Transcript: SCOTUS Affordable Care Act oral argument of Solicitor General Donald Verrilli

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

Transcript of the oral argument of Solicitor General Donald B. Verrilli, Jr. before the U.S. Supreme Court on March 26, 2012:

GENERAL VERRILLI: Mr. Chief Justice and may it please the Court:

This case presents issues of great moment, and the Anti-Injunction Act does not bar the Court’s consideration of those issues. That is so even though the Anti-Injunction Act is a jurisdictional limit that serves what this Court described in Clintwood Elkhorn as an exceedingly strong interest in protecting the financial stability of the Federal Government, and even though the minimum coverage provision of the Affordable Care Act is an exercise of Congress’s taxing power as well as its commerce power.

Congress has authority under the taxing power to enact a measure not labeled as a tax, and it did so when it put section 5000A into the Internal Revenue Code. But for purposes of the Anti-Injunction Act, the precise language Congress used is determinative. And there is no language in the Anti-Injunction Act — excuse me, no language in section 5000A of the Affordable Care Act or in the Internal Revenue Code generally that provides a textual instruction that -­

JUSTICE ALITO: General Verrilli, today you are arguing that the penalty is not a tax. Tomorrow you are going to be back and you will be arguing that the penalty is a tax. Has the Court ever held that something that is a tax for purposes of the taxing power under the Constitution is not a tax under the Anti-Injunction Act?

GENERAL VERRILLI: No, Justice Alito, but the Court has held in the license tax cases that something can be a constitutional exercise of the taxing power whether or not it is called a tax. And that’s because the nature of the inquiry that we will conduct
tomorrow is different from the nature of the inquiry that we will conduct today. Tomorrow the question is whether Congress
has the authority under the taxing power to enact it and the form of words doesn’t have a dispositive effect on that analysis. Today we are construing statutory text where the precise choice of words does have a dispositive effect on the analysis.

JUSTICE SOTOMAYOR: Well, General, you also have the Bailey child labor tax cases, because there the Court said that the tax, which was a prohibitory tax alone, was a tax subject to the AIA, and then it said it was beyond the Court’s taxing power in a separate case, correct?

GENERAL VERRILLI: Yes. I do think, Justice Sotomayor, that with respect to one of the arguments that my friend from the NFIB has made in of the brief, that Bailey against George is a significant problem because I think their argument on the constitutionality under the taxing power is essentially that the Affordable Care Act provision is the same thing as the provision that was held unconstitutional in Bailey against Drexel Furniture.

JUSTICE SOTOMAYOR: That’s a different issue. The question Justice -­

GENERAL VERRILLI: But on the same day -­right, but on the same day as Bailey against Drexel Furniture, the Court issued Bailey against George, which held that the Anti-Injunction Act did bar a challenge to that provision, even though the Court had concluded that it was invalid under the tax power. So — and I think the reason for that has been — is clear now after Williams Packing and Bob Jones, in that, in order to find that the Anti-Injunction Act doesn’t apply to something that otherwise would be a tax that triggers it, you have to conclude essentially that there is no substantial argument that can be made in defense of it as a tax. We don’t have that here, so I don’t think you can get around the Anti-Injunction Act if the Court were to read it, as the amicus suggest it should be read, on that theory, but -­

JUSTICE GINSBURG: Mr. Verrilli, a basic question about your argument. If you are right about the second part, that is, for purposes of the statute, the Anti-Injunction statute, this penalty does not constitute a tax, then does the Court need to decide
whether the Anti-Injunction Act in other cases, where it does involve a tax, is jurisdictional?

GENERAL VERRILLI: No. I apologize if I’m creating any confusion about that, Justice Ginsburg. We think by far the better route here is to understand the statute as we have proposed that it be construed as not applying here. From the perspective of the United States — and if I could, I’d like to take a minute on this — the idea that the Anti-Injunction Act would be
construed as not being a jurisdictional provision is very troubling, and we don’t think it’s correct.

