Liberty University v. Timothy Geithner ( 2011 )


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  •                          PUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    LIBERTY UNIVERSITY, INCORPORATED,         
    a Virginia Nonprofit Corporation;
    MICHELE G. WADDELL; JOANNE V.
    MERRILL,
    Plaintiffs-Appellants,
    and
    MARTHA A. NEAL; DAVID STEIN,
    M.D.; PAUSANIAS ALEXANDER;
    MARY T. BENDORF; DELEGATE
    KATHY BYRON; JEFF HELGESON,
    Plaintiffs,
    v.
    TIMOTHY GEITHNER, Secretary of               No. 10-2347
    the Treasury of the United States,
    in his official capacity; KATHLEEN
    SEBELIUS, Secretary of the United
    States Department of Health and
    Human Services, in her official
    capacity; HILDA L. SOLIS, Secretary
    of the United States Department of
    Labor, in her official capacity;
    ERIC H. HOLDER, JR., Attorney
    General of the United States, in
    his official capacity,
    Defendants - Appellees.
    
    2              LIBERTY UNIVERSITY v. GEITHNER
    MOUNTAIN STATES LEGAL                
    FOUNDATION; REVERE AMERICA
    FOUNDATION,
    Amici Supporting Appellants,
    AMERICAN CIVIL LIBERTIES UNION;
    AMERICAN CIVIL LIBERTIES UNION OF
    VIRGINIA, INCORPORATED; AMERICAN
    NURSES ASSOCIATION; AMERICAN
    ACADEMY OF PEDIATRICS,
    INCORPORATED; AMERICAN MEDICAL
    STUDENT ASSOCIATION; CENTER FOR
    AMERICAN PROGRESS, d/b/a Doctors
    for America; NATIONAL HISPANIC
    MEDICAL ASSOCIATION; NATIONAL        
    PHYSICIANS ALLIANCE; HARRY REID,
    Senate Majority Leader; NANCY
    PELOSI, House Democratic Leader;
    DICK DURBIN, Senator, Assistant
    Majority Leader; CHARLES
    SCHUMER, Senator, Conference
    Vice Chair; PATTY MURRAY,
    Conference Secretary; MAX
    BAUCUS, Senator, Committee on
    Finance Chair; TOM HARKIN,
    Senator, Committee on Health,
    Education, Labor and Pensions
    Chair;
    
    LIBERTY UNIVERSITY v. GEITHNER   3
    PATRICK LEAHY, Senator,             
    Committee on the Judiciary Chair;
    BARBARA MIKULSKI, Senator, HELP
    Subcommittee on Retirement and
    Aging Chair; JOHN D.
    ROCKEFELLER, IV, Senator,
    Committee on Commerce Chair;
    STENY HOYER, Representative,
    House Democratic Whip; JAMES E.
    CLYBURN, Representative,
    Democratic Assistant Leader; JOHN
    B. LARSON, Representative, Chair
    of Democratic Caucus; XAVIER
    BECERRA, Representative, Vice
    Chair of Democratic Caucus; JOHN
    D. DINGELL, Representative,         
    Sponsor of House Health Care
    Reform Legislation; HENRY A.
    WAXMAN, Representative, Ranking
    Member, Committee on Energy
    and Commerce; FRANK PALLONE,
    JR., Representative, Ranking
    Member, Commerce
    Subcommittee on Health; SANDER
    M. LEVIN, Representative, Ranking
    Member, Committee on Ways and
    Means; FORTNEY PETE STARK,
    Representative, Ranking Member,
    Ways and Means Subcommittee
    on Health;
    
    4             LIBERTY UNIVERSITY v. GEITHNER
    ROBERT E. ANDREWS,                  
    Representative, Ranking Member,
    Education and Workforce
    Subcommittee on Health; JERROLD
    NADLER, Representative, Ranking
    Member, Subcommittee on
    Constitution; GEORGE MILLER,
    Representative, Ranking Member,
    Education and the Workforce
    Committee; JOHN CONYERS, JR.,
    Representative, Ranking Member,
    Committee on the Judiciary; JACK
    M. BALKIN, Knight Professor of
    Constitutional Law and the First
    Amendment, Yale Law School;
    GILLIAN E. METZGER, Professor of
    Law, Columbia Law School;
    TREVOR W. MORRISON, Professor of    
    Law, Columbia Law School;
    AMERICAN ASSOCIATION OF PEOPLE
    WITH DISABILITIES; THE ARC OF THE
    UNITED STATES; BREAST CANCER
    ACTION; FAMILIES USA; FRIENDS OF
    CANCER RESEARCH; MARCH OF
    DIMES FOUNDATION; MENTAL
    HEALTH AMERICA; NATIONAL
    BREAST CANCER COALITION;
    NATIONAL ORGANIZATION FOR RARE
    DISORDERS; NATIONAL
    PARTNERSHIP FOR WOMEN AND
    FAMILIES; NATIONAL SENIOR
    CITIZENS LAW CENTER; NATIONAL
    WOMEN’S HEALTH NETWORK; THE
    OVARIAN CANCER NATIONAL
    ALLIANCE;
    
    LIBERTY UNIVERSITY v. GEITHNER   5
    AMERICAN HOSPITAL ASSOCIATION;       
    ASSOCIATION OF AMERICAN MEDICAL
    COLLEGES; FEDERATION OF
    AMERICAN HOSPITALS; NATIONAL
    ASSOCIATION OF PUBLIC
    HOSPITALS AND HEALTH SYSTEMS;
    CATHOLIC HEALTH ASSOCIATION OF
    THE UNITED STATES; NATIONAL
    ASSOCIATION OF CHILDREN’S
    HOSPITALS; CHRISTINE O. GREGOIRE,
    Governor; DR. DAVID CUTLER,
    Deputy, Otto Eckstein Professor of
    Applied Economics, Harvard
    University; DR. HENRY AARON,
    Senior Fellow, Economic Studies
    Bruce and Virginia MacLaury
    Chair, The Brookings Institution;
    DR. GEORGE AKERLOF, Koshland         
    Professor of Economics,
    University of California-Berkeley,
    2001 Nobel Laureate; DR. STUART
    ALTMAN, Sol C. Chaikin Professor
    of National Health Policy,
    Brandeis University; DR. KENNETH
    ARROW, Joan Kenney Professor of
    Economics and Professor of
    Operations Research, Stanford
    University 1972 Nobel Laureate;
    DR. SUSAN ATHEY, Professor of
    Economics, Harvard University,
    2007 Recipient of the John Bates
    Clark Medal for the most
    influential American economist
    under age 40;
    
    6             LIBERTY UNIVERSITY v. GEITHNER
    DR. LINDA J. BLUMBERG, Senior       
    Fellow, The Urban Institute,
    Health Policy Center; DR.
    LEONARD E. BURMAN, Daniel
    Patrick Moynihan Professor of
    Public Affairs at the Maxwell
    School, Syracuse University; DR.
    AMITABH CHANDRA, Professor of
    Public Policy Kennedy School of
    Government, Harvard University;
    DR. MICHAEL CHERNEW, Professor,
    Department of Health Care Policy,
    Harvard Medical School; DR.
    PHILIP COOK, ITT/Sanford
    Professor of Public Policy,
    Professor of Economics, Duke        
    University; DR. CLAUDIA GOLDIN,
    Henry Lee Professor of
    Economics, Harvard University;
    DR. TAL GROSS, Department of
    Health Policy and Management,
    Mailman School of Public Health,
    Columbia University; DR.
    JONATHAN GRUBER, Professor of
    Economics, MIT; DR. JACK
    HADLEY, Associate Dean for
    Finance and Planning, Professor
    and Senior Health Services
    Researcher, College of Health and
    Human Services, George Mason
    University;
    
    LIBERTY UNIVERSITY v. GEITHNER   7
    DR. VIVIAN HO, Baker Institute      
    Chair in Health Economics and
    Professor of Economics, Rice
    University; DR. JOHN F. HOLAHAN,
    Director, Health Policy Research
    Center, The Urban Institute; DR.
    JILL HORWITZ, Professor of Law
    and Co-Director of the Program in
    Law & Economics, University of
    Michigan School of Law; DR.
    LAWRENCE KATZ, Elisabeth Allen
    Professor of Economics, Harvard
    University; DR. FRANK LEVY, Rose
    Professor of Urban Economics,
    Department of Urban Studies and
    Planning, MIT; DR. PETER
    LINDERT, Distinguished Research     
    Professor of Economics,
    University of California, Davis;
    DR. ERIC MASKIN, Albert O.
    Hirschman Professor of Social
    Science at the Institute for
    Advanced Study, Princeton
    University, 2007 Nobel Laureate;
    DR. ALAN C. MONHEIT, Professor
    of Health Economics, School of
    Public Health, University of
    Medicine & Dentistry of New
    Jersey; DR. MARILYN MOON, Vice
    President and Director Health
    Program, American Institutes for
    Research;
    
    8             LIBERTY UNIVERSITY v. GEITHNER
    DR. RICHARD J. MURNANE,             
    Thompson Professor of Education
    and Society, Harvard University;
    DR. LEN M. NICHOLS, George
    Mason University; DR. HAROLD
    POLLACK, Helen Ross Professor of
    Social Service Administration,
    University of Chicago; DR.
    MATTHEW RABIN, Edward G. and
    Nancy S. Jordan Professor of
    Economics, University of
    California-Berkeley, 2001
    Recipient of the John Bates Clark
    Medal for the most influential
    American economist under age 40;    
    DR. JAMES B. REBITZER, Professor
    of Economics, Management, and
    Public Policy, Boston University
    School of Management; DR.
    MICHAEL REICH, Professor of
    Economics, University of
    California at Berkeley; DR.
    THOMAS RICE, Professor, UCLA
    School of Public Health; DR.
    MEREDITH ROSENTHAL, Department
    of Health Policy and Management,
    Harvard University, Harvard
    School of Public Health;
    
    LIBERTY UNIVERSITY v. GEITHNER   9
    DR. CHRISTOPHER RUHM, Professor      
    of Public Policy and Economics,
    Department of Economics,
    University of Virginia; DR.
    JONATHAN SKINNER, Professor of
    Economics, Dartmouth College,
    and Professor of Community and
    Family Medicine, Dartmouth
    Medical School; DR. KATHERINE
    SWARTZ, Professor, Department of
    Health Policy and Management,
    Harvard School of Public Health;
    DR. KENNETH WARNER, Dean of
    the School of Public Health and
    Avedis Donabedian Distinguished
    University Professor of Public       
    Health, University of Michigan;
    DR. PAUL N. VAN DE WATER,
    Senior Fellow, Center on Budget
    and Policy Priorities; DR. STEPHEN
    ZUCKERMAN, Senior Fellow, The
    Urban Institute; NATIONAL
    WOMEN’S LAW CENTER; AMERICAN
    ASSOCIATION OF UNIVERSITY
    WOMEN; AMERICAN FEDERATION OF
    STATE, COUNTY AND MUNICIPAL
    EMPLOYEES; AMERICAN MEDICAL
    WOMEN’S ASSOCIATION; ASIAN &
    PACIFIC ISLANDER AMERICAN
    HEALTH FORUM; BLACK WOMEN’S
    HEALTH IMPERATIVE;
    
    10             LIBERTY UNIVERSITY v. GEITHNER
    CHILDBIRTH CONNECTION; IBIS          
    REPRODUCTIVE HEALTH; INSTITUTE OF
    SCIENCE AND HUMAN VALUES;
    MARYLAND WOMEN’S COALITION FOR
    HEALTH CARE REFORM; MENTAL
    HEALTH AMERICA; NATIONAL ASIAN
    PACIFIC AMERICAN WOMEN’S
    FORUM; NATIONAL ASSOCIATION OF
    SOCIAL WORKERS; NATIONAL
    COALITION FOR LGBT HEALTH;
    NATIONAL COUNCIL OF JEWISH
    WOMEN; NATIONAL COUNCIL OF
    WOMEN’S ORGANIZATIONS;
    NATIONAL EDUCATION ASSOCIATION;
    NATIONAL LATINA INSTITUTE FOR
    
    REPRODUCTIVE HEALTH; OLDER
    WOMEN’S LEAGUE; PHYSICIANS FOR
    REPRODUCTIVE CHOICE AND HEALTH;
    RAISING WOMEN’S VOICES; SARGENT
    SHRIVER NATIONAL CENTER ON
    POVERTY LAW; SOUTHWEST
    WOMEN’S LAW CENTER; WIDER
    OPPORTUNITIES FOR WOMEN;
    WOMEN’S LAW CENTER OF
    MARYLAND, INCORPORATED;
    WOMEN’S LAW PROJECT,
    Amici Supporting Appellees.
    
    Appeal from the United States District Court
    for the Western District of Virginia, at Lynchburg.
    Norman K. Moon, Senior District Judge.
    (6:10-cv-00015-nkm-mfu)
    Argued: May 10, 2011
    Decided: September 8, 2011
    LIBERTY UNIVERSITY v. GEITHNER             11
    Before MOTZ, DAVIS, and WYNN, Circuit Judges.
    Vacated and remanded by published opinion. Judge Motz
    wrote the opinion, in which Judge Wynn concurred. Judge
    Wynn wrote a concurring opinion. Judge Davis wrote a dis-
    senting opinion.
    COUNSEL
    ARGUED: Mathew D. Staver, LIBERTY COUNSEL,
    Orlando, Florida, for Appellants. Neal Kumar Katyal,
    UNITED STATES DEPARTMENT OF JUSTICE, Washing-
    ton, D.C., for Appellees. ON BRIEF: Anita L. Staver, LIB-
    ERTY COUNSEL, Orlando, Florida; Stephen M. Crampton,
    Mary E. McAlister, LIBERTY COUNSEL, Lynchburg, Vir-
    ginia, for Appellants. Tony West, Assistant Attorney General,
    Beth S. Brinkmann, Deputy Assistant Attorney General, Mark
    B. Stern, Alisa B. Klein, Samantha L. Chaifetz, UNITED
    STATES DEPARTMENT OF JUSTICE, Washington, D.C.;
    Timothy J. Heaphy, United States Attorney, Roanoke, Vir-
    ginia, for Appellees. Joel Spector, MOUNTAIN STATES
    LEGAL FOUNDATION, Lakewood, Colorado, for Mountain
    States Legal Foundation, Amicus Supporting Appellants.
    Brian S. Koukoutchos, Mandeville, Louisiana; Charles J.
    Cooper, David H. Thompson, COOPER & KIRK, PLLC,
    Washington, D.C., for Revere America Foundation, Amicus
    Supporting Appellants. Rebecca Glenberg, AMERICAN
    CIVIL LIBERTIES UNION OF VIRGINIA, Richmond, Vir-
    ginia; Daniel Mach, Heather L. Weaver, AMERICAN CIVIL
    LIBERTIES UNION, Washington, D.C.; Andrew D. Beck,
    Brigitte Amiri, AMERICAN CIVIL LIBERTIES UNION,
    New York, New York, for American Civil Liberties Union
    and American Civil Liberties Union of Virginia, Incorporated,
    Amici Supporting Appellees. Ian Millhiser, CENTER FOR
    12             LIBERTY UNIVERSITY v. GEITHNER
    AMERICAN PROGRESS, Washington, D.C., for American
    Nurses Association, American Academy of Pediatrics, Incor-
    porated, American Medical Student Association, Center for
    American Progress, d/b/a Doctors for America, National His-
    panic Medical Association, and National Physicians Alliance,
    Amici Supporting Appellees. Professor Walter Dellinger,
    Washington, D.C.; Professor H. Jefferson Powell, GEORGE
    WASHINGTON UNIVERSITY LAW SCHOOL, Washing-
    ton, D.C., for Senate Majority Leader Harry Reid, House
    Democratic Leader Nancy Pelosi, and Congressional Leaders
    and Leaders of Committees of Relevant Jurisdiction, Amici
    Supporting Appellees. Gillian E. Metzger, Trevor W. Morri-
    son, New York, New York; Andrew J. Pincus, Charles A.
    Rothfeld, Paul W. Hughes, Michael B. Kimberly, MAYER
    BROWN LLP, Washington, D.C., for Constitutional Law
    Professors, Amici Supporting Appellees. Rochelle Bobroff,
    Simon Lazarus, NATIONAL SENIOR CITIZENS LAW
    CENTER, Washington, D.C., for American Association of
    People with Disabilities, The ARC of the United States,
    Breast Cancer Action, Families USA, Friends of Cancer
    Research, March of Dimes Foundation, Mental Health Amer-
    ica, National Breast Cancer Coalition, National Organization
    for Rare Disorders, National Partnership for Women and
    Families, National Senior Citizens Law Center, National
    Women’s Health Network, and The Ovarian Cancer National
    Alliance, Amici Supporting Appellees. Sheree R. Kanner,
    Catherine E. Stetson, Dominic F. Perella, Michael D. Kass,
    Sara A. Kraner, HOGAN LOVELLS US LLP, Washington,
    D.C.; Melinda Reid Hatton, Maureen D. Mudron, AMERI-
    CAN HOSPITAL ASSOCIATION, Washington, D.C.; Ivy
    Baer, Karen Fisher, ASSOCIATION OF AMERICAN MEDI-
    CAL COLLEGES, Washington, D.C.; Jeffrey G. Micklos,
    FEDERATION OF AMERICAN HOSPITALS, Washington,
    D.C.; Larry S. Gage, President, NATIONAL ASSOCIATION
    OF PUBLIC HOSPITALS AND HEALTH SYSTEMS,
    Washington, D.C.; Lisa Gilden, Vice President, General
    Counsel/Compliance Officer, THE CATHOLIC HEALTH
    LIBERTY UNIVERSITY v. GEITHNER             13
    ASSOCIATION OF THE UNITED STATES, Washington,
    D.C.; Lawrence A. McAndrews, President and Chief Execu-
    tive Officer, NATIONAL ASSOCIATION OF CHILDREN’S
    HOSPITALS, Alexandria, Virginia, for American Hospital
    Association, Association of American Medical Colleges, Fed-
    eration of American Hospitals, National Association of Public
    Hospitals and Health Systems, Catholic Health Association of
    the United States, and National Association of Children’s
    Hospitals, Amici Supporting Appellees. Kristin Houser,
    Adam Berger, Rebecca J. Roe, William Rutzick, SCHRO-
    ETER, GOLDMARK & BENDER, Seattle, Washington, for
    Christine O. Gregoire, Governor of Washington, Amicus Sup-
    porting Appellees. Richard L. Rosen, ARNOLD & PORTER
    LLP, Washington, D.C., for Economic Scholars, Amici Sup-
    porting Appellees. Marcia D. Greenberger, Emily J. Martin,
    Judith G. Waxman, Lisa Codispoti, NATIONAL WOMEN’S
    LAW CENTER; Melissa Hart, UNIVERSITY OF COLO-
    RADO LAW SCHOOL, Boulder, Colorado, for National
    Women’s Law Center, American Association of University
    Women, Amerian Federation of State, County and Municipal
    Employees, American Medical Women’s Association, Asian
    & Pacific Islander American Health Forum; Black Women’s
    Health Imperative, Childbirth Connection, Ibis Reproductive
    Health, Institute of Science and Human Values, Maryland
    Women’s Coalition for Health Care Reform, Mental Health
    America, National Asian Pacific American Women’s Forum,
    National Association of Social Workers, National Coalition
    for LGBT Health, National Council of Jewish Women,
    National Council of Women’s Organizations, National Educa-
    tion Association, National Latina Institute for Reproductive
    Health, Older Women’s League, Physicians for Reproductive
    Choice and Health, Raising Women’s Voices, Sargent Shriver
    National Center on Poverty Law, Southwest Women’s Law
    Center, Wider Opportunities for Women, Women’s Law Cen-
    ter of Maryland, Incorporated, and Women’s Law Project,
    Amici Supporting Appellees.
    14                LIBERTY UNIVERSITY v. GEITHNER
    OPINION
    DIANA GRIBBON MOTZ, Circuit Judge:
    Liberty University and certain individuals brought this suit
    to enjoin, as unconstitutional, enforcement of two provisions
    of the recently-enacted Patient Protection and Affordable
    Care Act. The challenged provisions amend the Internal Rev-
    enue Code by adding: (1) a "penalty" payable to the Secretary
    of the Treasury by an individual taxpayer who fails to main-
    tain adequate health insurance coverage and (2) an "assess-
    able payment" payable to the Secretary of the Treasury by a
    "large employer" if at least one of its employees receives a tax
    credit or government subsidy to offset payments for certain
    health-related expenses. The district court upheld these provi-
    sions, ruling that both withstood constitutional challenge.
    Because this suit constitutes a pre-enforcement action seeking
    to restrain the assessment of a tax, the Anti-Injunction Act
    strips us of jurisdiction. Accordingly, we must vacate the
    judgment of the district court and remand the case with
    instructions to dismiss for lack of jurisdiction.
    I.
    A.
    On March 23, 2010, the President signed into law the
    Affordable Care Act, a comprehensive bill spanning 900
    pages, which institutes numerous changes to the financing of
    health care in the United States. See Pub. L. No. 111-148.
    Liberty and some individuals (collectively "plaintiffs") chal-
    lenge only two provisions of the Act.
    1.
    The first amends the Internal Revenue Code (sometimes
    "the Code") by adding § 5000A ("the individual mandate").1
    1
    The Affordable Care Act itself refers to the provision as the "Require-
    ment to maintain minimum essential coverage." Pub. L. No. 111-148,
    LIBERTY UNIVERSITY v. GEITHNER                       15
    See id., § 1501(b). The individual mandate requires an "appli-
    cable individual" to "ensure" that beginning after 2013, the
    individual "is covered under minimum essential coverage."
    I.R.C. § 5000A(a). The individual mandate lists a number of
    health insurance programs that qualify for "minimum essen-
    tial coverage": government- and employer-sponsored plans,
    individual market plans, and other health plans recognized as
    adequate. § 5000A(f)(1). If an individual "taxpayer" fails to
    obtain the required coverage, the "taxpayer" is subject to a
    "penalty." § 5000A(b)(1).
    The Affordable Care Act uses the Internal Revenue Code’s
    existing tax collection system to implement the penalty. Only
    a "taxpayer" is subject to the penalty, id., and the Code
    defines a "taxpayer" as "any person subject to any internal
    revenue tax." Id. § 7701(a)(14). A taxpayer must include the
    penalty payment with his regularly-filed income tax return.
    § 5000A(b)(2). The taxpayer owes the penalty only if he fails
    to maintain minimum coverage for a continuous period of
    three months or longer. § 5000A(e)(4)(A). The individual
    mandate also makes a taxpayer liable for a penalty imposed
    on his "dependent," as defined in § 152 of the Code.
    § 5000A(b)(3)(A). Akin to the joint liability of spouses for
    income taxes, I.R.C. § 6013(d)(3), a taxpayer is also jointly
    liable for a spouse’s penalty if filing a joint income tax return.
    § 5000A(b)(3)(B).
    A taxpayer subject to the penalty owes the greater of: (1)
    a "flat dollar amount" equal to $95 for the taxable year begin-
    ning 2014, $325 for 2015, $695 for 2016, and $695 indexed
    to inflation for every year thereafter; or (2) a graduated per-
    centage (1% in 2014, 2% in 2015, and 2.5% every year there-
    after) of the amount by which the "taxpayer’s household
    income," as defined by the Code, exceeds "gross income
    § 1501. Because plaintiffs refer to it as the individual mandate throughout
    their complaint and briefs, we often do so as well.
    16               LIBERTY UNIVERSITY v. GEITHNER
    specified in" I.R.C. § 6012(a)(1) (the amount of income trig-
    gering the requirement to file a tax return). See § 5000A(c)(2),
    (3). But the penalty may not exceed the cost of the "national
    average premium for qualified health plans" of a certain level
    of coverage. § 5000A(c)(1).
    Section 5000A(g)(1) authorizes the Secretary of the Trea-
    sury ("the Secretary") to assess and collect the penalty "in the
    same manner as an assessable penalty under subchapter B of
    chapter 68" of the Internal Revenue Code, which in turn con-
    tains penalties that the Secretary is to "assess[ ] and collect[ ]
    in the same manner as taxes." Id. § 6671(a). Accordingly, the
    Affordable Care Act provides the Secretary with all the civil
    enforcement tools of the Internal Revenue Code subject to
    only one express limitation: the Secretary may not seek col-
    lection of the penalty by "fil[ing] [a] notice of lien with
    respect to any property" or "levy[ing] on [a taxpayer’s] prop-
    erty." § 5000A(g)(2)(B).
    2.
    The other provision of the Act challenged by plaintiffs
    amends the Internal Revenue Code by adding § 4980H (the
    "employer mandate"). Pub. L. No. 111-148, § 1513. That pro-
    vision imposes an "assessable payment" on "any applicable
    large employer" if a health exchange notifies the employer
    that at least one "full-time employee" obtains an "applicable
    premium tax credit or cost-sharing reduction." I.R.C.
    § 4980H(a), (b). An "applicable premium tax credit or cost-
    sharing reduction" consists of either (1) a tax credit to assist
    a low-income individual with financing premiums for quali-
    fied health plans or (2) a government subsidy to help finance
    an individual’s share of out-of-pocket health care costs, as
    provided by the Affordable Care Act. § 4980H(c)(3).
    Section 4980H calculates the assessable payment differ-
    ently depending on whether the employer offers adequate
    health insurance coverage to its employees. If the employer
    LIBERTY UNIVERSITY v. GEITHNER                17
    fails to offer adequate coverage to its full-time employees, the
    "assessable payment" is calculated by multiplying $2,000
    (increased yearly by the rate of inflation), by the number of
    total full-time employees, prorated over the number of months
    an employer is liable. § 4980H(a), (c)(1), (c)(5). If, however,
    the employer does offer adequate insurance coverage, the "as-
    sessable payment" is calculated by multiplying $3,000 by the
    number of employees receiving the "applicable premium tax
    credit or cost-sharing reduction," prorated on a monthly basis
    and subject to a cap. § 4980H(b)(1), (2).
    A large employer must pay these assessments "upon notice
    and demand by the Secretary." § 4980H(d)(1). The Secretary
    has the authority to assess and collect the exaction in the
    "same manner as an assessable penalty" provided by subchap-
    ter B of Chapter 68 of the Code. Id.
    B.
    On March 23, 2010, the day the President signed the
    Affordable Care Act into law, plaintiffs filed this action to
    enjoin the Secretary and other government officials from
    enforcing the Act. In their complaint, plaintiffs allege the fol-
    lowing facts.
    One of the individual plaintiffs, Michele G. Waddell,
    asserts that she "has made a personal choice not to purchase
    health insurance coverage" and does not want to do so in the
    future. Waddell maintains that she pays for needed health care
    services as she uses them. Another individual plaintiff, Joanne
    V. Merill, asserts that she too has "elected not to purchase
    health insurance coverage" and does not want to do so. Both
    Waddell and Merill contend that the individual mandate
    requires them "to either pay for health insurance coverage" or
    "face significant penalties."
    They seek to enjoin the Secretary from assessing or collect-
    ing the exaction prescribed for failure to comply with the indi-
    18              LIBERTY UNIVERSITY v. GEITHNER
    vidual mandate. Waddell and Merill assert that, "as part of his
    oversight of the Internal Revenue Service," the Secretary has
    the "power to collect" the penalties "as part of an individual-
    [‘s] income tax return." They describe the individual mandate
    as imposing a "penalty in the form of a tax . . . on any tax-
    payer" who fails to maintain minimum essential coverage.
    They further allege that the "Taxing and Spending Clause . . .
    only grants Congress the power to impose taxes upon certain
    purchases, not to impose taxes upon citizens who choose not
    to purchase something such as health insurance." Similarly,
    Waddell and Merrill repeatedly assert that the individual man-
    date assesses "a direct tax that is not apportioned according to
    Census data or other population-based measurement," in vio-
    lation of Congress’s Taxing Power. Accordingly, they ask to
    be "free from improper taxation [that] is likely to cause signif-
    icant financial hardships." They also contend that the individ-
    ual mandate exceeds Congress’s authority under the
    Commerce Clause of the Constitution.
    Liberty, a private Christian university located in Lynch-
    burg, Virginia, challenges the "employer mandate" as a tax
    that will impose "tax penalties" on it because it has employees
    who will likely receive a tax credit or cost-sharing reduction.
    Liberty alleges that these "significant penalties" will cause it
    to suffer "substantial financial hardship." According to Lib-
    erty, the employer mandate constitutes an "unapportioned
    direct tax upon employers in violation of" the Constitution,
    and "[i]mposition of the tax infringes upon Liberty Universi-
    ty’s rights to be free from improper taxation." Liberty also
    asserts that the employer mandate exceeds Congress’s author-
    ity under the Commerce Clause.
    For relief, plaintiffs ask for an injunction restraining all
    defendants, including the Secretary of the Treasury, from
    "acting in any manner to implement, enforce, or otherwise act
    under the authority" of the Affordable Care Act. They seek a
    declaration that the Act is unconstitutional and assert that they
    LIBERTY UNIVERSITY v. GEITHNER                19
    have no "adequate remedy at law to correct" the continuing
    constitutional violation.
    Before the district court, the Secretary moved to dismiss the
    case, contending inter alia that the federal tax Anti-Injunction
    Act (AIA), I.R.C. § 7421(a), barred the district court from
    reaching the merits because the challenged penalty is to "be
    assessed and collected" in the same manner as a tax and other
    penalties to which the AIA clearly applies. The court rejected
    this argument, holding that Congress did not intend to "con-
    vert the[se] penalties into taxes for purposes of the Anti-
    Injunction Act." The court reasoned that (1) Congress did not
    specifically extend the term "tax" in the AIA to include the
    challenged exactions; and (2) the exactions did not qualify as
    a "tax" for purposes of the AIA because they "function as reg-
    ulatory penalties." After rejecting the AIA argument and the
    Secretary’s other jurisdictional contentions, the district court
    concluded that the challenged exactions are "valid exercise[s]
    of federal power under the Commerce Clause" and dismissed
    the complaint for failure to state a claim upon which relief can
    be granted.
    Plaintiffs then filed this appeal, asserting that the district
    court erred as a matter of law in upholding the Affordable
    Care Act. The Secretary argued to the contrary, specifically
    declining to attack the district court’s "threshold determina-
    tion[ ]" as to "the applicability of the Anti-Injunction Act."
    The Secretary did, however, maintain that Congress’s Taxing
    Power under Article I, § 8, cl. 1 of the Constitution authorized
    the exactions imposed by the challenged mandates because
    those mandates "operate as taxes." Because the Secretary’s
    contention as to the constitutionality of the mandates under
    the Taxing Power suggested that the AIA bar might apply to
    this suit, we ordered the parties to file supplemental briefs to
    address the applicability of the AIA. In these briefs, both the
    Secretary and plaintiffs contend that the AIA does not bar this
    action. We disagree.
    20                 LIBERTY UNIVERSITY v. GEITHNER
    We initially explain why we believe that the plain language
    of the AIA bars our consideration of this challenge. We then
    address the parties’ contrary arguments: first those offered by
    the Secretary (and largely adopted by the dissent), then those
    advanced by plaintiffs.
    II.
    A.
    We note at the outset the inescapable fact that federal
    courts are courts of limited jurisdiction. They possess "only
    that power authorized by Constitution and statute, which is
    not to be expanded by judicial decree." See Kokkonen v.
    Guardian Life Ins. Co. of Am., 
    511 U.S. 375
    , 377 (1994)
    (internal citations omitted). Accordingly, a federal court has
    an "independent obligation" to investigate the limits of its
    subject-matter jurisdiction. See Arbaugh v. Y&H Corp., 
    546 U.S. 500
    , 514 (2006). This is so even when the parties "either
    overlook or elect not to press" the issue, Henderson v. Shin-
    seki, 
    131 S. Ct. 1197
    , 1202 (2011), or attempt to consent to
    a court’s jurisdiction, see Sosna v. Iowa, 
    419 U.S. 393
    , 398
    (1975). Our obligation to examine our subject-matter jurisdic-
    tion is triggered whenever that jurisdiction is "fairly in doubt."
    Ashcroft v. Iqbal, 
    129 S. Ct. 1937
    , 1945 (2009).
    As part of the Internal Revenue Code, the AIA provides
    that "no suit for the purpose of restraining the assessment or
    collection of any tax shall be maintained in any court by any
    person." I.R.C. § 7421(a).2 The parties concede, as they must,
    that, when applicable, the AIA divests federal courts of
    2
    The Declaratory Judgment Act authorizes a federal court to issue a
    declaratory judgment "except with respect to Federal taxes." 
    28 U.S.C. § 2201
    (a). In Bob Jones Univ. v. Simon, 
    416 U.S. 725
    , 732 n.7 (1974), the
    Court held that "the federal tax exception to the Declaratory Judgment Act
    is at least as broad as the Anti-Injunction Act." Accordingly, our holding
    as to the Anti-Injunction Act applies equally to plaintiffs’ request for
    declaratory relief.
    LIBERTY UNIVERSITY v. GEITHNER               21
    subject-matter jurisdiction. The Supreme Court has explicitly
    so held. See Enochs v. Williams Packing & Navigation Co.,
    
