Transcript: SCOTUS Affordable Care Act oral argument of Robert A. Long

Department of Health and Human Services v. Florida, et al. 

Transcript of the oral argument of Robert A. Long before the U.S. Supreme Court on March 26, 2012:

CHIEF JUSTICE ROBERTS: We will hear argument this morning in Case Number 11-398, Department of Health and Human Services v. Florida.

Mr. Long.

ORAL ARGUMENT OF ROBERT A. LONG FOR COURT-APPOINTED AMICUS CURIAE


MR. LONG: Mr. Chief Justice, and may it please the Court:

The Anti-Injunction Act imposes a “pay first, litigate later” rule that is central to Federal tax assessment and collection. The Act applies to essentially every tax penalty in the Internal Revenue Code. There is no reason to think that Congress made a special exception for the penalty imposed by section 5000A. On the contrary, there are three reasons to conclude that the Anti-Injunction Act applies here.

First, Congress directed that the section 5000A penalty shall be assessed and collected in the same manner as taxes. Second, Congress provided that penalties are included in taxes for assessment purposes. And, third, the section 5000A penalty bears the key indicia of a tax.

Congress directed that the section 5000A penalty shall be assessed and collected in the same manner as taxes. That directive triggers the Anti-Injunction Act, which provides that “no suit for the purpose of restraining the assessment or collection of any tax may be maintained in any court by any person.”

JUSTICE SCALIA: Well, that depends, as -­ as the government points out, on whether that directive is a directive to the Secretary of the Treasury as to how he goes about getting this penalty, or rather a directive to him and to the courts. All of the other directives there seem to me to be addressed to the Secretary. Why should this one be directed to the courts? When you say “in the same manner,” he goes about doing it in the same manner, but the courts simply accept that — that manner of proceeding but nonetheless adjudicate the cases.

MR. LONG: Well, I think I have a three-part answer to that, Justice Scalia. First, the text does not say that the Secretary shall assess and collect taxes in the same manner; it just says that it shall be assessed in the same manner as a tax, without addressing any party particularly.

JUSTICE SCALIA: Well, he’s assessing and collecting it in the same manner as a tax.

MR. LONG: Well, the assessment — the other two parts of the answer are, as a practical matter, I don’t think there’s any dispute in this case that if the Anti-Injunction Act does not apply, this penalty, the section 5000A penalty, will as a practical matter be assessed and collected in a very different manner from other taxes and other tax penalties. There are three main differences. First, when the Anti-Injunction Act applies, you have to pay the tax or the penalty first and then litigate later to get it back with interest. Second, you have to exhaust administrative remedies. Even after you pay the tax, you can’t immediately go to court. You have to go to the Secretary and give the Secretary at least 6 months to see if the matter can be resolved administratively. And, third, even in the very carefully defined situations in which Congress has permitted a challenge to a tax or a penalty before it’s paid, the Secretary has to make the first move. The taxpayer is never allowed to rush into court before the tax — before the Secretary sends a notice of deficiency to start the process. Now, if — if the Anti-Injunction Act does not apply here, none of those rules apply. And that’s not just for this case; it will be for every challenge to a section 5000A penalty going forward. The taxpayer will be able to go to court at any time without exhausting administrative remedies; there will be none of the limitations that apply in terms of you have to wait for the Secretary to make the -­

JUSTICE KENNEDY: Why will the administrative remedies rule not be applicable, exhaustion rule not be applicable?

MR. LONG: Well, because if the Anti-Injunction Act doesn’t apply, there’s no prohibition on courts restraining the assessment or collection of this penalty, and you can simply -­

JUSTICE KENNEDY: Well, but courts apply the exhaustion rule. I mean, I know you’ve studied this. I’m just not following it. Why couldn’t the court say, well, you haven’t exhausted your remedies; no injunction?

MR. LONG: Well, in — you could do that, I think, as a matter of — of common law or judicially imposed doctrine, but in the code itself, which is all — I mean, the Anti-Injunction Act is an absolutely central statute to litigation -­

JUSTICE KENNEDY: Yes. Yes.