And I would, if I could, follow up on a question, Justice Ginsburg, that you asked Mr. Long in terms of the language of the Anti-Injunction Act, 7421(a), which can be found at page 16a of the appendix to our brief. I’d ask the Court to compare that to the
language of the very next provision in the code, which is on the next page of our statutory appendix, 17a, which is the refund statute, which we’ve talked about a little bit so far this morning, 7422(a).

The refund statute this Court held in Dolan was jurisdictional, and the Court in both Dolan and Brockamp held that the statute of limitations that applies to the refund statute cases is jurisdictional. The language in 7422(a) is virtually identical to the language in 7421(a) -­

JUSTICE KENNEDY: That is correct, although in the refund context, you have the sovereign immunity problem, in which we presume that has not been waived.

GENERAL VERRILLI: Right. But I — 7421(a)

JUSTICE KENNEDY: But you’re -­

GENERAL VERRILLI: — and 7422(a) were the same -­

JUSTICE KENNEDY: The language is quite parallel.

GENERAL VERRILLI: And, originally, they were the same statutory provision. They were only separated out later. So, I do think that’s the strongest textual indication, Justice Ginsburg, that -­ that 7421(a) is jurisdictional.


JUSTICE GINSBURG: But the question that I asked you is, if you’re right that this penalty is not covered by section 7421, if you’re right about that, why should we deal with the jurisdictional question at all? Because this statute, correct, the way you’re reading -­ read it, doesn’t involve a tax that’s subject to the Anti-Injunction Act.

GENERAL VERRILLI: Yes, that is exactly our position. And the reason we don’t -­

JUSTICE GINSBURG: So — so, you agree that we would not — if we agree with you about the correct interpretation of the statute, we need not decide the jurisdiction.

GENERAL VERRILLI: There would be no reason to decide the jurisdictional issue.

JUSTICE KENNEDY: Don’t you want to know the answer?


GENERAL VERRILLI: Justice Kennedy, I think we all want to know the answer to a lot of things in this case. But — but I do — but I do think that the prudent course here is to construe the statute in the manner that we read it.

JUSTICE KENNEDY: But you indicated — there was a discussion earlier about why does the government really care, they have competent attorneys, et cetera. But — and you began your argument by saying it would be very troubling to say that it’s not jurisdictional. I’d like you to comment on that. It’s not for us to tell a party what’s in its best interests. It would seem to me that there might be some instances in which the government would want to litigate the validity of a tax right away and would want to waive. But you say it’s — that’s not true; that it’s very troubling.

GENERAL VERRILLI: I think there are two problems. One is the problem that Justice Scalia identified, that if it’s not jurisdictional, then courts have authority to craft equitable exceptions. And it may seem from where we stand now that that authority is or could be very, very tightly cabined, but if — if this Court were to conclude that it isn’t jurisdictional, that does empower courts to find other circumstances in which they might find it equitable to allow cases to go forward in the absence of — despite the existence of the Anti-Injunction Act. And, second, although I certainly am not going to stand up here and disparage the attorneys from the United States in the slightest, the reality is that if this isn’t jurisdictional, then it’s — the argument  — it’s open to the argument that it’s subject to forfeiture by a simple omission in failing to raise it in an answer. And that — and that’s a troubling prospect.

JUSTICE KAGAN: General, can I ask -­

JUSTICE GINSBURG: How likely is it -­


JUSTICE GINSBURG: How likely is it — I mean, the government is going to be defending these suits. How likely is it that the government will overlook the Anti-Injunction Act? It seems to me that this is arming the government by saying it’s waivable at
the government’s option.

GENERAL VERRILLI: That’s — that is not our assessment of the institutional interests of the United States, Justice Ginsburg. And we do think that the -­ the right way to go in this case is to read the statute as not applying to the minimum coverage provision of -­ of the Affordable Care Act.

CHIEF JUSTICE ROBERTS: It was — it was the calculation of the interests of the United States that your predecessor made in the Davis case. There, the Solicitor General exercised the authority that we sanctioned to waive the Anti-Injunction Act. And, of course, that couldn’t be done if it were jurisdictional.