    370 U.S. 1
    , 5 (1962).
    By its terms the AIA bars suits seeking to restrain the
    assessment or collection of a tax. Thus, the AIA forbids only
    pre-enforcement actions brought before the Secretary of the
    Treasury or his delegee, the Internal Revenue Service (IRS),
    has assessed or collected an exaction. A taxpayer can always
    pay an assessment, seek a refund directly from the IRS, and
    then bring a refund action in federal court. See United States
    v. Clintwood Elkhorn Mining Co., 
    553 U.S. 1
    , 4-5 (2008).
    The parties recognize that plaintiffs here have brought a
    pre-enforcement action. Moreover, although Congress has
    provided numerous express exceptions to the AIA bar, see
    I.R.C. § 7421(a), the parties do not claim that any of these
    exceptions applies here. Resolution of the case at hand there-
    fore turns on whether plaintiffs’ suit seeks to restrain the
    assessment or collection of "any tax."
    B.
    A "tax, in the general understanding of the term," is simply
    "an exaction for the support of the government." United States
    v. Butler, 
    297 U.S. 1
    , 61 (1936). An exaction qualifies as a tax
    even when the exaction raises "obviously negligible" revenue
    and furthers a revenue purpose "secondary" to the primary
    goal of regulation. United States v. Sanchez, 
    340 U.S. 42
    , 44
    (1950); see also Bob Jones, 
    416 U.S. at
    741 n.12. Thus, the
    term "tax" can describe a wide variety of exactions. See
    Trailer Marine Transp. Corp. v. Rivera Vazquez, 
    977 F.2d 1
    ,
    5 (1st Cir. 1992) (surveying cases that have regularly "applied
    the label ‘tax’" to a "range of exactions," even those that
    "might not be commonly described as taxes").
    The Supreme Court has concluded that the AIA uses the
    term "tax" in its broadest possible sense. This is so because
    22              LIBERTY UNIVERSITY v. GEITHNER
    the AIA aims to ensure "prompt collection of . . . lawful reve-
    nue" by preventing taxpayers from inundating tax collectors
    with pre-enforcement lawsuits over "disputed sums." Wil-
    liams Packing, 
    370 U.S. at 7-8
    . Thus, an exaction constitutes
    a "tax" for purposes of the AIA so long as the method pre-
    scribed for its assessment conforms to the process of tax
    enforcement. See Snyder v. Marks, 
    109 U.S. 189
    , 192 (1883)
    (defining a "tax" in the AIA as any exaction "in a condition
    [of being] collected as a tax"). Specifically, the AIA prohibits
    a pre-enforcement challenge to any "exaction [that] is made
    under color of their offices by revenue officers charged with
    the general authority to assess and collect the revenue." Phil-
    lips v. CIR, 
    283 U.S. 589
    , 596 (1931) (citing Snyder, 
    109 U.S. at 192
    ); see also Bob Jones, 
    416 U.S. at 740
     (applying the
    AIA bar when IRS action is authorized by "requirements of
    the [Internal Revenue Code]").
    The Supreme Court has steadfastly adhered to this broad
    construction, notably in holding that the AIA bars pre-
    enforcement challenges to exactions that do not constitute
    "taxes" under the Constitution. Compare Bailey v. George,
    
    259 U.S. 16
     (1922) with Bailey v. Drexel Furniture Co., 
    259 U.S. 20
     (1922). In Bailey v. Drexel Furniture, a refund action,
    the Court held unconstitutional as beyond Congress’s Taxing
    Power a "so-called tax," finding it was in truth "a mere pen-
    alty, with the characteristics of regulation and punishment."
    259 U.S. at 38. Yet the Court held the very same provision a
    "tax" for purposes of the AIA and so dismissed a pre-
    enforcement challenge to the exaction. See Bailey v. George,
    
    259 U.S. at 20
    . In recent years, the Court has expressly
    affirmed these holdings, reiterating that the term "tax" in the
    AIA encompasses penalties that function as mere "regulatory
    measure[s] beyond the taxing power of Congress" and Article
    I of the Constitution. Bob Jones, 
    416 U.S. at 740
    .
    The Court’s broad interpretation of the AIA to bar interfer-
    ence with the assessment of any exaction imposed by the
    Code entirely accords with, and indeed seems to be mandated
    LIBERTY UNIVERSITY v. GEITHNER              23
    by, other provisions of the Internal Revenue Code. The AIA
    does not use the term "tax" in a vacuum; rather, it protects
    from judicial interference the "assessment . . . of any tax."
    I.R.C. § 7421(a) (emphasis added). The Secretary’s authority
    to make such an "assessment . . . of any tax" derives directly
    from another provision in the Code, which charges the Secre-
    tary with making "assessments of all taxes (including interest,
    additional amounts, additions to the tax, and assessable penal-
    ties) imposed by this title." § 6201(a) (emphases added); see
    also § 6202 ("assessment of any internal revenue tax"
    includes assessment of "penalties"). Thus, for purposes of the
    very assessment authority that the AIA protects, Congress
    made clear that "penalties" (as well as "interest, additional
    amounts, [and] additions to the tax") count as "taxes." Con-
    gress must have intended the term "tax" in the AIA to refer
    to this same broad range of exactions. See Erlenbaugh v.
    United States, 
    409 U.S. 239
    , 243 (1972) ("[A] legislative
    body generally uses a particular word with a consistent mean-
    ing in a given context.").
    In sum, the AIA forbids actions that seek to restrain the
    Secretary from exercising his statutory authority to assess
    exactions imposed by the Internal Revenue Code. See, e.g.,
    Bob Jones, 
    416 U.S. at 740
     (holding AIA barred suit chal-
    lenging IRS regulatory action when action was authorized by
    "requirements of the [Internal Revenue Code]"); Mobile
    Republican Assembly v. United States, 
    353 F.3d 1357
    , 1362
    & n.5 (11th Cir. 2003) (holding AIA barred suits challenging
    "penalties imposed" for violating disclosure conditions of tax-
    exempt status); In re Leckie Smokeless Coal Co., 
    99 F.3d 573
    ,
    583 & n.12 (4th Cir. 1996) (holding AIA applied to "premi-
    ums" assessed and collected by the Secretary under color of
    the Internal Revenue Code); cf. Fed. Energy Admin. v. Algon-
    quin SNG, Inc., 
    426 U.S. 548
    , 558 n.9 (1976) (holding AIA
    did not bar challenge to "fees" because fees not "assessed
    under" the Internal Revenue Code). The exaction imposed for
    failure to comply with the individual mandate constitutes a
    "tax[ ]" as defined in the Code’s assessment provisions. See
    24                  LIBERTY UNIVERSITY v. GEITHNER
    I.R.C. §§ 6201(a), 6202, 5000A(g)(1). For these reasons, the
    AIA bars this action.3
    III.
    The Secretary’s contrary contention primarily relies on the
    fact that the individual mandate labels the imposed exaction
    a "penalty," not a "tax." § 5000A(b). For the Secretary, the
    Sixth Circuit, see Thomas More Law Center v. Obama, ___
    F.3d ___(6th Cir. 2011) [No. 10-2388], and now our friend in
    dissent, this "penalty" label renders the AIA inapplicable.
    A.
    Indisputably, the AIA bars pre-enforcement challenges
    even when Congress has "exhibit[ed] its intent" that a chal-
    lenged exaction function as a "penalty." Compare Bailey v.
    Drexel, 259 U.S. at 38, with Bailey v. George, 
    259 U.S. at 20
    .
    The term "penalty" therefore describes a category of exaction
    to which the Supreme Court has already applied the AIA.4
    3
    Although both parties generally contend that the AIA does not bar this
    suit, neither offers any reason why the challenge to the employer mandate
    escapes the AIA bar. There is good reason for that. Because Congress
    placed the employer mandate in the Internal Revenue Code, triggering the
    Secretary’s authority to assess and collect payment, all of the reasons set
    forth in the text as to why the AIA bars a pre-enforcement challenge to
    the individual mandate also apply to the employer mandate. We addition-
    ally note that Congress waived none of the Secretary’s collection tools in
    imposing the employer mandate and labeled the exaction a "tax" in certain
    subsections. See § 4980H(b)(2), (c)(7), (d)(1). Accordingly, the AIA
    clearly bars Liberty’s challenge to the employer mandate.
    4
    This is not to elide the general distinction between taxes and penalties.
    We agree with the Sixth Circuit’s general observation that there are "con-
    texts" in which "the law treats ‘taxes’ and ‘penalties’ as mutually exclu-
    sive." Thomas More, ___ F.3d at ___ (slip op. at 11) (citing one
    bankruptcy and two constitutional cases). The question here is whether the
    AIA is one of these "contexts." Neither the Secretary nor the Sixth Circuit
    cites a single case suggesting that it is. The dissent relies on some bank-
    ruptcy cases in an attempt to import the distinction between a revenue-
    LIBERTY UNIVERSITY v. GEITHNER                         25
    Given this history, it seems inconceivable that Congress
    would intend to exclude an exaction from the AIA merely by
    describing it as a "penalty."
    To be sure, Congress called the penalty at issue in the Bai-
    ley cases a "tax." That fact, however, only aids the Secretary
    if there is something talismanic about the label "penalty" that
    removes a challenged exaction from the scope of the AIA.
    The Secretary has cited no case even remotely supporting
    such a proposition. In fact, the Supreme Court has repeatedly
    instructed that congressional labels have little bearing on
    whether an exaction qualifies as a "tax" for statutory pur-
    poses. See, e.g., Helwig v. United States, 
    188 U.S. 605
    , 613
    (1903) (holding "use of words" does not "change the nature
    and character of the enactment" in the context of the revenue
    laws);5 see also United States v. Reorganized CF & I Fabrica-
    tors of Utah, Inc., 
    518 U.S. 213
    , 220 (1996) (requiring a court
    to look "behind the label placed on the exaction and rest[ ] its
    raising "tax" and a regulatory "penalty" from that context. To accept the
    dissent’s view would place us at odds with the Supreme Court’s explicit
    holding, in the context of the AIA, that the distinction between "regulatory
    and revenue-raising" exactions has been "abandoned." Bob Jones, 
    416 U.S. at
    741 & n.12.
    5
    Helwig does not, as the dissent contends, support its view that an exac-
    tion’s label controls. The Court in Helwig acknowledged that Congress
    may expressly classify an exaction as a "penalty or in the nature of one,
    with reference to the further action of the officers of the government, or
    with reference to the distribution of the moneys thus paid, or with refer-
    ence to its effect upon the individual," and that "it is the duty of the court
    to be governed by such statutory direction." 
    188 U.S. at 613
     (emphasis
    added). The Court then identified statute after statute illustrating the vari-
    ous ways in which Congress has historically directed a "duty," "additional
    duty," or "penalty" to be treated "with reference to" a specified govern-
    mental action. 
    Id. at 614-19
    . Congress has provided no such direction
    "with reference to" the AIA, and Helwig makes clear that a mere label
    describing an exaction does not constitute such direction. See 
    id. at 613
    (explaining that "describing" an exaction "as ‘a further sum’ or ‘an addi-
    tional duty’ will not work a statutory alteration of the nature of the imposi-
    tion").
    26                 LIBERTY UNIVERSITY v. GEITHNER
    answer directly on the operation of the provision"); United
    States v. Sotelo, 
    436 U.S. 268
    , 275 (1978) (holding exaction’s
    "penalty" label not dispositive, but its "essential character"
    controls, in determining whether exaction is a tax for bank-
    ruptcy purposes); United States v. New York, 
    315 U.S. 510
    ,
    515-16 (1942) (stressing that the term "tax" includes "any
    pecuniary burden laid upon individuals . . . for the purpose of
    supporting the government, by whatever name it may be cal-
    led" (internal quotation omitted and emphasis added)).
    Indeed, the Court has specifically found an exaction’s label
    immaterial to the applicability of the AIA. See Lipke, 
    259 U.S. 557
     (1922). In Lipke, the Supreme Court held that the
    "mere use of [a] word" to describe a challenged exaction was
    "not enough to show" whether a "tax was laid." 
    Id. at 561
    .
    The Court concluded that one of the challenged exactions,
    although labeled a "tax," functioned in reality to "suppress
    crime" and so fell outside the AIA bar. 
    Id.
     Moreover, notwith-
    standing the "penalty" and "special penalty" labels of the
    other challenged exactions, neither the majority nor Justice
    Brandeis in dissent gave these labels any import in determin-
    ing the applicability of the AIA. Compare 
    id.
     at 561-62 with
    
    id. at 563-65
     (Brandeis, J., dissenting).
    In light of this history, it is not surprising that no federal
    appellate court, except the Sixth Circuit in Thomas More, has
    ever held that the label affixed to an exaction controls, or is
    even relevant to, the applicability of the AIA.6 Nonetheless,
    the Secretary and the dissent insist that the label of an exac-
    tion does control in determining if the AIA bar applies. We
    6
    We certainly respect the views of the courts, trumpeted by the dissent,
    that have held the AIA inapplicable to suits like the one at hand. We note,
    however, that even unanimity among the lower courts is not necessarily
    predictive of the views of the Supreme Court. See CBOCS West, Inc. v.
    Humphries, 
    553 U.S. 442
    , 472 (2008) (Thomas, J., dissenting) (collecting
    cases where the Supreme Court has "reject[ed]" a "view uniformly held by
    the courts of appeals").
    LIBERTY UNIVERSITY v. GEITHNER                27
    first address the Secretary’s argument on this point and then
    the dissent’s.
    The Secretary acknowledges that when "passing on the
    constitutionality of a tax law," a court places no weight on the
    "precise form of descriptive words" attached to the challenged
    exaction. Nelson v. Sears, Roebuck & Co., 
    312 U.S. 359
    , 363
    (1941) (internal quotation omitted) (emphasis added). But cit-
    ing the twin Bailey cases as authority, the Secretary contends
    that the opposite rule must apply for purposes of the AIA, i.e.
    that for purposes of the AIA, the "precise form of descriptive
    words" given an exaction becomes dispositive.
    The Secretary’s reliance on the twin Bailey cases is mysti-
    fying. In fact, they provide no support for his position. In Bai-
    ley v. Drexel Furniture, 259 U.S. at 38, a refund action, the
    Court held that an exaction exceeded Congress’s constitu-
    tional taxing authority, while on the same day, in Bailey v.
    George, 
    259 U.S. at 16
    , it dismissed a pre-enforcement chal-
    lenge to the same exaction, characterizing it as a "taxing stat-
    ute" for purposes of the AIA. When dismissing the pre-
    enforcement action, the Court did not state or suggest that it
    classified the challenged statute as a "taxing statute" because
    Congress labeled it as such. Nor does it seem plausible that
    the Court implicitly relied on that label, given that it had
    never before and has never since found an exaction’s label
    controlling for statutory purposes. See, e.g., Reorganized CF
    & I, 
    518 U.S. at 220
    ; Sotelo, 
    436 U.S. at 275
    ; Lipke, 
    259 U.S. at 561
    ; Helwig, 
    188 U.S. at 613
    . Rather, only one explanation
    of the twin Bailey cases coheres with the Court’s precedents:
    the term "tax" in the AIA reaches any exaction assessed by
    the Secretary pursuant to his authority under the Internal Rev-
    enue Code—even one that constitutes a "penalty" for constitu-
    tional purposes.
    The dissent’s contention that the Supreme Court’s reliance
    on the statutory label in Bailey v. George is so "obvious" that
    it required no explanation by the Court strikes us as unsound.
    28                 LIBERTY UNIVERSITY v. GEITHNER
    It seems doubtful that the Court departed from its normal
    practice of ignoring statutory labels without explaining why
    it was doing so. Instead, the more likely—and just as
    "straightforward"—explanation is that the Court described the
    exaction as a "taxing statute" because Congress had charged
    the tax collector with assessing the challenged exaction. See
    Snyder, 
    109 U.S. at 192
    .7 Contrary to the dissent’s belief, this
    holding did not require the Court to perform any elaborate
    "functional analysis," but rather to recognize simply that the
    challenged exaction formed part of the general revenue laws.
    The dissent’s related contention—that our interpretation of
    Bailey v. George brings that case into conflict with Lipke, in
    which the Supreme Court held that the AIA did not bar a cer-
    tain pre-enforcement challenge—also misses the mark. In
    Lipke, the Court faced a challenge to the Secretary’s assess-
    ment of an exaction imposed pursuant to the National Prohibi-
    tion Act, a statute "primarily designed to define and suppress
    crime." 259 U.S. at 561 (emphasis added). Congress had
    enacted the statute to "prohibit intoxicating beverages" and
    authorized the tax collector to enforce a "tax" against persons
    who in violation of this criminal statute illegally manufac-
    tured or sold liquor. 
    41 Stat. 318
    . The National Prohibition
    Act, however, did not authorize the collector to make an
    7
    The dissent argues that the statement in Snyder, 
    109 U.S. at 192-93
    ,
    that the term "tax" in the AIA refers to those exactions "claimed by the
    proper public officers to be a tax," makes relevant the Secretary’s present
    litigation position that the AIA does not bar this lawsuit. The most funda-
    mental problem with this argument is that the Secretary still does "claim"
    that the challenged exaction is a "tax," albeit one authorized by the Consti-
    tution’s Taxing Clause. See Appellee’s Br. at 58. We cannot hold that the
    AIA does not apply to this "tax" merely because the Secretary has changed
    his stance on the AIA and now contends that the exaction is a tax only for
    constitutional purposes. To give the Secretary’s lawyers such a veto over
    the AIA bar would abdicate our "independent obligation" to assure our-
    selves of our own jurisdiction. Arbaugh, 
    546 U.S. at 514
    . Moreover, Con-
    gress called the exaction in the employer mandate a "tax." See 26 U.S.C.
    § 4980H(b)(2), (c)(7), (d)(1). The argument is for this reason, too, fatally
    flawed.
    LIBERTY UNIVERSITY v. GEITHNER                29
    assessment under his general revenue authority; rather, it con-
    verted him into a federal prosecutor. Specifically, it (1) con-
    ferred upon the collector an array of prosecutorial powers,
    subject to the control of the Attorney General, and (2) predi-
    cated the enforcement of the challenged tax on proof of crimi-
    nal guilt. 
    41 Stat. 305
    , 317-18. The Lipke Court held that the
    AIA did not bar a pre-enforcement challenge to this exaction
    because "guarantees of due process" required pre-enforcement
    review of "penalties for crime." 262 U.S. at 562.
    Lipke thus casts no doubt on our conclusion that the term
    "tax" in the AIA reaches any exaction imposed by the Code
    and assessed by the tax collector pursuant to his general reve-
    nue authority. Lipke held only that when Congress converts
    the tax assessment process into a vehicle for criminal prose-
    cution, the Due Process Clause prohibits courts from applying
    the AIA. See United States v. One Ford Coupe Auto., 
    272 U.S. 321
    , 329 (1926) (characterizing Lipke as "merely" a "due
    process" case); see also Bob Jones, 
    416 U.S. at 743
     (describ-
    ing Lipke as permitting pre-enforcement review of "tax stat-
    utes" that function as "adjuncts to the criminal law"); Lynn v.
    West, 
    134 F.3d 582
    , 594-95 (4th Cir. 1998) (citing Lipke for
    proposition that courts possess jurisdiction to enjoin "a tax
    that is in reality a criminal penalty"). Of course, the individual
    mandate imposes no such criminal penalty, and thus presents
    no constitutional impediment to applying the AIA.
    In sum, the Supreme Court has itself emphasized that Lipke
    creates only a narrow constitutional limitation, not applicable
    here, on the holding of the twin Bailey cases that the AIA
    reaches a broader range of exactions than does the term "tax"
    in the Constitution. See Bob Jones, 
    416 U.S. at
    741 n.12 (cit-
    ing Lipke and noting, in the context of the AIA, that the Court
    has since "abandoned" any distinction between "revenue-
    raising" taxes and "regulatory" penalties). Yet the theory pro-
    pounded by the Secretary and the dissent—that a label trans-
    forms a constitutional "tax" into a "penalty" for AIA purposes
    — would yield an AIA that reaches fewer exactions than does
    30               LIBERTY UNIVERSITY v. GEITHNER
    the Constitution. As former Commissioners of the IRS noted
    in criticizing this argument, this is the "opposite of what the
    Supreme Court held" in the twin Bailey cases. See Brief for
    Mortimer Caplin & Sheldon Cohen as Amici Curiae Support-
    ing Appellees at 24, Seven-Sky v. Holder, No. 11-5047 (D.C.
    Cir. July 1, 2011). The Secretary all but acknowledges this
    fact, admitting that the Bailey cases show only the "converse"
    of the position that he now propounds. We cannot upend the
    Supreme Court’s settled framework for determining if an
    exaction is a tax for statutory purposes on the basis of a theory
    for which the Secretary musters only cases that hold the "con-
    verse."
    B.
    Perhaps in recognition of the dearth of case law supporting
    their argument, the Secretary and the dissent rely heavily on
    an inference they draw from the structure of the Internal Rev-
    enue Code to support their position.
    Section 6665(a)(2) provides the starting point for this infer-
    ence; it states that "any reference in this title to ‘tax’ imposed
    by this title shall be deemed also to refer to the . . . penalties
    provided by this chapter," i.e. Chapter 68. See
    § 6665(a)(2)(emphasis added); see also § 6671(a) (redun-
    dantly stating the same for "penalties and liabilities provided
    by" subchapter B of Chapter 68). According to the Secretary
    and the dissent, § 6665(a)(2) necessarily implies that any
    "penalty" outside of Chapter 68 does not qualify as a "tax" for
    purposes of the Code. Because Congress codified the individ-
    ual mandate in Chapter 48 of the Code (entitled "Miscella-
    neous Excise Taxes") rather than Chapter 68 (entitled
    "Assessable Penalties"), the Secretary and the dissent urge us
    to infer that Congress did not intend the individual mandate
    to constitute a "tax" for purposes of the AIA.
    The fundamental difficulty with this argument is that
    § 6665(a)(2) merely clarifies that the term "tax" encompasses
    LIBERTY UNIVERSITY v. GEITHNER                         31
    the penalties contained in Chapter 68; it does not limit the
    term "tax" to only these penalties. Nor can we imply such an
    limitation, for courts must not "read the enumeration of one
    case to exclude another unless it is fair to suppose that Con-
    gress considered the unnamed possibility and meant to say no
    to it." Barnhart v. Peabody Coal Co., 
    537 U.S. 149
    , 168
    (2003). There is no evidence that in enacting the clarifying
    language of § 6665(a)(2), Congress intended to exclude a
    "penalty" codified outside of Chapter 68 from also qualifying
    as a "tax." See United States v. Sischo, 
    262 U.S. 165
    , 169
    (1923) (holding no inference can be made to imply an exclu-
    sion when Congress enacts an "extension," rather than "re-
    striction," of a term).
    Furthermore, the suggestion that we infer from
    § 6665(a)(2) a categorical exclusion from the term "tax" of all
    non-Chapter 68 penalties violates Congress’s express instruc-
    tions. In § 7806(b) of the Code, Congress has forbidden courts
    from deriving any "inference" or "implication" from the "lo-
    cation or grouping of any particular section or provision or
    portion of this title." I.R.C. § 7806(b). The argument of the
    Secretary and the dissent demands that we draw precisely
    such a forbidden "inference," for under their theory, the char-
    acter of a penalty turns entirely on the Chapter in which it is
    "locat[ed]."8
    Moreover, the Secretary’s newly-minted position that Con-
    gress has implicitly excluded any "penalty" codified outside
    of Chapter 68 from qualifying as a "tax" contradicts his previ-
    ous interpretation of the AIA. In Mobile Republican Assem-
    8
    Contrary to the dissent’s contention, this conclusion does not "reject
    the legal force" of § 6665(a)(2). When Congress expressly directs that the
    location of a provision matters, as it has in § 6665(a)(2), then a court need
    not infer anything and Congress’s direction controls. But to adopt the posi-
    tion of the Secretary and the dissent, a court would have to infer that an
    exaction is not to be treated as a tax from the exaction’s place in the Code
    (here Chapter 48 rather than Chapter 68). It is this inference that the Code
    forbids.
    32              LIBERTY UNIVERSITY v. GEITHNER
    bly, 
    353 F.3d 1357
    , the Secretary defended against a pre-
    enforcement challenge to an exaction imposed by I.R.C.
    § 527(j), for failure to comply with the conditions attached to
    tax-exempt status. The district court held the AIA inapplica-
    ble for precisely the reasons that the Secretary now espouses,
    i.e. because Congress had labeled the exaction a "penalty" and
    codified it outside of Chapter 68. See National Federation of
    Republican Assemblies v. United States, 
    148 F. Supp. 2d 1273
    , 1280 (S.D. Ala. 2001). But the Secretary appealed,
    insisting that the AIA did apply because the challenged "pen-
    alty" was to be "assessed and collected in the same manner as
    taxes." Br. of Appellant at 32, Mobile Republican Assembly,
    
