NFIB Sebelius Dissent

 

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Revenue Code.”” Petitioners’ Minimum Coverage Brief 53.
The manner of collection could perhaps suggest a tax if
IRS penalty-collection were unheard-of or rare.  It is not.
See, e.g., 26 U. S. C. §527(j) (2006 ed.) (IRS-collectible pen-
alty for failure to make campaign-finance disclosures);
§5761(c) (IRS-collectible penalty for domestic sales of to-
bacco products labeled for export); §9707 (IRS-collectible
penalty for failure to make required health-insurance
premium payments on behalf of mining employees). In
Reorganized CF&I Fabricators of Utah, Inc., 518 U. S.
213, we held that an exaction not only enforced by the
Commissioner of Internal Revenue but even called a “”tax””
was in fact a penalty.  “”[I]f the concept of penalty means
anything,”” we said, ““it means punishment for an unlawful
act or omission.””  Id.,  at 224. See also Lipke v. Lederer,
259 U. S. 557 (1922) (same).  Moreover, while the penalty
is assessed and collected by the IRS, §5000A is adminis-
tered both by that agency and by the Department of
Health and Human Services (and also the Secretary of
Veteran Affairs), see §5000A(e)(1)(D), (e)(5), (f)(1)(A)(v),
(f)(1)(E) (2006 ed., Supp. IV), which is responsible for
defining its substantive scope-—a feature that would be
quite extraordinary for taxes.

  The Government points out that ““[t]he amount of the
penalty will be calculated as a percentage of household
income for federal income tax purposes, subject to a floor
and [a] ca[p],”” and that individuals who earn so little
money that they ““are not required to file income tax re-
turns for the taxable year are not subject to the penalty””
(though they are, as we discussed earlier, subject to the
mandate). Petitioners’’ Minimum Coverage Brief 12, 53.
But varying a penalty according to ability to pay is an
utterly familiar practice.  See, e.g., 33 U. S. C. §1319(d)
(2006 ed., Supp. IV) (“”In determining the amount of a civil
penalty the court shall consider . . . the economic impact of
the penalty on the violator””); see also 6 U. S. C. §488e(c); 7 

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U. S. C. §§7734(b)(2), 8313(b)(2); 12 U. S. C. §§1701q–-1(d)(3),
1723i(c)(3), 1735f–-14(c)(3), 1735f–-15(d)(3), 4585(c)(2); 15
U. S. C. §§45(m)(1)(C), 77h–-1(g)(3), 78u–-2(d), 80a–-9(d)(4),
80b–-3(i)(4), 1681s(a)(2)(B), 1717a(b)(3), 1825(b)(1), 2615(a)
(2)(B), 5408(b)(2); 33 U. S. C. §2716a(a).

 The last of the feeble arguments in favor of petition-
ers that we will address is the contention that what this
statute repeatedly calls a penalty is in fact a tax because it
contains no scienter requirement. The presence of such a
requirement suggests a penalty-—though one can imagine
a tax imposed only on willful action; but the absence of
such a requirement does not suggest a tax. Penalties for
absolute-liability offenses are commonplace.  And where a
statute is silent as to scienter, we traditionally presume
a mens rea requirement if the statute imposes a “”severe
penalty.”” Staples v. United States, 511 U. S. 600, 618
(1994). Since we have an entire jurisprudence addressing
when it is that a scienter requirement should be inferred
from a penalty, it is quite illogical to suggest that a
penalty is not a penalty for want of an express scienter
requirement.

 And the nail in the coffin is that the mandate and pen-
alty are located in Title I of the Act, its operative core,
rather than where a tax would be found-—in Title IX,
containing the Act’s “”Revenue Provisions.”” In sum, ““the
terms of [the] act rende[r] it unavoidable,”” Parsons v.
Bedford, 3 Pet. 433, 448 (1830), that Congress imposed a
regulatory penalty, not a tax.

 For all these reasons, to say that the Individual Man-
date merely imposes a tax is not to interpret the statute
but to rewrite it. Judicial tax-writing is particularly troubl-
ing. Taxes have never been popular, see, e.g., Stamp Act
of 1765, and in part for that reason, the Constitution
requires tax increases to originate in the House of Repre-
sentatives. See Art. I, §7, cl. 1.  That is to say, they must
originate in the legislative body most accountable to the

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