GENERAL VERRILLI: That’s true, Mr. Chief Justice. Several points about that, though. We do agree with Mr. Long’s analysis that Davis occurred in — during a time in — in which under the Standard Nut case, the Court had interpreted the Anti-Injunction Act as doing no more than codifying the traditional equitable principles which allowed courts discretion to conclude that in certain circumstances, a case could go forward. Williams Packing repudiated that analysis, and Bob Jones v. Simon again repudiated that analysis and said, no, we’re no longer abiding by that. It is true that the Davis case has not formally been overruled, but we do think it’s fundamentally inconsistent with the Court’s understanding now of -­

JUSTICE BREYER: Davis was the case that -­ where a shareholder sues the corporation.


JUSTICE BREYER: And the remedy is that the corporation shouldn’t pay the money to the tax authority. Now, it’s a little technical, but that isn’t actually an injunction against the tax authority collecting. He’s not — they’re not restraining the collection of the tax. They’re saying to the taxpayer, don’t pay it.


JUSTICE BREYER: I don’t know how far that gets you.

GENERAL VERRILLI: Well, in fairness, Justice Breyer, the United States did intervene in the — in the Davis case and was a party, and so — not as far as I’d like, I guess, is the answer.

JUSTICE SCALIA: Don’t do it again, because I think that goes too far. I don’t think that’s restraining the collection of a tax. It’s restraining the payment of a tax.


JUSTICE SCALIA: You don’t want to let that bone go, right?


GENERAL VERRILLI: Our view here is that it is jurisdictional. Because it’s jurisdictional as this Court understands jurisdiction now, it’s not waivable. And, therefore, we don’t think that — that that part of the Davis decision is good law.

JUSTICE KAGAN: General, can I ask you about Reed Elsevier? Justice Ginsburg suggested that the language was very similar in Reed Elsevier as it is here, but there are even further similarities. Reed Elsevier pointed out that the provision in question wasn’t in Title 28. Here, too, it’s not in Title 28. In Reed Elsevier, it was pointed out that the provision there had numerous exceptions to it. Here, too, there are numerous exceptions that we find that have been created by the courts over the years. In Reed Elsevier, the question was essentially one about timing. Come to court after you file your registration. Here, too, the question is one about timing. Come to court after you make — after you pay your taxes. So, Reed Elsevier seems in multiple respects on all fours with this case. Why is that wrong?

GENERAL VERRILLI: I don’t think so, Justice Kagan. First, we think — I guess I’m repeating myself and I apologize. But we think the closest analogue is the very next provision in the United States Code, 7422(a), which this Court has held is jurisdictional, and is phrased in exactly the same way as 7421(a). In fact, as I said, they were the same provision back in
the earlier days. That’s the closest analogue.This isn’t — and it’s actually 7422 that’s a statute that says do something first. But this
statute is just a flat-out command that no suit shall be maintained to restrain -­

JUSTICE KAGAN: I take the point -­

GENERAL VERRILLI: — the assessment or collection.

JUSTICE KAGAN: — but if you would comment on the similarities of Reed Elsevier to this case. How do you think it’s different, at all?

GENERAL VERRILLI: Well, because the — I think the best answer to that is there are no magic words, and that history and context matter, as the Court said in Henderson. And the history and context here is that 7422 and 7421 function together to protect an exceedingly strong interest that the Court has held with respect to 7422, sufficiently strong that it explains the jurisdictional nature of that. The same interest applies here. This isn’t just a matter of do X and then you can — and then you can come to court. It’s just a fundamentally different set of interests at stake. So, we do think that that makes a big difference. And -­

JUSTICE GINSBURG: Why isn’t Reed Elsevier — if you’re dividing jurisdiction from claims processing — it says you have to register before you can sue. There are a lot of things you have to do before you can sue. So, why isn’t Reed Elsevier like you have to pay a filing fee before you can file a complaint?