    353 F.3d 1357
     (Feb. 18, 2003) (No. 02-16283), 
    2003 WL 23469121
    . The Eleventh Circuit agreed and dismissed the suit
    because the exaction was based "squarely upon the explicit
    language of the Internal Revenue Code" and "form[ed] part of
    the overall tax subsidy scheme." 
    353 F.3d at
    1362 n.5.
    The Secretary fails to explain his change in position or even
    refer to the Eleventh Circuit’s holding that the AIA applies to
    "penalties" codified outside of Chapter 68. Instead, the Secre-
    tary’s argument boils down to his intuition, accepted by the
    Sixth Circuit and the dissent, that "Congress said one thing in
    sections 6665(a)(2) and 6671(a), and something else in sec-
    tion 5000A [the individual mandate], and we should respect
    the difference." Thomas More, ___ F.3d at ___ [No. 10-2388,
    slip op. at 12].
    But we can easily "respect the difference" in congressional
    wording without holding plaintiffs’ challenge exempt from
    the AIA bar. The legislative history of § 6665(a)(2) makes
    clear that Congress inserted that provision in the course of
    reorganizing and codifying the revenue laws in 1954, and did
    so merely to declare explicitly what had been implicit—that
    the term "tax" for purposes of the Code also refers to "penal-
    ties" imposed by the Code. See H.R. Rep. No. 83-1337, at
    A420 (1954) (noting that predecessor to § 6665(a)(2) "con-
    forms to the rules under existing law" and "contain[s] no
    LIBERTY UNIVERSITY v. GEITHNER                         33
    material changes to existing law"); S. Rep. No. 83-1622, at
    595-96 (1954) (same).9 Given this history, we cannot interpret
    § 6665(a)(2) as working any substantive change to the Code;
    rather, it simply "mak[es] explicit what" was already "im-
    plied" by the Code. Sischo, 
    262 U.S. at 169
    ; see also Walters
    v. Nat’l Ass’n of Radiation Survivors, 
    473 U.S. 305
    , 317-18
    (1985). That Congress did not repeat this clarifying language
    when it enacted the individual mandate, which is not part of
    any reorganization or recodification of the Code, demon-
    strates nothing.10
    Rather, Congress well knew that the Code had for decades
    expressly provided that for purposes of the Secretary’s assess-
    ment power, the term "tax" "includ[es] . . . penalties." I.R.C.
    § 6201(a). Specific direction that the term "tax" in the AIA
    encompass the individual mandate "penalty" was therefore
    unnecessary. Cf. Bob Jones, 
    416 U.S. at 741-42
     (noting that
    Congress intended AIA to adapt to evolving "complexity of
    federal tax system"). Put another way, § 6201 specifically
    provides the Secretary with authority to make "assessments of
    all taxes (including . . . penalties)," and the AIA specifically
    bars judicial interference with the Secretary’s power to make
    "assessment . . . of any tax." Given that Congress has not pro-
    vided to the contrary, these two provisions taken together
    9
    Congress originally inserted the text of § 6665 as § 6659 of the 1954
    Code, see Internal Revenue Code of 1954, Pub. L. No. 83-289,
    § 6659(a)(2), 68A Stat. 1, 827 (1954), but relocated it to § 6665 in 1989
    without making any changes to it, see Omnibus Reconciliation Act of
    1989, Pub. L. No. 101-239, tit. VII, § 7721(a), (c)(2), 
    103 Stat. 2106
    , 2399
    (1989) (codified at I.R.C. § 6665(a)).
    10
    This does not mean that § 6665(a)(2), which includes Chapter 68 pen-
    alties within the term "tax" throughout the Code, serves no purpose. For
    example, § 6665(a)(2) may well be necessary to authorize a taxpayer to
    pursue a civil suit for the illegal "collection of Federal tax" against a col-
    lector who intentionally misinterprets the Code in collecting a Chapter 68
    "penalty." See I.R.C. § 7433(a); cf. Sylvester v. United States, 
    978 F. Supp. 1186
    , 1189 (E.D. Wis. 1997); Le Premier Processors, Inc. v. United
    States, 
    775 F. Supp. 897
    , 902 n.6 (E.D. La. 1990).
    34                 LIBERTY UNIVERSITY v. GEITHNER
    mandate the conclusion that the AIA bars this suit seeking to
    "restrain" an "assessment" of the exaction challenged here,
    regardless of the exaction’s label.
    The Secretary’s contrary "label" argument not only fails to
    persuade, it also requires a strained interpretation of the Code.
    The Secretary urges us to take the view that Congress
    intended the individual mandate to constitute the only exac-
    tion imposed by the lengthy Internal Revenue Code that does
    not qualify as a "tax."11 The consequences of this counterintui-
    tive argument extend well beyond the AIA. For example,
    accepting the Secretary’s contention that the label "penalty"
    exempts the individual mandate from provisions applicable to
    "taxes" would inexplicably eliminate a host of procedural
    safeguards against abusive tax collection. See, e.g.,
    §§ 7217(a) (prohibiting executive branch officials from
    requesting IRS officials to "conduct or terminate an audit . . .
    with respect to the tax liability" of any particular taxpayer),
    7433(a) (providing civil damages for unauthorized "collection
    of Federal tax"), 7435 (providing civil damages for unautho-
    rized enticement of disclosure concerning the "collection of
    any tax"). We will not presume that Congress intended such
    an anomalous result, and we certainly cannot infer this intent
    on the basis of a mere label.
    C.
    The Secretary’s remaining contentions, some of which are
    11
    The Secretary yet again employs faulty reasoning to reach this
    remarkable conclusion. He contends that three other exactions labeled as
    penalties and codified outside Chapter 68 — I.R.C. §§ 5114(c)(3),
    5684(b), 5761(e) — constitute "taxes" for purposes of the AIA because
    they shall be "assessed, collected, and paid in the same manner as taxes,
    as provided in section 6665(a)." But the only meaningful difference
    between these provisions and the individual mandate is the addition of the
    phrase, "as provided in section 6665(a)," which refers only to the previous
    clause and does not incorporate the separate, unreferenced parts of
    § 6665(a).
    LIBERTY UNIVERSITY v. GEITHNER                35
    adopted by the dissent, are brief and unsupported by any stat-
    ute or case law. All are policy arguments, relying on the Sec-
    retary’s view of what the 2010 Congress, in enacting the
    individual mandate, assertedly "would regard" as "mak[ing]
    sense," or "would not have wanted," or as the dissent would
    have it, what the 2010 Congress "intended." According to the
    Secretary and the dissent, these policy concerns demonstrate
    that the 2010 Congress could not have wanted the AIA to bar
    pre-enforcement challenges to the individual mandate.
    The most fundamental difficulty with this contention is its
    focus on the "intent" of the 2010 Congress in enacting the
    individual mandate. Our task is not to divine the intent of the
    2010 Congress but simply to determine whether the term
    "tax" in the AIA encompasses the exaction challenged here.
    To resolve this question, we must look to the text of the AIA
    and the intent of the Congresses that enacted and re-enacted
    that statute, just as the Supreme Court has done in its AIA
    cases. See, e.g., South Carolina v. Regan, 
    465 U.S. 367
    , 375
    (1984); Bob Jones, 
    416 U.S. at 741-42
    ; Snyder, 
    109 U.S. at 191
    .
    Once we conclude that the term "tax" in the AIA does
    encompass a challenged exaction, we can go no further. For
    the terms of the AIA declare that courts, save for specific stat-
    utory exceptions, not applicable here, may entertain "no suit
    for the purpose of restraining the assessment or collection of
    any tax." 
    26 U.S.C. § 7421
    (a) (emphasis added). This expan-
    sive language leaves no room for a court to carve out excep-
    tions based on the policy ramifications of a particular pre-
    enforcement challenge. The Supreme Court said as much in
    Bob Jones, repudiating its old cases that had embraced a "de-
    parture from the literal reading of the Act" based on "excep-
    tional circumstances." 
    416 U.S. at 743
    . In doing so, the Court
    instructed that courts must give the AIA "literal force, without
    regard to the . . . nature of the pre-enforcement challenge." 
    Id. at 742
    .
    36              LIBERTY UNIVERSITY v. GEITHNER
    Of course, the 2010 Congress could have exempted the
    individual mandate from the AIA. But to date it has not pro-
    vided for such an exemption, and surely we cannot hold it has
    implicitly done so. To infer an intent on the part of the 2010
    Congress to exempt this pre-enforcement challenge from the
    otherwise-applicable AIA bar would be tantamount to finding
    an implicit repeal of that bar; such an approach would violate
    the "cardinal rule" that "repeals by implication are not
    favored." TVA v. Hill, 
    437 U.S. 153
    , 189 (1978) (applying the
    implicit "repeal" doctrine to the TVA’s argument that "the
    Act cannot reasonably be interpreted as applying to [the chal-
    lenged] federal project"); see also United States v. United
    Continental Tuna Corp., 
    425 U.S. 170
    , 169 (1976) (holding
    that courts must be "hesitant to infer that Congress," in enact-
    ing a later statute, "intended to authorize evasion of a [prior]
    statute"). Given that the terms of the AIA encompass the
    exaction imposed by § 5000A(b), the "only permissible justi-
    fication" for exempting that exaction is if the individual man-
    date is "irreconcilable" with the AIA. Hill, 
    437 U.S. at 189
    .
    Obviously, it is not.
    Accordingly, it is simply irrelevant what the 2010 Congress
    would have thought about the AIA; all that matters is whether
    the 2010 Congress imposed a tax. If it did, then the AIA bars
    pre-enforcement challenges to that tax. After all, were we to
    embrace the argument pressed by the Secretary and the dis-
    sent that the AIA applies only when a subsequent Congress
    has exhibited an intent for it to apply, we would impermiss-
    ibly render the AIA little more than a non-binding suggestion
    to future Congresses, devoid of independent legal force. See
    Tuna Corp., 425 U.S. at 169 (holding that courts must require
    explicit "expression by Congress" that it intends the "compro-
    mise or abandonment of previously articulated policies"). The
    Supreme Court has rejected this very view, holding that the
    AIA establishes a nearly irrebuttable presumption that no tax
    may be challenged in any pre-enforcement action. See Bob
    Jones, 
    416 U.S. at 743-46
    .
    LIBERTY UNIVERSITY v. GEITHNER                        37
    Even taken on their own terms, however, the proffered pol-
    icy arguments fail. Neither the Secretary nor the dissent has
    identified any persuasive evidence that the 2010 Congress in
    fact intended to permit pre-enforcement challenges to the
    individual mandate.12 The best evidence of what Congress
    intended, of course, is the legislation it actually enacted. See
    Carcieri v. Salazar, 
    129 S. Ct. 1058
    , 1066-67 (2009). Con-
    gress could have enacted an exemption from the AIA bar; it
    did so in other instances. See, e.g., I.R.C. §§ 4961(c)(1)
    (second-tier tax exempt from AIA), 6703(c)(1) (penalty
    exempt from AIA upon satisfying statutory conditions),
    7421(a) (listing several exactions and procedures exempt
    12
    The Secretary offers only congressional floor statements as evidence
    of this supposed congressional intent. In those statements, two Senators
    contemplated a potential onslaught of challenges to the individual mandate
    but, as the Secretary puts it, "never suggested that the only way for an
    individual to obtain review would be . . . [through] a refund action." The
    Supreme Court has long held that such statements are of little assistance
    in ascertaining congressional intent. See, e.g., Grove City College v. Bell,
    465 U.S 555, 567 (1984). Moreover, the floor statements relied on here are
    irrelevant, because at most they signal an acknowledgment of potential
    lawsuits, not an endorsement of challenges seeking pre-enforcement
    injunctive relief.
    The dissent goes even a step further than the Secretary, inferring an
    AIA exception because drafts of what became the Affordable Care Act
    had previously called the challenged exaction a "tax." The Supreme Court
    has warned against such an approach, cautioning courts not to read much
    into Congress’s unexplained decision to change wording in a final bill. See
    Trailmobile Co. v. Whirls, 
    331 U.S. 40
    , 61 (1947) (noting that the "inter-
    pretation of statutes cannot safely be made to rest upon mute intermediate
    legislative maneuvers"). Moreover, the dissent errs in suggesting that our
    holding "ignores" this wording change; rather, we simply hold that change
    irrelevant to the AIA bar. Congress’s decision to call the challenged exac-
    tion a "penalty" may affect its treatment under sections of the Code that
    expressly distinguish "taxes" from "penalties," e.g. those pertaining to the
    timing of interest accrual. See Latterman v. United States, 
    872 F.2d 564
    ,
    569-70 (3d Cir. 1989). Or Congress’s wording change may have simply
    carried political benefits. See Florida v. HHS, 
    716 F. Supp. 2d 1120
    , 1142-
    43 (N.D. Fla. 2010). No evidence, however, indicates that the change was
    intended to exempt the individual mandate from the AIA.
    38              LIBERTY UNIVERSITY v. GEITHNER
    from AIA). But Congress has provided so such exemption
    here. Alternatively, Congress could have crafted a specific
    route to pre-enforcement judicial review. See Sigmon Coal
    Co. v. Apfel, 
    226 F.3d 291
    , 301 (4th Cir. 2000); see also Clin-
    ton v. City of New York, 
    524 U.S. 417
    , 428-29 (1998). Again,
    it did not do so here. Thus, Congress knows how to exempt
    a specific exaction from the AIA bar, and that it did not do
    so here strongly undermines the contention that Congress
    intended such an exemption.
    Nor do the Secretary’s policy arguments, which the dissent
    embraces, demonstrate that the AIA should not apply here.
    The Secretary contends that "it makes sense that Congress
    would regard it as unnecessary to apply the AIA bar" to the
    individual mandate because, in the mandate, Congress prohib-
    ited the Secretary from using his "principal tools" to "collect
    unpaid taxes." Maybe so. But the Secretary’s argument
    ignores the fact that the AIA bars challenges seeking to
    restrain the "assessment or collection of any tax." I.R.C.
    § 7421(a) (emphasis added). Congress’s intent to waive some
    of the Secretary’s collection tools does not in any way evi-
    dence that it would want to invite pre-enforcement challenges
    to the Secretary’s remaining collection powers or all of his
    assessment authority. And the Supreme Court has left no
    doubt that restraining even "one method of collection" trig-
    gers the AIA’s prohibition on injunctive suits. United States
    v. Am. Friends Serv. Comm., 
    419 U.S. 7
    , 10 (1974).
    Alternatively, the Secretary argues that because the individ-
    ual mandate "is ‘integral’ to the [Affordable Care Act’s]
    guaranteed-issue and community-rating provisions" and has a
    "delayed . . . effective date," Congress would have "wanted"
    early resolution of challenges to it and "did not intend the
    AIA to prohibit pre-enforcement challenges." This argument
    ignores that any holding that the AIA bar does not apply to
    the individual mandate might have serious long-term conse-
    quences for the Secretary’s revenue collection. The Congres-
    sional Budget Office projects that 34 million people will
    LIBERTY UNIVERSITY v. GEITHNER                    39
    remain uninsured in 2014 and thus potentially subject to the
    challenged "penalty." Letter from Douglas W. Elmendorf,
    CBO Director, to Hon. Harry Reid, Senate Majority Leader,
    at table 4 (Dec. 19, 2009). To exempt the individual mandate
    from the AIA would invite millions of taxpayers—each and
    every year—to refuse to pay the § 5000A(b) exaction and
    instead preemptively challenge the IRS’s assessment.
    Moreover, some of those taxpayers will undoubtedly pos-
    sess a host of non-constitutional, individual grounds upon
    which to challenge the assessment of the § 5000A(b) exac-
    tion. As former IRS Commissioners warned in a recent brief,
    allowing these suits would severely hamper IRS collection
    efforts. See Brief for Mortimer Caplin & Sheldon Cohen as
    Amici Curiae Supporting Appellees at 12-15, Seven-Sky v.
    Holder, No. 11-5047 (D.C. Cir. July 1, 2011). This would
    threaten to interrupt the IRS’s collection of $4 billion annu-
    ally from the challenged exaction. See Letter from Elmendorf
    to Reid at table 4. Moreover, those challenges could impede
    the collection of other income taxes by preemptively
    resolving—in litigation over the exaction imposed by
    § 5000A(b)—issues basic to all tax collection, such as a tax-
    payer’s adjusted gross income.13 See I.R.C. § 5000A(c)(2)(B);
    C.I.R. v. Sunnen, 
    333 U.S. 591
    , 597-98 (1948) (issue preclu-
    sion "applicable in the federal income tax field").
    Thus, while the Secretary and the dissent may be correct
    that we could resolve this one lawsuit with few adverse reve-
    nue consequences, the holding necessary to reach the merits
    here could, in the long-run, wreak havoc on the Secretary’s
    ability to collect revenue. If Congress is persuaded by the
    13
    Other issues raised by the individual mandate that are common to
    many taxes include certain deductions from income taxes
    (§ 5000A(c)(4)(C)(i)),      child       dependency      determinations
    (§ 5000A(b)(3)(A)), joint liability for spouses (§ 5000A(b)(3)(B)), the
    income level triggering a taxpayer’s duty to file a return
    (§ 5000A(c)(2)(B)), and family size for deduction purposes
    (§ 5000A(c)(4)(A)).
    40                 LIBERTY UNIVERSITY v. GEITHNER
    Secretary’s present litigation position, it can craft a specific
    AIA exception for constitutional challenges to the individual
    mandate. See I.R.C. § 7428(a) (inserting, after Bob Jones, an
    exemption for the exact sort of pre-enforcement challenge the
    Bob Jones Court had held barred by the AIA). Until it does
    so, however, we are bound by its directive that we entertain
    "no suit" restraining the assessment of "any tax." § 7421(a).
    IV.
    Having dispensed with the Secretary’s arguments, we turn
    finally to the arguments pressed by plaintiffs.
    A.
    Plaintiffs initially contend that the AIA bar does not apply
    because this "case does not seek to restrain the assessment or
    collection of a tax." The plaintiff university in Bob Jones ten-
    dered precisely the same initial argument. Its "first" conten-
    tion was that the AIA did not apply because its suit was not
    brought "for the purpose of restraining the assessment or col-
    lection of any tax." 
    416 U.S. at 738
    . The Supreme Court held
    that the university’s complaint "belie[d] [this] notion." 
    Id.
     So
    it is here. For, in their complaint, plaintiffs characterize the
    individual mandate as a "tax" and ask for a judicial invalida-
    tion of this "tax[ ] upon citizens who choose not to purchase
    something such as health insurance." They assert that the indi-
    vidual mandate provision, although labeled a "penalty," is a
    "tax" not apportioned as required by Article I of the Constitu-
    tion, and a "tax" beyond the scope of congressional power
    under the Sixteenth Amendment of the Constitution. Thus, as
    in Bob Jones, plaintiffs’ complaint belies their initial conten-
    tion.14
    14
    Moreover, Bob Jones forecloses an argument that the AIA allows a
    challenge to the requirement that an individual maintain insurance, i.e.
    § 5000A(a), separate from a challenge to the penalty for noncompliance
    with this requirement, i.e. § 5000A(b). Some district courts have accepted
    LIBERTY UNIVERSITY v. GEITHNER                      41
    Plaintiffs’ remaining contention as to why the AIA does not
    bar their challenge to the individual mandate is that it imposes
    an unconstitutional regulatory penalty "not designed to raise
    revenue," which assertedly violates the Commerce Clause, the
    Taxing and Spending Clause, and unspecified "other constitu-
    tional rights." The problem with this argument is that a claim
    that an exaction is an unconstitutional regulatory penalty does
    not insulate a challenge to it from the AIA bar. Again, in Bob
    Jones, the Court confronted and rejected precisely this argu-
    ment.
    Like plaintiffs here, the university in Bob Jones asserted
    that the IRS’s "threatened action" would "violate [its constitu-
    tional] rights." Id. at 736 (asserting various First and Four-
    teenth Amendment rights). In fact, in its brief to the Supreme
    Court, the university made an argument identical to that here.
    The university maintained that "what the government would
    have the University do . . . involves not revenue but rather
    unconstitutional compulsion," Brief for Petitioner at 28, Bob
    Jones Univ. v. Simon, 
    416 U.S. 725
     (1973) (No. 72-1470),
    
    1973 WL 172321
    . This mirrors the plaintiffs’ contention here
    that the mandate is "not designed to raise revenue" but instead
    to unconstitutionally "compel[ ]" specific behavior. Just as the
    Bob Jones Court held the university’s argument foreclosed by
    the twin Bailey cases, see 
    416 U.S. at 740-41
    , we must hold
    plaintiffs’ identical argument foreclosed by those cases.
    this argument. See, e.g., Goudy-Bachman v. U.S. Dep’t of Health &
    Human Servs., 
    764 F. Supp. 2d 684
    , 695 (M.D. Pa. 2011); Thomas More
    Law Center v. Obama, 
    720 F. Supp. 2d 882
    , 891 (E.D. Mich. 2010). But
    invalidation of the individual mandate would necessarily preclude the Sec-
    retary from exercising his statutory authority to assess the accompanying
    penalty. Moreover, in Bob Jones, the Court held that the AIA barred a
    challenge to the IRS’s interpretation of I.R.C. § 501(c)(3), even though
    that provision itself did not impose any tax; only when coupled with
    § 501(a) (making a 501(c)(3) organization exempt from income taxes) did
    tax consequences result. 
    416 U.S. at 738
    .
    42                 LIBERTY UNIVERSITY v. GEITHNER
    For in Bob Jones, the Supreme Court not only reaffirmed
    the twin Bailey cases as setting forth the proper course by
    which a taxpayer could challenge an exaction but also
    explained that it had "abandoned . . . distinctions" between
    "regulatory and revenue-raising taxes." 
    Id.
     at 741 n.12. The
    Court held that the AIA bar applied even to an exaction
    implementing a social policy unless a plaintiff could demon-
    strate that the IRS "has no legal basis" in the Code for assess-
    ing the exaction or seeks an objective "unrelated to the
    protection of the revenues." 
    Id. at 740
    . Plaintiffs cannot and
    do not make any contention that the IRS has "no legal basis"
    in the Code for assessing the penalty in § 5000A or that this
    exaction is "unrelated to the protection of the revenues."
    In sum, we find plaintiffs’ argument that the AIA does not
    apply here wholly unpersuasive.
    B.
    Perhaps recognizing the weakness of their argument as to
    the inapplicability of the AIA, plaintiffs principally contend
    that a narrow judicially-created exception to the AIA permits
    pursuit of their action seeking a pre-enforcement injunction
    against enforcement of the individual mandate.
    That exception allows a plaintiff to escape the AIA bar if
    he demonstrates that (1) equity jurisdiction otherwise exists,
    i.e. irreparable injury results if no injunction issues, and that
    (2) "it is clear that under no circumstances could the [Secre-
    tary] ultimately prevail." Williams Packing, 
    370 U.S. at 7
    .15
    When making the latter determination, a court must take "the
    most liberal view of the law and the facts" in favor of the Sec-
    15
    The Court has carved out one other exception to the AIA for "ag-
    grieved parties for whom [Congress] has not provided an alternative rem-
    edy." See Regan, 
    465 U.S. at 378
    . That exception clearly does not assist
    plaintiffs because, as the Secretary concedes, they may challenge the indi-
    vidual mandate in a refund action. See Bob Jones, 
    416 U.S. at 746
    .
    LIBERTY UNIVERSITY v. GEITHNER                  43
    retary. 
    Id.
     It is difficult to see how any irreparable injury justi-
    fies the injunctive relief requested here. But even assuming
    equity jurisdiction does exist here, plaintiffs cannot meet the
    stringent standard of proving with certainty that the Secretary
    has "no chance of success on the merits." Bob Jones, 
    416 U.S. at 745
    .
    In rejecting the university’s contention that it would prevail
    on the merits, the Bob Jones Court explained that the sole
    case in which a plaintiff had met this exacting standard was
    Miller v. Standard Nut Margarine Co., 
    284 U.S. 498
     (1932).
    That case is a far cry from the case at hand. In Standard Nut,
    a tax collector attempted to assess a tax that federal courts had
    already held in a proper post-enforcement action did not apply
    to the plaintiff’s product. 
    Id. at 510
    . By contrast, to date, no
    court has even considered the validity of the individual man-
    date in a post-enforcement action, let alone held it invalid in
    such a proceeding. Moreover, in pre-enforcement actions, the
    courts of appeals have divided as to the constitutionality of
    the individual mandate. Compare Florida v. HHS, ___ F.3d
    ___ (11th Cir. 2011) (invalidating mandate) with Thomas
    More, ___ F.3d ___ (upholding mandate). Given this history
    and the presumption of constitutionality a federal court must
    afford every congressional enactment, see United States v.
    Morrison, 
    529 U.S. 598
    , 607 (2000), we can hardly hold that
    the Secretary has "no chance of success on the merits." Bob
    Jones, 
    416 U.S. at 745
    .
    V.
    In closing, we recognize "that Congress has imposed" a
    potentially "harsh regime" on some taxpayers. 
    Id. at 749
    .
    However, as in Bob Jones, the question of whether these con-
    cerns "merit consideration" is a matter for Congress to weigh.
    
