Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 IN THE SUPREME COURT OF THE UNITED STATES - - - - - - - - - - - - - - - - - x DEPARTMENT OF HEALTH AND HUMAN SERVICES, ET AL., Petitioners v. FLORIDA, ET AL. : : : : : No. 11-398 - - - - - - - - - - - - - - - - - x Washington, D.C. Monday, March 26, 2012 The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:12 a.m. APPEARANCES: ROBERT A. LONG, ESQ., Washington, D.C.; for Court-appointed amicus curiae DONALD B. VERRILLI, JR., ESQ., Solicitor General, Department of Justice, Washington, D.C.; on behalf of Petitioners. GREGORY G. KATSAS, ESQ., Washington, D.C.; on behalf of Respondents. 1 Alderson Reporting Company Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ORAL ARGUMENT OF ROBERT A. LONG, ESQ. C O N T E N T S PAGE For Court-appointed amicus curiae ORAL ARGUMENT OF DONALD B. VERRILLI, JR., ESQ. On behalf of the Petitioners ORAL ARGUMENT OF GREGORY G. KATSAS, ESQ. On behalf of the Respondents REBUTTAL ARGUMENT OF ROBERT A. LONG, ESQ. For Court-appointed amicus curiae 3 30 56 73 2 Alderson Reporting Company Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 P R O C E E D I N G S (10:12 a.m.) CHIEF JUSTICE ROBERTS: We will hear argument this morning in Case Number 11-398, Department of Health and Human Services v. Florida. Mr. Long. ORAL ARGUMENT OF ROBERT A. LONG FOR COURT-APPOINTED AMICUS CURIAE MR. LONG: please the Court: The Anti-Injunction Act imposes a "pay first, litigate later" rule that is central to Federal tax assessment and collection. The Act applies to Mr. Chief Justice, and may it essentially every tax penalty in the Internal Revenue Code. There is no reason to think that Congress made a special exception for the penalty imposed by section 5000A. On the contrary, there are three reasons to conclude that the Anti-Injunction Act applies here. First, Congress directed that the section 5000A penalty shall be assessed and collected in the same manner as taxes. Second, Congress provided that penalties are included in taxes for assessment purposes. And, third, the section 5000A penalty bears the key indicia of a tax. Congress directed that the section 5000A 3 Alderson Reporting Company Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 penalty shall be assessed and collected in the same manner as taxes. That directive triggers the Anti-Injunction Act, which provides that "no suit for the purpose of restraining the assessment or collection of any tax may be maintained in any court by any person." JUSTICE SCALIA: Well, that depends, as -- as the government points out, on whether that directive is a directive to the Secretary of the Treasury as to how he goes about getting this penalty, or rather a directive to him and to the courts. All of the other directives there seem to me to be addressed to the Secretary. courts? Why should this one be directed to the When you say "in the same manner," he goes about doing it in the same manner, but the courts simply accept that -- that manner of proceeding but nonetheless adjudicate the cases. MR. LONG: Well, I think I have a three-part First, the text does answer to that, Justice Scalia. not say that the Secretary shall assess and collect taxes in the same manner; it just says that it shall be assessed in the same manner as a tax, without addressing any party particularly. JUSTICE SCALIA: Well, he's assessing and collecting it in the same manner as a tax. 4 Alderson Reporting Company Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. LONG: Well, the assessment -- the other two parts of the answer are, as a practical matter, I don't think there's any dispute in this case that if the Anti-Injunction Act does not apply, this penalty, the section 5000A penalty, will as a practical matter be assessed and collected in a very different manner from other taxes and other tax penalties. There are three main differences. First, when the Anti-Injunction Act applies, you have to pay the tax or the penalty first and then litigate later to get it back with interest. administrative remedies. Second, you have to exhaust Even after you pay the tax, You have to go to you can't immediately go to court. the Secretary and give the Secretary at least 6 months to see if the matter can be resolved administratively. And, third, even in the very carefully defined situations in which Congress has permitted a challenge to a tax or a penalty before it's paid, the Secretary has to make the first move. The taxpayer is never allowed to rush into court before the tax -- before the Secretary sends a notice of deficiency to start the process. Now, if -- if the Anti-Injunction Act does not apply here, none of those rules apply. And that's not just for this case; it will be for every challenge 5 Alderson Reporting Company Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to a section 5000A penalty going forward. The taxpayer will be able to go to court at any time without exhausting administrative remedies; there will be none of the limitations that apply in terms of you have to wait for the Secretary to make the -- JUSTICE KENNEDY: Why will the administrative remedies rule not be applicable, exhaustion rule not be applicable? MR. LONG: Well, because if the Anti-Injunction Act doesn't apply, there's no prohibition on courts restraining the assessment or collection of this penalty, and you can simply -- JUSTICE KENNEDY: exhaustion rule. Well, but courts apply the I mean, I know you've studied this. Why couldn't the court say, I'm just not following it. well, you haven't exhausted your remedies; no injunction? MR. LONG: Well, in -- you could do that, I think, as a matter of -- of common law or judicially imposed doctrine, but in the code itself, which is all -- I mean, the Anti-Injunction Act is an absolutely central statute to litigation -- JUSTICE KENNEDY: MR. LONG: Yes. Yes. And the code -- about taxes. says -- first it says you must pay the tax first and 6 Alderson Reporting Company Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 