NFIB Sebelius Roberts


§§860(h)(1), 6324A(a), 6601(e)(1)–-(2), 6602, 7122(b).  There
would, for example, be no need for §6671(a) to deem “”tax””
to refer to certain assessable penalties if the Code al-
ready included all such penalties in the term “tax.”  In-
deed, amicus’’s earlier observation that the Code requires
assessable penalties to be assessed and collected “”in the
same manner as taxes”” makes little sense if assessable
penalties are themselves taxes.  In light of the Code’’s
consistent distinction between the terms “”tax”” and “”as-
sessable penalty,”” we must accept the Government’’s in-
terpretation: §6201(a) instructs the Secretary that his
authority to assess taxes includes the authority to assess
penalties, but it does not equate assessable penalties to
taxes for other purposes.

 The Affordable Care Act does not require that the pen-
alty for failing to comply with the individual mandate be
treated as a tax for purposes of the Anti-Injunction Act.
The Anti-Injunction Act therefore does not apply to this
suit, and we may proceed to the merits.


 The Government advances two theories for the proposi-
tion that Congress had constitutional authority to enact
the individual mandate. First, the Government argues
that Congress had the power to enact the mandate under
the Commerce Clause. Under that theory, Congress may
order individuals to buy health insurance because the
failure to do so affects interstate commerce, and could un-
dercut the Affordable Care Act’’s other reforms. Second,
the Government argues that if the commerce power does
not support the mandate, we should nonetheless uphold it
as an exercise of Congress’’s power to tax.  According to the
Government, even if Congress lacks the power to direct
individuals to buy insurance, the only effect of the indi-
vidual mandate is to raise taxes on those who do not do so,
and thus the law may be upheld as a tax. 


The Government’’s first argument is that the individual
mandate is a valid exercise of Congress’s power under the
Commerce Clause and the Necessary and Proper Clause.
According to the Government, the health care market is
characterized by a significant cost-shifting problem.  Every –
one will eventually need health care at a time and to an
extent they cannot predict, but if they do not have insur-
ance, they often will not be able to pay for it.  Because
state and federal laws nonetheless require hospitals to
provide a certain degree of care to individuals without
regard to their ability to pay, see, e.g., 42 U. S. C. §1395dd;
Fla. Stat. Ann. §395.1041, hospitals end up receiving
compensation for only a portion of the services they pro-
vide. To recoup the losses, hospitals pass on the cost to
insurers through higher rates, and insurers, in turn, pass
on the cost to policy holders in the form of higher pre-
miums. Congress estimated that the cost of uncompen-
sated care raises family health insurance premiums, on
average, by over $1,000 per year.  42 U. S. C. §18091(2)(F).

  In the Affordable Care Act, Congress addressed the
problem of those who cannot obtain insurance coverage
because of preexisting conditions or other health issues.  It
did so through the Act’’s “”guaranteed-issue”” and “”community-
rating”” provisions.  These provisions together prohibit in-
surance companies from denying coverage to those with
such conditions or charging unhealthy individuals higher
premiums than healthy individuals.  See §§300gg, 300gg–-1,
300gg-–3, 300gg–-4.

  The guaranteed-issue and community-rating reforms do
not, however, address the issue of healthy individuals who
choose not to purchase insurance to cover potential health
care needs. In fact, the reforms sharply exacerbate that
problem, by providing an incentive for individuals to delay
purchasing health insurance until they become sick, rely-
ing on the promise of guaranteed and affordable coverage. 

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