    Id. at 750
    . Unless and until Congress tells us otherwise, we
    must respect the AIA’s bar to the "intrusion of the injunctive
    power of the courts into the administration of the revenue."
    Regan, 
    465 U.S. at 388
     (O’Connor, J., concurring).
    44                 LIBERTY UNIVERSITY v. GEITHNER
    For all these reasons, we vacate the judgment of the district
    court and remand the case to that court to dismiss for lack of
    subject-matter jurisdiction.
    VACATED AND REMANDED
    WYNN, Circuit Judge, concurring:
    I.
    I concur in Judge Motz’s fine opinion holding that the Anti-
    Injunction Act applies to this case. I therefore agree that it
    should be remanded to the district court for dismissal.
    I note that my distinguished colleague, after vigorously dis-
    senting from the majority’s holding that the AIA applies,
    chose to exercise his prerogative to address the merits.1 While
    I think that his position on the Commerce Clause is persua-
    sive, were I to reach the merits, I would uphold the constitu-
    tionality of the Affordable Care Act on the basis that
    Congress had the authority to enact the individual and
    employer mandates under its plenary taxing power.2 However,
    1
    The majority opinion vacates the district court’s decision and remands
    plaintiffs’ lawsuit for dismissal. Judge Davis dissents from the majority’s
    dismissal of plaintiffs’ suit on AIA grounds; nonetheless, on the merits,
    he, too, would dismiss plaintiffs’ lawsuit.
    2
    Justices and judges have previously spoken on the merits after stating
    that the court lacked jurisdiction; my approach today is therefore nothing
    new. See Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 
    130 S. Ct. 1758
    ,
    1777 (2010) (Ginsburg, J., dissenting) ("The Court errs in addressing an
    issue not ripe for judicial review . . . . I would dismiss the petition as
    improvidently granted. Were I to reach the merits, I would adhere to the
    strict limitations the Federal Arbitration Act (FAA), 
    9 U.S.C. § 1
     et seq.,
    places on judicial review of arbitral awards. § 10. Accordingly, I would
    affirm the judgment of the Second Circuit, which rejected petitioners’ plea
    for vacation of the arbitrators’ decision."); Pennzoil Co. v. Texaco, Inc.,
    
    481 U.S. 1
    , 23 (1987) (Marshall, J., concurring in the judgment) ("Were
    I to reach the merits I would reverse for the reasons stated in the concur-
    LIBERTY UNIVERSITY v. GEITHNER                       45
    my conclusion that the mandates are (constitutional) taxes
    inevitably leads back to the AIA’s bar to this case.
    II.
    A.
    Plaintiffs contend that "[t]he Taxing and Spending or Gen-
    eral Welfare Clause does not vest Congress with the authority
    to enact the mandates." Opening Brief of Appellants Liberty
    University, Michele G. Waddell and Joanne J. Merrill at 40,
    Liberty Univ. v. Geithner, No. 10-2347. I disagree. The indi-
    vidual and employer mandate provisions are independently
    authorized by Congress’s constitutional power to "lay and
    collect Taxes, Duties, Imposts and Excises, to pay the Debts
    and provide for the common Defence and general Welfare of
    the United States . . . ." U.S. Const. art. I, § 8, cl. 1.
    "A tax, in the general understanding of the term, and as
    used in the Constitution, signifies an exaction for the support
    of the government." United States v. Butler, 
    297 U.S. 1
    , 61
    (1936). Stated differently, a tax is a "pecuniary burden laid
    upon individuals or property for the purpose of supporting the
    government." United States v. New York, 
    315 U.S. 510
    , 515-
    16 (1942) (quoting New Jersey v. Anderson, 
    203 U.S. 483
    ,
    492 (1906)).
    ring opinions of Justices Brennan and Stevens, in which I join. But I can
    find no basis for the District Court’s unwarranted assumption of jurisdic-
    tion over the subject matter of this lawsuit, and upon that ground alone I
    would reverse the decision below."); Veterans for Common Sense v. Shin-
    seki, 
    644 F.3d 845
    , 900 (9th Cir. 2011) (Kozinski, J., dissenting) (deter-
    mining that court lacked jurisdiction but also analyzing claims on their
    merits); Patel v. Holder, 
    563 F.3d 565
    , 569 (7th Cir. 2009) (majority opin-
    ion doing same); cf. Helvering v. Davis, 
    301 U.S. 619
    , 639-40 (1937) (not-
    ing the belief of Justices Cardozo, Brandeis, Stone, and Roberts that the
    case should be dismissed but nevertheless reaching the merits in an opin-
    ion authored by Justice Cardozo).
    46                 LIBERTY UNIVERSITY v. GEITHNER
    Before analyzing whether the exactions in question were
    authorized under Congress’s taxing power, it is useful first to
    clarify that neither an exaction’s label nor its regulatory intent
    or effect is germane to the constitutional inquiry. To deter-
    mine whether an exaction constitutes a tax, the Supreme
    Court has instructed us to look not at what an exaction is cal-
    led but instead at what it does. Nelson v. Sears, Roebuck &
    Co., 
    312 U.S. 359
    , 363 (1941) (stating that when "passing on
    the constitutionality of a tax law," a court is "‘concerned only
    with its practical operation, not its definition or the precise
    form of descriptive words which may be applied to it’")
    (quoting Lawrence v. State Tax Comm’n, 
    286 U.S. 276
    , 280
    (1932)); see also United States v. New York, 
    315 U.S. at
    515-
    16 (stating that an exaction meeting the definition of a tax will
    be construed as such regardless of "whatever name it may be
    called"). This makes sense, given that the Constitution itself
    uses four different terms to refer to the concept of taxation:
    taxes, imposts, duties, and excises. U.S. Const. art. I, § 8, cl.
    1.3
    Accordingly, the Supreme Court has characterized legisla-
    tive acts as "taxes" without regard to the labels used by Con-
    gress. See, e.g., United States v. Sotelo, 
    436 U.S. 268
    , 275
    (1978) (deeming an exaction labeled a "penalty" in the Inter-
    nal Revenue Code a tax for bankruptcy purposes); License
    Tax Cases, 72 U.S. (5 Wall.) 462, 470-71 (1866) (sustaining
    under the taxing power a federal statute requiring the pur-
    chase of a license before engaging in certain businesses and
    stating that "the granting of a license . . . must be regarded as
    nothing more than a mere form of imposing a tax"); see also
    In re Leckie Smokeless Coal Co., 
    99 F.3d 573
    , 583 (4th Cir.
    1996) (holding that, for purposes of the AIA, "premiums"
    constituted taxes).
    3
    Congress also does not have to invoke the source of authority for its
    enactments. "The question of the constitutionality of action taken by Con-
    gress does not depend on recitals of the power which it undertakes to exer-
    cise." Woods v. Cloyd W. Miller Co., 
    333 U.S. 138
    , 144 (1948).
    LIBERTY UNIVERSITY v. GEITHNER                 47
    Further, a tax—regardless of its label—"does not cease to
    be valid merely because it regulates, discourages, or even def-
    initely deters the activities taxed." United States v. Sanchez,
    
    340 U.S. 42
    , 44 (1950). As long as a statute is "productive of
    some revenue," Congress may exercise its taxing power with-
    out "collateral inquiry as to the measure of the regulatory
    effect [of the statute in question]." Sonzinsky v. United States,
    
    300 U.S. 506
    , 514 (1937). And if "the legislation enacted has
    some reasonable relation to the exercise of the taxing author-
    ity conferred by the Constitution, it cannot be invalidated
    because of the supposed motives which induced it." United
    States v. Doremus, 
    249 U.S. 86
    , 93 (1919).
    I recognize that some cases from the 1920s and 1930s sug-
    gest that taxes are either regulatory or revenue-raising and
    that the former are unconstitutional. See, e.g., Bailey v. Drexel
    Furniture Co., 
    259 U.S. 20
    , 37-44 (1922) (holding that a tax
    on goods made by child labor was an unconstitutional pen-
    alty). However, both older and newer opinions indicate that
    the revenue-versus-regulatory distinction was short-lived and
    is now defunct. See, e.g., United States v. Kahriger, 
    345 U.S. 22
    , 28 (1953) (upholding tax on bookmakers and stating, "It
    is conceded that a federal excise tax does not cease to be valid
    merely because it discourages or deters the activities taxed."),
    overruled in part on other grounds, Marchetti v. United
    States, 
    390 U.S. 39
     (1968); Sonzinsky, 
    300 U.S. at 514
     (1937
    case upholding a tax on firearm dealers despite registration
    provision and alleged regulatory effects); Doremus, 
    249 U.S. at 95
     (1919 case upholding the Narcotic Drugs Act, which
    taxed and regulated sales of narcotics); McCray v. United
    States, 
    195 U.S. 27
    , 59 (1904) (upholding tax on colored mar-
    garine and stating, "Since . . . the taxing power conferred by
    the Constitution knows no limits except those expressly stated
    in that instrument, it must follow, if a tax be within the lawful
    power, the exertion of that power may not be judicially
    restrained because of the results to arise from its exercise.").
    It is not surprising that this distinction did not endure, given
    that taxes can, and do, both regulate and generate revenue at
    48               LIBERTY UNIVERSITY v. GEITHNER
    the same time. Indeed, as the Supreme Court recognized in
    Sonzinsky, "[e]very tax is in some measure regulatory. To
    some extent it interposes an economic impediment to the
    activity taxed as compared with others not taxed. But a tax is
    not any the less a tax because it has a regulatory effect . . . ."
    
    300 U.S. at 513
    . And "[i]n like manner every rebate from a
    tax when conditioned upon conduct is in some measure a
    temptation. But to hold that motive or temptation is equiva-
    lent to coercion is to plunge the law in endless difficulties."
    Chas. C. Steward Mach. Co. v. Davis, 
    301 U.S. 548
    , 589-90
    (1937). Accordingly, in Bob Jones University v. Simon, 
    416 U.S. 725
     (1974), the Supreme Court recognized that, while in
    some early cases it "drew what it saw at the time as distinc-
    tions between regulatory and revenue-raising taxes," the
    Court "subsequently abandoned such distinctions." 
    Id.
     at 741
    n.12, overruled in part on other grounds by South Carolina
    v. Ragan, 
    465 U.S. 367
    , 379 (1984).
    Courts, therefore, do not look to labels, regulatory intent, or
    regulatory effect. Instead, we must consider whether some-
    thing that operates as a tax is authorized under Congress’s
    taxing power, which has been described as "very extensive,"
    License Tax Cases, 72 U.S. at 471, and indeed "virtually with-
    out limitation." United States v. Ptasynski, 
    462 U.S. 74
    , 79
    (1983). As Justice Cardozo recognized in Helvering,
    The discretion [to tax and spend for the general wel-
    fare] belongs to Congress, unless the choice is
    clearly wrong, a display of arbitrary power, [or] not
    an exercise of judgment. This is now familiar law.
    "When such a contention comes here we naturally
    require a showing that by no reasonable possibility
    can the challenged legislation fall within the wide
    range of discretion permitted to the Congress."
    301 U.S. at 640-41 (quoting Butler, 
    297 U.S. at 67
    ).
    LIBERTY UNIVERSITY v. GEITHNER                49
    There are essentially three features that a tax must exhibit
    to be constitutional. First, to pass constitutional muster, a tax
    must bear "some reasonable relation" to raising revenue.
    Doremus, 
    249 U.S. at 93
    . The amount of revenue raised is
    irrelevant: A tax does not cease to be one "even though the
    revenue obtained is obviously negligible, or the revenue pur-
    pose of the tax may be secondary." Sanchez, 
    340 U.S. at 44
    (citations omitted). Instead, the measure must simply be "pro-
    ductive of some revenue." Sonzinsky, 
    300 U.S. at 514
    (upholding tax that raised $5,400 in revenue in 1934).
    Second, to be constitutional, a tax must be imposed for the
    general welfare. Congress enjoys wide discretion regarding
    what is in the general welfare. "The discretion . . . is not con-
    fided to the courts. The discretion belongs to Congress, unless
    the choice is clearly wrong, a display of arbitrary power, not
    an exercise of judgment." Helvering, 301 U.S. at 640. There-
    fore, in determining whether a congressional enactment fur-
    thers the general welfare, "courts should defer substantially to
    the judgment of Congress." South Dakota v. Dole, 
    483 U.S. 203
    , 207 (1987).
    Finally, even if an exaction is rationally related to raising
    revenue and furthers the general welfare, to be constitutional,
    it must not infringe upon another constitutional right. For
    example, a tax may not infringe on an individual’s right to be
    free from double jeopardy by further punishing criminal con-
    duct. See Dep’t of Revenue of Montana v. Kurth Ranch, 
    511 U.S. 767
    , 780-83 (1994) (concluding that a drug tax was actu-
    ally a criminal penalty based on its high rate, its deterrent pur-
    pose, and a criminal prohibition on the taxed activity and
    holding that the tax consequently violated the Double Jeop-
    ardy Clause of the Fifth Amendment).
    B.
    Turning now to the case at hand, the provisions at issue are
    the exaction provisions in the individual and employer man-
    50                 LIBERTY UNIVERSITY v. GEITHNER
    dates. I would conclude, after examining their practical opera-
    tion, that these provisions impose taxes.
    The individual mandate exaction in 26 U.S.C. § 5000A(b)
    amends the Internal Revenue Code to provide that a non-
    exempted individual who fails to maintain a minimum level
    of insurance must pay a "penalty." Notably, while the individ-
    ual mandate in some places uses the term "penalty," some
    form of the word "tax" appears in the statute over forty times.
    26 U.S.C. § 5000A. For example, it references taxpayers and
    their returns, includes amounts due under the provision in the
    taxpayer’s tax return liability, calculates the penalty by refer-
    ence to household income for tax purposes, and allows the
    Secretary of the Treasury to enforce the provision like other
    taxes (with several procedural exceptions). Id. Yet, as
    explained above, the label applied to an exaction is irrelevant;
    instead, in assessing an exaction’s constitutionality, we look
    to its practical operation.
    The practical operation of the individual mandate provision
    is as a tax. Individuals who are not required to file income tax
    returns are not required to pay the penalty. Id. § 5000A(e)(2).
    The amount of any penalty owed is generally calculated by
    reference to household income and reported on an individu-
    al’s federal income tax return. Id. § 5000A(b)-(c).4 Taxpayers
    filing jointly are jointly liable for the penalty. Id.
    4
    The statute prescribes monthly penalties in an amount calculated by
    identifying a specified "percentage of the excess of the taxpayer’s house-
    hold income for the taxable year over the amount of gross income speci-
    fied in section 6012(a)(1)" unless that calculation produces an amount that
    is less than certain statutorily defined thresholds. 26 U.S.C. § 5000A(c)(2).
    Ultimately, the penalty owed by a taxpayer is equal to the lesser of either
    the sum of the monthly penalties owed by the taxpayer or the cost of the
    "national average premium for qualified health plans which have a bronze
    level of coverage, provide coverage for the applicable family size
    involved, and are offered through Exchanges for plan years beginning in
    the calendar year with or within which the taxable year ends." Id.
    § 5000A(c)(1).
    LIBERTY UNIVERSITY v. GEITHNER                        51
    § 5000A(b)(3)(B). And the Secretary of the Treasury is
    empowered to enforce the provision like a tax, albeit with
    several procedural exceptions.5 Id. § 5000A(g). The individual
    mandate exaction, codified in the Internal Revenue Code,
    therefore functions as a tax.
    Looking next at the employer mandate exaction in 26
    U.S.C. § 4980H, it amends the Internal Revenue Code to
    impose an "assessable payment" on large employers if a
    health exchange notifies the employer that at least one full-
    time employee obtains a premium tax credit or cost-sharing
    reduction. Id. § 4980H(a)-(b). The amount of the assessable
    payment is calculated differently based on whether the
    employer offers adequate health insurance coverage to its
    employees. Id. § 4980H(a)-(c). And instead of the term "pen-
    alty," the employer mandate uses the terms "assessable pay-
    ment" and "tax." Id. § 4980H(b). Like the individual mandate
    exaction, the practical operation of this provision is as a tax
    that is assessed and collected in the same manner as other
    Internal Revenue Code penalties treated as taxes.6 Id.
    § 4980H(d).
    Having concluded that the individual and employer man-
    dates operate as taxes,7 to determine whether they are consti-
    tutional, I must consider whether they: 1) are reasonably
    5
    The fact that Congress considered it necessary to exempt the individual
    mandate exaction from some traditional tax collection procedures like
    criminal liability and liens evidences that the exaction is a tax. 26 U.S.C.
    § 5000A(g)(2). Otherwise, there would be no need to except the exaction
    from some of the standard tax collection procedures, which otherwise
    apply.
    6
    No exceptions to the standard collection procedures exist in the case
    of the employer mandate. 26 U.S.C. § 4980H(d).
    7
    Since the Supreme Court long ago established that Congress did not
    have to invoke the word "tax" to act within its taxing power, Congress’s
    use of other verbiage in portions of the individual and employer mandates,
    and most notably in the "penalty" provision of the individual mandate,
    sheds little light on Congressional intent. See Nelson, 
    312 U.S. at 363
    .
    52               LIBERTY UNIVERSITY v. GEITHNER
    related to raising revenue; 2) serve the general welfare; and 3)
    do not infringe upon any other right.
    The individual and employer exactions are surely related to
    raising revenue. The Congressional Budget Office estimated
    that the individual mandate exaction will generate approxi-
    mately $4 billion annually, and the employer mandate exac-
    tion, $11 billion annually, by 2019. Letter from Douglas W.
    Elmendorf, Dir., Cong. Budget Office, to Hon. Nancy Pelosi,
    Speaker, U.S. House of Representatives, tbl. 4 (Mar. 20,
    2010), available at http://www.cbo.gov/ftpdocs/113xx/
    doc11379/AmendReconProp.pdf; see also Patient Protection
    and Affordable Care Act, Pub. L. No. 111-148, § 1563(a), 
    124 Stat. 119
    , 270 (stating that the Affordable Care Act "will
    reduce the Federal deficit"). Not only will the exactions raise
    significant amounts of revenue, but the revenue raised can
    cover the "[h]igher government costs attributable to the unin-
    sured . . . implicitly paid for by the insured . . . through
    increased taxes or reductions in other government services as
    money is spent on the uninsured." Brief Amici Curiae of Eco-
    nomic Scholars in Support of Defendants-Appellees at 13,
    Liberty Univ. v. Geithner, No. 10-2347. In other words, as
    Judge Davis notes in his opinion, "[b]ecause the uninsured
    effectively force the rest of the nation to insure them with
    respect to basic, stabilizing care, this penalty is something like
    a premium paid into the federal government, which bears a
    large share of the shifted costs as the largest insurer in the
    nation." Post at 98. Clearly, then, the exactions bear "some
    reasonable relation" to raising revenue. Doremus, 
    249 U.S. at 93
    . See also Sonzinsky, 
    300 U.S. at 514
     (upholding tax that
    raised $5,400 in revenue).
    Further, the individual and employer mandate exactions
    serve the general welfare. The Affordable Care Act is aimed
    at, among other things, reducing the number of the uninsured
    as well as the cost of those who remain uninsured imposed on
    those who are insured. Congress found that, nationwide, hos-
    pitals provided $43 billion in uncompensated care to the unin-
    LIBERTY UNIVERSITY v. GEITHNER                        53
    sured in 2009 and that these costs were shifted onto insured
    individuals, "increas[ing] family premiums by on average
    over $1,000 a year." 
    42 U.S.C. § 18091
    (a)(2)(F). It also found
    that "[b]y significantly reducing the number of the uninsured,
    the [individual mandate], together with the other provisions of
    th[e] Act, will lower health insurance premiums." 
    Id.
     By
    encouraging individuals to purchase health insurance and
    employers to provide it, the individual and employer man-
    dates alleviate the costs associated with providing uncompen-
    sated care to the uninsured and lower health insurance
    premiums. Such cost reductions and expansions in access to
    health insurance surely constitute contributions to the general
    welfare.
    Finally, neither the exaction in the individual mandate nor
    that in the employer mandate infringes on other rights. The
    exactions do not, for example, operate to impose duplicative
    criminal penalties in violation of the prohibition against dou-
    ble jeopardy. See Kurth Ranch, 
    511 U.S. at 780-83
     ("Taxes
    imposed upon illegal activities are fundamentally different
    from taxes with a pure revenue-raising purpose that are
    imposed despite their adverse effect on the taxed activity.").
    The provisions lack the punitive character of other measures
    the Supreme Court has held to be penalties. Id.; see also, e.g.,
    Bailey, 
    259 U.S. at 36
    . And the provisions do not appear to
    violate any other rights: No one has a right to be free from taxa-
    tion.8
    C.
    It bears mention that the individual and employer mandate
    exactions do not run afoul of the constitutional requirement
    8
    Additionally, any contention that the individual mandate violates either
    the First, Fifth, or Tenth Amendment is, in my opinion, meritless. See post
    at 105-109; Florida ex rel. Atty. Gen. v. U.S. Dep’t of Health & Human
    Servs., ___ F.3d ___, 
    2011 WL 3519178
    , at *113-17 (11th Cir. Aug. 12,
    2011) (Marcus, J., dissenting).
    54               LIBERTY UNIVERSITY v. GEITHNER
    that "[n]o Capitation, or other direct, Tax shall be laid, unless
    in Proportion to the Census or Enumeration herein before
    directed to be taken." U.S. Const. art. I, § 9, cl. 4. This clause
    has its origins in the Constitutional Convention’s slavery
    debates. The Northern states consented to count a slave as
    three-fifths of a person for allocating representatives in Con-
    gress in exchange for a corresponding increase in the tax lia-
    bility of Southern states. Brian Galle, The Taxing Power, the
    Affordable Care Act, and the Limits of Constitutional Com-
    promise, 120 Yale L.J. Online 407, 414 (Apr. 5, 2011),
    http://yalelawjournal.org/2011/4/5/galle.html. Even at that
    time, the definition of "direct" tax was unclear. Id.; Springer
    v. United States, 
    102 U.S. 586
    , 596 (1880) ("It does not
    appear that an attempt was made by any one to define the
    exact meaning of the language employed.").
    It is therefore understandable that the Supreme Court has
    demonstrated reluctance to strike a tax based solely on the
    direct/indirect distinction. See Knowlton v. Moore, 
    178 U.S. 41
    , 83 (1900) ("[I]t is no part of the duty of this court to
    lessen, impede, or obstruct the exercise of the taxing power by
    merely abstruse and subtle distinctions as to the particular
    nature of a specified tax, where such distinction rests more
    upon the differing theories of political economists than upon
    the practical nature of the tax itself." (quoting Nicol v. Ames,
    
