NFIB Sebelius Dissent

17 Oct



The Government and those who support its position on
this point make the remarkable argument that §5000A is
not a tax for purposes of the Anti-Injunction Act, see Brief
for Petitioners in No. 11-–398 (Anti-Injunction Act), but
is a tax for constitutional purposes, see Petitioners’’ Mini-
mum Coverage Brief 52-–62.  The rhetorical device that
tries to cloak this argument in superficial plausibility is
the same device employed in arguing that for constitu-
tional purposes the minimum-coverage provision is a tax:
confusing the question of what Congress did with the
question of what Congress could have done.  What quali-
fies as a tax for purposes of the Anti-Injunction Act, unlike
what qualifies as a tax for purposes of the Constitution, is
entirely within the control of Congress. Compare Bailey v.  
George, 259 U. S. 16, 20 (1922) (Anti-Injunction Act barred
suit to restrain collections under the Child Labor Tax
Law), with  Child Labor Tax Case, 259 U. S., at 36–-41
(holding the same law unconstitutional as exceeding Con-
gress’’ taxing power).  Congress could have defined “”tax””
for purposes of that statute in such fashion as to exclude
some exactions that in fact are “”taxes.”” It might have
prescribed, for example, that a particular exercise of the
taxing power “”shall not be regarded as a tax for purposes
of the Anti-Injunction Act.””  But there is no such prescrip-
tion here. What the Government would have us believe in
latter directive would be superfluous if the former invoked the Anti-
Injunction Act.
Amicus also suggests that the penalty should be treated as a tax
because it is an assessable penalty, and the Code’’s assessment provi –
sion authorizes the Secretary of the Treasury to assess ““all taxes (in-
cluding interest, additional amounts, additions to the tax, and as-
sessable penalties) imposed by this title.””  §6201(a) (2006 ed., Supp.
IV). But the fact that such items are included as “taxes” for purposes of
assessment does not establish that they are included as ““taxes”” for
purposes of other sections of the Code, such as the Anti-Injunction Act,
that do not contain similar “”including”” language. 


these cases is that the very same textual indications that
show this is not a tax under the Anti-Injunction Act show
that it is a tax under the Constitution.  That carries ver   –
bal wizardry too far, deep into the forbidden land of the

The Medicaid Expansion

 We now consider respondents’’ second challenge to the
constitutionality of the ACA, namely, that the Act’’s dra-
matic expansion of the Medicaid program exceeds Con-
gress’’ power to attach conditions to federal grants to the

 The ACA does not legally compel the States to partici-
pate in the expanded Medicaid program, but the Act au-
thorizes a severe sanction for any State that refuses to go
along: termination of all the State’’s Medicaid funding.  For
the average State, the annual federal Medicaid subsidy is
equal to more than one-fifth of the State’s expenditures.7
A State forced out of the program would not only lose this
huge sum but would almost certainly find it necessary to
increase its own health-care expenditures substantially,
requiring either a drastic reduction in funding for other
programs or a large increase in state taxes.  And these
new taxes would come on top of the federal taxes already
paid by the State’’s citizens to fund the Medicaid program
in other States.

  The States challenging the constitutionality of the ACA’’s
Medicaid Expansion contend that, for these practical
reasons, the Act really does not give them any choice at
all. As proof of this, they point to the goal and the struc-
7 “”State expenditures”” is used here to mean annual expenditures from
the States’’ own funding sources, and it excludes federal grants unless
otherwise noted.

Leave a Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.