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Verrilli, Donald B. Jr. - Solicitor General
GENERAL VERRILLI: But I - 7421(a) -- were the same - Right.
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Kennedy, Anthony M. - Associate Justice
JUSTICE KENNEDY: The language is quite parallel.
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Verrilli, Donald B. Jr. - Solicitor General
GENERAL VERRILLI: And -- originally, they were the same statutory provision. separated out later. textual indication, Justice Ginsburg, that -- that 7421(a)...
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Ginsburg, Ruth Bader - Associate Justice
JUSTICE GINSBURG: But then, General, what I asked you is, if you're right that this penalty is not covered by section 7421, if you're right about that,...
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Verrilli, Donald B. Jr. - Solicitor General
GENERAL VERRILLI: position. Yes, that is exactly our And the reason we don't -
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Ginsburg, Ruth Bader - Associate Justice
JUSTICE GINSBURG: So -- so you -- you agree that we would not -- if we agree with you about the correct interpretation of the statute, we need not decide...
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Verrilli, Donald B. Jr. - Solicitor General
GENERAL VERRILLI: There would be no reason to decide the jurisdictional issue.
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Kennedy, Anthony M. - Associate Justice
JUSTICE KENNEDY: Don't you want to know the answer? (Laughter.)
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Verrilli, Donald B. Jr. - Solicitor General
GENERAL VERRILLI: Justice Kennedy, I think we all want to know the answer to a lot of things in this case. prudent course here is to construe the statute...
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Kennedy, Anthony M. - Associate Justice
JUSTICE KENNEDY: But -- but you indicated -- there was a discussion earlier about why does the government really care, they have competent attorneys, et...
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Verrilli, Donald B. Jr. - Solicitor General
GENERAL VERRILLI: It But you I think there are two problems. One is the problem that Justice Scalia identified, that if it's not jurisdictional, then courts...
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Sotomayor, Sonia - Associate Justice
JUSTICE SOTOMAYOR: How, if you're troubled by -
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Ginsburg, Ruth Bader - Associate Justice
JUSTICE GINSBURG: Can I ask -
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Roberts, John G. Jr. - Chief Justice
CHIEF JUSTICE ROBERTS:
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Ginsburg, Ruth Bader - Associate Justice
JUSTICE GINSBURG: Justice Ginsburg. How -- how likely is it -- I mean, the government is going to be defending these suits, how likely is it that the government...
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Verrilli, Donald B. Jr. - Solicitor General
GENERAL VERRILLI: It seems to me that That's -- that is not our assessment of the institutional interests of the United States, Justice Ginsburg. the right...
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Roberts, John G. Jr. - Chief Justice
CHIEF JUSTICE ROBERTS: It was -- it was the calculation of the interests of the United States that your predecessor made in the Davis case. There, the...
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Verrilli, Donald B. Jr. - Solicitor General
GENERAL VERRILLI: Mr. Chief Justice. And of course, that That's true, Several points about that, though. We do agree with Mr. Long's analysis that Davis...
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Breyer, Stephen G. - Associate Justice
JUSTICE BREYER: Davis was the case where a shareholder sues the corporation.
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Verrilli, Donald B. Jr. - Solicitor General
GENERAL VERRILLI:
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Breyer, Stephen G. - Associate Justice
JUSTICE BREYER: Yes. And the remedy is that the corporation shouldn't pay the money to the tax authority. actually an injunction against the tax authority...
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Verrilli, Donald B. Jr. - Solicitor General
GENERAL VERRILLI:
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Breyer, Stephen G. - Associate Justice
JUSTICE BREYER: Yes. And - I don't know how far that gets you.
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Verrilli, Donald B. Jr. - Solicitor General
GENERAL VERRILLI: Well, in fairness, Justice Breyer, the United States did intervene in the -- in the Davis case and was a party, and so -- not as far...
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Scalia, Antonin - Associate Justice
JUSTICE SCALIA: Don't do it again, because I think that goes too far. I don't think that's restraining the collection of a tax. the payment of a tax.
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Verrilli, Donald B. Jr. - Solicitor General
GENERAL VERRILLI:
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Scalia, Antonin - Associate Justice
JUSTICE SCALIA: It's restraining Well - You -- you don't want to let that bone go, right?
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Verrilli, Donald B. Jr. - Solicitor General
GENERAL VERRILLI: Our view here is that it is jurisdictional. Court understands jurisdiction now, it's not waivable. And therefore, we don't think that...
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Kagan, Elena - Associate Justice
JUSTICE KAGAN: General, can I ask you about Reed Elsevier? Justice Ginsburg suggested that the language was very similar in Reed Elsevier as it is here,...
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Verrilli, Donald B. Jr. - Solicitor General
GENERAL VERRILLI: Kagan. I don't think so, Justice First, we think -- I guess I'm repeating myself and I apologize, but -- we think the closest analogue...
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Kagan, Elena - Associate Justice
JUSTICE KAGAN:
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Verrilli, Donald B. Jr. - Solicitor General
GENERAL VERRILLI: I take the point - -- the assessment or collection. But this -
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Kagan, Elena - Associate Justice
JUSTICE KAGAN: -- bu if you would comment on the similarities of Reed Elsevier to this case. How do you think it's different, if at all?
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Verrilli, Donald B. Jr. - Solicitor General
GENERAL VERRILLI: Well, because the -- the -- I think the best answer to that is there are no magic words. Court said in Henderson. here is that 7422 and...
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Ginsburg, Ruth Bader - Associate Justice
JUSTICE GINSBURG: Why, in Reed Elsevier, you were dividing jurisdiction from claims processing, says you have to register before you can sue. a lot of...
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Verrilli, Donald B. Jr. - Solicitor General
GENERAL VERRILLI: It is -- we do think it's very much in -- in that nature and different from this case, Your Honor. And one -- one way I think it's helpful...
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Ginsburg, Ruth Bader - Associate Justice
JUSTICE GINSBURG: On your statutory construction argument, is there any other exaction imposed under the Internal Revenue Codes that would not qualify...
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Verrilli, Donald B. Jr. - Solicitor General
GENERAL VERRILLI: It's not quite out there all by itself. outside of subchapter B of chapter 68 and, therefore, wouldn't be governed by the instruction...
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Sotomayor, Sonia - Associate Justice
JUSTICE SOTOMAYOR: Could we address, General, the question of whether there are any collateral consequences for the failure to buy -- to not buy health...
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Verrilli, Donald B. Jr. - Solicitor General
GENERAL VERRILLI: Yes. That is not a correct reading of the statute, Justice Sotomayor. only consequence that ensues is the tax penalty. the -- we have...
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Sotomayor, Sonia - Associate Justice
JUSTICE SOTOMAYOR: Is your whole point that this was inartful drafting by Congress; that, to the extent that there is an exemption under the penalty, it's...
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Verrilli, Donald B. Jr. - Solicitor General
GENERAL VERRILLI: I guess what I would say about it, Your Honor, is that the way in which this statute is drafted doesn't permit the inference that my...
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Alito, Samuel A. Jr. - Associate Justice
JUSTICE ALITO: Sub-section A says directly, "an applicable individual shall ensure that the individual has the minimum essential coverage." And you are...
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Verrilli, Donald B. Jr. - Solicitor General
GENERAL VERRILLI: That's correct. And we think that is what Congress is saying, both in the provision I just pointed to, Your Honor, and by virtue of the...
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Roberts, John G. Jr. - Chief Justice
CHIEF JUSTICE ROBERTS: Suppose it makes it easy for the government to drop the other shoe in the future, right? this mandate all along. penalty, so all...
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Verrilli, Donald B. Jr. - Solicitor General
GENERAL VERRILLI: I don't -- I don't think so, Mr. Chief Justice. I don't think it makes it easy for the government in the future. fairest reading of the...
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Kagan, Elena - Associate Justice
JUSTICE KAGAN: Could I -
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Alito, Samuel A. Jr. - Associate Justice
JUSTICE ALITO: I'm sorry, go ahead.
