NFIB Sebelius Dissent



people, where legislators must weigh the need for the tax
against the terrible price they might pay at their next
election, which is never more than two years off.  The
Federalist No. 58 “”defend[ed] the decision to give the
origination power to the House on the ground that the
Chamber that is more accountable to the people should
have the primary role in raising revenue.””  United States  
v. Munoz-Flores, 495 U. S. 385, 395 (1990).  We have no
doubt that Congress knew precisely what it was doing
when it rejected an earlier version of this legislation that
imposed a tax instead of a requirement-with-penalty.  See
Affordable Health Care for America Act, H. R. 3962, 111th
Cong., 1st Sess., §501 (2009); America’’s Healthy Future
Act of 2009, S. 1796, 111th Cong., 1st Sess., §1301.  Impos-
ing a tax through judicial legislation inverts the constitu-
tional scheme, and places the power to tax in the branch of
government least accountable to the citizenry.

 Finally, we must observe that rewriting §5000A as a tax
in order to sustain its constitutionality would force us to
confront a difficult constitutional question: whether this is
a direct tax that must be apportioned among the States
according to their population.  Art. I, §9, cl. 4.  Perhaps it
is not (we have no need to address the point); but the
meaning of the Direct Tax Clause is famously unclear, and
its application here is a question of first impression that
deserves more thoughtful consideration than the lick-and-
a-promise accorded by the Government and its supporters.
The Government’s opening brief did not even address the
question-—perhaps because, until today, no federal court
has accepted the implausible argument that §5000A is
an exercise of the tax power.  And once respondents raised
the issue, the Government devoted a mere 21 lines of its
reply brief to the issue. Petitioners’’ Minimum Coverage
Reply Brief 25. At oral argument, the most prolonged
statement about the issue was just over 50 words.  Tr. of
Oral Arg. 79 (Mar. 27, 2012).  One would expect this Court


to demand more than fly-by-night briefing and argument
before deciding a difficult constitutional question of first

The Anti-Injunction Act

 There is another point related to the Individual Man-
date that we must discuss—-a point that logically should
have been discussed first: Whether jurisdiction over the
challenges to the minimum-coverage provision is precluded
by the Anti-Injunction Act, which provides that ““no suit
for the purpose of restraining the assessment or collection
of any tax shall be maintained in any court by any per-
son,”” 26 U. S. C. §7421(a) (2006 ed.).

 We have left the question to this point because it
seemed to us that the dispositive question whether the
minimum-coverage provision is a tax is more appropriately
addressed in the significant constitutional context of
whether it is an exercise of Congress’ taxing power.  Hav-
ing found that it is not, we have no difficulty in deciding
that these suits do not have ““the purpose of restraining
the assessment or collection of any tax.””6
6 The amicus  appointed to defend the proposition that the Anti-
Injunction Act deprives us of jurisdiction stresses that the penalty for
failing to comply with the mandate ““shall be assessed and collected
in the same manner as an assessable penalty under subchapter B of
chapter 68,”” 26 U. S. C. §5000A(g)(1) (2006 ed., Supp. IV), and that
such penalties ““shall be assessed and collected in the same manner
as taxes,”” §6671(a) (2006 ed.).  But that point seems to us to confirm
the inapplicability of the Anti-Injunction Act.  That the penalty is to
be “”assessed and collected in the same manner as  taxes”” refutes the
proposition that it is a tax for all statutory purposes, including with
respect to the Anti-Injunction Act.  Moreover, elsewhere in the Internal
Revenue Code, Congress has provided both that a particular payment
shall be “”assessed and collected”” in the same manner as a tax  and that
no suit shall be maintained to restrain the assessment or collection of
the payment. See, e.g., §§7421(b)(1), §6901(a); §6305(a), (b).  The

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