GENERAL VERRILLI: It is — we do think it’s very much in that nature and different from this case, Your Honor. And one way I think it’s helpful to get at this is to look at the history. We’ve cited a string of court of appeals cases in a footnote in our opening
brief, and over time, it’s been very consistent that the courts of appeals have treated the Anti-Injunction Act as a jurisdictional provision. Again, if the Court agrees with our statutory construction, you don’t need to reach this issue. But they have — in fact, one of those cases, the Hansen case, the district court in that case had dismissed the complaint under Federal Rule of Civil Procedure 12(b)(6). The Court of Appeals vacated and sent it back with instructions to dismiss under 12(b)(1), which is the subject matter jurisdiction provision. So I do think that, to the extent this issue is before the Court, it is jurisdictional, but it doesn’t need to be before the Court because of the statutory construction argument that we had offered.

JUSTICE GINSBURG: On your statutory construction argument, is there any other exaction imposed under the Internal Revenue Code that would not qualify as a tax for Anti-Injunction Act purposes, or is 5000A just out there all by itself?

GENERAL VERRILLI: It’s not quite out there all by itself. There are other provisions that fall outside of subchapter B of chapter 68 and, therefore, wouldn’t be governed by the instruction in Section 6671(a), which answers the question about the
applicability of the Act for most penalties. The ones that we’ve identified, and I may be overlapping a little bit with Mr. Long here, one is 26 U.S.C. 857, which imposes certain penalties in connection with the administration of real estate
investment trusts.

There are provisions that Mr. Long identified in his brief, Sections 6038(a) through (c) of the Code, which impose certain penalties with respect to reporting requirements for foreign corporations. We have, in addition, in footnote 22 at page
36 of our brief, identified three provisions that Mr. Long also identified about — about alcohol and tobacco. Now -­

JUSTICE SOTOMAYOR: Could we address, General, the question of whether there are any collateral consequences for the failure to buy — to not buy health insurance? Is the only consequence the payment of the penalty? The private respondents argue that there are other collateral consequences such as for people on probation who are disobeying the law, if they don’t buy health insurance, they would be disobeying the law and could be subject to having their supervised release revoked.

GENERAL VERRILLI: Yes. That is not a correct reading of the statute, Justice Sotomayor. The only consequence that ensues is the tax penalty. And the — we have made a representation, and it was a carefully made representation, in our brief that it is
the interpretation of the agencies charged with interpreting this statute, the Treasury Department and the Department of Health and Human Services, that there is no other consequence apart from the tax penalty.

And I do think, if I could talk for a couple of minutes about the argument that was discussed as to whether this can be conceived of as a suit just challenging the requirement, which is entirely stand-alone based on inferences drawn from the exemptions. I really don’t think that’s right. And if I could spend a minute on it, I think it’s important.

The exemptions in section 5000A, it is true that there are two categories of exemptions. There are exemptions to the penalty and exemptions to the subsection (a) requirement. But the — but I think, not only as a practical matter, but I think there’s a textual indication and even as a legal matter, they are — they both function as exceptions to the requirement.

First, as a practical matter, one of those exemptions is a hardship exemption. And if the Court will just bear with me for one minute here, it’s at page 11A of the appendix to our brief. It provides that a person can go to the Secretary of HHS and obtain a
hardship exemption for — which would, as a formal matter here, excuse compliance with the penalty. It seems to me to make very little sense to say that someone who has gone to an official of the United States and obtained an exemption would, nonetheless, be in a position of being a law breaker. We think another way in which you can get to the same conclusion slightly differently is by considering the provision on the prior page, 10A, which is 5000A — 5000A(e)(3), members of Indian tribes. Members of Indian tribes are exempt only from the penalty as a formal matter under the structure of the statute here; but, the reason for that is because members of Indian tribes obtain their healthcare through the Indian Health Service, which is a clinic-based system that doesn’t involve insurance at all. It’s an entirely different system. They were taken out of this statute because they get their healthcare through a different system. And it doesn’t make any sense to think that persons getting their health care through the Indian Health Service are violating the law because — exempt only from the penalty, but still under a legal obligation to have insurance, when the whole point of this is that they’re supposed to be in a clinic-based system.

JUSTICE SOTOMAYOR: Is your whole point that this was inartful drafting by Congress, that, to the extent that there is an exemption under the penalty, it’s an exemption from the legal obligation?