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Kagan, Elena - Associate Justice
JUSTICE KAGAN: The nature of the representation you made, that the only consequence is the penalty, suppose a person does not purchase insurance, a person...
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Verrilli, Donald B. Jr. - Solicitor General
GENERAL VERRILLI:
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Kagan, Elena - Associate Justice
JUSTICE KAGAN:
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Verrilli, Donald B. Jr. - Solicitor General
GENERAL VERRILLI: And that's because -
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Kagan, Elena - Associate Justice
JUSTICE KAGAN: But as long as they pay the penalty -
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Verrilli, Donald B. Jr. - Solicitor General
GENERAL VERRILLI:
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Breyer, Stephen G. - Associate Justice
JUSTICE BREYER:
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Verrilli, Donald B. Jr. - Solicitor General
GENERAL VERRILLI: Why do you keep saying tax? If they pay the tax penalty, they're in compliance with the law.
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Breyer, Stephen G. - Associate Justice
JUSTICE BREYER:
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Verrilli, Donald B. Jr. - Solicitor General
GENERAL VERRILLI: If they pay the tax, then they are in compliance with the law. That if they don't pay the tax, they violated a federal law. Our position...
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Breyer, Stephen G. - Associate Justice
JUSTICE BREYER:
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Verrilli, Donald B. Jr. - Solicitor General
GENERAL VERRILLI: The penalty. Right. That's right.
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Alito, Samuel A. Jr. - Associate Justice
JUSTICE ALITO: Suppose a person who has been receiving medical care in an emergency room -- has no health insurance but, over the years, goes to the emergency...
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Verrilli, Donald B. Jr. - Solicitor General
GENERAL VERRILLI: No, I don't think so, Justice Alito, for the same reason I just gave. that the -- that the answer in that situation is that that person,...
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Alito, Samuel A. Jr. - Associate Justice
JUSTICE ALITO: I think No, they are not facing the tax penalty.
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Verrilli, Donald B. Jr. - Solicitor General
GENERAL VERRILLI:
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Alito, Samuel A. Jr. - Associate Justice
JUSTICE ALITO: Right, right. So the hospital will have to continue to give them care and pay for it themselves, and not require them to be enrolled in...
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Verrilli, Donald B. Jr. - Solicitor General
GENERAL VERRILLI:
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Alito, Samuel A. Jr. - Associate Justice
JUSTICE ALITO: Right. Will they be able to take this out and say, well, you really should -- you have a moral obligation to do it; the Congress of the...
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Verrilli, Donald B. Jr. - Solicitor General
GENERAL VERRILLI: No, they can't I do think it's -- I think it's certainly fair to say that Congress wants people in that position to sign up for Medicaid....
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Sotomayor, Sonia - Associate Justice
JUSTICE SOTOMAYOR: General, but I thought the people who were eligible for Medicaid weren't subject to the penalty. factually wrong. Am I wrong?
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Verrilli, Donald B. Jr. - Solicitor General
GENERAL VERRILLI: I could be just Well, it all -- the penalty is keyed to income.
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Sotomayor, Sonia - Associate Justice
JUSTICE SOTOMAYOR:
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Verrilli, Donald B. Jr. - Solicitor General
GENERAL VERRILLI: Yes. And it's keyed to a number of things. little money that you aren't obligated to file a tax return. subject to the penalty. One is,...
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Sotomayor, Sonia - Associate Justice
JUSTICE SOTOMAYOR: But those people below - So there -- there -- there isn't
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Verrilli, Donald B. Jr. - Solicitor General
GENERAL VERRILLI: But as a general matter, for people below the poverty line it's almost inconceivable that they are ever going to be subject to the penalty,...
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Breyer, Stephen G. - Associate Justice
JUSTICE BREYER: So is your point that the tax -- so, what we want to do is get money from these people. insurance and that will help pay. they are going...
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Verrilli, Donald B. Jr. - Solicitor General
GENERAL VERRILLI: That's the essence they called it a penalty. textural instruction in the Affordable Care Act or in the Internal Revenue Code or that...
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Roberts, John G. Jr. - Chief Justice
CHIEF JUSTICE ROBERTS: You agree with Mr. Long, and, in fact, you just agreed with Justice Breyer that one of the purposes of the provision is to raise...
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Verrilli, Donald B. Jr. - Solicitor General
GENERAL VERRILLI: It will -- well, it will raise revenue. that it will raise revenue, Your Honor. that's the case, and I think that would be true of any...
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Alito, Samuel A. Jr. - Associate Justice
JUSTICE ALITO: But even though After this takes effect, there may be a lot of people who are assessed the penalty and disagree either with whether they...
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Verrilli, Donald B. Jr. - Solicitor General
GENERAL VERRILLI: Those are two different things, Justice Alito. Justice Kennedy, I think, suggested in one of his questions to Mr. Long, all of the other...
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Sotomayor, Sonia - Associate Justice
JUSTICE SOTOMAYOR:
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Alito, Samuel A. Jr. - Associate Justice
JUSTICE ALITO: Well, why is it - Two former -- two former commissioners of the IRS have filed a brief saying that your interpretation is going to lead...
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Verrilli, Donald B. Jr. - Solicitor General
GENERAL VERRILLI: Yes. We don't -- you know -- we've -- we've taken this position, after very careful consideration, and we've assessed the institutional...
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Sotomayor, Sonia - Associate Justice
JUSTICE SOTOMAYOR: But tell me something, why isn't this case subject to the same bars that - that you list in your brief? far, considers constitutional...
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Verrilli, Donald B. Jr. - Solicitor General
GENERAL VERRILLI: The Tax Court, at least so Because we don't - because the exhaustion would go to the individual amount owed, we think, and that's a...
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Roberts, John G. Jr. - Chief Justice
CHIEF JUSTICE ROBERTS:
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Verrilli, Donald B. Jr. - Solicitor General
GENERAL VERRILLI:
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Roberts, John G. Jr. - Chief Justice
CHIEF JUSTICE ROBERTS: Thank you, General. Thank you. Mr. Katsas. ORAL ARGUMENT OF GREGORY G. KATSAS ON BEHALF OF THE RESPONDENTS
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Katsas, Gregory G. - Attorney
MR. KATSAS: Mr. Chief Justice, and may it please the Court: Let me begin with the question whether the Anti-Injunction Act is jurisdictional. Ginsburg,...
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Ginsburg, Ruth Bader - Associate Justice
JUSTICE GINSBURG: They are different things. This said the Reed Elsevier statute says immediately after instituted unless a copyright is registered.
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Katsas, Gregory G. - Attorney
MR. KATSAS: registered. Unless the copyright is And this goes -- this goes to the character of the lawsuit. register your copyright and then come back...
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Ginsburg, Ruth Bader - Associate Justice
JUSTICE GINSBURG: Why isn't that like a filing fee, before you can maintain a suit for copyright infringement, you have to register your copyright?
| |
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Katsas, Gregory G. - Attorney
MR. KATSAS: It -- it's a precondition to filing suit. pay your taxes and then come back to court. is - The -- the analogous precondition here is
| |
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Sotomayor, Sonia - Associate Justice
JUSTICE SOTOMAYOR: The point No -- that -- that - that's not true. hearing the action. that Congress is barring. not a tax case, you can come in afterwards....
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Katsas, Gregory G. - Attorney
MR. KATSAS: It's not permitting -- it is It's not It -- it has to be the same challenge, Justice Sotomayor, or else South Carolina v. Regan would say the...
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Sotomayor, Sonia - Associate Justice
JUSTICE SOTOMAYOR: But In It does seem strange to think of a -- a law that says no court can entertain a certain action and give a certain remedy as merely...
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Katsas, Gregory G. - Attorney
MR. KATSAS: What the -- the Court is being The suit is being delayed, I think is the right way of looking at it. jurisdictional apparatus in the district...
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Sotomayor, Sonia - Associate Justice
JUSTICE SOTOMAYOR: How do you deal with this case and our Gonzalez -- our recent Gonzalez case where we talked about -
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Katsas, Gregory G. - Attorney
MR. KATSAS: Right.