    173 U.S. 509
    , 515 (1899)). Indeed, the Supreme Court
    restricted the meaning of "direct" taxes to capitation, or head
    taxes, and taxes on the ownership of real property. Springer,
    102 U.S. at 602; Veazie Bank v. Fenno, 75 U.S. (8 Wall.) 533,
    544 (1869). Taxes on personal property have also been held
    to be direct. Pollock v. Farmers’ Loan & Trust Co., 
    158 U.S. 601
    , 637 (1895), superseded on other grounds by constitu-
    tional amendment, U.S. Const. amend. XVI, as recognized in
    Brushaber, 
    240 U.S. 1
    .
    The Supreme Court has never struck down a federal tax as
    an unapportioned capitation tax. And the Supreme Court has
    repeatedly upheld a variety of federal taxes as indirect and
    LIBERTY UNIVERSITY v. GEITHNER                55
    therefore outside the apportionment requirement. See Knowl-
    ton, 
    178 U.S. at 83
     (upholding a federal estate tax); Bromley
    v. McCaughn, 
    280 U.S. 124
    , 138 (1929) (upholding a federal
    gift tax); United States v. Mfrs. Nat’l Bank of Detroit, 
    363 U.S. 194
    , 199 (1960) (upholding a federal estate tax collected
    on an insurance policy). As the Supreme Court has explained,
    "[a] tax laid upon the happening of an event, as distinguished
    from its tangible fruits, is an indirect tax which Congress . . .
    undoubtedly may impose." Tyler v. United States, 
    281 U.S. 497
    , 502 (1930).
    The individual and employer mandate exactions are not
    capitation taxes; nor are they direct taxes that must be appor-
    tioned. Far from being imposed without regard to circum-
    stance, they will be imposed only upon taxpayers who can
    afford, but fail to maintain, health insurance, or upon employ-
    ers who fail to provide adequate and affordable insurance. See
    26 U.S.C. §§ 4980H, 5000A. As taxes "laid upon the happen-
    ing of an event," the individual and employer mandate exac-
    tions are clearly indirect. See Tyler, 
    281 U.S. at 502
    . Nor are
    they property taxes, since they will not be assessed based on
    the ownership of property.
    Indeed, the Supreme Court has so limited the application of
    the Direct Tax Clause that the Sixth Circuit concluded that it
    "relates solely to taxation generally for the purpose of revenue
    only, and not impositions made incidentally under the com-
    merce clause exerted either directly or by delegation, as a
    means of constraining and regulating what may be considered
    by the Congress as pernicious or harmful to commerce." Rod-
    gers v. United States, 
    138 F.2d 992
    , 995 (6th Cir. 1943).
    Since the individual and employer mandate exactions are nei-
    ther capitation nor property taxes, the Direct Tax Clause is
    inapplicable, and the individual and employer mandate taxes
    stand.
    III.
    In sum, I concur in Judge Motz’s fine opinion holding that
    the AIA applies here. Our distinguished colleague vigorously
    56               LIBERTY UNIVERSITY v. GEITHNER
    dissents from our holding and presents a credible basis for
    upholding the constitutionality of the Affordable Care Act
    under the Commerce Clause. However, were I to rule on the
    merits, for the reasons given in this opinion, I would uphold
    the constitutionality of the Affordable Care Act on the basis
    that Congress had the authority to enact the individual and
    employer mandates, which operate as taxes, under its taxing
    power. Accordingly, I must agree with Judge Motz that the
    AIA bars this suit.
    DAVIS, Circuit Judge, dissenting:
    Today we are asked to rule on the constitutionality of core
    provisions of the Patient Protection and Affordable Care Act.
    Appellants advance several arguments against the Act, chief
    among them their claim that Congress exceeded its power
    when it sought to require all individuals (with narrow excep-
    tions) to obtain a certain minimum of health insurance cover-
    age starting in 2014. 26 U.S.C. § 5000A. In particular,
    appellants urge that the Commerce Clause, which authorizes
    Congress "To regulate Commerce . . . among the several
    States," U.S. Const. art. I, § 8, cl. 3, allows only regulation of
    economic activity. Thus, they contend, Congress cannot regu-
    late appellants’ "decision not to purchase health insurance and
    to otherwise privately manage [their] own healthcare," which
    they characterize as "inactivity in commerce," Appellants’ Br.
    1. They also contend that upholding the Act under the Com-
    merce Clause would "create an unconstitutional national
    police power that would threaten all aspects of American
    life," id. at 11, suggesting in particular that "Congress could
    require that people buy and consume broccoli at regular inter-
    vals" or that "everyone above a certain income threshold buy
    a General Motors automobile," Appellants’ Reply Br. 9 (quot-
    ing Florida ex rel. Bondi v. Dep’t of Health and Human
    Servs., ___ F. Supp. 2d ___, ___, 
    2011 WL 285683
    , at *24
    (N.D. Fla. Jan. 31, 2011), aff’d in part and rev’d in part sub
    nom. Florida v. U.S. Dept. of Health & Human Servs., ___
    F.3d ___, 
    2011 WL 3519178
     (11th Cir. Aug. 12, 2011)).
    LIBERTY UNIVERSITY v. GEITHNER                57
    Appellants bring a similar facial challenge to the Act’s
    employer mandate, and they also assert Free Exercise, Estab-
    lishment Clause, and Equal Protection claims against the Act.
    My good colleagues in the majority hold that the Anti-
    Injunction Act strips us of jurisdiction in this case. For rea-
    sons I explain at length below, I disagree. As I reject the rea-
    soning and the result of the majority’s jurisdictional analysis,
    I am entitled to reach the merits of appellants’ claims. Reach-
    ing the merits, I would hold that the challenged provisions of
    the Act are a proper exercise of Congress’s authority under
    the Commerce Clause to regulate the interstate markets for
    health services and health insurance. I do not believe that con-
    stitutional review of the Act requires courts to decide whether
    the Commerce Clause discriminates between activity and
    inactivity. But even if I were to assume appellants were "inac-
    tive," I could not accept appellants’ contention that a distinc-
    tion between "activity" and "inactivity" is vital to Commerce
    Clause analysis. I would therefore affirm the district court’s
    dismissal of appellants’ suit.
    Appellants raise two major concerns about upholding the
    Act: first, they believe that individual liberty is infringed
    when the federal government is permitted to regulate involun-
    tary market participants; second, they fear that our liberty will
    be further eroded in the future, as a ruling sustaining the Act
    would permit Congress to establish arbitrary purchase man-
    dates. Because I take these concerns very seriously, I explain
    at some length why the Act is a far more limited exercise of
    federal power than appellants fear.
    I.   Anti-Injunction Act
    A.   My View
    The majority concludes that the Anti-Injunction Act (AIA)
    applies to the challenged provisions of the Affordable Care
    Act, depriving us of subject-matter jurisdiction. Although the
    58               LIBERTY UNIVERSITY v. GEITHNER
    parties argue that we have jurisdiction, "federal courts have an
    independent obligation to . . . raise and decide jurisdictional
    questions that the parties either overlook or elect not to press."
    Henderson ex rel. Henderson v. Shinseki, ___ U.S. ___, ___,
    
    131 S. Ct. 1197
    , 1202 (2011).
    Before today, nine federal judges had expressly considered
    the application of the Anti-Injunction Act, and all nine held
    it inapplicable to the Affordable Care Act’s mandates. See
    Thomas More Law Center v. Obama, ___ F.3d ___, ___, 
    2011 WL 2556039
    , at *6-*8 (6th Cir. June 29, 2011); Goudy-
    Bachman v. United States Dept. of Health & Human Servs.,
    
    764 F. Supp. 2d 684
    , 695-97 (M.D. Pa. 2011); Liberty Univer-
    sity, Inc. v. Geithner, 
    753 F. Supp. 2d 611
    , 627-29 (W.D. Va.
    2010); United States Citizens Ass’n v. Sebelius, 
    754 F. Supp. 2d 903
    , 909 (N.D. Ohio 2010); Florida ex rel. McCollum v.
    United States Dept. of Health & Human Servs., 
    716 F. Supp. 2d 1120
    , 1130-44 (N.D. Fla. 2010); Thomas More Law Cen-
    ter v. Obama, 
    720 F. Supp. 2d 882
    , 890-91 (E.D. Mich.
    2010); Virginia ex rel. Cuccinelli v. Sebellius, 
    702 F. Supp. 2d 598
    , 603-605 (E.D. Va. 2010). Although the two circuit courts
    that have considered challenges to the mandates have split, all
    six members of those panels agreed that the courts should
    reach the merits; only the Sixth Circuit panel thought it neces-
    sary to discuss the AIA. Florida v. U.S. Dept. of Health &
    Human Servs., ___ F.3d ___, 
    2011 WL 3519178
     (11th Cir.
    Aug. 12, 2011) (reaching the merits without raising the appli-
    cability of the AIA); Thomas More Law Center, ___ F.3d at
    ___, 2011 WL at *6-*8 (expressly holding the AIA does not
    apply). For the following reasons, I agree with these judges
    and would hold that the AIA does not strip us of jurisdiction
    in this case.
    The Anti-Injunction Act, originally enacted in 1867, directs
    that "no suit for the purpose of restraining the assessment or
    collection of any tax shall be maintained in any court by any
    person," certain enumerated exceptions aside. 26 U.S.C.
    LIBERTY UNIVERSITY v. GEITHNER                         59
    § 7421(a).1 Thus, we have jurisdiction only if the penalty pro-
    visions attached to the challenged mandates do not constitute
    "tax[es]" for purposes of the AIA.2
    The Sixth Circuit recently held that the individual man-
    date’s penalty provision was not a "tax" within the meaning
    of the AIA. Thomas More Law Center, ___ F.3d at ___, 2011
    WL at *6-*8. Its reasoning is straightforward: Congress spoke
    only of "tax[es]" in the Anti-Injunction Act, while it deemed
    the amount owed by those in violation of the individual man-
    date a "penalty." See id. at *7; compare 
    26 U.S.C. § 7421
    (a)
    with 
    id.
     § 5000A(b), (c), (e), (g). And Congress did not simply
    use the term "penalty" in passing: Congress refers to the exac-
    tion no fewer than seventeen times in the relevant provision,
    and each time Congress calls it a "penalty."
    In fact, Congress considered earlier versions of the individ-
    ual mandate that clearly characterized the exaction as a "tax"
    and referred to it as such more than a dozen times. See H.R.
    3962, § 501, 111th Cong. (2009) ("impos[ing] a tax" in sec-
    tion entitled "Tax on individuals without acceptable health
    care coverage," and repeatedly referring to this exaction as a
    "tax"); H.R. 3200, § 401, 111th Cong. (2009) (same); S. 1796,
    § 1301, 111th Cong. (2009) ("impos[ing] a tax" in section
    1
    Although appellants also requested declaratory relief, the Declaratory
    Judgment Act "enlarged the range of remedies available in the federal
    courts but did not extend their jurisdiction." Skelly Oil Co. v. Phillips
    Petroleum Co., 
    339 U.S. 667
    , 671 (1950); In re Leckie Smokeless Coal
    Co., 
    99 F.3d 573
    , 582 (4th Cir. 1996). In any case, the Declaratory Judg-
    ment Act expressly excludes claims "with respect to Federal taxes." 
    28 U.S.C. § 2201
    (a). The Supreme Court has held this exclusion to be "at
    least as broad as the Anti-Injunction Act." Bob Jones Univ. v. Simon, 
    416 U.S. 725
    , 732 n.7 (1974).
    2
    This question of statutory interpretation is wholly distinct from the
    constitutional question concerning Congress’s power under the Taxing
    and Spending Clause, U.S. Const. art. I, § 8, cl. 1, to enact these mandates.
    Because I would hold the Act constitutional under the Commerce Clause,
    I need not and do not reach the latter issue.
    60              LIBERTY UNIVERSITY v. GEITHNER
    entitled "Excise tax on individuals without essential health
    benefits coverage," and repeatedly referring to exaction as a
    "tax"). Congress deliberately deleted all of these references to
    a "tax" in the final version of the Act and instead designated
    the exaction a "penalty." As the Supreme Court noted in INS
    v. Cardoza-Fonseca, "[f]ew principles of statutory construc-
    tion are more compelling than the proposition that Congress
    does not intend sub silentio to enact statutory language that it
    has earlier discarded in favor of other language." 
    480 U.S. 421
    , 442-43 (1987). Thus, it seems odd for the majority to
    ignore Congress’s deliberate drafting decision to call the
    exaction a "penalty" rather than a "tax."
    When Congress has wished "penalties" to be treated as
    "taxes," it has said so expressly. In Subchapter A of Chapter
    68 of the Internal Revenue Code, Congress directed that "any
    reference in this title [Title 26 of the United States Code (the
    Internal Revenue Code)] to ‘tax’ imposed by this title shall be
    deemed also to refer to the additions to the tax, additional
    amounts, and penalties provided by this chapter." 
    Id.
    § 6665(a)(1). Likewise, in Subchapter B of that chapter, Con-
    gress instructed that "any reference in this title to ‘tax’
    imposed by this title shall be deemed also to refer to the pen-
    alties and liabilities provided by this subchapter." Id.
    § 6671(a). Yet, Congress chose to place the individual man-
    date and its "penalty" provisions not in Chapter 68 but in
    Chapter 48, which contains no such instructions. Though
    Congress did provide that this penalty "be assessed and col-
    lected in the same manner as an assessable penalty under sub-
    chapter B of chapter 68," and Chapter 68 "penalties" are
    treated as "taxes," the term "assessment and collection like a
    tax" does not imply that the penalty should be treated as a tax
    for any and all other purposes. Id. § 5000A(g)(1). As the Sixth
    Circuit recently observed, "Congress said one thing in sec-
    tions 665(a)(2) and 6671(a), and something else in section
    5000A, and we should respect the difference." Thomas More,
    2011 WL at *7.
    LIBERTY UNIVERSITY v. GEITHNER                61
    "Where, as here, resolution of federal law turns on a statute
    and the intention of Congress, we look first to the statutory
    language and then to the legislative history if the statutory
    language is unclear." Blum v. Stenson, 
    465 U.S. 886
    , 896
    (1984). Courts look to legislative history first to see whether
    it indicates that Congress intended a particular result and then,
    if not, to find evidence of the purposes of the statute. Cf.
    Dolan v. United States Postal Service, 
    546 U.S. 481
    , 486
    (2006) ("Interpretation of a word or phrase depends upon
    reading the whole statutory text, considering the purpose and
    context of the statute . . . ."). Even if the statutory text were
    unclear here, legislative history indicates that the AIA should
    not apply.
    Legislative history of the Affordable Care Act reveals that
    Congress never considered application of the Anti-Injunction
    Act. Nowhere in the Act’s voluminous legislative history can
    I find a single reference to the AIA. And when members of
    Congress discussed the inevitable judicial review of the
    Affordable Care Act, no one appears to have contemplated
    that the AIA might bar such review for the five years, post-
    enactment, that would have to elapse before a tax refund suit
    could be brought.
    Looking, then, to legislative purpose, it appears that imme-
    diate judicial review of the individual mandate would do little
    to frustrate the aims of the AIA. The Anti-Injunction Act was
    intended to "protect[ ] the expeditious collection of revenue."
    South Carolina v. Regan, 
    465 U.S. 367
    , 376 (1984). Revenue
    from the individual mandate’s penalty provision will not be
    assessed and collected until the year after the mandate
    becomes operative—2015. Judicial review of the mandate in
    2011 most assuredly will not frustrate "the expeditious collec-
    tion of revenue" four years later. I also note that Congress for-
    bid the Internal Revenue Service from employing its primary
    enforcement mechanisms to collect this penalty: the IRS may
    not seek the institution of criminal prosecutions by the Justice
    Department or impose a lien or levy on an individual’s prop-
    62              LIBERTY UNIVERSITY v. GEITHNER
    erty for failure to pay the penalty. 26 U.S.C. § 5000A(g)(2).
    This indicates that Congress had scant concern for "the
    expeditious collection of revenue" from the penalty provision.
    A failure to provide immediate judicial review in reliance
    on a rather strained construction of the AIA, on the other
    hand, might undermine the core purpose of the Affordable
    Care Act. In the absence of a conclusive ruling from the fed-
    eral courts, some individuals may well decide for themselves
    that the Act is unconstitutional and thus can be ignored. In the
    case of an ordinary tax this would simply result in some lost
    revenue and the costs of tax prosecutions; here, it would push
    the nation farther from Congress’s goal of attaining near-
    universal health insurance coverage. And, as leaving the con-
    stitutionality of the Act unsettled would seem likely to create
    uncertainty in the health insurance and health care industries,
    which might depress these major sectors of the economy, it
    seems that application of the AIA would be at cross-purposes
    with the Act’s reforms. Thus, I believe that there is ample rea-
    son for me to conclude that Congress had no design that the
    Anti-Injunction Act might apply to the individual mandate’s
    penalty provisions.
    The question of our jurisdiction over appellants’ challenge
    to the analogous penalty attached to the employer mandate
    presents a closer question. That exaction is termed "an assess-
    able payment" in the provision that imposes it, but it is then
    twice referred to as a "tax" in later, qualifying provisions.
    Compare Id. § 4980H(a) with id. § 4980H(b)(2), (c)(7). "The
    . . . ambiguity of statutory language is determined by refer-
    ence to the language itself, the specific context in which that
    language is used, and the broader context of the statute as a
    whole." Robinson v. Shell Oil Co., 
    519 U.S. 337
    , 341 (1997).
    Given these mixed references, and mindful of the Supreme
    Court’s warning in United States v. Am. Trucking Ass’ns, 
    310 U.S. 534
    , 542 (1940), that "[t]o take a few words from their
    context and with them thus isolated to attempt to determine
    their meaning, certainly would not contribute greatly to the
    LIBERTY UNIVERSITY v. GEITHNER                63
    discovery of the purpose of the draftsmen of a statute," I find
    the text of the employer mandate provision ambiguous on the
    application of the Anti-Injunction Act.
    Thus, I would again look to legislative history and Con-
    gressional purpose. Cf. SEC v. C.M. Joiner Leasing Corp.,
    
    320 U.S. 344
    , 350-51 (1943) (Jackson, J.) (explaining that our
    canons of statutory construction "long have been subordinated
    to the doctrine that courts will construe the details of an act
    in conformity with its dominating general purpose, will read
    text in the light of context and will interpret the text so far as
    the meaning of the words fairly permits so as to carry out in
    particular cases the generally expressed legislative policy").
    For the reasons stated above, I would hold that Congress did
    not intend the Anti-Injunction Act to block timely judicial
    review of the employer mandate provisions. Accordingly, I
    would hold that we have jurisdiction to consider all of appel-
    lants’ claims.
    B.    Majority’s View
    The majority’s contrary conclusion relies on two argu-
    ments, neither of which I find convincing. First, the majority
    contends that "the Supreme Court has repeatedly instructed
    that congressional labels have little bearing on whether an
    exaction qualified as a ‘tax’ for statutory purposes" and that
    "the Court has specifically found an exaction’s label immate-
    rial to the applicability of the AIA," displacing the ordinary
    methods of statutory interpretation with a functional analysis
    of the challenged exactions. Ante pp. 25-26. Thus, in the
    majority’s view, "it is simply irrelevant what the 2010 Con-
    gress would have thought about the AIA; all that matters is
    whether the 2010 Congress imposed a tax." Ante p. 36. Sec-
    ond, the majority asserts that "[t]he Supreme Court has con-
    cluded that the AIA uses the term ‘tax’ in its broadest possible
    sense" and thus that this functional analysis sweeps quite
    broadly: the majority holds that "the AIA prohibits a pre-
    enforcement challenge to any exaction that is made under
    64              LIBERTY UNIVERSITY v. GEITHNER
    color of their offices by revenue officers charged with the
    general authority to assess and collect the revenue." Ante p.
    22 (internal quotation marks and braces omitted).
    1.
    The majority’s functional approach hinges on its interpreta-
    tion of two Supreme Court cases from 1922: Bailey v.
    George, 
    259 U.S. 16
     (1922), and Lipke v. Lederer, 
    259 U.S. 557
     (1922). I read these cases differently from the manner in
    which the majority reads them. Because the majority’s view
    of George and Lipke brings these cases into conflict, I believe
    my approach, which harmonizes them, is preferable.
    The majority asserts that in Lipke "the Court . . . specifi-
    cally found an exaction’s label immaterial to the applicability
    of the AIA." Ante p. 26. The Lipke Court held that "[t]he mere
    use of the word ‘tax’ in an act primarily designed to define
    and suppress crime is not enough to show that within the true
    intendment of the term a tax was laid." 259 U.S. at 561
    (emphases added). That is, "[t]he mere use of the word ‘tax’"
    in a criminal statute—particularly where, as in the statute at
    issue in Lipke, the word "tax" is immediately followed by the
    word "penalty"—is not dispositive of Congress’s "true
    inten[t]" regarding application of the AIA. Id. This is an ordi-
    nary exercise in statutory interpretation, not an instruction
    from the Court to disregard Congressional designations as
    "immaterial to the applicability of the AIA." Ante p. 26.
    The Court did go on to examine the function of the exac-
    tion, noting that "[w]hen by its very nature the imposition is
    a penalty, it must be so regarded," but it did not do so in the
    course of an ordinary application of the AIA. Lipke, 259 U.S.
    at 561. Rather, it is clear that the Court considered the func-
    tion of the exaction because that function (as a criminal pen-
    alty) was relevant to the Court’s due process concerns. It was
    to resolve this constitutional problem, not simply to construe
    LIBERTY UNIVERSITY v. GEITHNER               65
    the word "taxes" in the AIA, that the Court looked to the
    exaction’s function.
    Thus, the Court reasoned,
    Before collection of taxes levied by statutes enacted
    in plain pursuance of the taxing power can be
    enforced, the taxpayer must be given fair opportunity
    for hearing; this is essential to due process of law.
    And certainly we cannot conclude, in the absence of
    language admitting of no other construction, that
    Congress intended that penalties for crime should be
    enforced through the secret findings and summary
    action of executive officers. The guaranties of due
    process of law and trial by jury are not to be forgot-
    ten or disregarded.
    Id. at 562 (emphasis added). This passage strongly indicates
    that the Court was applying the canon of constitutional avoid-
    ance, construing the exaction at issue together with the AIA
    so as not to run afoul of due process. Cf. South Carolina v.
    Regan, 
    465 U.S. 367
    , 398-400 (1984) (O’Connor, J., concur-
    ring in the judgment) (relying on doctrine of constitutional
    avoidance to interpret the AIA not to apply to original juris-
    diction of the Supreme Court). The functional analysis was
    required by the Court’s constitutional concerns, as due pro-
    cess is triggered when the penalty is criminal, whatever its
    designation by Congress. As the AIA was simply being inter-
    preted to accord with the constitutional mandate of due pro-
    cess—which binds Congress and thus of course requires that
    we look beyond Congressional labels to the nature and func-
    tion of the exaction—Lipke did not establish a new methodol-
    ogy for construing "taxes" under the AIA. Instead, it
    recognized that the term "taxes" in the AIA is flexible, like
    nearly all statutory language, and may admit to alternative
    constructions. And it affirmed that a court’s goal when apply-
    ing the AIA, like any other statute, is to do so in accord with
    the "true intendment" of Congress. Id. at 561.
    66              LIBERTY UNIVERSITY v. GEITHNER
    This reading of Lipke harmonizes it with the two Bailey
    cases. As the majority explains, the Supreme Court consid-
    ered a tax refund suit in Bailey v. Drexel Furniture Co. and
    held the Child Labor Tax Law unconstitutional as a "penalty"
    rather than a "tax." 
    259 U.S. 20
    , 38-39 (1922). The same day,
    in Bailey v. George, the Court dismissed, pursuant to the AIA
    (§ 3224, precursor to the modern AIA), a pre-collection suit
    alleging the Child Labor Tax Law was unconstitutional. 
    259 U.S. 16
     (1922). The George Court’s reasoning is extremely
    brief (in a one-page opinion): "The averment that a taxing
    statute is unconstitutional does not take this case out of [the
    AIA]." 
    Id. at 20
    . The question, of course, is why the statute,
    though an unconstitutional exercise of the taxing power per
    Drexel Furniture, is still "a taxing statute" for purposes of the
    AIA.
    My answer is the more straightforward one: it constitutes
    a "taxing statute" for purposes of the AIA because it pur-
    ported to be a taxing statute and appeared to be one on its
    face—that is, because it was designated as a taxing statute by
    Congress. See Drexel Furniture, 259 U.S. at 34 (noting exac-
    tion was called "Tax on Employment of Child Labor," part of
    "An act to provide revenue . . ."). Thus, the Court provided
    no explanation because it relied on the most obvious reason
    for deeming the statute at issue a "taxing statute." The major-
    ity disagrees, arguing that "the Court never mentioned the
    statutory label" in George and that "it [does not] seem plausi-
    ble that the Court implicitly relied on that label, given that it
    had never before and has never since found an exaction’s
    label controlling for statutory purposes." Ante p. 27.
    Under the majority’s approach, the George Court must
    have conducted a functional analysis of the exaction and
    determined that it qualified as a tax. Yet this supposed func-
    tional analysis appears nowhere in the opinion. It is difficult
    to believe that the Court would not bother to specify any
    criteria for determining when an exaction is functionally a tax,
    given that the Court had just held the statute not to qualify as
    LIBERTY UNIVERSITY v. GEITHNER                         67
    a tax for constitutional purposes in Drexel Furniture. If the
    George Court were relying on anything beyond the face of the
    statute, surely the Court would have provided some explana-
    tion of why the enactment qualified as a tax under the AIA
    but not under the Taxing and Spending Clause.
    More troubling still, the majority’s reading of George
    brings it into conflict with Lipke. Under the majority’s
    approach, the Court in George must have simply recognized
    that "the AIA . . . [reaches] any exaction that is made under
    color of their offices by revenue officers charged with the
    general authority to assess and collect the revenue." Ante 22
    (internal quotation marks and braces omitted). But these
    criteria fail to distinguish the "penalty" in Lipke, which was
    held to be outside the AIA. The "penalty" in Lipke also met
    the majority’s criteria: the National Prohibition Act simply
    doubled taxes already assessed and collected by the Commis-
    sioner, 
    41 Stat. 305
    , 317-18 (1919), which were laid down in
    the Revenue Act of 1918 "on all distilled spirits," and were
    "to be paid by the distiller or importer when withdrawn, and
    collected under the provisions of existing law," 
    40 Stat. 1057
    ,
    1105, Title VI — Tax on Beverages, § 600(a). That the Court
    found the exaction tantamount to a criminal penalty does not
    change this.3 Thus, by the majority’s understanding of the
    3
    The majority attempts to sidestep this conflict, nicely arguing that the
    Act "did not authorize the collector to make an assessment under his gen-
    eral revenue authority" because "it converted him into a federal prosecu-
    tor." Ante p. 28-29. But the constitutional failings of the Act does not
    change the fact that the Commissioner would be collecting the challenged
    tax "under his general revenue authority." The Act did not provide any
    separate mechanism for the assessment and collection of this tax, or even
    expressly assign those duties to the Commissioner; it simply stated that "a
    tax shall be assessed . . . and collected . . . in double the amount now pro-
    vided by law" from those illegally manufacturing or selling alcohol. Thus,
    the Commissioner could only perform such assessments and collections
    under the "general revenue authority" granted by the Internal Revenue
    Code. 41 Stat. at 318. That such assessments violated due process does not
    change the fact that the revenue officers doing the assessment would be
    acting "under color of their offices." Ante p. 22 (internal quotation marks
    omitted).
    68                  LIBERTY UNIVERSITY v. GEITHNER
    AIA, there should have been no room for constitutional avoid-
    ance, and the Court in Lipke should have held the AIA appli-
    cable and refused jurisdiction.4
    The majority seems to recognize that Lipke may appear
    problematic, but it contends that it is not. It argues that "Lipke
    held only that when Congress converts the tax assessment
    process into a vehicle for criminal prosecution, the Due Pro-
    cess Clause prohibits courts from applying the AIA." Ante p.
    29. That was the core holding of Lipke, yes, but the question
    is whether the Court’s construction of the AIA in reaching
    that holding accords with the majority’s rigid interpretative
    regime constructed ninety years later.5 Under the majority’s
    proposed construction, the term "tax" in the AIA reaches all
    exactions which the Commissioner is empowered to collect.
    Ante pp. 22-23. Yet, the Lipke Court held that the AIA did not
    reach such an exaction. Though the majority would prefer that
    Lipke "create[d] only a narrow constitutional limitation" to the
    AIA, ante p. 29, the Court’s holding is simply not framed as
    creating an exception to the AIA. Rather, the Court explained
    that it "constru[ed]" the term "tax" in the AIA (in accord with
    "Congress[‘s] inten[t]") and held that it was not so broad. 229
    U.S. at 561-62. The majority’s view of the AIA, and its corre-
    sponding interpretation of these cases, inescapably places
    George and Lipke in conflict.
    My reading of these cases, which is fully consistent with
    my approach to the AIA, harmonizes them. Under my view
    4
    This was the view of the dissenting opinion in Lipke, which relied on
    George. See Lipke, 
    259 U.S. at 563
     (Brandeis, J., dissenting) ("The relief
    should therefore be denied, whatever the construction of section 35, tit. 2,
    of the Volstead Act, and even if it be deemed unconstitutional. Compare
    Bailey v. George, 
    259 U. S. 16
    , 42 Sup. Ct. 419, 
    66 L. Ed. 816
    , decided
    May 15, 1922.").
    5
    Indeed, the rigidity of the majority’s approach prompts a reminder that
    we confront here the court’s statutory jurisdiction, not its Article III juris-
    diction. Congress grants, and Congress restricts, as it chooses, the statu-
    tory jurisdiction of the lower federal courts.
    LIBERTY UNIVERSITY v. GEITHNER                        69
    of Lipke, the AIA’s "taxes" is recognized to be, like any statu-
    tory language, a flexible term that must be interpreted in
    accord with Congressional intent and, when applicable,
    bounding constitutional mandates. In many cases, Congress’s
    decision to designate something a "tax" will prove disposi-
    tive—indeed, the designation did so in Bailey v. George.
    Lipke simply reflects the recognition that Congress’s use of
    the word "tax" in an otherwise non-tax provision (followed
    closely by the word "penalty") does not invariably mandate
    that the AIA be applied—constitutional concerns can override
    congressional designations. This is fully in accord with my
    view of the AIA and its relation to subsequent enactments,
    particularly an expansive programmatic enactment such as the
    ACA that would alter the fabric of many layers of American
    life.6
    The majority cites several other cases for the proposition
    that we are to ignore Congressional designations when apply-
    ing the AIA, instead asking only whether an exaction is intrin-
    sically a tax according to its "nature and character." Ante p.
    25 (quoting Helwig v. United States, 
    188 U.S. 605
    , 613
    (1903)). I will briefly discuss two of them.
    Helwig v. United States, for instance, concerned the inter-
    action of a statute that imposed "a further sum" when import-
    ers declared a value more than 10% lower than customs’
    subsequent appraisal and a statute that gave federal district
    courts exclusive jurisdiction over "penalties" and "forfei-
    tures." The passage the majority excerpted from is quite
    instructive:
    6
    In this regard, Justice O’Connor nicely captured the essential purpose
    of the AIA when she declared: "The AIA ‘depriv[es] courts of jurisdiction
    to resolve abstract tax controversies . . . .’" South Carolina v. Regan, 
    465 U.S. 367
    , 386 (1984) (O’Connor, J., concurring in the judgment); and see
    
    id. at 392
     ("the Act generally precludes judicial resolution of all abstract
    tax controversies . . ."). The essential issues presented in this case are
    about as far from "abstract tax controversies" as one can get.
    70                 LIBERTY UNIVERSITY v. GEITHNER
    Although the statute . . . terms the money demanded
    as "a further sum," and does not describe it as a pen-
    alty, still the use of those words does not change the
    nature and character of the enactment. Congress may
    enact that such a provision shall not be considered as
    a penalty or in the nature of one, with reference to
    the further action of the officers of the government,
    or with reference to the distribution of the moneys
    thus paid, or with reference to its effect upon the
    individual, and it is the duty of the court to be gov-
    erned by such statutory direction, but the intrinsic
    nature of the provision remains, and, in the absence
    of any declaration by Congress affecting the manner
    in which the provision shall be treated, courts must
    decide the matter in accordance with their views of
    the nature of the act.
    
