NFIB Sebelius Roberts



 The exaction the Affordable Care Act imposes on those
without health insurance looks like a tax in many re-
spects. The “”[s]hared responsibility payment,”” as the
statute entitles it, is paid into the Treasury by “”tax-
payer[s]”” when they file their tax returns.  26 U. S. C.
§5000A(b). It does not apply to individuals who do not
pay federal income taxes because their household income
is less than the filing threshold in the Internal Revenue
Code. §5000A(e)(2).  For taxpayers who do owe the pay-
ment, its amount is determined by such familiar factors as
taxable income, number of dependents, and joint filing
status. §§5000A(b)(3), (c)(2), (c)(4). The requirement to
pay is found in the Internal Revenue Code and enforced by
the IRS, which-—as we previously explained-—must assess
and collect it ““in the same manner as taxes.””  Supra, at
13-–14. This process yields the essential feature of any tax:
it produces at least some revenue for the Government.
United States v.   Kahriger, 345 U. S. 22, 28, n. 4 (1953).
Indeed, the payment is expected to raise about $4 billion
per year by 2017. Congressional Budget Office, Payments
of Penalties for Being Uninsured Under the Patient Pro-
tection and Affordable Care Act (Apr. 30, 2010), in Selected
CBO Publications Related to Health Care Legislation,
2009-–2010, p. 71 (rev. 2010).

  It is of course true that the Act describes the payment as
a “”penalty,”” not a ““tax.””  But while that label is fatal to the
application of the Anti-Injunction Act, supra, at 12-–13, it
does not determine whether the payment may be viewed
as an exercise of Congress’’s taxing power.  It is up to Con –
gress whether to apply the Anti-Injunction Act to any
particular statute, so it makes sense to be guided by Con-
gress’s choice of label on that question.  That choice does
not, however, control whether an exaction is within Con-
gress’’s constitutional power to tax.

  Our precedent reflects this: In 1922, we decided two


challenges to the ““Child Labor Tax”” on the same day.  In
the first, we held that a suit to enjoin collection of the so-
called tax was barred by the Anti-Injunction Act.  George,
259 U. S., at 20.  Congress knew that suits to obstruct
taxes had to await payment under the Anti-Injunction
Act; Congress called the child labor tax a tax; Congress
therefore intended the Anti-Injunction Act to apply.  In
the second case, however, we held that the same exaction,
although labeled a tax, was not in fact authorized by Con-
gress’s taxing power.  Drexel Furniture, 259 U. S., at 38.
That constitutional question was not controlled by Con-
gress’s choice of label.

 We have similarly held that exactions not labeled taxes
nonetheless were authorized by Congress’’s power to tax.
In the License Tax Cases, for example, we held that federal
licenses to sell liquor and lottery tickets—for which the
licensee had to pay a fee-—could be sustained as exercises
of the taxing power.  5 Wall., at 471.  And in  New York v.
United States we upheld as a tax a “”surcharge”” on out-of-
state nuclear waste shipments, a portion of which was
paid to the Federal Treasury.  505 U. S., at 171.  We thus
ask whether the shared responsibility payment falls
within Congress’’s taxing power, “”[d]isregarding the designa-
tion of the exaction, and viewing its substance and appli-
cation.”” United States v. Constantine, 296 U. S. 287, 294
(1935); cf. Quill Corp. v. North Dakota, 504 U. S. 298, 310
(1992) (“”[M]agic words or labels” should not “disable an
otherwise constitutional levy”” (internal quotation marks
omitted)); Nelson v. Sears, Roebuck & Co., 312 U. S. 359,
363 (1941) (““In passing on the constitutionality of a tax
law, we are concerned only with its practical operation,
not its definition or the precise form of descriptive words
which may be applied to it”” (internal quotation marks
omitted)); United States v. Sotelo, 436 U. S. 268, 275
(1978) (“”That the funds due are referred to as a ‘’penalty’’

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