MR. LONG: — about taxes. And the code says — first it says you must pay the tax first and then litigate. So, that’s the baseline. And then, in addition, it says you must — I mean, it’s not common law; it’s in the code — you must apply for a refund, you must wait at least 6 months. That’s — many of these provisions are extremely specific, with very specific time limits.

CHIEF JUSTICE ROBERTS: They would apply even if the rule is not jurisdictional. The only difference would be that the court could enforce it or not enforce it in particular cases, which brings me to the Davis case, which I think is your biggest hurdle. It’s a case quite similar to this in which the constitutionality of the Social Security Act was at issue, and the government waived its right to insist upon the application of this Act.

Of course, if it’s jurisdictional, you can’t waive it. So, are you asking us to overrule the Davis case?


MR. LONG: Well, Helvering v. Davis was decided during a period when this Court interpreted the Anti-Injunction Act as simply codifying the pre-statutory equitable principles that usually, but not always, prohibited a court from enjoining the assessment or collection of taxes. So, that understanding, which is what was the basis for the Helvering v. Davis decision, was rejected by the Court and a series of subsequent cases — I would say, effectively, the Davis overruled by subsequent decisions of this Court.

JUSTICE GINSBURG: Mr. Long, why don’t we simply follow the statutory language? I know that you’ve argued that the Davis case has been overtaken by later cases, but the language of the Anti-Injunction Act is “no suit shall be maintained.” It’s remarkably similar to the language in — that was at issue in Reed Elsevier: “No civil action for infringement shall be instituted.” And that formulation, “no suit may be maintained,” contrasts with of the Tax Injunction Act, that says the district court shall not enjoin. That Tax Injunction Act is the same pattern as 2283, which says “courts of the United States may not stay a proceeding in State court.” So, both of those formulas, the TIA and the “no injunction against proceedings in State court” are directed to “court.” The Anti-Injunction Act, like the statute at issue in Reed Elsevier, says “no suit shall be maintained.” And it has been argued that that is suitor-directed in contrast to court-directed.

MR. LONG: Right. Well, I mean, this Court has said several times that the Tax Injunction Act was in Williams Packing Bob Jones. And so, case has been based on the Anti-Injunction Act. You’re quite right, the language is different; but we submit that the Anti-Injunction Act itself, by saying that no suit shall be maintained, is addressed to courts as well as litigants. I mean, after all, a case cannot go from beginning to end without the active cooperation of the court.

JUSTICE GINSBURG: But how is that different from “no civil action for infringement shall be instituted” — “maintained and instituted”? Anything turn on that?

MR. LONG: Well, it’s — I mean — perhaps a initiate an action without the act of the court, but to maintain it from party could cooperation beginning to end, again, requires the court’s cooperation. And even if — I mean, if the Court were nclined to say as an initial matter, if this statute were coming before us for the first time today, given all of your recent decisions on jurisdiction, that you might be inclined to say this is not a jurisdictional statute, a lot of water has gone over the dam here. The Court has said multiple times that this is a jurisdictional statute. Congress has not disturbed those decisions. To the contrary -­

JUSTICE SOTOMAYOR: Counsel -­

JUSTICE ALITO: Well, the Court said that many times, but is there any case in which the result would have been different if the Anti-Injunction Act were not viewed as jurisdictional but instead were viewed as a mandatory claims-processing -­

MR. LONG: There’s -­

JUSTICE ALITO: — rule.

MR. LONG: There — there are certainly a number of cases where the Court dismissed saying it is jurisdictional. As I read the cases, I don’t think any of them would necessarily have come out differently, because I don’t think we had a case where the argument was, well, you know, the Government has waived this, so, you know, even — if it’s not jurisdictional -­

JUSTICE ALITO: Well, the clearest — the clearest way of distinguishing between the jurisdictional provision and a mandatory claims processing rule is whether it can be waived and whether the Court feels that it has an obligation to raise the issue sua sponte.