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Sotomayor, Sonia - Associate Justice
JUSTICE SOTOMAYOR: -- the language of the COA statute that no appeal will be heard absent the issuance of?
| |
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Katsas, Gregory G. - Attorney
MR. KATSAS: Gonzalez -- Gonzalez v. Thaler rests on a special rule that applies with respect to appeals from one Article III court to another. That's --...
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Sotomayor, Sonia - Associate Justice
JUSTICE SOTOMAYOR: There is an argument that we should just simply say that Bowles applies only to appeals, but we haven't said that.
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Katsas, Gregory G. - Attorney
MR. KATSAS: No, you came very close. In Henderson, Justice Sotomayor, you said that Bowles, which is akin to Thaler is explained by the special rule and...
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Sotomayor, Sonia - Associate Justice
JUSTICE SOTOMAYOR: Counsel, all of those - all of that in particular -
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Katsas, Gregory G. - Attorney
MR. KATSAS: You did rely on that in Reed Elsevier as one consideration.
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Sotomayor, Sonia - Associate Justice
JUSTICE SOTOMAYOR: And we haven't relied on it in other cases.
| |
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Katsas, Gregory G. - Attorney
MR. KATSAS: And another -- another consideration in Reed Elsevier that cuts in our favor is the presence of exceptions. Elsevier cut against jurisdictional...
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Sotomayor, Sonia - Associate Justice
JUSTICE SOTOMAYOR: Many of which themselves speak in very clear jurisdictional language.
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Katsas, Gregory G. - Attorney
MR. KATSAS: Well, some of them have no jurisdictional language at all, and not a single one of them uses the word "jurisdiction" to describe the ability...
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Breyer, Stephen G. - Associate Justice
JUSTICE BREYER: Basically it begs the difference -- language is relevant, there are a lot of relevant things. mind is that taxes are, for better or for...
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Katsas, Gregory G. - Attorney
MR. KATSAS: Yes.
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Breyer, Stephen G. - Associate Justice
JUSTICE BREYER: And so what Congress is trying to do is to say there is a procedure here that you go through. through the Tax Court, but don't do this...
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Katsas, Gregory G. - Attorney
MR. KATSAS: Justice Breyer, as to reasoning, you -- you give an argument -- you give an argument why as a policy matter it might make sense to have a non-jurisdictional...
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Breyer, Stephen G. - Associate Justice
JUSTICE BREYER: But of course this That's fine. I just wanted to ask the question in case you wanted to answer the policy question.
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Katsas, Gregory G. - Attorney
MR. KATSAS: As to policy -- as to policy I think Helvering against Davis is the refutation of this view. doesn't want and Congress doesn't want people...
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Sotomayor, Sonia - Associate Justice
JUSTICE SOTOMAYOR: So why don't we say - why don't we say it's jurisdictional except when the Solicitor General waives?
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Katsas, Gregory G. - Attorney
MR. KATSAS: You have used -
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Sotomayor, Sonia - Associate Justice
JUSTICE SOTOMAYOR: Why would that not promote Congress's policy of insuring -- or Congress, explicitly -
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Katsas, Gregory G. - Attorney
MR. KATSAS: It's jurisdictional except when the Solicitor General waives it?
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Sotomayor, Sonia - Associate Justice
JUSTICE SOTOMAYOR: contradiction in terms.
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Katsas, Gregory G. - Attorney
MR. KATSAS: Yes. It's a I don't disagree. It is a contradiction in terms. All of your cases analyze the situation as if the statute is jurisdictional,...
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Sotomayor, Sonia - Associate Justice
JUSTICE SOTOMAYOR: They raised it and then gave it up.
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Katsas, Gregory G. - Attorney
MR. KATSAS: They made it below. They know what it is; and not only are they not pursuing it here, they are affirmatively pursuing an argument on the other...
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Kagan, Elena - Associate Justice
JUSTICE KAGAN: Mr. Katsas, is your basic position when we are talking about the jurisdiction of the district courts a statute has to say it's jurisdictional...
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Katsas, Gregory G. - Attorney
MR. KATSAS: I wouldn't go quite that far. I think at a minimum it has -- it has to either say that or at least be directed to the courts which is a formulation...
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Kagan, Elena - Associate Justice
JUSTICE KAGAN: Well, how would -- I mean, I suppose one could try to make a distinction between this case and Reed Elsevier by focusing on the difference...
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Katsas, Gregory G. - Attorney
MR. KATSAS: I don't think so, Justice Kagan, because we -- we have an adversarial system, not an inquisitorial one. lawsuits I think is the more natural...
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Roberts, John G. Jr. - Chief Justice
CHIEF JUSTICE ROBERTS: The whole point - the whole point of the suit is to prevent the collection of penalties.
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Katsas, Gregory G. - Attorney
MR. KATSAS: Of taxes, Mr. Chief Justice.
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Roberts, John G. Jr. - Chief Justice
CHIEF JUSTICE ROBERTS: Well prevent of the collection of taxes. something separate from whether you want to call it a penalty or tax just doesn't seem...
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Katsas, Gregory G. - Attorney
MR. KATSAS: It's entirely separate, and let me explain to you why.
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Roberts, John G. Jr. - Chief Justice
CHIEF JUSTICE ROBERTS: mandate is a command. command. It's a command. If there is nothing behind the It's sort of well what happens if you don't A file...
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Katsas, Gregory G. - Attorney
MR. KATSAS: It seems I'm not sure the answer is nothing, but even assuming it were nothing, it seems to me there is a difference between what the law requires...
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Roberts, John G. Jr. - Chief Justice
CHIEF JUSTICE ROBERTS: It I don't Why would you have a requirement that is completely toothless? insurance or else. Or else what?
| |
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Katsas, Gregory G. - Attorney
MR. KATSAS: You know, buy Or else nothing. Because Congress reasonably could think that at least some people will follow the law precisely because it is...
| |
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Kagan, Elena - Associate Justice
JUSTICE KAGAN: Mr. Katsas, do you think a person who is subject to the mandate but not subject to the penalty would have standing?
| |
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Katsas, Gregory G. - Attorney
MR. KATSAS: Yes, I think that person would, because that person is injured by compliance with the mandate.
| |
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Kagan, Elena - Associate Justice
JUSTICE KAGAN: What would that look like? What would the argument be as to what the injury was?
| |
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Katsas, Gregory G. - Attorney
MR. KATSAS: The injury -- when that subject to the mandate, that person is required to purchase health insurance. unwanted good. That is a forced acquisition...
| |
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Kagan, Elena - Associate Justice
JUSTICE KAGAN: But they are not directly Could I just understand, Mr. Katsas, when the States say that they are injured, are they talking about the people...
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Katsas, Gregory G. - Attorney
MR. KATSAS: It's people who will enroll, people who wouldn't have enrolled had they been given a voluntary choice.
| |
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Kagan, Elena - Associate Justice
JUSTICE KAGAN:
| |
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Katsas, Gregory G. - Attorney
MR. KATSAS: But who are eligible now. That's the largest category. think there could be future eligibles who would enroll because they are subject to a...
| |
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Kagan, Elena - Associate Justice
JUSTICE KAGAN: But that does seem odd, to suggest that the State is being injured because people who could show up tomorrow with or without this law will...
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Katsas, Gregory G. - Attorney
MR. KATSAS: I mean, presumably They -- they could, but they don't. What the State wants to do is make Medicaid available to all who are eligible and choose...
| |
|
Ginsburg, Ruth Bader - Associate Justice
JUSTICE GINSBURG: Why would somebody not choose to obtain it? There's this category of people who are Medicaid eligible; Medicaid doesn't cost them anything....
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Katsas, Gregory G. - Attorney
MR. KATSAS: Why I -- I don't know, Justice Ginsburg. All I know is that the difference between current enrollees and people who could enroll but have not...
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Ginsburg, Ruth Bader - Associate Justice
JUSTICE GINSBURG: But it may be just that they haven't been given sufficient information to understand that this is a benefit for them.
| |
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Katsas, Gregory G. - Attorney
MR. KATSAS: It's possible, but all we're talking about right now is the standing of the States. And the only arguments made against the standing of the...