    188 U.S. 605
    , 612-13 (emphases added). Thus, the Court
    emphasized that it looked to "the nature and character of the
    enactment" only "in the absence of any declaration by Con-
    gress" giving direction to the court. Far from supporting the
    majority’s claim that "[t]he Supreme Court has repeatedly
    instructed that congressional labels have little bearing on
    whether an exaction qualifies as a ‘tax’ for statutory pur-
    poses," Helwig indicates that Congressional labels that direct
    the court may of course be dispositive. Terming an exaction
    "a further sum" did not help the Court determine whether or
    not that sum was a "penalty"; but Congress’s expressly con-
    sidering calling an exaction a "tax" and then deleting the doz-
    ens of references to a "tax" and instead designating it a
    "penalty" (as Congress did in the course of its enactment of
    the ACA) does help courts determine whether Congress
    wished us to view the exaction as a "tax" for purposes of the
    AIA.7 Though Congress did not expressly reference the AIA
    7
    The majority focuses on Helwig’s use of the phrase "with reference to,"
    suggesting that Helwig would have us consider Congressional direction
    LIBERTY UNIVERSITY v. GEITHNER                           71
    here—and, judging from the legislative history, may well not
    have considered application of the AIA specifically—it did
    consider whether to attach all the trappings of a "tax" to the
    exaction (including, among many others provisions, the AIA),
    and decided instead to specify the ones it wanted. The AIA is
    not among them.
    The majority’s second citation for that proposition, United
    States v. Reorganized CF & I Fabricators of Utah, Inc., 
    518 U.S. 213
    , (1996), is much like Helwig. There the Court deter-
    mined whether a "tax" imposed on certain funding deficien-
    cies constituted an "excise tax" for Chapter 11 purposes (as
    "an excise tax" was accorded higher priority than ordinary
    claims). It prefaced its discussion by recognizing that "Con-
    gress could have included a provision in the Bankruptcy Code
    calling [the relevant] exaction an excise tax . . . ; the only
    question is whether the exaction ought to be treated as a tax
    (and, if so, an excise) without some such dispositive direc-
    tion." 
    Id. at 219
    . Its ultimate conclusion considered legislative
    history of the exaction at issue and "conclude[d] that the 1978
    Act reveals no congressional intent to reject generally the
    interpretive principle that characterizations in the Internal
    Revenue Code are not dispositive in the bankruptcy context
    . . . ." 
    Id. at 224
    . Here, where Congress provided one of the
    here only if it is expressly labeled as being made "‘with reference to" the
    AIA." Ante 25 n.5. But that very sentence in Helwig goes on to describe
    such direction as "any declaration by Congress affecting the manner in
    which the provision shall be treated." 
    188 U.S. at 613
     (emphasis added).
    The following citations to "statute after statute" which the majority refer-
    ences are part of the Court’s analysis, the Court tells us, because it must
    determine whether the "words [employed by Congress] are not regarded
    by Congress as imposing a penalty and [thus] should not be so treated by
    the court," for "[i]f it clearly appear that it is the will of Congress that the
    provision shall not be regarded as in the nature of a penalty, the court must
    be governed by that will." 
    Id.
     I do not mean to suggest that Helwig teaches
    that "an exaction’s label controls," ante p. 25 n.5, only that any Congres-
    sional direction that indicates "the will of Congress" on the application of
    the AIA should be considered.
    72              LIBERTY UNIVERSITY v. GEITHNER
    most direct signals it can of its intentions—it expressly con-
    sidered calling the exaction a "tax" and ultimately decided not
    to do so—Helwig and Reorganized CF & I would direct us to
    follow Congress’s direction and treat an exaction denomi-
    nated a "penalty" as a penalty and not as a tax for purposes
    of the AIA.
    2.
    Second, the majority’s approach relies upon its assertion
    that "[t]he Supreme Court has concluded that the AIA uses
    the term ‘tax’ in its broadest possible sense" and thus that "the
    AIA prohibits a pre-enforcement challenge to any exaction
    that is made under color of their offices by revenue officers
    charged with the general authority to assess and collect the
    revenue." Ante p. 22 (internal quotation marks and braces
    omitted).
    This definition is far from self-evident. As the majority
    concedes, taxes and penalties are distinguished in some fed-
    eral statutory "contexts." Ante p. 24 n.4. In the very case dis-
    cussed above, Reorganized CF & I Fabricators, which dates
    from 1996, the Court adopted these definitions for its "func-
    tional" inquiry of the exaction at issue: "A tax is an enforced
    contribution to provide for the support of government; a pen-
    alty . . . is an exaction imposed by statute as punishment for
    an unlawful act." 
    518 U.S. at 224
    . The majority reasons that
    "[n]either the Secretary nor the Sixth Circuit cites a single
    case suggesting that [this distinction applies to the AIA]."
    Ante p. 24 n.4. Of course, Lipke, on which the majority relies,
    is one major AIA case that distinguishes between taxes and
    penalties. And, as the Court in Reorganized CF & I Fabrica-
    tors borrowed its definitions of "tax" and "penalty" from a
    "somewhat different context," it appears that these definitions
    are not particularly context-specific. 
    518 U.S. at 224
    . Thus, if
    a court is to perform a "functional examination" of its own,
    why would it not use these well-settled definitions, under
    LIBERTY UNIVERSITY v. GEITHNER                         73
    which the Affordable Care Act’s exaction would clearly be a
    penalty (for noncompliance with the individual mandate)?
    By my count, the majority puts forward three affirmative
    arguments favoring the "broadest possible" definition for the
    word "taxes" in the AIA: (1) Snyder v. Marks, 
    109 U.S. 189
    (1883), established a broad definition of "tax" under the AIA;
    (2) the twin Bailey cases show that the AIA is "broader" than
    the taxing clause; and (3) the fact that the IRS grants the Sec-
    retary the authority to make "assessments of all taxes (includ-
    ing interest, additional amounts, additions to the tax, and
    assessable penalties) imposed by this title" implies that the
    AIA, which generally protects the Government’s interest in
    effecting unfettered tax assessments, must apply to all exac-
    tions. 
    26 U.S.C. § 6201
    (a) (emphasis added). I find these
    arguments unpersuasive.
    First, Snyder does not establish the broad definition the
    majority cites it for. The Court explains that "tax" "meant that
    which is in condition to be collected as a tax, and is claimed
    by the proper public officers to be a tax." 
    109 U.S. at 192
    (emphasis added). Thus, Snyder clearly makes relevant the
    Commissioner’s designation of an exaction and, reasonably
    viewed, requires that the Commissioner "claim[ ]" an exaction
    "to be a tax." Here, of course, the Secretary of the Treasury
    is a party before us and supports Congress’s designation of
    the mandate as a "penalty" rather than a "tax."8
    Second, the Bailey cases have already been dealt with at
    length above. I agree that they show that the AIA is "broader"
    than the taxing clause when applied to exactions that are des-
    8
    The majority believes the "fundamental problem with this argument is
    that the Secretary still does ‘claim’ that the challenged exaction is a ‘tax,’
    albeit one authorized by the Constitution’s Taxing Clause." Ante p. 28 n.7.
    As Snyder is discussing the use of the word "tax" in the precursor to the
    modern AIA, I read Snyder to refer to the Commissioner’s designation
    with respect to the statute.
    74               LIBERTY UNIVERSITY v. GEITHNER
    ignated by Congress as "taxes"—in the limited sense that they
    include some exactions that purport to be taxes yet are uncon-
    stitutional—but they do no more than that.
    As for the majority’s final argument, it seems to require a
    logical leap. I reproduce the relevant paragraph for ease of
    reference:
    The Court’s broad interpretation of the AIA to bar
    interference with the assessment of any exaction
    imposed by the Code entirely accords with, and
    indeed seems to be mandated by, other provisions of
    the Internal Revenue Code. The AIA does not use
    the term "tax" in a vacuum; rather, it protects from
    judicial interference the "assessment . . . of any tax."
    I.R.C. § 7421(a) (emphasis added). The Secretary’s
    authority to make such an "assessment . . . of any
    tax" derives directly from another provision in the
    Code, which charges the Secretary with making "as-
    sessments of all taxes (including interest, additional
    amounts, additions to the tax, and assessable penal-
    ties) imposed by this title." § 6201(a) (emphases
    added); see also § 6202 ("assessment of any internal
    revenue tax" includes assessment of "penalties").
    Thus, for purposes of the very assessment authority
    that the AIA protects, Congress made clear that
    "penalties" (as well as "interest, additional amounts,
    [and] additions to the tax") count as "taxes." Con-
    gress must have intended the term "tax" in the AIA
    to refer to this same broad range of exactions. See
    Erlenbaugh v. United States, 
    409 U.S. 239
    , 243
    (1972) ("[A] legislative body generally uses a partic-
    ular word with a consistent meaning in a given con-
    text.").
    Ante p. 22-23 (large emphasis mine).
    I agree, of course, that "for purposes of the [Secretary’s]
    assessment authority," Congress made clear that the ‘penal-
    LIBERTY UNIVERSITY v. GEITHNER                75
    ties’ . . . count as ‘taxes.’" Indeed, where Congress has wished
    "penalty" to be treated as a "tax," it has said so. See, e.g., 
    26 U.S.C. §§ 6665
    (a)(2), 6671(a) (directing that "tax" be
    "deemed also to refer to . . . penalties" in Chapter 68 of the
    Internal Revenue Code). It is not at all surprising that Con-
    gress has employed this shorthand when defining the Secre-
    tary’s authorities.
    The problematic leap is this: simply because the AIA gen-
    erally protects the Secretary’s assessment authority does not
    mean that the AIA must apply to all exactions. The many
    exemptions included in the AIA as currently codified show
    that Congress has often wished to exempt certain exactions
    from the AIA. As a matter of statutory interpretation, it seems
    improper for a court to insist that "taxes" means any exaction
    (despite the fact that Congress does not say so) and thereby
    to undercut Congress’s deliberate decision to reject designat-
    ing an exaction as a "tax" and instead to call it a "penalty."
    Given that we have been cited no cases that would require
    such a large redrafting of the AIA—other "penalties" to which
    the AIA have been applied were placed in Chapter 68, which
    expressly directs that all references to "tax" in the IRC are to
    refer also to the Chapter’s "penalties"—I believe that this
    "broadest possible" interpretation of the AIA is unwarranted
    and unwise.
    The majority appears to reject the legal force of sections
    6665(a)(2) and 6671(a), arguing that section 7806(b) "for-
    bid[s] courts from deriving any ‘inference’ or ‘implication’
    from the ‘location or grouping of any particular section or
    provision or portion of this title.’" Ante p. 31. This puzzles
    me, as it is absolutely clear that sections 6665(a)(2) and 6671
    have the force of law. Section 6665(a)(2) directs that "any ref-
    erence in this title to ‘tax’ imposed by this title shall be
    deemed also to refer to . . . penalties provided by this chap-
    ter." This instructs courts that Congress wished to make the
    word "penalty" inclusive of the word "tax" in this particular
    chapter (Chapter 68). Congress remains free to do otherwise
    76                 LIBERTY UNIVERSITY v. GEITHNER
    in other chapters; indeed, it chose not to do so in Chapter 48,
    in which the individual mandate is found. Giving force to sec-
    tion 6665(a)(2) in no way contradicts section 7806(b) by
    drawing a prohibited implication from the "location or group-
    ing" of Internal Revenue Code (IRC) provisions. Section
    7806(b) prohibits inferences drawn from the location or group
    itself; instructions can still flow from section 6665(a)(2) that
    are to apply only to a specified chapter. This seems to me to
    be beyond serious doubt. Likewise, section 7806(b) does not
    prohibit courts interpreting one provision of the IRC from
    looking to other provisions of the IRC and noting that, where
    Congress has desired a particular result, it has stated so. To
    suggest that a court cannot draw the traditional inference from
    Congress’s decision to define "penalty" as inclusive of "tax"
    in other chapters and its failure to do so here seems wholly
    unwarranted by section 7806(b).9
    In the final analysis, the majority’s approach essentially
    imposes a clear-statement rule on Congress, making the AIA
    applicable to all exactions, regardless of statutory language
    and in disregard of apparent Congressional intent, unless Con-
    gress had the foresight to expressly exempt an exaction from
    the AIA. The majority concedes, as it must, that the 111th
    Congress could have exempted the individual mandate from
    the AIA, but it suggests that the only way Congress could
    avoid the AIA’s bar on immediate judicial review of the ACA
    is by amending the AIA itself to include an express exemption
    for the ACA or (in what amounts to the same thing) by refer-
    encing the AIA by name in the ACA. That is, the majority
    seems to believe that a clear-statement rule is operative here,
    and that absent a clear statement regarding the inapplicability
    9
    I do not suggest that "we [should] infer from § 6665(a)(2) a categorical
    exclusion from the term ‘tax’ of all non-Chapter 68 penalties." Ante p. 31
    (emphasis added). Rather, the fact that Congress has directed us to treat
    some "penalties" as "taxes" simply makes it less likely that Congress
    desired this result where it enacted no such direction (and in fact expressly
    rejected the term "tax" for the term "penalty").
    LIBERTY UNIVERSITY v. GEITHNER                  77
    of the AIA, it must apply to any and all exactions. Given that
    the Supreme Court has never recognized such a clear-
    statement rule, it seems to me that this turns the ordinary prin-
    ciples of statutory interpretation on their head.
    As Justice Kennedy recently recognized for a plurality of
    the Court, clear-statement rules are designed to "avoid appli-
    cations of otherwise unambiguous statutes that would intrude
    on sensitive domains in a way that Congress is unlikely to
    have intended had it considered the matter." Spector v. Nor-
    wegian Cruise Line Ltd., 
    545 U.S. 119
    , 139 (2005) (plurality
    op.). Justice Kennedy even warned in his plurality opinion
    against "convert[ing] the clear statement rule from a principle
    of interpretive caution into a trap for an unwary Congress."
    
    Id.
     That seems to be precisely what the majority does today.
    Presumably because the majority believes such a clear-
    statement rule applies, it asserts that "[t]o infer an intent on
    the part of the 2010 Congress to implicitly exempt this pre-
    enforcement challenge from the AIA bar would be tantamount
    to inferring an implicit repeal of that bar." Ante p. 36. But our
    case is nothing like implicit repeal cases like TVA v. Hill, 
    437 U.S. 153
     (1978), which the majority cites in that paragraph.
    In Hill, the Court considered whether continued federal
    appropriations for a dam after notice that construction was
    being challenged under the Endangered Species Act worked
    an implicit repeal of the Act with respect to the dam. In an
    implicit repeal case, the Court is forced to consider whether
    Congressional action definitively to the contrary of an earlier
    enactment works an implied repeal. In our case, on the other
    hand, we are simply asking whether Congress created with
    the ACA the sort of exaction to which the earlier act (the
    AIA) applies. This requires us to construe both the word
    "taxes" under the AIA and the word "penalty" in the ACA,
    applying our ordinary tools of statutory interpretation. We
    look first to the text itself, and, after finding that it is at best
    ambiguous, we look to legislative history and Congressional
    purpose. Because the application of the AIA to the ACA is in
    78              LIBERTY UNIVERSITY v. GEITHNER
    doubt—this is precisely the question we are deciding sua
    sponte—our case is nothing like implicit repeal cases.
    Of course, my approach fully recognizes that the AIA has
    legal force. But, as the AIA can undoubtedly be sidestepped
    by any Congress as it creates a new exaction (at the very least,
    in the majority’s view, by a clear statement that the AIA is not
    to apply), the AIA is non-binding on future Congresses. When
    courts determine the application of the AIA to the ACA, they
    are only considering the application of one Congressional
    enactment to a later one. Because one Congress cannot bind
    a later one, the 111th Congress was fully within its preroga-
    tive to indicate, even if only implicitly, that the AIA should
    not apply. See United States v. Winstar Corp., 
    518 U.S. 839
    ,
    872 (1996) (plurality op.) (quoting Blackstone for "the
    centuries-old concept that one legislature may not bind the
    legislative authority of its successors"). The independent legal
    force of the AIA does not spring from the fact that it can trap
    future, unwary Congresses, but rather from the fact that we
    must seek to harmonize its terms with that of future legisla-
    tion. That is, the AIA is not binding on Congress, it is binding
    on us, the judiciary.
    Finally, as for the majority’s suggestion that policy argu-
    ments favor its position because a contrary holding "might
    have serious long-term consequences for the Secretary’s reve-
    nue collection," ante p. 38, I would simply note again that the
    Secretary of the Treasury is a party before us and argues that
    the AIA does not apply. Indeed, I cannot find a Supreme
    Court case where the AIA has been applied over the objection
    of the Secretary.
    3.
    The majority suggests that the issue presented here is one
    of "context," and I agree. The majority accepts "the Sixth Cir-
    cuit’s general observation that there are ‘contexts’ in which
    the law treats ‘taxes’ and ‘penalties’ as mutually exclusive"
    LIBERTY UNIVERSITY v. GEITHNER                         79
    and explains that "[t]he question here is whether the AIA is
    one of these ‘contexts.’" Ante p. 24 n.4 (internal quotation
    marks omitted). To my mind, the proper question is not
    whether "taxes" and "penalties" are always "mutually exclu-
    sive" under the AIA, but whether Congress, in creating a
    later-enacted exaction, intended to create a "tax" for purposes
    of the AIA. But the more important question of "context" is
    this: whether, in light of the context provided by Congress’s
    deliberate decision to designate the individual mandate’s
    exaction a "penalty" rather than a "tax" and the evidence of
    Congress’s desire to erect no jurisdictional bar to immediate
    judicial review of the ACA, we should nonetheless interpret
    the ACA as creating a "tax" within the meaning of the AIA.
    My effort here, to marshal the historical, jurisprudential, inter-
    pretive, and, yes, commonsense factors necessary to answer
    this question, persuades me that we should not. Given this
    larger context, I do not believe that one interpretation of near
    century-old AIA cases—cases that fail to devote enough
    space to the AIA analysis to even spell out their reason-
    ing—should carry the day. If the Supreme Court’s vacillations
    concerning the proper interpretation of the AIA teach us any-
    thing, they teach us that context matters.10
    ****
    Because I do not believe that Lipke and George instruct
    courts to eschew our ordinary methods of statutory interpreta-
    tion and I do not agree that the AIA reaches all exactions
    10
    Justice Powell summarized the history of the AIA as follows, in part:
    [T]he Court’s unanimous opinion in Williams Packing indicates
    that the case was meant to be the capstone to judicial construction
    of the Act. It spells an end to a cyclical pattern of allegiance to
    the plain meaning of the Act, followed by periods of uncertainty
    caused by a judicial departure from that meaning, and followed
    in turn by the Court’s rediscovery of the Act’s purpose.
    Bob Jones Univ., 
    416 U.S. at 742
    . Rediscoveries of congressional intent
    abound in the law and should not surprise us.
    80              LIBERTY UNIVERSITY v. GEITHNER
    though by its terms it is limited to "taxes," I cannot join the
    majority. Where Congress expressly rejected the term "tax" in
    favor of "penalty," and where it appears that application of the
    AIA would do little to further the purposes of the AIA, but
    would do much to frustrate the Affordable Care Act’s reforms
    desired by the Congress that approved the Act, I would hold
    that the AIA does not strip us of jurisdiction. Thus, I would
    reach (and I do indeed reach) the merits of appellants’ chal-
    lenges.
    II.   The Act
    After a months-long national debate, the Patient Protection
    and Affordable Care Act was signed into law on March 23,
    2010. Pub. L. No. 111-148, 
    124 Stat. 119
    , amended by The
    Health Care and Education Reconciliation Act of 2010, Pub.
    L. No. 111-152, 
    124 Stat. 1029
     (2010). The Affordable Care
    Act is comprised of a half-dozen initiatives designed to
    reduce the costs of health care and the number of Americans
    who remain uninsured.
    First, the Act creates "health benefit exchanges" in each
    state, which are regulated to increase transparency concerning
    premium increases and claim denials and which offer market-
    based incentives tied to increases in efficiency and better
    health outcomes. 
    42 U.S.C. § 18031
    (e), (g).
    Second, the Act prevents insurers from rejecting applicants
    with preexisting conditions (the "guaranteed issue" require-
    ment) and bars insurers from charging higher premiums to
    those with serious medical conditions or a history of past ill-
    ness (the "community rating" requirement). 
    Id.
     §§ 300gg –
    300gg-3.
    Third, the Act makes more Americans eligible for Medic-
    aid, and to many of those who earn too much to receive Med-
    icaid it grants tax credits to subsidize the cost of insurance
    premiums and pledges federal dollars to reduce out-of-pocket
    LIBERTY UNIVERSITY v. GEITHNER               81
    expenses. Id. §§ 1396a(10)(A)(i)(VIII), 18071; 26 U.S.C.
    § 36B.
    Fourth, the Act requires that individuals keep up "minimum
    essential [health insurance] coverage." Id. § 5000A. In partic-
    ular, it directs that "[a]n applicable individual shall for each
    month beginning after 2013 ensure that the individual, and
    any [applicable] dependent . . ., is covered under minimum
    essential coverage for such month." Id. Appellants term this
    the "individual mandate," and it is the chief target of their
    suit. Appellants’ Br. 3. Congress found that hospitals pro-
    vided $43 billion in uncompensated care to the uninsured in
    2009, and that these costs were shifted onto insured individu-
    als, "increas[ing] family premiums by on average over $1,000
    a year." 
    42 U.S.C. § 18091
    (a)(2)(F). It also found that, "[b]y
    significantly lowering the number of the uninsured, the [mini-
    mum coverage] requirement, together with the other provi-
    sions of th[e] Act, will lower health insurance premiums." 
    Id.
    Congress created two religious exemptions to the individ-
    ual mandate: a religious conscience exemption and a health-
    care sharing ministry exemption. 26 U.S.C. § 5000A(d)(2). I
    discuss the particulars of these exemptions in Part VIII, where
    I consider appellants’ First Amendment claims.
    Fifth, the Act created tax incentives making it more afford-
    able for small businesses to offer health insurance to their
    employees. Id. § 45R.
    Finally, the Act required "applicable large employers . . .
    to offer to its full-time employees (and their dependents) the
    opportunity to enroll in minimum essential coverage under an
    eligible employer-sponsored plan" if at least one full-time
    employee is receiving federal subsidies for health insurance.
    Id. § 4980H(a). Appellants call this the "employer mandate."
    Appellants’ Br. 3.
    Appellants Michele Waddell, Joanne Merrill, and Liberty
    University assert an array of constitutional challenges to the
    82                LIBERTY UNIVERSITY v. GEITHNER
    Act’s individual and employer mandates and request declara-
    tory and injunctive relief. They allege that the mandates are
    outside Congress’s Article I powers and that the individual
    mandate’s religious exemptions effect violations of the First
    Amendment’s Free Exercise and Establishment Clauses as
    well as the equal protection component of the Fifth Amend-
    ment’s Due Process Clause. Appellants’ chief contention is
    that the individual mandate was not validly enacted pursuant
    to Congress’s commerce power because it regulates what they
    call "inactivity." Id. at 1. The district court carefully parsed
    appellants’ arguments and dismissed their suit pursuant to
    Federal Rule of Civil Procedure 12(b)(6), concluding that
    appellants had failed to state a legally sufficient claim. Liberty
    University, Inc. v. Geithner, 
    753 F. Supp. 2d 611
     (W.D. Va.
    2010). For the following reasons, I would affirm.
    III.   Constitutionality, Inactivity Aside
    Putting aside appellants’ "inactivity" argument, to which I
    return in Parts IV and V, I first consider whether the Act is
    otherwise authorized under Congress’s "power to regulate
    activities that substantially affect interstate commerce." Gon-
    zalez v. Raich, 
    545 U.S. 1
    , 16-17 (2005). In particular, I ask
    whether the Act runs afoul of the teachings of United States
    v. Lopez and United States v. Morrison, two cases in which
    the Supreme Court enforced limits on the Commerce Clause
    so as not to "convert congressional authority under the Com-
    merce Clause to a general police power." Lopez, 
    514 U.S. 549
    , 567 (1995); see Morrison, 
    529 U.S. 598
    , 617-19 (2000).
    A.   Lopez and Morrison
    In Lopez and Morrison the Supreme Court struck down two
    congressional enactments because the objects of regula-
    tion—the possession of guns in school zones in Lopez, vio-
    lence against women in Morrison—were noneconomic.
    Affirming that "Congress’ commerce authority includes the
    power to regulate those activities having substantial relation
    LIBERTY UNIVERSITY v. GEITHNER                83
    to interstate commerce, i.e., those activities that substantially
    affect interstate commerce," Lopez held that gun possession in
    schools did not substantially affect interstate commerce. 
    514 U.S. at 559-60
     (internal citations omitted). The Court worried
    that to identify the effect of guns in schools on interstate com-
    merce it "would have to pile inference upon inference in a
    manner that would bid fair to convert congressional authority
    under the Commerce Clause to a general police power of the
    sort retained by the States." 
    Id. at 567
    . If gun possession in
    schools were held to be substantially related to interstate com-
    merce simply because such incidents harmed our "national
    productivity," then "Congress could regulate any activity that
    it found was related to the economic productivity of individ-
    ual citizens" and it would be "difficult to perceive any limita-
    tion on federal power, even in areas such as criminal law
    enforcement or education where States historically have been
    sovereign." 
    Id. at 564
    .
    Morrison further clarified the holding of Lopez. The Court
    explained that "a fair reading of Lopez shows that the noneco-
    nomic, criminal nature of the conduct at issue was central to
    our decision in that case." 
    529 U.S. at 610
    . Without "express
    congressional findings regarding the effects upon interstate
    commerce of gun possession in a school zone," the Court
    refused to find a substantial effect upon interstate commerce,
    as it believed "the link between gun possession and . . . inter-
    state commerce was attenuated." 
    Id. at 612
    . The Court noted
    that it has "upheld Commerce Clause regulation of intrastate
    activity only where that activity is economic in nature." 
    Id. at 613
    . Because the Morrison Court found that "[g]ender-
    motivated crimes of violence are not, in any sense of the
    phrase, economic activity" and that their effects on interstate
    commerce (many of which were expressly enumerated by
    Congress) are "attenuated," it struck down the challenged
    congressional regulation of these crimes. 
    Id. at 613, 615
    . As
    it did in Lopez, the Court emphasized that the "regulation . . .
    of intrastate violence . . . has always been the province of the
    States" and affirmed that "[t]he Constitution requires a dis-
    84              LIBERTY UNIVERSITY v. GEITHNER
    tinction between what is truly national and what is truly
    local." 
    Id. 617-18
    .
    Without doubt, appellants are correct to insist that Lopez
    and Morrison remind us that any formulation of the Com-
    merce Clause must admit to limiting principles that distin-
    guish the "truly national" from the "truly local." But the
    concern directly animating Lopez and Morrison—the noneco-
    nomic character of the regulated activities—is not present in
    this case, where the failure to obtain health insurance is mani-
    festly an economic fact with direct effects on the interstate
    markets for both health insurance and health services. Cf.
    Thomas More, ___ F.3d at ___, 2011 WL at *11-12 (Martin,
    J.); Florida, ___ F.3d, at ___, 2011 WL at *94, *106 (Marcus,
    J., dissenting).
    Nor can it be said that health insurance or health services
    have "always been the province of the states" in the way that
    education, family law, and criminal law have been. Raich,
    