Now, if there are a lot of cases that call it jurisdictional, but none of them would have come out differently if the Anti-Injunction Act were simply a mandatory claims processing rule, you have that on one side. And on the other side, you have Davis, where the Court accepted a waiver by the Solicitor General; the Sunshine Anthracite coal case, where there also was a waiver; and, there’s the Williams Packing case, which is somewhat hard to understand as viewing the Anti-Injunction Act as a jurisdictional provision. The Court said that there could be a suit if there is no way the Government could win, and the Plaintiff would suffer irreparable harm. Now, doesn’t that sound like an equitable exception to the Anti-Injunction Act?

MR. LONG: No, I think the — I think the best interpretation of the Court’s cases is that it was interpreting a jurisdictional statute. And, indeed, in Williams Packing, the Court said it was a jurisdictional statute. But, again, even if you have doubt about simply the cases, there is more than that because Congress has — has not only not disturbed this Court’s decision stating that the statute is jurisdictional, they’ve passed numerous amendments to this Anti-Injunction Act.

CHIEF JUSTICE ROBERTS: Well, it seems -­ you can’t separate those two points. The idea that Congress has acquiesced in what we have said only helps you if what we have said is fairly consistent. And you, yourself, point out in your brief that we’ve kind of gone back and forth on whether this is a jurisdictional provision or not. So, even if Congress acquiesced in it, I’m not sure what they acquiesced in.

MR. LONG: Well, what you have said, Mr. Chief Justice, has been absolutely consistent for 50 years, since the Williams Packing case. The period of inconsistency was after the first 50 years, since the statute was enacted in 1867. And there was a period, as I said, when the Court was allowing extraordinary circumstances exceptions and equitable exceptions, but then, very quickly, it cut back on that. And since -­ and since Williams Packing, you have been utterly consistent -­

JUSTICE KAGAN: Well, even since Williams Packing, there was South Carolina v. Regan. And that case can also be understood as a kind of 21 equitable exception to the rule, which would be inconsistent with thinking that the rule is jurisdictional.

MR. LONG: Well, again, I mean, I think the best understanding of South Carolina v. Regan is not that its an equitable exception, but it’s the Court interpreting a jurisdictional statute as it would interpret any statute in light of its purpose, and deciding in that very special case, it’s a very narrow exception, where the -­

JUSTICE SOTOMAYOR: Mr. Long, in Bowles, the Court looked to the long history of appellate issues as being jurisdictional, in its traditional sense, not as a claim processing rule, but as a pure jurisdiction rule, the power of the Court to hear a case. From all the questions here, I count at least four cases in the Court’s history where the Court has accepted a waiver by the Solicitor General and reached a tax issue. I have at least three cases, one of them just mentioned by Justice Kagan, where exceptions to that rule were read in. Given that history, regardless of how we define jurisdictional statutes versus claim processing statutes in recent times, isn’t the fairer statement that Congress has accepted that in the extraordinary case, we will hear the case?

MR. LONG: No. No, Justice Sotomayor, because in many of these amendments which have come in the ’70s and the ’90s and the 2000s, the Congress has actually framed the limited exceptions to the Anti-Injunction Act in jurisdictional terms. And it has written many of the express exceptions by saying notwithstanding Section 7421 -­

JUSTICE SOTOMAYOR: But doesn’t that just prove that it knows that the Court will impose a claim processing rule in many circumstances, and so, in those in which it specifically doesn’t want the Court to, it has to be clearer?

MR. LONG: Well, but Congress says notwithstanding 7421, the Court “shall have jurisdiction to restrain the assessment and collection of taxes in very limited” –

JUSTICE SOTOMAYOR: Could you go back to the question that Justice Alito asked? Assuming we find that this is not jurisdictional, what is the parade of horribles that you see occurring if we call this a mandatory claim processing rule? What kinds of cases do you imagine that courts will reach?