GENERAL VERRILLI: I guess what I would say about it, Your Honor, is that the way in which this statute is drafted doesn’t permit the inference that my friends from the NFIB are trying to draw from it. And there is an additional textual indication of that, which one can find at page 13 of our reply brief. This is a provision that is 42 U.S.C. A, section 18022(e). This is a provision that provides for a certification that certain individuals can get. And it’s the paragraph starting with the words “other provisions,” contains the quote. And it says, an individual with a certification that the individual is exempt from the requirement under section 5000A, by reason of section 5000A(e)(1) of such code, is entitled to a certificate that allows for enrollment in a particular program for this category of people.

But you can see here, Congress is saying it’s an exemption under 5000A(e)(1), which is the exemption from the penalty, and not the underlying requirement is, as Congress says, an exemption from the requirement of section 5000A.

JUSTICE ALITO: Subsection A says directly, “an applicable individual shall ensure that the individual has the minimum essential coverage.” And you are saying it doesn’t really mean that, that if you’re not subject to the penalty, you’re not under an
obligation to maintain the minimum essential coverage?

GENERAL VERRILLI: That’s correct. And we think that is what Congress is saying, both in the provision I just pointed to, Your Honor, and by virtue of the fact — by virtue of the way the exemptions work. I just think that’s the — reading this in context, that is the stronger reading of the statute.

CHIEF JUSTICE ROBERTS: It makes it easy for the Government to drop the other shoe in the future, right? You have been under the law subject to this mandate all along. You have been exempt from the penalty, so all they have to do is take away the penalty.

GENERAL VERRILLI: I don’t — I don’t think so, Mr. Chief Justice. I don’t think it makes it easy for the Government in the future. We think this is the fairest reading of the statute, that the — that the -­ you cannot infer from the fact that someone is exempt
from the penalty, that they are still under an obligation to have insurance. That’s just not the fairest reading of the statute.


JUSTICE ALITO: I’m sorry, go ahead.

JUSTICE KAGAN: The nature of the representation you made, that the only consequence is the penalty, suppose a person does not purchase insurance, a person who is obligated to do so under the statute, doesn’t do it, pays the penalty instead, and that person finds herself in a position where she is asked the question, have you ever violated any federal law, would that person have violated a federal law?

GENERAL VERRILLI: No. Our position is that person should give the answer “no.”

JUSTICE KAGAN: And that’s because -­

GENERAL VERRILLI: That if they don’t pay the tax, they violated a federal law.

JUSTICE KAGAN: But as long as they pay the penalty -­

GENERAL VERRILLI: If they pay the tax, then they are in compliance with the law.

JUSTICE BREYER: Why do you keep saying it’s a tax?

GENERAL VERRILLI: If they pay the tax penalty, they’re in compliance with the law.


GENERAL VERRILLI: Thank you, Justice Breyer.

JUSTICE BREYER: The penalty.

GENERAL VERRILLI: Right. That’s right.

JUSTICE ALITO: Suppose a person who has been receiving medical care in an emergency room — has no health insurance but, over the years, goes to the emergency room when the person wants medical care -­ goes to the emergency room, and the hospital says, well, fine, you are eligible for Medicaid, enroll in Medicaid. And the person says, no, I don’t want that. I want to continue to get — just get care here from the emergency room. Will the hospital be able to point to the mandate and say, well, you’re obligated to enroll?

GENERAL VERRILLI: No, I don’t think so, Justice Alito, for the same reason I just gave. I think that the — that the answer in that situation is that that person, assuming that person — well, if that person is eligible for Medicaid, they may well not be in
a situation where they are going to face any tax penalty and therefore -­

JUSTICE ALITO: No, they are not facing the tax penalty.


JUSTICE ALITO: So the hospital will have to continue to give them care and pay for it themselves, and not require them to be enrolled in Medicaid.


JUSTICE ALITO: Will they be able to take this out and say, well, you really should — you have a moral obligation to do it; the Congress of the United States has said, you have to enroll? No, they can’t say that?

