NFIB Sebelius Dissent



 Commerce Clause authority,4 and §5000A is therefore
invalid. The Government contends, however, as expressed
in the caption to Part II of its brief, that “”THE MINIMUM
CONGRESS’’ TAXING POWER.”” Petitioners’’ Minimum Cov-
erage Brief 52. The phrase “”independently authorized””
suggests the existence of a creature never hitherto seen
in the United States Reports: A penalty for constitutional
purposes that is also a tax for constitutional purposes.  In
all our cases the two are mutually exclusive.  The provi-
sion challenged under the Constitution is either a penalty
or else a tax. Of course in many cases what was a regu-
latory mandate enforced by a penalty could have been
imposed as a tax upon permissible action; or what was im-
posed as a tax upon permissible action could have been a
regulatory mandate enforced by a penalty.  But we know
of no case, and the Government cites none, in which the
imposition was, for constitutional purposes, both.5  The
two are mutually exclusive. Thus, what the Government’’s
caption should have read was “”ALTERNATIVELY, THE
PENALTY BUT A TAX.”” It is important to bear this in mind
in evaluating the tax argument of the Government and of
those who support it: The issue is not whether Congress
4 No one seriously contends that any of Congress’ other enumerated
powers gives it the authority to enact §5000A as a regulation.
5 Of course it can be both for statutory purposes, since Congress can
define “”tax”” and ““penalty”” in its enactments any way it wishes.  That is
why United States v.   Sotelo, 436 U. S. 268 (1978), does not disprove our
statement.  That case held that a “”penalty”” for willful failure to pay
one’s taxes was included among the ““taxes”” made non-dischargeable
under the Bankruptcy Code.  436 U. S., at 273-–275.  Whether the
““penalty”” was a ““tax”” within the meaning of the Bankruptcy Code had
absolutely no bearing on whether it escaped the constitutional limita –
tions on penalties. 


had the power to frame the minimum-coverage provision
as a tax, but whether it did so.

 In answering that question we must, if “fairly possible,””
Crowell v. Benson, 285 U. S. 22, 62 (1932), construe the
provision to be a tax rather than a mandate-with-penalty,
since that would render it constitutional rather than un-
constitutional (ut res magis valeat quam pereat).   But we
cannot rewrite the statute to be what it is not. “‘”[A]l-
though this Court will often strain to construe legis-
lation so as to save it against constitutional attack, it
must not and will not carry this to the point of perverting
the purpose of a statute . . .’” or judicially rewriting it.'”’ ”
Commodity Futures Trading Comm’n v. Schor, 478 U. S.
833, 841 (1986) (quoting Aptheker v. Secretary of State,
378 U. S. 500, 515 (1964), in turn quoting Scales v. United
States, 367 U. S. 203, 211 (1961)).  In this case, there is
simply no way, “”without doing violence to the fair meaning
of the words used,”” Grenada County Supervisors v. Brog-
den, 112 U. S. 261, 269 (1884), to escape what Congress
enacted: a mandate that individuals maintain minimum
essential coverage, enforced by a penalty.

  Our cases establish a clear line between a tax and a
penalty: “ “‘‘[A] tax is an enforced contribution to provide for
the support of government; a penalty . . . is an exaction
imposed by statute as punishment for an unlawful act.’'”
United States v. Reorganized CF&I Fabricators of Utah,
Inc., 518 U. S. 213, 224 (1996) (quoting   United States v. La  
Franca, 282 U. S. 568, 572 (1931)).  In a few cases, this
Court has held that a “”tax”” imposed upon private conduct
was so onerous as to be in effect a penalty.  But we have
never held-—never-—that a penalty imposed for violation of
the law was so trivial as to be in effect a tax.  We have
never held that any exaction imposed for violation of
the law is an exercise of Congress’’ taxing power-—even
when the statute calls  it a tax, much less when (as here)
the statute repeatedly calls it a penalty.  When an act

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