MR. LONG: Right. Well, first of all, I think you would be saying that for the refund statute, as well as for the Anti-Injunction Act — which has very similar wording, so if the Anti-Injunction Act is not jurisdictional, I think that’s also going to apply to the refund statute, the statute that says you have to first ask for a refund and then file, you know, within certain time — so it would be — it would be both of those statutes. And, you know, we are dealing with taxes here, if people -­

JUSTICE SOTOMAYOR: That wasn’t my question.

MR. LONG: I’m sorry.

JUSTICE SOTOMAYOR: My question was, if we mandatory claim processing rule -­

MR. LONG: Right.

JUSTICE SOTOMAYOR: — what cases do you imagine courts will reach on what grounds? Assuming the Government does its job and comes in and raises the AIA as an immediate defense –

MR. LONG: Well, that’s -­

JUSTICE SOTOMAYOR: — where can a then reach the question, despite -­

MR. LONG: That would certainly be class of cases, it occurs to me, where, if the Government does not raise it in a timely way, it could be waived. I would think plaintiffs would see if there was some clever way they could get a suit going that wouldn’t immediately be apparent that -­

JUSTICE SOTOMAYOR: Assumes the lack of competency of the Government, which I don’t, but what other types of cases?

JUSTICE SCALIA: Mr. Long, I don’t think you are going to come up with any, but I think your response is you could say that about any jurisdictional rule. If it’s not jurisdictional, what’s going to happen is you are going to have an intelligent federal court deciding whether you are going to make an exception. And there will be no parade of horribles because all federal courts are intelligent. So it seems to me it’s a question you can’t answer. It’s a question which asks “why should there be any jurisdictional rules?” And you think there should be.

MR. LONG: Well, and, Justice Scalia, I mean, honestly, I can’t predict what would happen, but I would say that not all people who litigate about federal taxes are necessarily rational. And I think there would be a great -­

JUSTICE BREYER: I just don’t want you to lose the second half of your argument. And we have spent all the time so far on jurisdiction. And I accept, pretty much, I’m probably leaning in your favor on jurisdiction, but where I see the problem is in the second part, because the second part says “restraining the assessment or collection of any tax.” Now, here, Congress has nowhere used the word “tax.” What it says is penalty. Moreover, this is not in the Internal Revenue Code “but for purposes of collection.”

And so why is this a tax? And I know you point to certain sentences that talk about taxes within the Code -­

MR. LONG: Right.

JUSTICE BREYER: — and this is not attached to a tax. It is attached to a health care requirement.

MR. LONG: Right.

JUSTICE BREYER: So why does it fall within that word?

MR. LONG: Well, I mean, the first point is — our initial submission is you don’t have to determine that this is a tax in order to find that the Anti-Injunction Act applies, because Congress very specifically said that it shall be assessed and collected in the same manner as a tax, even if it’s a tax penalty and not a tax. So that’s one -­

JUSTICE BREYER: But that doesn’t mean the AIA applies. I mean — and then they provide some exceptions, but it doesn’t mean the AIA applies.

It says, “in the same manner as.” It is then attached to Chapter 68, when that — it references that as “being the manner of.” Well, that it’s being applied — or if it’s being collected in the same manner as a tax doesn’t automatically make it a tax, particularly since the reasons for the AIA are to prevent interference with revenue sources. And here, an advance attack on this does not interfere with the collection of revenues. I mean, that’s — you have read the arguments, as have I. But I would like to know what you say succinctly in response to those arguments.

MR. LONG: So, specifically on the argument that it is actually a tax, even setting aside the point that it should be assessed and collected in the same manner as a tax, the Anti-Injunction Act uses the term “tax”; it doesn’t define it. Somewhat to my surprise, “tax” is not defined anywhere in the Internal Revenue Code. In about the time that Congress passed the Anti-Injunction Act, “tax” had a very broad definition. It’s broad enough to include this exaction, which is codified in the Internal Revenue Code. It’s part of the taxpayer’s annual income tax return. The amount of the liability and whether you owe the liability is based in part on your income. It’s assessed and collected by the IRS.