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Sotomayor, Sonia - Associate Justice
JUSTICE SOTOMAYOR: I'm -- I'm a little bit confused. And this is what I'm confused about. There -- there is a challenge to the individual mandate.
| |
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Katsas, Gregory G. - Attorney
MR. KATSAS: Yes.
| |
|
Sotomayor, Sonia - Associate Justice
JUSTICE SOTOMAYOR: All right. What is - the fact that the State is challenging Medicaid, how does it give the State standing to challenge an obligation...
| |
|
Katsas, Gregory G. - Attorney
MR. KATSAS: The -- the principal theory for State standing is the States are challenging the mandate because the mandate injures them when people are forced...
| |
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Sotomayor, Sonia - Associate Justice
JUSTICE SOTOMAYOR:
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Katsas, Gregory G. - Attorney
MR. KATSAS: That's what I'm - I'm confused by it. Let me try it this way -- may I finish the thought?
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|
Roberts, John G. Jr. - Chief Justice
CHIEF JUSTICE ROBERTS:
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|
Katsas, Gregory G. - Attorney
MR. KATSAS: Go ahead. In South Carolina v. Regan, the State was not subject to the tax at issue. was harmed because -- as the issuer of the bonds, and...
| |
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Roberts, John G. Jr. - Chief Justice
CHIEF JUSTICE ROBERTS: Katsas. The State Thank you, Mr. So
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Katsas, Gregory G. - Attorney
MR. KATSAS:
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|
Roberts, John G. Jr. - Chief Justice
CHIEF JUSTICE ROBERTS: Thank you, Mr. Chief Justice. Mr. Long, you have 5 minutes remaining. REBUTTAL ARGUMENT OF ROBERT A. LONG FOR COURT-APPOINTED AMICUS...
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Long, Robert - Attorney
MR. LONG: Everyone agrees that the section 5000A penalty shall be assessed and collected in the same manner as taxes. argument why that does not make the...
| |
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Breyer, Stephen G. - Associate Justice
JUSTICE BREYER: And all that's going to really what I think Congress's intent was meant to be in sticking the collection thing into chapter 68, and -...
| |
|
Long, Robert - Attorney
MR. LONG: I mean, I think I'm following you, but -- but the fact that it's not in the particular subchapter for assessable penalties in my view makes no...
| |
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Breyer, Stephen G. - Associate Justice
JUSTICE BREYER:
| |
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Long, Robert - Attorney
MR. LONG: Yes, yes. And so that's -- I think it's - it's rather detailed, but I think it's a rather clear indication that the Anti-Injunction Act applies....
| |
|
Roberts, John G. Jr. - Chief Justice
CHIEF JUSTICE ROBERTS: Mr. Long, you were invited by this Court to defend the proposition that the Anti-Injunction Act barred this litigation. ably carried...
| |
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Long, Robert - Attorney
MR. LONG:
| |
|
Roberts, John G. Jr. - Chief Justice
CHIEF JUSTICE ROBERTS: You have Thank you. argument in this case tomorrow. We will continue (Whereupon, at 11:41 a.m., the case in the above-entitled matter...
| |
Unidentified Speaker, -
Official - Subject to Final Review IN THE SUPREME COURT OF THE UNITED STATES - - - - - - - - - - - - - - - - - x DEPARTMENT OF HEALTH AND : HUMAN...
| |
|
CHIEF JUSTICE ROBERTS, -
We will hear argument this morning in Case Number 11-398, Department of Health and Human Services v. Florida. Mr. Long. ORAL ARGUMENT OF ROBERT A. LONG...
| |
|
MR. LONG, -
Mr. Chief Justice, and may it please the Court: The Anti-Injunction Act imposes a pay first, litigate later rule that is central to Federal tax assessment...
| |
|
JUSTICE SCALIA, -
Well, that depends, as -≠ as the government points out on whether that derivative is a directive to to the Secretary of the Treasury as to how he goes...
| |
|
MR. LONG, -
Well, I think I have a three-part answer to that, Justice Scalia. First, the text does not say that the Secretary shall assess and collect taxes in the...
| |
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JUSTICE SCALIA, -
Well, he's assessing and collecting it in the same manner as a tax.
| |
|
MR. LONG, -
Well, the assessment -- the other Alderson Reporting Company Official - Subject to Final Review two parts of the answer are, as a practical matter, I don't...
| |
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JUSTICE KENNEDY, -
Why -- why will the administrative remedies rule not be applicable -≠ exhaustion rule not be applicable?
| |
|
MR. LONG, -
Well, because if the Anti-Injunction Act doesn't apply there is -- there is no prohibition on courts restraining the assessment or collection of this penalty,...
| |
|
JUSTICE KENNEDY, -
Well, but courts apply the exhaustion rule. I mean, I know you've studied this. I'm just not following it. Why couldn't the court say well, you haven't...
| |
|
MR. LONG, -
Well, in -- you could do that, I think as a matter of -- of common law or judicially imposed doctrine, but in the code itself which is all -- I mean, the...
| |
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JUSTICE KENNEDY, -
Yes, yes.
| |
|
MR. LONG, -
-- about taxes. And the code says, first it says you must pay the tax first and then litigate. So that's the baseline. And then in addition Alderson Reporting...
| |
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CHIEF JUSTICE ROBERTS, -
They would apply even if the rule is not jurisdictional. The only difference would be that the court could enforce it or not enforce it in particular cases,...
| |
|
MR. LONG, -
Well, Helvering v. Davis was decided during a period when this Court interpreted the Anti-Injunction Act as simply codifying the pre-statutory equitable...
| |
|
JUSTICE GINSBURG, -
Mr. Long, why don't we simply follow the statutory language? I know that you've argued that the Davis case has been overtaken by later cases, but the language...
| |
|
MR. LONG, -
Right. Well, I mean, this Court has said several times that the Tax Injunction Act was based on the Anti-Injunction Act. You are quite right, Alderson...
| |
|
JUSTICE GINSBURG, -
But how is that different from no civil action for infringement shall be instituted -- "maintained and instituted"? Anything turn on that?
| |
|
MR. LONG, -
Well, it's -- I mean -- perhaps a party could initiate an action without the act of cooperation of the court, but to maintain it from beginning to end...
| |
|
JUSTICE SOTOMAYOR, -
Counsel -≠
| |
|
JUSTICE ALITO, -
Well, Congress said that Alderson Reporting Company Official - Subject to Final Review many times, but is there any case in which the result would have...
| |
|
MR. LONG, -
There -- there are certainly a number of cases where the Court dismissed saying it is jurisdictional. As I read the cases, I don't think any of them would...
| |
|
JUSTICE ALITO, -
Well, the clearest -- the clearest way of distinguishing between the jurisdictional provision and a mandatory claims processing rule is whether it can...
| |
|
MR. LONG, -
No. I think the -- I think the best interpretation of the Court's cases is that it was interpreting a jurisdictional statute. And, indeed, in Williams...
| |
|
CHIEF JUSTICE ROBERTS, -
Well, it seems -≠ you can't separate those two points. The idea that Congress has acquiesced in what we have said only helps you if what we have said...
| |
|
MR. LONG, -
Well, what you have said, Mr. Chief Justice, has been absolutely consistent for years, since the Williams Packing case. The period of inconsistency was...
| |
|
JUSTICE KAGAN, -
Well, even since Williams Packing, there was South Carolina v. Regan. And that case can also be understood as a kind of equitable exception to the rule,...
| |
|
MR. LONG, -
Well, again, I mean, I think the best understanding of South Carolina v. Regan is not that its an equitable exception, but it's the court interpreting...
| |
|
JUSTICE SOTOMAYOR, -
Mr. Long, in Bowles, the Court looked to the long history of appellate issues as being jurisdictional, in its traditional sense, not as a claim processing...
| |
|
MR. LONG, -
No. No, Justice Sotomayor, because in many of these amendments which have come in the '70s and the '90s and the 2000's, Congress has actually framed the...