    529 U.S. at 618
    . Since the Social Security Act of 1965, Pub.
    L. No. 89-97, 
    79 Stat. 286
    , established Medicare and Medic-
    aid benefits, the federal government has been the single larg-
    est provider in the interstate health insurance market and the
    largest purchaser in the health services market. Federal dollars
    have accounted for more than one-quarter of all health spend-
    ing each year since 1974; in 2008, Americans spent $2.3 bil-
    lion on health services, of which the federal government paid
    more than $815 million—nearly 35%. Ctrs. for Medicare &
    Medicaid Servs., National Health Expenditure Amounts by
    Type of Expenditure and Source of Funds: Calendar Years
    1965-2019. The year 1974 also saw the passage of the
    Employee Retirement Income Act (ERISA), which has a
    "broadly worded" and "clearly expansive" preemption provi-
    sion. 
    29 U.S.C. § 1144
    (a); Egelhoff v. Egelhoff ex rel.
    Breiner, 
    532 U.S. 141
    , 146 (2001). Through ERISA, as well
    as later enactments like the Health Insurance Portability and
    Accountability Act of 1996, Pub. L. No. 104-191, 
    110 Stat. 1936
    , the federal government has come to occupy much of the
    LIBERTY UNIVERSITY v. GEITHNER              85
    field of the regulation of health benefits, and many state and
    local attempts to regulate health insurance have been held pre-
    empted. See, e.g., Retail Industry Leaders Ass’n v. Fielder,
    
    475 F.3d 180
     (4th Cir. 2007) (holding Maryland’s Fair Share
    Health Care Fund Act, which regulated employer health care
    spending, preempted by ERISA, as "ERISA establishes com-
    prehensive federal regulation of employers’ provisions of
    benefits to their employees"); but see Metropolitan Life Ins.
    Co. v. Mass., 
    471 U.S. 724
     (1985) (holding that state
    mandated-benefit law survives ERISA preemption as a law
    that "regulates insurance, banking, or securities" within the
    meaning of ERISA’s savings clause). Given nearly half a cen-
    tury of extensive federal involvement in the national health
    insurance and health services sectors, it seems clear that
    Lopez and Morrison’s interest in protecting areas of tradi-
    tional state sovereignty is not directly implicated.
    That said, Lopez and Morrison do remind us that the scope
    of the Commerce Clause is finite and that its jurisprudence
    must admit to bounding principles. Thus courts must assure
    themselves that upholding the Act under the Commerce
    Clause would not effectively create a federal police power.
    B.   Substantial Effects
    Appellants argue that if we were to hold that failure to
    obtain insurance substantially affects interstate commerce, we
    would be forced to find that the failure to purchase any mar-
    keted product substantially affects interstate commerce. Thus,
    they quote Florida ex rel. Bondi, where the district court for
    the Northern District of Florida found the Act unconstitutional
    in part because it believed that a Commerce Clause broad
    enough to authorize the Act must also support purchase man-
    dates for broccoli or GM cars. Appellants’ Reply Br. 9 (quot-
    ing Bondi, ___ F. Supp. 2d at ___, ___, 
    2011 WL 285683
    , at
    *24). The Eleventh Circuit, upholding the district court on
    that point, expressed similar fears that there are no "cogniza-
    86              LIBERTY UNIVERSITY v. GEITHNER
    ble, judicially administrable limiting principles." Florida, ___
    F. 3d at ___, 2011 WL at *54. This is not so.
    I begin by noting that whether failure to purchase insurance
    substantially affects interstate commerce relies on a great
    number of factual determinations. These are to be made not
    by the courts but by Congress, an institution with far greater
    ability to gather and critically evaluate the relevant informa-
    tion. As the Supreme Court noted in Raich, "[i]n assessing the
    scope of Congress’ authority under the Commerce Clause, . . .
    [our] task . . . is a modest one. We need not determine
    whether respondents’ activities, taken in the aggregate, sub-
    stantially affect interstate commerce in fact, but only whether
    a ‘rational basis’ exists for so concluding." 545 U.S. at 22.
    The Act’s effects on interstate commerce depend in large
    part on an unusual feature of the health care market. By fed-
    eral law, a hospital participating in Medicare must stabilize
    any patient who arrives at its emergency room, regardless of
    the patient’s ability to pay for treatment, Emergency Medical
    Treatment and Active Labor Act, 42 U.S.C. § 1395dd(b)(1),
    and many states impose similar requirements, see, e.g., H.R.
    Rep. No. 99-241(III), at 5 (1985), reprinted in 1986
    U.S.C.C.A.N. 726, 726-27 (noting that "at least 22 states have
    enacted statutes or issued regulations requiring the provision
    of limited medical services whenever an emergency situation
    exists" and that "many state court rulings impose a common
    law duty on doctors and hospitals to provide necessary emer-
    gency care"). As a result, the uninsured often receive care that
    they are unable to pay for: in 2008, hospitals provided $43
    billion in uncompensated care to the uninsured. 
    42 U.S.C. § 18091
    (a)(2)(F). To cope with these costs, hospitals increase
    the price of health care services, which in turn leads to rising
    health insurance premiums; Congress found that "[t]his cost-
    shifting increases family premiums by on average over $1,000
    a year." 
    Id.
    Recognizing these direct effects on the health insurance and
    health services markets does not require us to "pile inference
    LIBERTY UNIVERSITY v. GEITHNER              87
    upon inference" in the way linking noneconomic acts like the
    possession of guns in schools or gender-motivated violence to
    interstate commerce might have done in Lopez and Morrison.
    Lopez, 
    514 U.S. at 567
    ; see Morrison, 
    529 U.S. at 615
    . In
    Lopez, the Court rejected the Government’s argument that
    gun possession in schools substantially affected interstate
    commerce due to the general "costs of crime" or because "the
    presence of guns in schools poses a substantial threat to the
    education process," which "in turn, will result in a less pro-
    ductive citizenry." 
    514 U.S. at 564
    . Likewise, the Court
    rejected Congress’s findings in Morrison because they "fol-
    low[ed] the but-for causal chain from the initial occurrence of
    violent crime . . . to every attenuated effect upon interstate
    commerce," chiefly "deterring potential victims" from inter-
    state travel, employment, general commercial transactions,
    "diminishing national productivity, increasing medical and
    other costs, and decreasing the supply of and demand for
    interstate products." 
    529 U.S. at 615
     (quoting H.R. Rep. No.
    103-711, at 385 (1990), reprinted in 1994 U.S.C.C.A.N.
    1803, 1853). Where the proffered "substantial effects" in
    Lopez and Morrison were attenuated, here the effects are
    direct: considered as a class (per Wickard and Raich’s aggre-
    gation principle, see Wickard v. Filburn, 
    317 U.S. 111
    , 127-
    28 (1942); Raich, 
    545 U.S. at 22
    ; post pp. 88-90), those who
    fail to purchase health insurance will seek and receive medi-
    cal care they cannot afford; the cost of that care ($43 billion
    in 2008) is borne by the hospitals, which are forced to
    increase the price of health care services.
    And recognizing that the uninsured’s passing on $43 billion
    in health care costs to the insured constitutes a substantial
    effect on interstate commerce in no way authorizes a purchase
    mandate for broccoli or any other vegetable. The health care
    market is unique in that its product (medical care) must be
    provided even to those who cannot pay, which allows some
    (the uninsured) to consume care on another’s (the insured’s)
    dime. Here the substantial effect on commerce comes not
    from simply manipulating demand in a market, as it would in
    88                LIBERTY UNIVERSITY v. GEITHNER
    the case of a broccoli or GM car mandate, but from correcting
    a massive market failure caused by tremendous negative
    externalities. Thus, we need not decide today whether the rea-
    soning of Wickard and Raich, which were both concerned in
    part about limiting supply in interstate markets for fungible
    goods, extends to artificially inflating demand via a purchase
    mandate. See Wickard, 
    317 U.S. at 128
     (recognizing that even
    wheat grown for home consumption "overhangs the market
    and if induced by rising prices tends to flow into the market
    and check price increases"); Raich, 
    545 U.S. at 19
     (noting that
    "high demand in the interstate market"—and consequent
    higher prices—is likely to "draw [home consumed] marijuana
    into that market").
    For these reasons, I would hold that the failure to obtain
    health insurance substantially affects the interstate markets for
    health insurance and health care services. Accord Thomas
    More, ___ F.3d at ___, 2011 WL at *12 (Martin, J.); id. at
    *24-25 (Sutton, J.); Florida, ___ F.3d at ___, 2011 WL at
    *106 (Marcus, J., dissenting).
    IV.   Universal Participation in the Health Care Market
    Nor need I decide today whether the Commerce Clause dis-
    criminates between activity and inactivity. Appellants con-
    cede that virtually all persons will voluntarily enter into the
    interstate health services market in their lifetimes, and they
    concede further, as they must, that this constitutes activity in
    commerce. Yet appellants insist that the Commerce Clause
    requires Congress to adopt an extremely narrow time-horizon:
    it may regulate persons seeking health care, but only once
    they have sought it. Appellants’ Br. 34. A faithful application
    of Wickard’s and Raich’s teachings requires us to reject this
    contention.
    Wickard introduced the aggregation principle into Com-
    merce Clause jurisprudence: "That appellee’s own contribu-
    tion to the demand for wheat may be trivial by itself is not
    LIBERTY UNIVERSITY v. GEITHNER                 89
    enough to remove him from the scope of federal regulation
    where, as here, his contribution, taken together with that of
    many others similarly situated, is far from trivial." 
    317 U.S. at 127-28
    . Raich reaffirmed this approach, noting that Com-
    merce Clause analysis looks to the regulated "activities, taken
    in the aggregate." 545 U.S. at 22.
    Further, Raich emphasized that
    Congress [need not] legislate with scientific exacti-
    tude. When Congress decides that the "total inci-
    dence" of a practice poses a threat to a national
    market, it may regulate the entire class. See United
    States v. Perez, 402 U.S. at 154-55 ("[W]hen it is
    necessary in order to prevent an evil to make the law
    embrace more than the precise thing to be prevented
    it may do so."). In this vein, we have reiterated that
    when a general regulatory statute bears a substantial
    relation to commerce, the de minimis character of
    individual instances arising under that statute is of no
    consequence.
    Id. at 17 (some internal quotation marks and citations omit-
    ted).
    Under Wickard and Raich, we are to take the view of the
    legislators, not those who are regulated. Courts look at the
    aggregated impact of an activity, not the impact of individu-
    als; the Commerce Clause authorizes the regulation of an "en-
    tire class," regardless of "the de minimis character of
    individual instances." Id. We are to put aside "the mechanical
    application of legal formulas" and look instead to "the actual
    effects of the activity in question upon interstate commerce."
    Wickard, 
    317 U.S. at 120, 124
    . Indeed, it bears repeating, our
    task in deciding Commerce Clause challenges "is a modest
    one" in which we ask "only whether a ‘rational basis’ exists"
    for Congress to find a substantial effect on interstate com-
    merce. Id. at 22.
    90               LIBERTY UNIVERSITY v. GEITHNER
    Considering that hospitals are required to provide certain
    care to the uninsured, that illness and accidents are nothing if
    not unpredictable, and that the costs of medical care are often
    catastrophic, I have no hesitation in concluding the Congress
    rationally determined that addressing the $43 billion annual
    cost-shifting from the uninsured to the insured could only be
    done via regulation before the uninsured are in need of emer-
    gency medical treatment. Wickard and Raich teach that we are
    to take the longer view of legislators; it is difficult to imagine
    that Commerce Clause analysis would aggregate individuals
    and allow regulation of entire classes but then, when legisla-
    tors confront a problem requiring a remedy before emergen-
    cies (and their ever-growing costs) occur, refuse to permit
    them to adopt the time-horizon necessary to enact a solution.
    Accord Florida, ___ F.3d at ___, 2011 WL at *93 (Marcus,
    J., dissenting).
    Thus, as Congress rationally found virtually universal par-
    ticipation in the interstate health care market over the course
    of residents’ lifetimes, the Act does not present an issue of
    congressional regulation of inactivity. Accord Thomas More,
    ___ F.3d at ___, 2011 WL at *15 (Martin, J.); id. at *27-30
    (Sutton, J.); Florida, ___ F.3d at ___, 2011 WL at *93-*94
    (Marcus, J., dissenting). Rather, courts are asked to pass on
    regulation of voluntary participation in the interstate health
    care market that, to be effective, must be preemptive. As it is
    clear that the regulated behavior substantially affects inter-
    state commerce and appellants bring no other challenge to
    Congress’s authority under the Commerce Clause, I would
    hold the Act to be a proper exercise of congressional power.
    V.   Regulating Inactivity
    But even if I were to assume that the uninsured are, in
    appellants’ phrase, "inactive in commerce," I would be bound
    to uphold the Act. Despite appellants’ several arguments, the
    Commerce Clause is not offended by the regulation of "inac-
    tivity" or, in proper circumstances, by a purchase mandate.
    LIBERTY UNIVERSITY v. GEITHNER               91
    Appellants urge that the Act is an "unprecedented attempt
    to force private citizens who have decided not to participate
    in commerce to engage in commerce by mandating that they
    purchase . . . health insurance . . . ." Appellants’ Br. 3. This
    argument presents two distinct questions: (1) "[w]hether Con-
    gress has authority under the Commerce Clause to regulate a
    private citizen’s inactivity in commerce"; and (2) whether
    such regulation can include "forc[ing] [a] citizen to participate
    in commerce by mandating that she purchase a [commodity]
    . . . or pay a penalty for noncompliance." Id. at 1. I consider
    these questions in turn.
    A.    Regulating "Inactivity in Commerce"
    Appellants characterize Mss. Waddell’s and Merrill’s "de-
    cision not to purchase health insurance and to otherwise pri-
    vately manage her own healthcare" as "inactivity in
    commerce," which they claim is beyond the reach of the
    Commerce Clause. Id. at 1. As the following brief review of
    the case law will show, this broader Commerce Clause chal-
    lenge—whether it reaches non-market participants (those "in-
    activ[e] in commerce")—has already been litigated. The
    Supreme Court’s "case law firmly establishes" that Congress
    may regulate those who have opted not to participate in a
    market when their self-provisioning, considered in the aggre-
    gate, "substantially affect[s]" an interstate market. Raich, 545
    U.S. at 17. After explaining why appellants’ broader chal-
    lenge is foreclosed, I consider the far narrower challenge to
    the Act that survives.
    1.   Regulating Non-Market Participants
    Nearly seventy years ago, in the famous case of Wickard v.
    Filburn, the Supreme Court upheld Congress’s power under
    the Commerce Clause to regulate Mr. Filburn’s private, non-
    commercial production of wheat. The Court squarely con-
    fronted the question: it began its discussion by noting that
    "[t]he question would merit little consideration . . . except for
    92               LIBERTY UNIVERSITY v. GEITHNER
    the fact that this Act extends federal regulation to production
    not intended in any part for commerce but wholly for con-
    sumption on the farm." 
    317 U.S. at 118
    . Just six years ago, the
    Court reaffirmed Wickard’s vitality in Raich, explaining,
    Our case law firmly establishes Congress’ power to
    regulate purely local activities that are part of an
    economic ‘class of activities’ that have a substantial
    effect on interstate commerce. As we stated in Wic-
    kard, "even if appellee’s activity be local and though
    it may not be regarded as commerce, it may still,
    whatever its nature, be reached by Congress if it
    exerts a substantial economic effect on interstate
    commerce."
    Raich, 
    545 U.S. at 17
     (quoting Wickard, 
    317 U.S. at 125
    )
    (emphasis added). The Raich Court made clear that "Congress
    can regulate purely intrastate activity that is not itself ‘com-
    mercial,’ in that it is not produced for sale, if it concludes that
    failure to regulate that class of activity would undercut the
    regulation of the interstate market in that commodity." Id. at
    18. Applying this principle, the Court upheld the regulation of
    individuals who grew marijuana solely for "home consump-
    tion"—that is, it allowed Congress to regulate individuals who
    deliberately chose not to participate in commerce. Id.
    Thus, appellants’ true quarrel with the Act is more limited
    than their language sometimes suggests. With subheadings
    like "Wickard does not support the district court’s conclusion
    that private economic decisions can be regulated under the
    Commerce Clause," appellants’ briefs muddy their real point.
    Appellants’ Br. 20. As just described, it is well settled that
    Congress may regulate the private, noncommercial economic
    activities of non-market participants when their self-
    provisioning (growing wheat or marijuana for themselves)
    substantially affects an interstate market. Appellants contend
    that this "firmly establishe[d]" Commerce Clause law, Raich,
    
    545 U.S. at 17
    , is inapplicable because Wickard and Raich
    LIBERTY UNIVERSITY v. GEITHNER                         93
    "involved voluntary activity, whereas the Act regulates volun-
    tary inactivity." Appellants’ Br. 19. To the extent that "volun-
    tary inactivity" again suggests deliberate non-participation in
    the market, this fails to distinguish Raich; yet appellants also
    seem to be raising a different point. "[I]t was the fact that Mr.
    Filburn actively grew wheat beyond the quota, even if for per-
    sonal use, that was significant in Wickard," as "it was that
    activity that constituted economic activity. By contrast,
    [appellants] have exerted no effort and used no resources." 
    Id. at 21
    . It is this "distinction between activity and inactivity," 
    id.
    at 19—absolute inactivity, not just inactivity (non-
    participation) in commerce—that carries the true thrust of
    appellants’ argument.
    2.   Regulating the "Inactive"
    Before I can consider this narrower argument, I must be
    sure I understand exactly what appellants mean by it. Appel-
    lants say that "Mr. Filburn actively grew wheat beyond the
    quota, even if for personal use" while Ms. Waddell and Mrs.
    Merrill "have exerted no effort and used no resources."
    Appellants’ Br. 21. But appellants expressly state that "Miss
    Waddell and Mrs. Merrill have voluntarily and deliberately
    decided not to purchase health insurance, but to instead save
    for and privately manage health care." 
    Id. at 10
     (emphasis
    added). It is not clear why "sav[ing] for and privately manag-
    [ing] health care," a species of what economists call "self-
    insurance,"11 requires neither "effort" nor "resources"—in
    11
    Cf. 
    42 U.S.C. § 18091
    (a)(2)(A) ("In the absence of the [individual
    mandate], some individuals would make an economic and financial deci-
    sion to forego health insurance coverage and attempt to self-insure . . . .").
    Because individuals who self-insure are unable to shift risk in the way that
    market insurance does, self-insurance is far more common among collec-
    tives or businesses, where it may be efficient. See generally M. Moshe
    Porat, Uri Spiegel, Uzi Yaari, Uri Ben Zion, Market Insurance Versus Self
    Insurance: The Tax-Differential Treatment and Its Social Cost, 58 J. Risk
    & Ins. 657 (1991); Patrick L. Brockett, Samuel H. Cox, Jr., and Robert C.
    Witt, Insurance Versus Self-Insurance: A Risk Management Perspective,
    53 J. Risk & Ins. 242 (1986); Isaac Ehrlich, Gary S. Becker, Market Insur-
    ance, Self-Insurance, and Self-Protection, 80 J. Pol. Econ. 623 (1972).
    94              LIBERTY UNIVERSITY v. GEITHNER
    fact, one would imagine that "sav[ing]" requires "resources"
    (namely, money) and that "manag[ing]" requires some "ef-
    fort." 
    Id. at 10, 21
    . Though, unlike wheat and marijuana,
    insurance is intangible, appellants do not suggest that inter-
    state markets in intangible goods or services are less subject
    to regulation under the Commerce Clause than markets in tan-
    gible goods; thus, it is difficult to see why the legal import of
    the appellants’ "sav[ing]" and "manag[ing]" should differ
    from that of Mr. Filburn’s sowing and harvesting.
    But even if appellants had said nothing about saving and
    managing and I accepted that Ms. Waddell and Mrs. Merrill
    had truly "exerted no effort and used no resources" with
    respect to health insurance—that is, that they had taken no
    steps to self-insure—it is difficult to make out the legal rele-
    vance of this point. Mr. Filburn and Ms. Raich deliberately
    chose to meet their own needs rather than enter commerce and
    purchase goods on the market and thus they, too, "exerted no
    effort and used no resources" in connection to the relevant
    markets; why are they more susceptible to Commerce Clause
    regulation than appellants simply because they privately
    exerted effort and expended resources for a noncommercial
    end?
    Appellants have provided no express answer, but one is
    implicit in their arguments: in choosing to act, even privately,
    with notice of regulation, one can be said to consent or at least
    submit to that regulation. Under this view, Wickard and Raich
    are distinguishable because they concerned regulated domains
    which individuals voluntarily entered upon the commence-
    ment of some "activity." Thus, appellants’ complaint that "ap-
    pellants in Raich could avoid Congress’ reach by not
    manufacturing or possessing marijuana, but here the Appel-
    lants cannot avoid Congress’ reach even if they are not doing
    anything." Appellants’ Br. 19. Appellants express concern
    throughout their brief about allowing Congress to "regulate
    [people] because they are legal citizens who merely exist," 
    id.
    LIBERTY UNIVERSITY v. GEITHNER                      95
    at 20;12 likewise, the Eleventh Circuit majority worries that
    "[i]ndividuals subjected to this economic mandate have not
    made a voluntary choice to enter the stream of commerce
    . . . ." Florida, ___ F.3d at ___, 2011 WL at *48. So I will
    consider the Commerce Clause ramifications of regulating
    "everyone."
    3.   Federalism & Regulations Affecting Everyone
    I am aware of no "substantial effect" case, in more than a
    century of Commerce Clause jurisprudence, that looks beyond
    the class of activities regulated to the class of persons
    affected. And this is unsurprising, as the dispositive question
    is whether the object of regulation substantially affects inter-
    state commerce; what the affected persons have done to con-
    sent (or not) to the regulation is obviously irrelevant to that
    inquiry. Appellants claim that their liberty concern springs
    from the principles of federalism rather than black-letter
    Commerce Clause law. Though these principles serve to pro-
    tect state sovereignty and the resulting division of power
    helps to secure our liberty, federalism is not an independent
    font of individual rights.
    As Justice Kennedy explained in his concurrence in Lopez,
    "it was the insight of the Framers that freedom was enhanced
    by the creation of two governments, not one," as power could
    be split between state and federal governments even before
    each government’s powers were further separated among leg-
    islative, executive, and judicial departments. 
    514 U.S. at 576
    .
    Thus, "[s]tate sovereignty is not just an end in itself: ‘Rather,
    federalism secures to citizens the liberties that derive from the
    diffusion of sovereign power.’" New York v. United States,
    