JUSTICE SCALIA: There’s at least some doubt about it, Mr. Long, for the reasons that Justice Breyer said, and I thought that we had a — a principle that ousters of jurisdiction are narrowly construed; that, unless it’s clear, courts are not deprived of jurisdiction. And I find it hard to think that this is clear. Whatever else it is, it’s easy to think that it’s not clear.

MR. LONG: Well, I mean, the Anti-Injunction Act applies not only to every tax in the code but, as far as I can tell, to every tax penalty in the code. And-­

JUSTICE GINSBURG: Mr. Long, you said before — and I think you were quite right — that the Tax Injunction Act is modeled on the Anti-Injunction Act. And, under the Tax Injunction Act, what can’t be enjoined is an assessment for the purpose of raising revenue. The Tax Injunction Act does not apply to penalties that are designed to induce compliance with the law, rather than to raise revenue. And this is not a revenue-raising measure because, if it’s successful, they — nobody will pay the penalty, and there will be no revenue to raise.

MR. LONG: Well, in Bob Jones the Court said that they had gotten out of the business of trying to determine whether an exaction is primarily revenue-raising or primarily regulatory. And this one certainly raises — is expected to raise very substantial amounts of revenues, at least $4 billion a year by the –

JUSTICE SOTOMAYOR: But Bob Jones involved a  statute where it denominated the exaction as a tax.

MR. LONG: That’s —

JUSTICE SOTOMAYOR: Here we have one where the Congress is not denominating it a — as a tax; it’s denominating it as a penalty.

MR. LONG: that’s absolutely right, and that’s obviously why — if it were called a tax, there would be absolutely no question that the Anti-Injunction Act applies.

JUSTICE SOTOMAYOR: Absolutely. But even the section of the code that you referred to previously, the one following 7421, the AIA, it does very clearly make a difference — 7422 — make a difference between tax and penalties. It’s very explicit.

MR. LONG: Yes, that’s — it does; that is correct. And there are many other places in the code where tax is -­

JUSTICE BREYER: The best collection I’ve found in your favor, I think, is in Mortimer Caplin’s brief on page 16, 17. He has a whole list. All right. So — I got my law clerk to look all those up. And it seems to me that they all fall into the categories of either, one, these are penalties that were penalties assessed for not paying taxes; or, two, they involve matters that were called by the court taxes; or, three, in some instances they were deemed by the code to be taxes. Now, what we have here is something that’s in a different statute that doesn’t use the word “tax” once except for a collection device, and, in fact, in addition, the underlying AIA reason, which is to say to the Solicitor General: We don’t care what you think; we, in Congress, don’t want you in court where the revenue of a state — Tax Injunction Act — or the revenue of the federal government is at stake, and, therefore, you can’t waive it. Now, I got that. Here it’s not at stake, and here there are all the differences I just mentioned. So, I ask that because I want to hear your response.

MR. LONG: Well, I mean, there are penalties in the Internal Revenue Code that you really couldn’t say are related in any — in any close way to some other tax provision. There’s a penalty — it’s discussed in the briefs — for selling diesel fuel that doesn’t comply with EPA’s regulations, you know. So, there are all kinds of penalties in the code, and I think it’s -­ that you could rely upon.

JUSTICE KAGAN: Mr. Long, aren’t there places in this Act — fees and penalties — that were specifically put under the Anti-Injunction Act? There’s one on health care plans, there’s one on pharmaceutical manufacturers, where Congress specifically said the Anti-Injunction Act is triggered for those. It does not say that here. Wouldn’t that suggest that Congress meant for a different result to obtain?

MR. LONG: Well, I mean, Congress didn’t use the language the Anti-Injunction Act “shall apply” –

JUSTICE KAGAN: No, but it — it in section 9008 and in section 9010 -­

MR. LONG: Right.

JUSTICE KAGAN: — it specifically referred

MR. LONG: Right.

JUSTICE KAGAN: — to the part of the code where the Anti-Injunction Act is.

MR. LONG: Right, all of subtitle F, which picks up lots of administration and procedure provisions, but those — those are fees, and they’re not — Congress did not provide, you know, in the sections themselves that they should be paid as part of a tax return. So they were free-standing fees, and by using that subtitle F language, Congress plugged in a whole set of rules for how to collect and administer the fees, and it went not just to assessment and collection — and the IRS has recognized this — but to examination, privacy, a whole series of additional things.