| |
|
JUSTICE SOTOMAYOR, -
But doesn't that just Alderson Reporting Company Official - Subject to Final Review prove that it knows that the Court will impose a claim processing rule...
| |
|
MR. LONG, -
Well, but Congress says, notwithstanding 7421, the Court "shall have jurisdiction to restrain the assessment and collection of taxes in very limited" -≠
| |
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JUSTICE SOTOMAYOR, -
Could you go back to the question that Justice Alito asked. Assuming we find that this is not jurisdictional, what is the parade of horribles that you...
| |
|
MR. LONG, -
Right. Well, first of all, I think you would be saying that for the refund statute, as well as for the Anti-Injunction Act -- which has very similar wording,...
| |
|
JUSTICE SOTOMAYOR, -
That wasn't my question. Alderson Reporting Company Official - Subject to Final Review
| |
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MR. LONG, -
I'm sorry.
| |
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JUSTICE SOTOMAYOR, -
My question was if we deem this a mandatory claim processing rule -≠
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MR. LONG, -
Right.
| |
|
JUSTICE SOTOMAYOR, -
-- what cases do you imagine courts will reach on what grounds? Assuming the government does its job and comes in and raises the AIA as an immediate defense...
| |
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MR. LONG, -
Well, that's -≠
| |
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JUSTICE SOTOMAYOR, -
-- where can a Court then reach the question, despite -≠
| |
|
MR. LONG, -
That would certainly be the first class of cases, it occurs to me, where, if the government does not raise it in a timely way, it could be waived. I would...
| |
|
JUSTICE SOTOMAYOR, -
Assumes the lack of competency of the government, which I don't, but what other types of cases?
| |
|
JUSTICE SCALIA, -
Mr. Long, I don't think you are going to come up with any, but I think your response is you could say that about any jurisdictional rule. If it's not jurisdictional,...
| |
|
MR. LONG, -
Well, and, Justice Scalia, I mean, honestly, I can't predict what would happen, but I would say that not all people who litigate about federal taxes are...
| |
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JUSTICE BREYER, -
I just don't want you to lose the second half of your argument. And we have spent all the time so far on jurisdiction. And I accept, pretty much, I'm probably...
| |
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MR. LONG, -
Right.
| |
|
JUSTICE BREYER, -
-- and this is not attached to a tax. It is attached to a health care requirement.
| |
|
MR. LONG, -
Right.
| |
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JUSTICE BREYER, -
-- so why does it fall within that word?
| |
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MR. LONG, -
Well, I mean, the first point is -- our initial submission is you don't have to determine that this is a tax in order to find that the Anti-Injunction...
| |
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JUSTICE BREYER, -
But that doesn't mean the AIA applies. I mean -- and then they provide some exceptions, but it doesn't mean the AIA applies. It says "in the same manner...
| |
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MR. LONG, -
So specifically on the argument that it -- it is actually a tax, even setting aside the point that it should be assessed and collected in the same manner...
| |
|
JUSTICE SCALIA, -
There -- there is at least some doubt about it, Mr. Long, for the reasons that Justice Breyer said, and I -- I thought that we -- we had a principle that...
| |
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MR. LONG, -
Well, I mean, the Anti-Injunction Act applies not only to every tax in the code, but, as far as I can tell, to every tax penalty in the code.
| |
|
JUSTICE GINSBURG, -
Mr. Long, you -- you said before -- and I think you were quite right -- that the Tax Injunction Act is modeled on the Anti-Injunction Act, and, under the...
| |
|
MR. LONG, -
Well, in -- in Bob Jones the Court said that they had gotten out of the business of trying to determine whether an exaction is primarily revenue raising...
| |
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JUSTICE SOTOMAYOR, -
But Bob Jones involved a statute where it denominated the exaction as a tax.
| |
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MR. LONG, -
That's -≠ Alderson Reporting Company Official - Subject to Final Review
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JUSTICE SOTOMAYOR, -
Here we have one where the Congress is not denominating it as a tax; it's denominating it as a penalty.
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MR. LONG, -
That's -- that's absolutely right, and that's obviously why, if it were called a tax, there would be absolutely no question that the Anti-Injunction Act...
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JUSTICE SOTOMAYOR, -
Absolutely. But even the section of the Code that you referred to previously, the one following 7421, the AIA, it does very clearly make a difference --...
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MR. LONG, -
Yes, that's -- it does, that is correct, and there are many other places in the Code where -≠
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JUSTICE BREYER, -
The best collection I've found in your favor, I think, is in Mortimer Caplin's brief on page 16, 17. He has a whole list. All right. So -- I got my law...
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MR. LONG, -
Well, I mean, there are penalties in the Internal Revenue Code that you really couldn't say are related in any -- in any close way to some other tax provision....
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JUSTICE KAGAN, -
Mr. Long, aren't there places in this Act -- fees and penalties -- that were specifically put under the Anti-Injunction Act? There is one on health care...
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MR. LONG, -
Well, I mean, Congress didn't use the language the Anti-Injunction Act shall apply -≠
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JUSTICE KAGAN, -
No, but it -- it in section and in section 9010 -≠
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MR. LONG, -
Right.
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JUSTICE KAGAN, -
-- it specifically referred to the part of the Code where the Anti-Injunction Act is.
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MR. LONG, -
Right, all of subtitle F, which picks up lots of administration and procedure provisions, but those -- those are fees, and they are not -- Congress did...
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JUSTICE KENNEDY, -
It's easier to talk about this case if we just forget the words "for the purpose of restraining assessment and collection." In a sense, that brings the...
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MR. LONG, -
It does strike me, honestly, as a bit unusual, but this is an old statute. I mean, this -- the core language is essentially unchanged since , and, you...
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JUSTICE GINSBURG, -
Mr. Long, there's another argument that has been made that I would like you to address, and that is all this talk about tax penalties is all beside the...
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MR. LONG, -
Well, I think that argument doesn't work for two reasons. I mean, first, if you look at the Plaintiff's own complaint, they clearly challenge both the...
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JUSTICE ALITO, -
Why is that? Alderson Reporting Company Official - Subject to Final Review
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JUSTICE GINSBURG, -
If that's -- if that's the problem, it's easier to amend the complaint. They can just take that out of the complaint. So it can't turn on that.
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MR. LONG, -
Well, yes, I mean, it's -- or another complaint would be filed, but, still, I think that's a serious problem. But even if they had filed a different complaint,...
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JUSTICE ALITO, -
Well, they say they want to obey the law, and they say that your argument puts them in the position of having to disobey the law in order to obtain review...
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MR. LONG, -
Well, I mean, first of all, I can't find that in the record, in their declarations. I don't see a statement that they will, you know, never incur a penalty...
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JUSTICE ALITO, -
Well, let me take us back to Justice Kennedy's question about the "for the purpose of" language. I take it you interpret the statute to mean the following:...
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MR. LONG, -
Well -- - well, I mean, this Court in the Bob Jones case, where a similar kind of Alderson Reporting Company Official - Subject to Final Review argument...
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JUSTICE KAGAN, -
But, Mr. Long, aren't you trying to rewrite the statute in a way? The statute has two sections. One is the you have to have insurance section and the other...
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MR. LONG, -
Well, I would not argue that this statute is a perfect model of clarity, but I do think the most reasonable way to read the entire statute is that it does...
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JUSTICE SOTOMAYOR, -
Could you tell me why you think the Solicitor General's reading creates a problem?
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MR. LONG, -
Well, in going back to -- so if the result were to say simply, this is not -- oh, I'm sorry. The Solicitor General's reading. So now it's not -≠
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JUSTICE SOTOMAYOR, -
That it is a Alderson Reporting Company Official - Subject to Final Review jurisdictional bar, but there's an exemption for those items that Congress has...
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MR. LONG, -
Right. Well, I mean, I think the Solicitor General's reading would probably create the fewest problems, as I understand it. I mean, my -- my main objection...
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JUSTICE SOTOMAYOR, -
But that's not -- that's carrying it too far, because he says if a penalty is designated as a tax by Congress then it's subject to the AIA, and that's...