GENERAL VERRILLI: I do think it’s — I think it’s certainly fair to say that Congress wants people in that position to sign up for Medicaid. I think that’s absolutely right. And I think the statute is structured to accomplish that objective; but, the reality still is that the only consequence of noncompliance is the penalty.

JUSTICE SOTOMAYOR: General, but I thought the people who were eligible for Medicaid weren’t subject to the penalty. Am I wrong? I could be just factually wrong.

GENERAL VERRILLI: Well, it all — the penalty is keyed to income.


GENERAL VERRILLI: And the — it’s keyed to a number of things. One is are — are you making so little money that you aren’t obligated to file a tax return. And if you’re in that situation, you’re not subject to the penalty. It’s also if the cost of insurance would be more than 8 percent of your income, you aren’t subject to the penalty. So, there isn’t necessarily a precise mapping between somebody’s income level and their Medicaid eligibility at the present moment. That will depend on where things are and what the eligibility requirements are in the State.

JUSTICE SOTOMAYOR: But those people below —

GENERAL VERRILLI: But, as a general matter, for people below the poverty line, it’s almost inconceivable that they’re ever going to be subject to the penalty, and they would, after the Act’s Medicaid reforms go into place, be eligible for Medicaid.

JUSTICE BREYER: So, is your point that the tax — what we want to do is get money from these
people. Most of them will bet — get the money by buying the insurance, and that will help pay. But if they don’t, they’re going to pay this penalty, and that will help, too. And the fact that we put the latter in brings it within the taxing power. But as far as this
Act is concerned, about the injunction, they called it a penalty and not a tax for a reason. They wanted it to fall outside that -­


JUSTICE BREYER: — it’s in a different chapter, et cetera. Is that what the heart of what you’re saying?

GENERAL VERRILLI: That’s the essence of it. They called it a penalty. They didn’t give any other textural instruction in the Affordable Care Act or in the Internal Revenue Code that that penalty should be treated as a tax -­

CHIEF JUSTICE ROBERTS: Well, except you -­

GENERAL VERRILLI: — for Anti-Injunction Act purposes.

CHIEF JUSTICE ROBERTS: You agree with Mr. Long, isn’t — I mean, I thought you just agreed with Justice Breyer that one of the purposes of the provision is to raise revenue.

GENERAL VERRILLI: It will — well, it will raise revenue. It has been predicted by the CBO that it will raise revenue, Your Honor. But even though that’s the case — and I think that would be true of any — of any penalty, that it will raise some revenue,
but even though that’s the case, there still needs to be textual instruction in the statute that this penalty should be treated as a tax for Anti-Injunction Act purposes, and that’s what’s lacking here.

JUSTICE ALITO: After this takes effect, there may be a lot of people who are assessed the penalty and disagree either with whether they should be assessed the penalty at all or with the calculation of the amount of their penalty. So, under your
interpretation of the Act, all of them can now go to court? None of them are barred by the Anti-Injunction Act?

GENERAL VERRILLI: Those are two different things, Justice Alito. I think for reasons that Justice Kennedy, I think, suggested in one of his questions to Mr. Long, all of the other doctrines, exhaustion of remedies and related doctrines, would still be there, and the United States would rely on them in those circumstances. And — and so, I don’t think the answer is that they can all go to court, no.

JUSTICE SOTOMAYOR: Well, why isn’t -­

JUSTICE ALITO: Two former — two former commissioners of the IRS have filed a brief saying that your interpretation is going to lead to a flood of litigation. Are they wrong on that?

GENERAL VERRILLI: Yes. We don’t — you know — we’ve taken this position after very careful consideration, and we’ve assessed the institutional interests of the United States, and we think we’re in the right place.

JUSTICE SOTOMAYOR: But tell me something, why isn’t this case subject to the same bars that -­ that you list in your brief? The Tax Court, at least so far, considers constitutional challenges to statutes. So, why aren’t we — why isn’t this case subject to a
dismissal for failure to exhaust?

GENERAL VERRILLI: Because we don’t -­ because the exhaustion would go to the individual amount owed, we think, and that’s a different situation from this case.

If the Court has no further questions.

CHIEF JUSTICE ROBERTS: Thank you, General.




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