So I think it would be a mistake to look at that language and say, oh, here’s Congress saying they want the Anti-Injunction Act to apply. They’re actually doing more than that. And, yes, I grant you, you could look at section 5000A, the individual coverage requirement, and say, well, they could have been clearer about saying the Anti-Injunction Act applied, and that’s certainly true,
but, again, they were trying to accomplish a lot. And it’s -­

JUSTICE KENNEDY: Maybe it’s easier to talk about this case if we just forget the words “for the purpose of restraining assessment and collection.” In a sense, that brings the jurisdictional question and Justice Breyer’s question together. It seems to me — maybe you could just comment on that language. Is that sort of language usually contained in a jurisdictional provision? I mean, you often don’t know the purpose of a suit until after the thing is under way. I can see it with malicious prosecution and some civil rights cases. Does it strike you as somewhat unusual to have this provision in a jurisdictional case?

MR. LONG: It does strike me, honestly -­

JUSTICE KENNEDY: Yes.

MR. LONG: — as a bit unusual, but this is an old statute. I mean, this — the core language is essentially unchanged since 1867, and it — you know, I think that’s part of the explanation for it. And, again, it’s, you know, become the center of a series of provisions that very carefully control the circumstances in which litigation about federal taxes can take place.

JUSTICE GINSBURG: Mr. Long, there’s another argument that has been made that I would like you to address, and that is all this talk about tax penalty -­ it’s all beside the point because this suit is not challenging the penalty. This is a suit that is challenging the must-buy provision, and the argument is made that, if, indeed, “must-buy” is constitutional, then these complainants will not resist the penalty.

So, what they’re seeking is a determination that that the “must-buy” requirement, stated separately from the penalty, that “must-buy” is unconstitutional. And, if that’s so, that’s the end of the case; if it’s not so, they’re not resisting the penalty.

MR. LONG: Well, I think that argument doesn’t work for two reasons. I mean, first, if you look at the plaintiffs’ own complaint, they clearly challenge both the minimum coverage requirement and the penalty. At page 122 of the Joint Appendix, they challenge the requirement that the individuals obtain health care coverage or pay a penalty.

JUSTICE ALITO: Well, why is that?

JUSTICE GINSBURG: If that’s — if that’s the problem, it’s easier to amend the complaint. They can just take that out of the complaint. So, it can’t turn on that.

MR. LONG: Well — and — yes, I mean, it’s — or another complaint would be filed, but, still, I think that’s a serious problem. But even if they had filed a different complaint, I don’t think you — in this case, I don’t think you can separate the minimum coverage requirement from the penalty because the penalty is the sole means of enforcing the minimum coverage requirement.

So, first, I mean, I think these plaintiffs would not be satisfied if the Court were to render a judgment saying the minimum coverage requirement is invalidated; the penalty, however, remains standing. Anybody who doesn’t have insurance has to pay the penalty. Then they’d have to pay a penalty equal to the cost of insurance and they wouldn’t even have insurance. So, I don’t think that would be -­

JUSTICE ALITO: Well, they say they want to obey the law -­

MR. LONG: Right.

JUSTICE ALITO: — and they say that your argument puts them in the position of having to disobey the law in order to obtain review of their claim. And what is your answer to that?

MR. LONG: Well, I mean, first of all, I can’t find that in the record, in their declarations. I don’t see a statement that they will, you know, never incur a penalty under any circumstances. But — but even if that were so, what this Court has said in Americans United is the Anti-Injunction Act bars any suit, not just to enjoin the collection of your own taxes, but to enjoin the collection of anyone’s taxes.
And so even if it were really true that these plaintiffs were not interested in the penalty and would never pay the penalty, if they were to succeed in this case in striking down the minimum coverage requirement, the inevitable result would be that the penalty would fall as well, because the Government couldn’t collect a penalty for failing to follow an unconstitutional requirement, and so it would still be barred because it would be a suit that would prevent the collection of some of the -­

JUSTICE ALITO: Well, let me take us back to Justice Kennedy’s question about the “for the purpose of” language. I take it you interpret the statute to mean the following: “For the purpose of” means having the effect of. Is that correct?