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MR. LONG, -
Right.
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JUSTICE SOTOMAYOR, -
And not indicated that it is a tax.
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MR. LONG, -
Right. Alderson Reporting Company Official - Subject to Final Review
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JUSTICE SOTOMAYOR, -
They don't fall within the AIA.
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MR. LONG, -
I think my -- my take on it is if you adopted the Solicitor General's approach there are probably three penalties for alcohol and tobacco-related offenses...
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CHIEF JUSTICE ROBERTS, -
Thank you, Mr. Long. General Verrilli. ORAL ARGUMENT OF DONALD B. VERRILLI, JR., ON BEHALF OF THE PETITIONERS
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GENERAL VERRILLI, -
Mr. Chief Justice and may it please the Court: This case presents issues of great moment, and the Anti-Injunction Act does not bar the Court's consideration...
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JUSTICE ALITO, -
General Verrilli, today you are arguing that the penalty is not a tax. Tomorrow you are going to be back and you will be arguing that the penalty is a...
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GENERAL VERRILLI, -
No, Justice Alito, but the Court has held in a license tax cases that something can be a constitutional exercise of the taxing power whether or not it...
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JUSTICE SOTOMAYOR, -
Well, General, you also have the Bailey child labor tax cases, because there the Court said that the tax, which was a prohibitory tax alone, was a tax...
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GENERAL VERRILLI, -
Yes. I do think, Justice Sotomayor, that, with respect to one of the arguments that my friend from the NFIB has made in of the brief, that Bailey v. George...
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JUSTICE SOTOMAYOR, -
That's a different issue.
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GENERAL VERRILLI, -
But on the same day -≠ right, but on the same day as Bailey v. Drexel Alderson Reporting Company Official - Subject to Final Review Furniture, the court...
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JUSTICE GINSBURG, -
Mr. Verrilli, a basic question about your argument. If you are right about the second part, that is for purposes of the statute, the anti-injunction statute,...
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GENERAL VERRILLI, -
No. I -- I apologize if I'm creating confusion about that, Justice Ginsburg. We think by far the better route here is to understand the statute as we have...
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JUSTICE KENNEDY, -
That -- that is correct, although in the refund context, you have the sovereign immunity problem, in which we presume that has not been waived. Alderson...
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GENERAL VERRILLI, -
Right. But I -≠ (a) -- were the same -≠
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JUSTICE KENNEDY, -
The language is quite parallel.
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GENERAL VERRILLI, -
And -- originally, they were the same statutory provision. They were only separated out later. So I do think that's the strongest textual indication, Justice...
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JUSTICE GINSBURG, -
But then, General, what I asked you is, if you're right that this penalty is not covered by section 7421, if you're right about that, why should we deal...
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GENERAL VERRILLI, -
Yes, that is exactly our position. And the reason we don't -≠
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JUSTICE GINSBURG, -
So -- so you -- you agree that we would not -- if we agree with you about the correct interpretation of the statute, we need not decide the jurisdiction.
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GENERAL VERRILLI, -
There would be no reason to decide the jurisdictional issue.
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JUSTICE KENNEDY, -
Don't you want to know the Alderson Reporting Company Official - Subject to Final Review answer? (Laughter.)
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GENERAL VERRILLI, -
Justice Kennedy, I think we all want to know the answer to a lot of things in this case. But -- but I do -- I do think that the prudent course here is...
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JUSTICE KENNEDY, -
But -- but you indicated -- there was a discussion earlier about why does the government really care, they have competent attorneys, et cetera. But --...
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GENERAL VERRILLI, -
I think there are two problems. One is the problem that Justice Scalia identified, that if it's not jurisdictional, then courts have authority to craft...
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JUSTICE SOTOMAYOR, -
How, if you're troubled by -≠
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JUSTICE GINSBURG, -
Can I ask -≠
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CHIEF JUSTICE ROBERTS, -
Justice Ginsburg.
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JUSTICE GINSBURG, -
How -- how likely is it -- I mean, the government is going to be defending these suits, how likely is it that the government will overlook the Anti-Injunction...
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GENERAL VERRILLI, -
That's -- that is not our assessment of the institutional interests of the United Alderson Reporting Company Official - Subject to Final Review States,...
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CHIEF JUSTICE ROBERTS, -
It was -- it was the calculation of the interests of the United States that your predecessor made in the Davis case. There, the -- the Solicitor General...
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GENERAL VERRILLI, -
That's true, Mr. Chief Justice. Several points about that, though. We do agree with Mr. Long's analysis that Davis occurred in -- during a time in -- which...
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JUSTICE BREYER, -
Davis was the case where a shareholder sues the corporation.
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GENERAL VERRILLI, -
Yes.
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JUSTICE BREYER, -
And the remedy is that the corporation shouldn't pay the money to the tax authority. Now, it's a little technical, but that isn't actually an injunction...
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GENERAL VERRILLI, -
Yes. And -≠
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JUSTICE BREYER, -
I don't know how far that gets you.
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GENERAL VERRILLI, -
Well, in fairness, Justice Breyer, the United States did intervene in the -- in the Davis case and was a party, and so -- not as far as I'd like, I guess...
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JUSTICE SCALIA, -
Don't do it again, because I think that goes too far. I don't think that's restraining the collection of a tax. It's restraining the payment of a tax.
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GENERAL VERRILLI, -
Well -≠
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JUSTICE SCALIA, -
You -- you don't want to let that bone go, right? Alderson Reporting Company Official - Subject to Final Review
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GENERAL VERRILLI, -
Our view here is that it is jurisdictional. Because it's jurisdictional as this Court understands jurisdiction now, it's not waivable. And therefore, we...
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JUSTICE KAGAN, -
General, can I ask you about Reed Elsevier? Justice Ginsburg suggested that the language was very similar in Reed Elsevier as it is here, but there are...
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GENERAL VERRILLI, -
I don't think so, Justice Kagan. First, we think -- I guess I'm repeating myself Alderson Reporting Company Official - Subject to Final Review and I apologize,...
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JUSTICE KAGAN, -
I take the point -≠
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GENERAL VERRILLI, -
-- the assessment or collection.
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JUSTICE KAGAN, -
-- bu if you would comment on the similarities of Reed Elsevier to this case. How do you think it's different, if at all?
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GENERAL VERRILLI, -
Well, because the -- the -- I think the best answer to that is there are no magic words. And that history and context matter, as the Court said in Henderson....
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JUSTICE GINSBURG, -
Why, in Reed Elsevier, you were dividing jurisdiction from claims processing, says you have to register before you can sue. There are a lot of things you...
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GENERAL VERRILLI, -
It is -- we do think it's very much in -- in that nature and different from this case, Your Honor. And one -- one way I think it's helpful to -- to get...
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JUSTICE GINSBURG, -
On your statutory construction argument, is there any other exaction imposed under the Internal Revenue Codes that would not qualify as a tax for Anti-Injunction...
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GENERAL VERRILLI, -
It's not quite out there all by itself. There are other provisions that fall outside of subchapter B of chapter 68 and, therefore, wouldn't be governed...
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JUSTICE SOTOMAYOR, -
Could we address, General, the question of whether there are any collateral consequences for the failure to buy -- to not buy health insurance? Is the...
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GENERAL VERRILLI, -
Yes. That is not a correct reading of the statute, Justice Sotomayor. The only consequence that ensues is the tax penalty. And the -- we have made a representation,...
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JUSTICE SOTOMAYOR, -
Is your whole point that this was inartful drafting by Congress; that, to the extent that there is an exemption under the penalty, it's an exemption from...
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GENERAL VERRILLI, -
I guess what I would say about it, Your Honor, is that the way in which this statute is drafted doesn't permit the inference that my friends from the NIB...
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JUSTICE ALITO, -
Sub-section A says directly, "an applicable individual shall ensure that the individual has the minimum essential coverage." And you Alderson Reporting...
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GENERAL VERRILLI, -
That's correct. And we think that is what Congress is saying, both in the provision I just pointed to, Your Honor, and by virtue of the way -- by virtue...