then litigate. So, that's the baseline. And then, in addition, it says you must -- I mean, it's not common law; it's in the code -- you must apply for a refund, you must wait at least 6 months. That's -- many of these provisions are extremely specific, with very specific time limits. CHIEF JUSTICE ROBERTS: They would apply The only even if the rule is not jurisdictional. difference would be that the court could enforce it or not enforce it in particular cases, which brings me to the Davis case, which I think is your biggest hurdle. It's a case quite similar to this in which the constitutionality of the Social Security Act was at issue, and the government waived its right to insist upon the application of this Act. Of course, if it's jurisdictional, you can't waive it. case? MR. LONG: Well, Helvering v. Davis was So, are you asking us to overrule the Davis decided during a period when this Court interpreted the Anti-Injunction Act as simply codifying the pre-statutory equitable principles that usually, but not always, prohibited a court from enjoining the assessment or collection of taxes. So, that understanding, which is what was the basis for the Helvering v. Davis 7 Alderson Reporting Company Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 decision, was rejected by the Court in Williams Packing and a series of subsequent cases -- Bob Jones. And so, I would say, effectively, the Davis case has been overruled by subsequent decisions of this Court. JUSTICE GINSBURG: Mr. Long, why don't we I know that simply follow the statutory language? you've argued that the Davis case has been overtaken by later cases, but the language of the Anti-Injunction Act is "no suit shall be maintained." It's remarkably similar to the language in -- that was at issue in Reed Elsevier: "No civil action for infringement shall be And that formulation, "no suit may be instituted." maintained," contrasts with of the Tax Injunction Act, that says the district court shall not enjoin. That Tax Injunction Act is the same pattern as 2283, which says "courts of the United States may not stay a proceeding in State court." So, both of those formulas, the TIA and the "no injunction against proceedings in State court" are directed to "court." The Anti-Injunction Act, like the statute at issue in Reed Elsevier, says "no suit shall be maintained." And it has been argued that that is suitor-directed in contrast to court-directed. MR. LONG: Right. Well, I mean, this Court has said several times that the Tax Injunction Act was 8 Alderson Reporting Company Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 based on the Anti-Injunction Act. You're quite right, the language is different; but we submit that the Anti-Injunction Act itself, by saying that no suit shall be maintained, is addressed to courts as well as litigants. I mean, after all, a case cannot go from beginning to end without the active cooperation of the court. JUSTICE GINSBURG: But how is that different from "no civil action for infringement shall be instituted" -- "maintained and instituted"? turn on that? MR. LONG: Well, it's -- I mean -- perhaps a Anything party could initiate an action without the act of cooperation of the court, but to maintain it from beginning to end, again, requires the court's cooperation. And even if -- I mean, if the Court were inclined to say as an initial matter, if this statute were coming before us for the first time today, given all of your recent decisions on jurisdiction, that you might be inclined to say this is not a jurisdictional statute, a lot of water has gone over the dam here. Court has said multiple times that this is a jurisdictional statute. those decisions. Congress has not disturbed The To the contrary -- 9 Alderson Reporting Company Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 JUSTICE SOTOMAYOR: JUSTICE ALITO: Counsel -- Well, the Court said that many times, but is there any case in which the result would have been different if the Anti-Injunction Act were not viewed as jurisdictional but instead were viewed as a mandatory claims-processing -- MR. LONG: There's -- -- rule. JUSTICE ALITO: MR. LONG: There -- there are certainly a number of cases where the Court dismissed saying it is jurisdictional. As I read the cases, I don't think any of them would necessarily have come out differently, because I don't think we had a case where the argument was, well, you know, the Government has waived this, so, you know, even -- if it's not jurisdictional -- JUSTICE ALITO: Well, the clearest -- the clearest way of distinguishing between the jurisdictional provision and a mandatory claims processing rule is whether it can be waived and whether the Court feels that it has an obligation to raise the issue sua sponte. Now, if there are a lot of cases that call it jurisdictional, but none of them would have come out differently if the Anti-Injunction Act were simply a 10 Alderson Reporting Company Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 mandatory claims processing rule, you have that on one side. And on the other side, you have Davis, where the Court accepted a waiver by the Solicitor General; the Sunshine Anthracite coal case, where there also was a waiver; and, there's the Williams Packing case, which is somewhat hard to understand as viewing the Anti-Injunction Act as a jurisdictional provision. The Court said that there could be a suit if there is no way the Government could win, and the Plaintiff would suffer irreparable harm. Now, doesn't that sound like an equitable exception to the Anti-Injunction Act? MR. LONG: No, I think the -- I think the best interpretation of the Court's cases is that it was interpreting a jurisdictional statute. And, indeed, in Williams Packing, the Court said it was a jurisdictional statute. But, again, even if you have doubt about simply the cases, there is more than that because Congress has -- has not only not disturbed this Court's decision stating that the statute is