MR. LONG: Well, I mean, this Court in the Bob Jones case, where a similar kind of argument was being made by the plaintiff in that case, said, you know, look, you know, where the — where it’s inevitable that this is what the suit is about, they’re sort of two sides of the same coin, that clearly is a primary purpose of the suit. And it’s — and you can’t by clever pleading get away from that. That’s just the nature of the situation.

JUSTICE KAGAN: But, Mr. Long, aren’t you trying to rewrite the statute, in a way? The statute has two sections. One is the you have to have insurance section and the other is the sanction. The statute has two different sets of exceptions corresponding to those two different sections. You are trying to suggest that the statute says: Well, it’s your choice, either buy insurance or pay a — or pay a fee.

But that’s not the way the statute reads. And Congress, it must be supposed, you know, made a decision that that shouldn’t be the way the statute reads, that it should instead be a regulatory command and a penalty attached to that command.

MR. LONG: Well, I would not argue that this statute is a perfect model of clarity, but I do think the most reasonable way to read the entire statute is that it does impose a single obligation to pay a penalty if you are an applicable individual and you are not subject to an exemption.

And the reason I say that, if you look at the exemptions from the penalty, the very first one is, you are exempt from the penalty because you can’t afford to purchase insurance. And it just doesn’t seem reasonable to me to interpret the statute as Congress
having said, well, you know, this person is exempt from paying a penalty because we find they can’t afford to buy insurance, however they still have a legal obligation to buy insurance. That just doesn’t seem reasonable.

So I — so I do think, although it’s — I certainly wouldn’t argue it’s clear — that that’s the best way to understand the statute as a whole. But again, I would say, you know, that’s not essential to the question we’re discussing now of whether the Anti-Injunction Act applies. Again, you know, I think -­

JUSTICE SOTOMAYOR: Could you tell me why you think the Solicitor General’s reading creates a problem?

MR. LONG: Well, in going back to — so if the result were to say simply, this is not — oh, I’m sorry. The Solicitor General’s reading. So now it’s not -­

JUSTICE SOTOMAYOR: That it is a jurisdictional bar, but there’s an exemption for those items that Congress has designated solely as penalties that are not like taxes.

MR. LONG: Right. Well, I mean, I think the Solicitor General’s reading would probably create the fewest problems, as I understand it. I mean, my — my main objection to the Solicitor General’s reading is I don’t think it makes a whole lot of sense. I mean, basically, the Solicitor General says every penalty in the Internal Revenue Code, every other penalty in the Affordable Care Act is -­

JUSTICE SOTOMAYOR: But that’s not — that’s carrying it too far, because he says if a penalty is designated as a tax by Congress, then it’s subject to the AIA, and that’s most of the code, the tax code. And he says for those portions of the Affordable Care Act that designate things as taxes, the AIA applies. So it’s only — and I haven’t found another statute. I’m going to ask him if there’s another one. It’s only for those statutes in which Congress has designated something solely as a penalty.

MR. LONG: Right.

JUSTICE SOTOMAYOR: And not indicated that it is a tax.

MR. LONG: Right.

JUSTICE SOTOMAYOR: They don’t fall within the AIA.

MR. LONG: I think my — my take on it is if you adopted the Solicitor General’s approach, there are probably three penalties for alcohol and tobacco-related offenses at 5114(c), 5684, and 5761 that I think would be very difficult to distinguish from this one, and possibly the 527(j) penalty for failure to disclose political contributions.

If there are no further questions, I would like to reserve my time.