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CHIEF JUSTICE ROBERTS, -
Suppose it makes it easy for the government to drop the other shoe in the future, right? You have been under the law subject to this mandate all along....
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GENERAL VERRILLI, -
I don't -- I don't think so, Mr. Chief Justice. I don't think it makes it easy for the government in the future. We think this is the fairest reading of...
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JUSTICE KAGAN, -
Could I -≠
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JUSTICE ALITO, -
I'm sorry, go ahead. Alderson Reporting Company Official - Subject to Final Review
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JUSTICE KAGAN, -
The nature of the representation you made, that the only consequence is the penalty, suppose a person does not purchase insurance, a person who is obligated...
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GENERAL VERRILLI, -
No. Our position is that person should give the answer "no."
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JUSTICE KAGAN, -
And that's because -≠
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GENERAL VERRILLI, -
That if they don't pay the tax, they violated a federal law.
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JUSTICE KAGAN, -
But as long as they pay the penalty -≠
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GENERAL VERRILLI, -
If they pay the tax, then they are in compliance with the law.
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JUSTICE BREYER, -
Why do you keep saying tax?
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GENERAL VERRILLI, -
If they pay the tax penalty, they're in compliance with the law.
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JUSTICE BREYER, -
Thank you.
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GENERAL VERRILLI, -
Thank you, Justice Breyer.
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JUSTICE BREYER, -
The penalty.
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GENERAL VERRILLI, -
Right. That's right. Alderson Reporting Company Official - Subject to Final Review
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JUSTICE ALITO, -
Suppose a person who has been receiving medical care in an emergency room -- has no health insurance but, over the years, goes to the emergency room when...
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GENERAL VERRILLI, -
No, I don't think so, Justice Alito, for the same reason I just gave. I think that the -- that the answer in that situation is that that person, assuming...
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JUSTICE ALITO, -
No, they are not facing the tax penalty.
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GENERAL VERRILLI, -
Right, right.
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JUSTICE ALITO, -
So the hospital will have to continue to give them care and pay for it themselves, and not require them to be enrolled in Medicaid.
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GENERAL VERRILLI, -
Right.
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JUSTICE ALITO, -
Will they be able to take Alderson Reporting Company Official - Subject to Final Review this out and say, well, you really should -- you have a moral obligation...
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GENERAL VERRILLI, -
I do think it's -- I think it's certainly fair to say that Congress wants people in that position to sign up for Medicaid. I think that's absolutely right....
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JUSTICE SOTOMAYOR, -
General, but I thought the people who were eligible for Medicaid weren't subject to the penalty. Am I wrong? I could be just factually wrong.
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GENERAL VERRILLI, -
Well, it all -- the penalty is keyed to income.
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JUSTICE SOTOMAYOR, -
Yes.
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GENERAL VERRILLI, -
And it's keyed to a number of things. One is, are -- are you making so little money that you aren't obligated to file a tax return. And if you're in that...
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JUSTICE SOTOMAYOR, -
But those people below -≠
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GENERAL VERRILLI, -
But as a general matter, for people below the poverty line it's almost inconceivable that they are ever going to be subject to the penalty, and they would,...
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JUSTICE BREYER, -
So is your point that the tax -- so, what we want to do is get money from these people. Most of them get the money by buying the insurance and that will...
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GENERAL VERRILLI, -
That's the essence they Alderson Reporting Company Official - Subject to Final Review called it a penalty. They didn't give any other textural instruction...
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CHIEF JUSTICE ROBERTS, -
You agree with Mr. Long, and, in fact, you just agreed with Justice Breyer that one of the purposes of the provision is to raise revenue.
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GENERAL VERRILLI, -
It will -- well, it will raise revenue. It has been predicted by the CBO that it will raise revenue, Your Honor. But even though that's the case, and I...
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JUSTICE ALITO, -
After this takes effect, there may be a lot of people who are assessed the penalty and disagree either with whether they should be assessed the penalty...
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GENERAL VERRILLI, -
Those are two different things, Justice Alito. I think for reasons that Justice Kennedy, I think, suggested in one of his questions to Mr. Long, all of...
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JUSTICE SOTOMAYOR, -
Well, why is it -≠
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JUSTICE ALITO, -
Two former -- two former commissioners of the IRS have filed a brief saying that your interpretation is going to lead to a flood of litigation. Are they...
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GENERAL VERRILLI, -
Yes. We don't -- you know -- we've -- we've taken this position, after very careful consideration, and we've assessed the institutional interests of the...
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JUSTICE SOTOMAYOR, -
But tell me something, why isn't this case subject to the same bars that -≠ that you list in your brief? The Tax Court, at least so far, considers constitutional...
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GENERAL VERRILLI, -
Because we don't -≠ Alderson Reporting Company Official - Subject to Final Review because the exhaustion would go to the individual amount owed, we think,...
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CHIEF JUSTICE ROBERTS, -
Thank you, General.
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GENERAL VERRILLI, -
Thank you.
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CHIEF JUSTICE ROBERTS, -
Mr. Katsas. ORAL ARGUMENT OF GREGORY G. KATSAS ON BEHALF OF THE RESPONDENTS
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MR. KATSAS, -
Mr. Chief Justice, and may it please the Court: Let me begin with the question whether the Anti-Injunction Act is jurisdictional. Justice Ginsburg, for...
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JUSTICE GINSBURG, -
They are different things. This said the Reed Elsevier statute says immediately after instituted unless a copyright is registered.
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MR. KATSAS, -
Unless the copyright is registered. And this goes -- this goes to the character Alderson Reporting Company Official - Subject to Final Review of the lawsuit....
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JUSTICE GINSBURG, -
Why isn't that like a filing fee, before you can maintain a suit for copyright infringement, you have to register your copyright?
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MR. KATSAS, -
It -- it's a precondition to filing suit. The -- the analogous precondition here is pay your taxes and then come back to court. The point is -≠
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JUSTICE SOTOMAYOR, -
No -- that -- that -≠ that's not true. The suit here has nothing to do with hearing the action. It has to do with a form of relief that Congress is barring....
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MR. KATSAS, -
It -- it has to be the same challenge, Justice Sotomayor, or else South Carolina v. Regan would say the Anti-Injunction Act doesn't apply. You are right...
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JUSTICE SOTOMAYOR, -
It does seem strange to think of a -- a law that says no court can entertain a certain action and give a certain remedy as merely a claim processing rule....
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MR. KATSAS, -
The suit is being delayed, I think is the right way of looking at it. The jurisdictional apparatus in the district court is present. Prospective relief...
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JUSTICE SOTOMAYOR, -
How do you deal with this case and our Gonzalez -- our recent Gonzalez case where we talked about -≠
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MR. KATSAS, -
Right.
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JUSTICE SOTOMAYOR, -
-- the language of the Alderson Reporting Company Official - Subject to Final Review COA statute that no appeal will be heard absent the issuance of?
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MR. KATSAS, -
Gonzalez -- Gonzalez v. Thaler rests on a special rule that applies with respect to appeals from one Article III court to another. That's -- that explains...
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JUSTICE SOTOMAYOR, -
There is an argument that we should just simply say that Bowles applies only to appeals, but we haven't said that.
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MR. KATSAS, -
No, you came very close. In Henderson, Justice Sotomayor, you said that Bowles, which is akin to Thaler is explained by the special rule and understandings...
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JUSTICE SOTOMAYOR, -
Counsel, all of those -≠ all of that in particular -≠
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MR. KATSAS, -
You did rely on that in Reed Elsevier as one consideration.
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JUSTICE SOTOMAYOR, -
And we haven't relied on it in other cases.
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MR. KATSAS, -
And another -- another consideration in Reed Elsevier that cuts in our favor is the presence of exceptions. You said three in Reed Elsevier cut against...
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JUSTICE SOTOMAYOR, -
Many of which themselves speak in very clear jurisdictional language.
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MR. KATSAS, -
Well, some of them have no jurisdictional language at all, and not a single one of them uses the word "jurisdiction" to describe the ability of the Court...