    505 U.S. 144
    , 181 (1992) (quoting Coleman v. Thompson,
    
    501 U.S. 722
    , 759 (1991) (Blackmun, J., dissenting)). Feder-
    alism "enhance[s]" our liberty by disaggregating power; it
    12
    It is no coincidence that "voluntary" or "voluntarily" appears twenty-
    eight times in appellants’ briefs.
    96              LIBERTY UNIVERSITY v. GEITHNER
    helps to secure all our individual rights, but it does not create
    new ones. The Supreme Court’s recent decision in Bond v.
    United States, which granted an individual criminal defendant
    standing to challenge a federal statute on the grounds that it
    usurped powers reserved to the states and which discussed at
    length the ways in which federalism protects individual lib-
    erty, is not to the contrary. 564 U.S. ___, ___, 
    131 S. Ct. 2355
    , 2364 (2011). Appellants provide no support for their
    suggestion that some novel, heretofore unknown, individual
    right can spring from the principles of federalism.
    Federalism was properly invoked in Lopez and Morrison,
    where, to police the division of authority between state and
    federal governments, the Court struck down federal regulation
    of noneconomic activity within "areas such as criminal law
    enforcement or education where States historically have been
    sovereign." Lopez, 
    514 U.S. at 564
    ; see Morrison, 
    529 U.S. at 599
    . Lopez and Morrison’s concern about the loss of state
    authority within areas traditionally reserved to the states
    implicates the division of power between state and federal
    governments and thus goes to the very core of federalism.
    Appellants’ individual liberty concerns do not. Appellants
    suggest that allowing the Act to touch all U.S. residents,
    whether or not they have voluntarily entered a regulated
    domain, "threatens . . . the bedrock concept[ ] of . . . individ-
    ual freedom." Appellants’ Br. 11-12. Federalism does not
    speak to this issue.
    Nor does any recognized individual right. Appellants’ rhet-
    oric sometimes suggests a generalized right to be left alone;
    but outside of a limited right to privacy concerning "the most
    intimate and personal choices a person may make in a life-
    time, choices central to personal dignity and autonomy,"
    including those "relating to marriage, procreation, contracep-
    tion, family relationships, child rearing, and education,"
    Planned Parenthood of Se. Penn. v. Casey, 
    505 U.S. 833
    , 851
    (1992), no such right exists. And any such right springing
    from substantive due process would bind the states under the
    LIBERTY UNIVERSITY v. GEITHNER                97
    Fourteenth Amendment as well as the federal government
    under the Fifth, placing universal regulation outside the reach
    of any government.
    Moreover, an extensive body of federal laws, many passed
    pursuant to the Commerce Clause, targets all U.S. residents:
    federal criminal law. Indeed, Raich itself concerned the Con-
    trolled Substances Act and the noncommercial production and
    consumption of marijuana; nowhere in Raich did the Court
    intimate concern that the federal government was regulating
    the drug use of "everyone . . . just for being alive and residing
    in the United States." Bondi, ___ F. Supp. 2d. at ___, 
    2011 WL 285683
    , at *20. Though penalties do not attach until
    someone has violated the statute, the same is true of the Act’s
    regulation. Of course, appellants suggest that compelling
    action is less legitimate under the Commerce Clause than pro-
    hibiting action. I take up that question next.
    VI.   Compelling Action
    Having established that the regulation of "inactivity in
    commerce" does not offend the Commerce Clause, I consider
    whether federal commerce regulation can properly "force [a]
    citizen to participate in commerce by mandating that she pur-
    chase a [commodity] . . . or pay a penalty for noncompliance."
    Appellants’ Br. 1.
    As I explained at length above, the Supreme Court has
    taught that an enactment is authorized by the Commerce
    Clause where Congress could rationally conclude that the
    object of regulation substantially affects interstate commerce.
    This inquiry looks only at the relation between the object of
    regulation and interstate commerce; the content of the regula-
    tion—what it compels or prohibits—is irrelevant. Indeed, it
    has long been recognized that "[t]he power of Congress over
    interstate commerce is plenary and complete in itself, may be
    exercised to its utmost extent, and acknowledges no limita-
    tions other than are prescribed in the Constitution." Wickard,
    98               LIBERTY UNIVERSITY v. GEITHNER
    
    317 U.S. at 124
     (quoting United States v. Wrightwood Dairy
    Co., 
    315 U.S. 110
    , 119 (1942)); cf. Raich, 
    545 U.S. at 29
    ("[S]tate action cannot circumscribe Congress’ plenary com-
    merce power."). The Necessary and Proper Clause makes
    clear that we are to defer to Congress with respect to the
    means it employs to effectuate legitimate ends. U.S. Const.
    art. I, § 8, cl. 18. In combination with the Commerce Clause,
    it empowers Congress "‘to take all measures necessary or
    appropriate to’ the effective regulation of the interstate mar-
    ket." Raich, 
    545 U.S. at 38
     (Scalia, J., concurring) (quoting
    Shreveport Rate Cases, 
    234 U.S. 342
    , 353 (1914)).
    But even if it were appropriate to review the method of reg-
    ulation Congress has chosen to employ, I would find that the
    individual mandate fits well within the range of acceptable
    commercial regulations.
    A.   The Act Does Not Compel Citizens to Enter
    Commerce
    I first note that the Act does not "force" any citizen to enter
    commerce. Appellants’ Br. 1. Instead, residents are given a
    choice between obtaining health insurance (by market pur-
    chase or otherwise) and paying a non-punitive tax penalty
    that, by law, is capped at "the national average premium for
    qualified health plans which have a bronze level of coverage."
    26 U.S.C. § 5000A(c)(1)(B); see id. at § 5000A(b)(1). As the
    average cost of providing the most basic insurance, this
    amount should roughly approximate the expected costs to the
    regulatory scheme (in the form of higher premiums) occa-
    sioned by an individual’s failure to procure insurance.
    Because the uninsured effectively force the rest of the nation
    to insure them with respect to basic, stabilizing care, this pen-
    alty is something like a premium paid into the federal govern-
    ment, which bears a large share of the shifted costs as the
    largest insurer in the nation.
    LIBERTY UNIVERSITY v. GEITHNER              99
    B.   History of Compelled Purchases
    Even if the individual mandate were properly characterized
    as compelling residents to enter the market, this has long been
    an acceptable form of regulation under the Commerce Clause.
    For instance, the Federal Motor Carrier Safety Administra-
    tion, acting pursuant to the Motor Carrier Act of 1980,
    requires that motor carriers purchase either liability insurance
    or a surety bond in order to ensure that they are able to pay
    for damage they may cause. See 
    49 C.F.R. § 387
    . And the
    Comprehensive Environmental Response, Compensation, and
    Liability Act of 1980 (CERCLA) requires that the owner of
    property contaminated by a hazardous substance "provide
    removal or remedial action"—likely requiring resort to the
    market—on pain of liability for punitive damages, even where
    the owner bears "no[ ] culpability or responsibility for the
    contamination" and indeed is entirely "passiv[e]." 
    42 U.S.C. § 9607
    (c)(3); Nurad, Inc. v. William E. Hooper & Sons Co.,
    
    966 F.2d 837
    , 846-47 (4th Cir. 1992). CERCLA has survived
    all Commerce Clause challenges, and it was expressly held a
    proper exercise of Congress’s Commerce Clause power by the
    Second Circuit Court of Appeals. See Freier v. Westinghouse
    Elec. Corp., 
    303 F.3d 176
    , 203 (2d Cir. 2002), cert. denied,
    
    538 U.S. 998
     (2003); cf. United States v. Olin Corp., 
    107 F.3d 1506
    , 1511 (11th Cir. 1997) (holding CERCLA constitutional
    Commerce Clause legislation as applied to appellants).
    Wickard itself suggests that compelled purchases are per-
    missible. The Court explained:
    It is said, however, that this Act, forcing some farm-
    ers into the market to buy what they could provide
    for themselves, is an unfair promotion of the markets
    and prices of specializing wheat growers. It is of the
    essence of regulating that it lays a restraining hand
    on the selfinterest of the regulated and that advan-
    tages from the regulation commonly fall to others.
    100               LIBERTY UNIVERSITY v. GEITHNER
    . . . And with the wisdom, workability, or fairness,
    of the plan of regulation we have nothing to do.
    
    317 U.S. at 129
     (emphasis added). When describing how non-
    commercial wheat production decreased demand for market
    wheat, the Court explained that it "forestall[ed] resort to the
    market" and "supplies a need of the man who grew it which
    would otherwise be reflected by purchases in the open mar-
    ket." 
    Id. at 127, 128
    . Though Wickard did not involve an
    express purchase mandate, the Court understood that Mr. Fil-
    burn was effectively being "forc[ed] . . . into the market to
    buy" wheat when it rejected his Commerce Clause challenge.
    
    Id. at 129
    .
    C.     Compelled Purchases as Government’s Core Function
    Finally, I pause to consider why purchase man-
    dates—whether they be for health insurance or brocco-
    li—occasion such fear of federal aggrandizement. Cf. Thomas
    More, ___ F.3d at ___, 2011 WL at *32 (conveying author’s
    "lingering intuition—shared by most Americans, I sus-
    pect—that Congress should not be able to compel citizens to
    buy productions they do not want") (Sutton, J). Compelled
    purchases are the most fundamental function of government
    of any sort, and the fact that the government here allowed its
    residents additional freedom of choice over these purchases
    should diminish, not exacerbate, anxieties about federal tyr-
    anny.
    Governments exist, most fundamentally, to solve collective
    action problems. Core governmental functions, like the provi-
    sion of domestic peace, enforceable property rights, national
    defense, and infrastructure, are assigned to government
    because the market fails to produce optimal levels of such
    public goods.13 Since public goods are enjoyed by all, most
    13
    See generally R.H. Coase, The Lighthouse in Economics, 
    17 J.L. & Econ. 357
    , 357-360 (1974); Paul A. Samuelson, The Pure Theory of Pub-
    LIBERTY UNIVERSITY v. GEITHNER                       101
    individuals refuse to purchase them themselves, hoping
    instead that they can free-ride when someone else does. By
    forcibly collecting tax revenue and using it to purchase public
    goods, governments are able to solve this collective action
    problem. Thus, at root, governments are formed precisely to
    compel purchases of public goods.
    Because hospitals are required to stabilize the uninsured,
    the uninsured are able to pass along much of the cost of their
    health care to the insured.14 Solving this problem, as the Act
    attempts to do, creates a public good: lower prices for health
    services for all citizens. Thus, the Act compels the purchase
    of a public good, just as the federal government does when it
    collects taxes and uses it to fund national defense.
    Indeed, it is undisputed that Congress would have had the
    power under the Taxing and Spending Clause to raise taxes
    and use increased revenues to purchase and distribute health
    insurance for all. It seems quite odd that Congress’s attempt
    to enhance individual freedom by allowing citizens to make
    their own purchase decisions would give rise to such bloated
    concerns about a federal power grab. Cf. Thomas More, ___
    F.3d at ___, 2011 WL at *31 (Sutton, J.) ("Few doubt that
    Congress could pass an equally coercive law under its taxing
    power . . . .").
    As for the broccoli mandate appellants fear, I have
    explained at several points why nothing I have written would
    lic Expenditure, 36 Rev. Econ. & Statistics 387 (1954). Public goods are
    goods that are "non-rival" and "non-excludable." "Non-rival" means that
    enjoyment of the good by one citizen does not reduce the enjoyment by
    another; "non-excludable" means that all citizens will enjoy the good once
    it is produced—none can be excluded. See, e.g., John P. Conley & Chris-
    topher S. Yoo, Nonrivalry and Price Discrimination in Copyright Eco-
    nomics, 
    157 U. Pa. L. Rev. 1801
    , 1805-11 (2009).
    14
    In the language of economics, the failure to obtain insurance has "neg-
    ative externalities"—negative effects on those not responsible for the deci-
    sion.
    102             LIBERTY UNIVERSITY v. GEITHNER
    authorize it. But I note that mandating the purchase (but not
    the consumption, which would raise serious constitutional
    issues) of broccoli in order to bolster the broccoli market
    would, in practical effect, be nothing new. Since the time of
    the Founding Fathers, when Alexander Hamilton called for
    federal subsidies for domestic manufacturers, the federal gov-
    ernment has used tax revenues to subsidize various industries.
    See Algonquin SNG, Inc. v. Federal Energy Administration,
    
    518 F.2d 1051
    , 1061 (D.C. Cir. 1975) ("From earliest days,
    the tariff authority given Congress by the Constitution has
    been understood to apply to the ‘protective tariff’ sponsored
    by Alexander Hamilton, a measure focused . . . on the ‘non-
    revenue purpose’ of protecting domestic industry against for-
    eign competition."), rev’d by Federal Energy Administration
    v. Algonquin SNG, Inc., 
    426 U.S. 548
     (1976). Though central-
    ized subsidies are far more efficient than purchase man-
    dates—which is why a broccoli mandate is purely
    fantastical—they are, in effect, the same. Since they, too, are
    clearly within Congress’s power under the Taxing and Spend-
    ing Clause, allowing broccoli purchase mandates would not
    increase federal power. For these reasons, I find appellants’
    fears to be unfounded. I would reject their novel and unsup-
    ported suggestion that Commerce Clause jurisprudence ought
    to discriminate among regulated persons according to the
    amount of effort or resources they have expended in a given
    economic arena. Under seventy years of well-settled law, it is
    enough that the behavior regulated (whether characterized as
    activity or inactivity) substantially affects interstate com-
    merce. Appellants can cite neither case nor constitutional text
    for their proposed activity/inactivity distinction. They can
    explain neither why it ought to be relevant to my Commerce
    Clause analysis nor why it ought to impel courts to ignore
    seventy-year-old law that takes a wholly different approach.
    And they cannot even provide a sufficiently concrete defini-
    tion of "activity" and "inactivity" to allow courts to reliably
    apply their distinction. Because I find the individual mandate
    LIBERTY UNIVERSITY v. GEITHNER             103
    to be within the bounds of Congress’s commerce power
    defined by Wickard, Lopez, Morrison, and Raich, I would
    reject appellants’ Commerce Clause challenge.
    VII.   Employer Mandate
    Appellants also challenge the Affordable Care Act’s
    employer mandate, arguing that it is not a proper exercise of
    Congress’s power under the Commerce Clause. I disagree.
    It is well settled that Congress may regulate terms of
    employment under the Commerce Clause. See United States
    v. Darby, 
    312 U.S. 100
     (1941) (upholding minimum wage
    and overtime provisions of the Fair Labor Standards Act);
    NLRB v. Jones & Laughlin Steel Corp., 
    301 U.S. 1
     (1937)
    (upholding National Labor Relations Act of 1935, which for-
    bid unfair labor practices); cf. Employee Retirement Income
    Security Act of 1974, 
    29 U.S.C. § 1001
     et seq. (regulating
    employer retirement plans and preempting state regulations
    under the Commerce Clause); 
    id.
     at § 1082 et seq. (setting
    minimum funding standards for employer retirement plans).
    This is true, of course, of employers "engaged [solely] in
    intrastate commerce," so long as Congress could reasonably
    find that their intrastate activities (considered in the aggre-
    gate) substantially affect interstate commerce. Garcia v. San
    Antonio Metro. Transit Auth., 
    469 U.S. 528
    , 537 (1985);
    accord Darby, 
    312 U.S. at 118-119
    ; Jones & Laughlin, 
    301 U.S. at 36-38
    .
    Appellants do not challenge Congress’s finding that "em-
    ployers who do not offer health insurance to their workers
    gain an unfair economic advantage relative to those employ-
    ers who do provide coverage" and contribute to a negative
    feedback loop in which "uninsured workers turn to emergency
    rooms for health care which in turn increases costs for
    employers and families with health insurance," making it
    more difficult for employers to insure their employees. H.R.
    Rep. No. 111-443(II), at 985-86 (2010). Nor do appellants
    104              LIBERTY UNIVERSITY v. GEITHNER
    dispute the fact that this amounts to a substantial effect on
    interstate commerce. Instead, they attempt to distinguish the
    employer mandate from the wage and overtime provisions in
    Darby and the fair labor practices in Jones & Laughlin and
    argue that the mandate compels "private employers [to] enter
    into a contract with other private parties for a particular prod-
    uct." Appellants’ Br. 25.
    These arguments fail. Appellants cannot convincingly dis-
    tinguish Darby or Jones & Laughlin. They repeatedly suggest
    that regulated employers must be involved in interstate com-
    merce; but, as explained above, it is well settled that employ-
    ers who conduct only intrastate business may be regulated
    under the Commerce Clause so long as their economic activi-
    ties, considered in the aggregate, substantially affect interstate
    commerce. Appellants emphasize the Court’s observation in
    Jones & Laughlin that the National Labor Relations Act "does
    not compel agreements between employers and employees."
    
    Id. at 27
     (quoting Jones & Laughlin, 
    301 U.S. at 31
    ). Neither
    does the employer mandate: like the minimum wage and
    overtime provisions upheld in Darby, it merely requires that
    employment agreements contain certain terms (or that the
    employer pay a penalty).
    Appellants attempt to distinguish Darby by arguing that
    "the wage and hour provisions in Darby . . . did not prescribe
    what must be contained within the employment contract,
    other than setting a floor for wages and a ceiling for hours."
    Appellants’ Br. 28. But the employer mandate, too, only
    "set[s] a floor": it requires employers to offer employees "the
    opportunity to enroll in minimum essential coverage under an
    eligible employer-sponsored plan," but employers are free to
    select any plan (or create their own) and provide any level of
    coverage above the "minimum essential" level, the mandate’s
    "floor." 26 U.S.C. § 4980H(a)(1).
    Appellants’ only other objection to the employer mandate
    is that it allegedly forces employers to contract with third par-
    LIBERTY UNIVERSITY v. GEITHNER               105
    ties. This is untrue: employers are free to self-insure, and
    many do. See Employee Benefit Research Inst., Health Plan
    Differences: Fully-Insured vs. Self-Insured (2009) (reporting
    that 55% of employees with health insurance were enrolled in
    self-insured plans in 2008); Christina H. Park, Div. of Health
    Care Statistics at the Nat’l Ctr. for Health Statistics, Ctrs. for
    Disease Control and Prevention, Prevalence of Employer Self-
    Insured Health Benefits: National and State Variation, 57
    Med. Care Res. & Rev. 340, 352 (2000) (finding that 21% of
    all private-sector employers who offered health benefits
    offered a self-insured health plan in 1993; 49% of employees
    were enrolled in self-insured plans). Even if employers were
    compelled to enter the market to purchase health insurance,
    appellants’ objection would fail for the very reasons I would
    reject their similar challenge to the individual mandate.
    VIII.   Religious Exemptions
    Appellants also allege violations of the Free Exercise
    Clause, the Religious Freedom Restoration Act of 1993, the
    Establishment Clause, and equal protection. The Act makes
    two religious exemptions: a religious conscience exemption
    and a health-care sharing ministry exemption. 26 U.S.C.
    § 5000A(d)(2). The former exempts members of a recognized
    religious sect in existence since December 31, 1950 who are
    "conscientiously opposed to acceptance of the benefits of any
    private or public insurance which makes payments in the
    event of death, disability, old-age, or retirement or makes pay-
    ments toward the cost of, or provides services for, medical
    care." Id. § 1402(g)(1). The latter exempts members of a
    "health care sharing ministry"—a non-profit organization in
    existence since December 31, 1999 with members who "share
    a common set of ethical or religious beliefs and share medical
    expenses among members in accordance with those beliefs
    and without regard to the State in which a member resides or
    is employed." Id. § 5000A(d)(2)(B)(ii).
    Appellants claim that these exemptions are "religious ger-
    rymanders" demonstrating that the Act itself is hostile to cer-
    106             LIBERTY UNIVERSITY v. GEITHNER
    tain religions, Appellants’ Br. 45, and further that the
    exemptions themselves are unconstitutional under the Estab-
    lishment and Equal Protection Clauses. For the following rea-
    sons, I reject these arguments.
    A.   Free Exercise Clause
    Appellants allege that the Act compels them to violate their
    "sincerely held religious beliefs against facilitating, subsidiz-
    ing, easing, funding, or supporting abortions" and prohibits
    the University from "providing health care choices for
    employees that do not conflict with the mission of the Univer-
    sity and the core Christian values under which it and its
    employees order their day to day lives." Second Am. Compl.
    ¶ 142; Pls.’ Opp’n 36. This argument is unavailing.
    "[T]he right of free exercise does not relieve an individual
    of the obligation to comply with a valid and neutral law of
    general applicability on the ground that the law proscribes (or
    prescribes) conduct that his religion prescribes (or pro-
    scribes)." Dept. of Human Res. of Or. v. Smith, 
    494 U.S. 872
    ,
    879 (1990). Appellants claim that the Act is not neutral
    because its religious exemptions are "the type of ‘religious
    gerrymanders’ that the Supreme Court warned against in
    Lukumi." Appellants’ Br. 45 (quoting Church of Lukumi
    Babalu Aye, Inc. v. City of Hialeah, 
    508 U.S. 520
    , 534
    (1993)). They are not. In Lukumi, the Supreme Court struck
    down city ordinances after finding that "[t]he record in this
    case compels the conclusion that the suppression of the cen-
    tral element of the Santeria worship service was the object of
    the ordinances." 
    508 U.S. at 534
    . Here appellants never allege
    that "the object of [the Act] [wa]s to infringe upon or restrict
    practices because of their religious motivation." 
    Id.
     The Act
    is a neutral law of general applicability and so does not vio-
    late the Free Exercise Clause.
    B.   Religious Freedom Restoration Act
    I also reject the claim that application of the individual
    mandate to appellants would run afoul of the Religious Free-
    LIBERTY UNIVERSITY v. GEITHNER             107
    dom Restoration Act of 1993 (RFRA). The RFRA directs that
    the "Government shall not substantially burden a person’s
    exercise of religion even if the burden results from a rule of
    general applicability," unless the Government "demonstrates
    that application of the burden to the person (1) is in further-
    ance of a compelling governmental interest; and (2) is the
    least restrictive means of furthering that compelling govern-
    mental interest." 42 U.S.C. § 2000bb-1.
    If appellants had plead sufficient facts to demonstrate a
    substantial burden to their exercise of religion, I would be
    forced to consider the relevance of the RFRA to a subsequent
    act of Congress. Cf. Gonzales v. O Centro Espirita Benefi-
    cente Uniao do Vegetal, 
    546 U.S. 418
     (2006) (applying
    RFRA to enforcement of pre-RFRA provisions of the Con-
    trolled Substances Act). But appellants have not.
    To survive the Government’s 12(b)(6) motion to dismiss,
    appellants’ complaint must "provide the grounds of [their]
    entitlement to relief," which "requires more than labels and
    conclusions." Bell Atlantic Corp. v. Twombly, 
    550 U.S. 544
    ,
    555     (2007)     (internal  quotation    marks    omitted).
    "[C]onclusory" allegations are "not entitled to be assumed
    true." Ashcroft v. Iqbal, ___ U.S. ___, ___, 
    129 S. Ct. 1937
    ,
    1951 (2009). Unless appellants’ allegations "nudge[ ] their
    claims across the line from conceivable to plausible, their
    complaint must be dismissed." Twombly, 
    550 U.S. at 570
    .
    Here appellants merely alleged that the individual mandate
    will force them to violate their "sincerely held religious
    beliefs against facilitating, subsidizing, easing, funding, or
    supporting abortions." Second Am. Compl. ¶ 142. Nowhere
    does the complaint explain how the Act would do this. The
    Act contains provisions to ensure that federal funds are not
    used for abortions (except in cases of rape or incest, or when
    the life of the woman would be endangered), see Affordable
    Care Act § 1303; see also Exec. Order No. 13,535 of Mar. 24,
    2010, 
    75 Fed. Reg. 15,599
     (implementing Section 1303’s
    108              LIBERTY UNIVERSITY v. GEITHNER
    abortion restrictions), and that each state’s health benefit
    exchange will include at least one plan that does not cover
    (non-excepted) abortions, see Affordable Care Act
    § 1334(a)(6). Without additional or more particularized alle-
    gations, I cannot say that appellants’ complaint makes it plau-
    sible that the Act "substantially burdens [their] exercise of
    religion." 42 U.S.C. § 2000bb-1(b).
    C.   Establishment Clause and Equal Protection
    Appellants also challenge the Act’s religious exemptions
    themselves, claiming that they violate the Establishment
    Clause and equal protection because "they grant preferred sta-
    tus only to certain religious adherents." Appellants’ Br. 45. I
    disagree. Like the "permissible legislative accommodation of
    religion" upheld by the Supreme Court in Cutter v. Wilkinson,
    the Act’s exemptions alleviate "government-created burdens
    on private religious exercise," "do[ ] not override other signif-
    icant interests," and neither "confer[ ] . . . privileged status on
    any particular religious sect, [nor] single[ ] out [any] bona
    fide faith for disadvantageous treatment." 
    544 U.S. 709
    , 719-
    23 (2005).
    The religious conscience exemption simply incorporates
    the exemption created by section 1402(g)(1), which has sur-
    vived every Establishment Clause challenge to it over the last
    forty years. See, e.g., Droz v. Comm’r, 
    48 F.3d 1120
    , 1124
    (9th Cir. 1995); Hatcher v. Comm’r, 
    688 F.2d 82
    , 83-84 (10th
    Cir. 1979); Jaggard v. Comm’r, 
    582 F.2d 1189
    , 1190 (8th Cir.
    1978); Palmer v. Comm’r, 
    52 T.C. 310
    , 314-15 (1969). For
    the reasons set out by our sister courts in these cases, I would
    reject appellants’ Establishment Clause challenge to the Act’s
    exemptions.
    The exemptions easily survive appellants’ equal protection
    challenge as well. Legislation comports with equal protection
    requirements so long as it employs "a rational means to serve
    a legitimate end." City of Cleburne v. Cleburne Living Ctr.,
    LIBERTY UNIVERSITY v. GEITHNER               109
    
    473 U.S. 432
    , 442 (1985). And "where individuals in the
    group affected by a law have distinguishing characteristics
    relevant to interests the [legislature] has the authority to
    implement, the courts have been very reluctant . . . to closely
    scrutinize legislative choices as to whether, how, and to what
    extent those interests should be pursued." 
    Id. at 441-42
    . Here
    Congress could have reasonably believed that members of
    groups that provide health care to their members are less
    likely to require public medical care, and thus less likely to
    produce the externalities the Act was designed to diminish.
    And Congress could have reasonably believed that if it did not
    limit these exemptions to groups formed prior to a pre-
    enactment date, individuals who simply wished to avoid the
    individual mandate would form groups that insincerely
    claimed the required religious beliefs. Thus the distinctions
    Congress drew in the Act’s religious exemptions accord all
    equal protection under the law.
    IX.   Conclusion
    For the foregoing reasons, I would hold that the AIA does
    not deprive federal courts of jurisdiction to adjudicate the
    constitutionality of the Affordable Care Act. I would further
    hold that each of appellants’ challenges to the Act lacks merit
    and that, specifically, both the individual and employer man-
    dates pass muster as legitimate exercises of Congress’s com-
    merce power.
    Regrettably, my fine colleagues in the majority perceive a
    jurisdictional bar in this case that simply is not there. Accord-
    ingly, I respectfully dissent.
    

Document Info

Docket Number: 10-2347

Filed Date: 9/15/2011

Precedential Status: Precedential

Modified Date: 12/22/2014

Authorities (109)

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Robert Shelton Jaggard and Marybeth Jaggard v. Commissioner ... , 582 F.2d 1189 ( 1978 )

sigmon-coal-company-incorporated-jericol-mining-incorporated-v-kenneth , 226 F.3d 291 ( 2000 )

retail-industry-leaders-association-v-james-d-fielder-jr-in-his , 475 F.3d 180 ( 2007 )

david-l-lynn-jr-robin-dixon-lynn-rodney-lynn-roxanne-lynn-david-l-lynn , 134 F.3d 582 ( 1998 )

in-re-leckie-smokeless-coal-company-new-river-mineral-resources-company , 99 F.3d 573 ( 1996 )

algonquin-sng-inc-v-federal-energy-administration-commonwealth-of , 518 F.2d 1051 ( 1975 )

Martin H. Droz v. Commissioner of Internal Revenue Service , 48 F.3d 1120 ( 1995 )

Goudy-Bachman v. DEPT. OF HEALTH & HUMAN SERVICES , 764 F. Supp. 2d 684 ( 2011 )

Le Premier Processors, Inc. v. United States , 775 F. Supp. 897 ( 1990 )

Thomas More Law Center v. Obama , 720 F. Supp. 2d 882 ( 2010 )

Florida Ex Rel. McCollum v. US Dept. of Health and Human ... , 716 F. Supp. 2d 1120 ( 2010 )

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