CHIEF JUSTICE ROBERTS: Thank you, Mr. Long.
REBUTTAL ARGUMENT OF ROBERT A. LONG FOR COURT-APPOINTED AMICUS CURIAE

MR. LONG: Everyone agrees that the section 5000A penalty shall be assessed and collected in the same manner as taxes. And the parties’ principal argument why that does not make the Anti-Injunction Act applicable is that, well, that simply goes to the
Secretary’s activities. And I would simply ask, if — if you look at chapters 63 and 64 of the Internal Revenue Code, which are the chapters on assessment and collection, they are not just addressed to the Secretary. There are many provisions in there that are addressed to courts and indeed talk about this interaction, the very limited situations in which courts are permitted to restrain the
assessment and collection of taxes.

There was a statement made that there aren’t — and many of the exceptions to the Anti-Injunction Act are in the assessment and collection provisions — there was a statement made that none of these directly confer jurisdiction to restrain the assessment and collection of taxes. That’s not true.

In footnote 11 of our opening brief, we cite several. I’ll simply mention section 6213 as an example. That says — I quote: “Notwithstanding the provisions of section 7421(a), the making of such assessment or the beginning of such proceeding or levy
during the time such prohibition is in force may be enjoined by a proceeding in the proper court, including the Tax Court. The Tax Court shall have no jurisdiction to enjoin any action or proceeding or order any refund under this subsection unless a timely petition for redetermination of the deficiency has been filed, and then only in respect of the deficiency that is the subject of such petition.”

JUSTICE BREYER: And all that’s going to really what I think Congress’s intent was meant to be in
sticking the collection thing into chapter 68, and -­ and it’s certainly an argument in your favor.

The — the over-arching thing in my mind is it’s — it’s up to Congress, within leeway. And they did not use that word “tax,” and they did have a couple of exceptions. And it is true that all this language that you quote — you know, the first two sentences and so forth, it talks about the use of tax in the IRC. It talks about the penalties and liabilities provided by this subchapter. And we look over here and it’s a penalty and liability provided by a different law, which says collect it through the subchapter, and it has nothing to do with the IRC. See? So we’ve got it in a separate place, we can see pretty clearly what they’re trying to do. They couldn’t really care very much about interfering with collecting this one. That’s all the statutory argument.

Are you following me?

You see? I’m trying to get you to focus on that kind of argument.

MR. LONG: I mean, I think I’m following you, but — but the fact that it’s not in the particular subchapter for assessable penalties in my view makes no difference, because they said it’s still clearly — it’s assessed and collected in the same manner -­

JUSTICE BREYER: Yes, it is.

MR. LONG: — as the penalty in that subchapter, and those penalties are collected in the same manner as taxes.

JUSTICE BREYER: Yes, yes.

MR. LONG: And so that’s — I think it’s -­ it’s rather detailed, but I think it’s a rather clear indication that the Anti-Injunction Act applies. The — the refund statute that does specifically refer to penalties, that has nothing to do with this argument that it’s assessed and collected in the same manner as a tax. That would simply go to the point that well, you can’t just call it a tax, because
they’ve referred to it as a penalty. And finally, on jurisdiction, you know, I think the key point is we have a long line of this Court’s decisions that’s really been ratified by Congress, with all these exceptions in jurisdictional terms.

As I read Bowles and John R. Sand & Gravel, the — the gist of those decisions was not any special sort of rule about appeals, it’s that when we have that situation, which I would submit applies as much to the collection of Federal taxes as it does to appeals from Federal district courts when we have this degree of -­ of precedent, including precedent from Congress in the
form of amendments to this Anti-Injunction Act, that should be — the presumption should be that this is jurisdictional.
If there are no further questions.

CHIEF JUSTICE ROBERTS: Mr. Long, you were invited by this Court to defend the proposition that the Anti-Injunction Act barred this litigation. You have ably carried out that responsibility, for which the Court is grateful.

MR. LONG: Thank you.

CHIEF JUSTICE ROBERTS: We will continue argument in this case tomorrow.

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2 Comments on “Transcript: SCOTUS Affordable Care Act oral argument of Robert A. Long

  1. Pingback: Transcript: SCOTUS Affordable Care Act oral argument of Gregory Katsas | What The Folly?!

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