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JUSTICE BREYER, -
Basically it begs the Alderson Reporting Company Official - Subject to Final Review difference -- language is relevant, there are a lot of relevant things....
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MR. KATSAS, -
Yes.
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JUSTICE BREYER, -
And so what Congress is trying to do is to say there is a procedure here that you go through. You can get your money back, or you go through the Tax Court,...
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MR. KATSAS, -
Justice Breyer, as to reasoning, you -- you give an argument -- you give an argument why as a policy matter it might make sense to have a non-jurisdictional...
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JUSTICE BREYER, -
That's fine. I just wanted to ask the question in case you wanted to answer the policy question.
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MR. KATSAS, -
As to policy -- as to policy I think Helvering against Davis is the refutation of this view. It is true that in most cases the government doesn't want...
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JUSTICE SOTOMAYOR, -
So why don't we say -≠ why don't we say it's jurisdictional except when the Solicitor General waives?
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MR. KATSAS, -
You have used -≠
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JUSTICE SOTOMAYOR, -
Why would that not promote Congress's policy of insuring -- or Congress, explicitly -≠
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MR. KATSAS, -
It's jurisdictional except when the Solicitor General waives it?
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JUSTICE SOTOMAYOR, -
Yes. It's a contradiction in terms. I don't disagree.
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MR. KATSAS, -
It is a contradiction in terms. All of your cases analyze the situation as if the statute is jurisdictional, then it's not subject to waiver. If you were...
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JUSTICE SOTOMAYOR, -
They raised it and then gave it up. Alderson Reporting Company Official - Subject to Final Review
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MR. KATSAS, -
They made it below. They know what it is; and not only are they not pursuing it here, they are affirmatively pursuing an argument on the other side.
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JUSTICE KAGAN, -
Mr. Katsas, is your basic position when we are talking about the jurisdiction of the district courts a statute has to say it's jurisdictional to be jurisdictional?
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MR. KATSAS, -
I wouldn't go quite that far. I think at a minimum it has -- it has to either say that or at least be directed to the courts which is a formulation you...
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JUSTICE KAGAN, -
Well, how would -- I mean, I suppose one could try to make a distinction between this case and Reed Elsevier by focusing on the difference between instituting...
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MR. KATSAS, -
I don't think so, Justice Kagan, because we -- we have an adversarial system, not an inquisitorial one. The parties maintain their lawsuits I think is...
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CHIEF JUSTICE ROBERTS, -
The whole point -≠ the whole point of the suit is to prevent the collection of penalties.
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MR. KATSAS, -
Of taxes, Mr. Chief Justice.
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CHIEF JUSTICE ROBERTS, -
Well prevent of the collection of taxes. But the idea that the mandate is something separate from whether you want to call it a penalty or tax just doesn't...
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MR. KATSAS, -
It's entirely separate, and let me explain to you why.
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CHIEF JUSTICE ROBERTS, -
It's a command. A mandate is a command. If there is nothing behind the command. It's sort of well what happens if you don't Alderson Reporting Company...
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MR. KATSAS, -
I'm not sure the answer is nothing, but even assuming it were nothing, it seems to me there is a difference between what the law requires and what enforcement...
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CHIEF JUSTICE ROBERTS, -
Why would you have a Alderson Reporting Company Official - Subject to Final Review requirement that is completely toothless? You know, buy insurance or...
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MR. KATSAS, -
Because Congress reasonably could think that at least some people will follow the law precisely because it is the law. And let me give you an example of...
| |
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JUSTICE KAGAN, -
Mr. Katsas, do you think a person who is subject to the mandate but not subject to the penalty would have standing? Alderson Reporting Company Official...
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MR. KATSAS, -
Yes, I think that person would, because that person is injured by compliance with the mandate.
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JUSTICE KAGAN, -
What would that look like? What would the argument be as to what the injury was?
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MR. KATSAS, -
The injury -- when that subject to the mandate, that person is required to purchase health insurance. That is a forced acquisition of an unwanted good....
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JUSTICE KAGAN, -
Could I just understand, Mr. Katsas, when the States say that they are injured, are they talking about the people who are eligible now who are not enrolled?...
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MR. KATSAS, -
It's people who will enroll, people who wouldn't have enrolled had they been given a voluntary choice.
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JUSTICE KAGAN, -
But who are eligible now.
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MR. KATSAS, -
That's the largest category. I think there could be future eligibles who would enroll because they are subject to a legal obligation but Alderson Reporting...
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JUSTICE KAGAN, -
But that does seem odd, to suggest that the State is being injured because people who could show up tomorrow with or without this law will -- will show...
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MR. KATSAS, -
They -- they could, but they don't. What the State wants to do is make Medicaid available to all who are eligible and choose to obtain it. And in any event...
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JUSTICE GINSBURG, -
Why would somebody not choose to obtain it? Why -- that's one puzzle to me. There's this category of people who are Medicaid eligible; Medicaid doesn't...
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MR. KATSAS, -
I -- I don't know, Justice Ginsburg. All I know is that the difference between current enrollees and people who could enroll but have not is, as I said,...
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JUSTICE GINSBURG, -
But it may be just that they haven't been given sufficient information to understand that this is a benefit for them.
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MR. KATSAS, -
It's possible, but all we're talking about right now is the standing of the States. And the only arguments made against the standing of the States -- I...
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JUSTICE SOTOMAYOR, -
I'm -- I'm a little bit confused. And this is what I'm confused about. There -- there is a challenge to the individual mandate.
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MR. KATSAS, -
Yes.
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JUSTICE SOTOMAYOR, -
All right. What is -≠ Alderson Reporting Company Official - Subject to Final Review the fact that the State is challenging Medicaid, how does it give...
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MR. KATSAS, -
The -- the principal theory for State standing is the States are challenging the mandate because the mandate injures them when people are forced to enroll...
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JUSTICE SOTOMAYOR, -
Yes. That's what I'm -≠
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MR. KATSAS, -
Okay. Let me -- let me try to
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JUSTICE SOTOMAYOR, -
I'm confused by it.
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MR. KATSAS, -
Let me try it this way -- may I finish the thought?
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CHIEF JUSTICE ROBERTS, -
Go ahead.
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MR. KATSAS, -
In South Carolina v. Regan, the State was not subject to the tax at issue. The State was harmed because -- as the issuer of the bonds, and the bond holders...
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CHIEF JUSTICE ROBERTS, -
Thank you, Mr. Katsas. Alderson Reporting Company Official - Subject to Final Review
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MR. KATSAS, -
Thank you, Mr. Chief Justice.
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CHIEF JUSTICE ROBERTS, -
Mr. Long, you have 5 minutes remaining. REBUTTAL ARGUMENT OF ROBERT A. LONG FOR COURT-APPOINTED AMICUS CURIAE
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MR. LONG, -
Everyone agrees that the section A penalty shall be assessed and collected in the same manner as taxes. And the parties' principal argument why that does...
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JUSTICE BREYER, -
And all that's going to really what I think Congress's intent was meant to be in sticking the collection thing into chapter 68, and -≠ and it's certainly...
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MR. LONG, -
I mean, I think I'm following you, but -- but the fact that it's not in the particular subchapter for assessable penalties in my view makes no difference,...
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JUSTICE BREYER, -
Yes, yes.
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MR. LONG, -
And so that's -- I think it's -≠ it's rather detailed, but I think it's a rather clear indication that the Anti-Injunction Act applies. The -- the refund...
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CHIEF JUSTICE ROBERTS, -
Mr. Long, you were invited by this Court to defend the proposition that the Anti-Injunction Act barred this litigation. You have ably carried out that...
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MR. LONG, -
Thank you.
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CHIEF JUSTICE ROBERTS, -
We will continue argument in this case tomorrow. Alderson Reporting Company Official - Subject to Final Review (Whereupon, at 11:41 a.m., the case in the...
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Question, -
reading 28:19,23 referred20:9 57:9 6:10 16:18 qualify 43:12 29:5,7 35:14 :10 75:2 render25:15 23:11 39:9,21 reforms 52:12 repeating 40:25 39:21 question...
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