NFIB Sebelius Dissent

 

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of a penalty-—such as ““license”” (License Tax Cases, 5 Wall.
462 (1867)) or “”surcharge”” (New York v. United States,  
supra.). But we have never-—never-—treated as a tax an
exaction which faces up to the critical difference between
a tax and a penalty, and explicitly denominates the exac-
tion a “”penalty.””  Eighteen times in §5000A itself and else-
where throughout the Act, Congress called the exaction in
§5000A(b) a “”penalty.””

  That §5000A imposes not a simple tax but a mandate to
which a penalty is attached is demonstrated by the fact
that some are exempt from the tax who are not ex –
empt from the mandate—-a distinction that would make
no sense if the mandate were not a mandate.  Section
5000A(d) exempts three classes of people from the defini-
tion of ““applicable individual”” subject to the minimum
coverage requirement: Those with religious objections or
who participate in a “”health care sharing ministry,””
§5000A(d)(2); those who are “”not lawfully present”” in the
United States, §5000A(d)(3); and those who are incarcer-
ated, §5000A(d)(4). Section 5000A(e) then creates a sepa-
rate set of exemptions, excusing from liability for the
penalty certain individuals who are subject to the mini –
mum coverage requirement: Those who cannot afford
coverage, §5000A(e)(1); who earn too little income to re-
quire filing a tax return, §5000A(e)(2); who are members
of an Indian tribe, §5000A(e)(3); who experience only short
gaps in coverage, §5000A(e)(4); and who, in the judgment
of the Secretary of Health and Human Services, ““have
suffered a hardship with respect to the capability to obtain
coverage,”” §5000A(e)(5). If §5000A were a tax, these two
classes of exemption would make no sense; there being no
requirement, all the exemptions would attach to the pen-
alty (renamed tax) alone.

 In the face of all these indications of a regulatory re-
quirement accompanied by a penalty, the Solicitor General
assures us that ““neither the Treasury Department nor the

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Department of Health and Human Services interprets
Section 5000A as imposing a legal obligation,”” Petitioners’’
Minimum Coverage Brief 61, and that “”[i]f [those subject
to the Act] pay the tax penalty, they’re in compliance with
the law,”” Tr. of Oral Arg. 50 (Mar. 26, 2012).  These self-
serving litigating positions are entitled to no weight.
What counts is what the statute says, and that is entirely
clear. It is worth noting, moreover, that these assurances
contradict the Government’’s position in related litigation.
Shortly before the Affordable Care Act was passed, the
Commonwealth of Virginia enacted Va. Code Ann. §38.2–
3430.1:1 (Lexis Supp. 2011), which states, “”No resident of
[the] Commonwealth . . . shall be required to obtain or
maintain a policy of individual insurance coverage except
as required by a court or the Department of Social Ser-
vices . . . .””  In opposing Virginia’’s assertion of standing to
challenge §5000A based on this statute, the Government
said that ““if the minimum coverage provision is unconsti-
tutional, the [Virginia] statute is unnecessary, and if the
minimum coverage provision is upheld, the state statute is
void under the Supremacy Clause.””  Brief for Appellant
in No. 11–-1057 etc. (CA4), p. 29.  But it would be void
under the Supremacy Clause only if it was contradicted by
a federal “”require[ment] to obtain or maintain a policy of
individual insurance coverage.””

 Against the mountain of evidence that the minimum
coverage requirement is what the statute calls it—-a re-
quirement—-and that the penalty for its violation is what
the statute calls it—-a penalty-—the Government brings
forward the flimsiest of indications to the contrary.  It
notes that ““[t]he minimum coverage provision amends the
Internal Revenue Code to provide that a non-exempted
individual . . . will owe a monetary penalty, in addition to
the income tax itself,”” and that “[t]he [Internal Revenue
Service (IRS)] will assess and collect the penalty in the
same manner as assessable penalties under the Internal

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