jurisdictional, they've passed numerous amendments to this Anti-Injunction Act. CHIEF JUSTICE ROBERTS: 11 Alderson Reporting Company Well, it seems -- Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you can't separate those two points. The idea that Congress has acquiesced in what we have said only helps you if what we have said is fairly consistent. And you, yourself, point out in your brief that we've kind of gone back and forth on whether this is a jurisdictional provision or not. So, even if Congress acquiesced in it, I'm not sure what they acquiesced in. MR. LONG: Well, what you have said, Mr. Chief Justice, has been absolutely consistent for 50 years, since the Williams Packing case. The period of inconsistency was after the first 50 years, since the statute was enacted in 1867. And there was a period, as I said, when the Court was allowing extraordinary circumstances exceptions and equitable exceptions, but then, very quickly, it cut back on that. And since -- and since Williams Packing, you have been utterly consistent -- JUSTICE KAGAN: Well, even since Williams Packing, there was South Carolina v. Regan. And that case can also be understood as a kind of equitable exception to the rule, which would be inconsistent with thinking that the rule is jurisdictional. MR. LONG: Well, again, I mean, I think the best understanding of South Carolina v. Regan is not 12 Alderson Reporting Company Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that its an equitable exception, but it's the Court interpreting a jurisdictional statute as it would interpret any statute in light of its purpose, and deciding in that very special case, it's a very narrow exception, where the -- JUSTICE SOTOMAYOR: Mr. Long, in Bowles, the Court looked to the long history of appellate issues as being jurisdictional, in its traditional sense, not as a claim processing rule, but as a pure jurisdiction rule, the power of the Court to hear a case. From all the questions here, I count at least four cases in the Court's history where the Court has accepted a waiver by the Solicitor General and reached a tax issue. I have at least three cases, one of them just mentioned by Justice Kagan, where exceptions to that rule were read in. Given that history, regardless of how we define jurisdictional statutes versus claim processing statutes in recent times, isn't the fairer statement that Congress has accepted that in the extraordinary case, we will hear the case? MR. LONG: No. No, Justice Sotomayor, because in many of these amendments which have come in the '70s and the '90s and the 2000s, the Congress has actually framed the limited exceptions to the 13 Alderson Reporting Company Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Anti-Injunction Act in jurisdictional terms. And it has written many of the express exceptions by saying notwithstanding Section 7421 -- JUSTICE SOTOMAYOR: But doesn't that just prove that it knows that the Court will impose a claim processing rule in many circumstances, and so, in those in which it specifically doesn't want the Court to, it has to be clearer? MR. LONG: Well, but Congress says, notwithstanding 7421, the Court "shall have jurisdiction to restrain the assessment and collection of taxes in very limited" -- JUSTICE SOTOMAYOR: Could you go back to the Assuming we find question that Justice Alito asked? that this is not jurisdictional, what is the parade of horribles that you see occurring if we call this a mandatory claim processing rule? What kinds of cases do you imagine that courts will reach? MR. LONG: Right. Well, first of all, I think you would be saying that for the refund statute, as well as for the Anti-Injunction Act -- which has very similar wording, so if the Anti-Injunction Act is not jurisdictional, I think that's also going to apply to the refund statute, the statute that says you have to first ask for a refund and then file, you know, within 14 Alderson Reporting Company Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 certain time -- so it would be -- it would be both of those statutes. And, you know, we are dealing with taxes here, if people -- JUSTICE SOTOMAYOR: MR. LONG: That wasn't my question. I'm sorry. My question was, if we JUSTICE SOTOMAYOR: deem this a mandatory claim processing rule -- MR. LONG: Right. -- what cases do you Assuming the JUSTICE SOTOMAYOR: imagine courts will reach on what grounds? Government does its job and comes in and raises the AIA as an immediate defense -- MR. LONG: Well, that's -- -- where can a court JUSTICE SOTOMAYOR: then reach the question, despite -- MR. LONG: That would certainly be the first class of cases, it occurs to me, where, if the Government does not raise it in a timely way, it could be waived. I would think plaintiffs would see if there was some clever way they could get a suit going that wouldn't immediately be apparent that -- JUSTICE SOTOMAYOR: Assumes the lack of competency of the Government, which I don't, but what other types of cases? JUSTICE SCALIA: 15 Alderson Reporting Company Mr. Long, I don't think you Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 are going to come up with any, but I think your response is you could say that about any jurisdictional rule. it's not jurisdictional, what's going to happen is you are going to have an intelligent federal court deciding whether you are going to make an exception. And there If will be no parade of horribles because all federal courts are intelligent. So it seems to me it's a question you can't answer. It's a question which asks "why should there be And you think there should any jurisdictional rules?" be. MR. LONG: Well, and, Justice Scalia, I mean, honestly, I can't predict what would happen, but I would say that not all people who litigate about federal taxes are necessarily rational. be a great -- JUSTICE BREYER: I just don't want you to And we have And I And I think there would lose the second half of your argument. spent all the time so far on jurisdiction. accept, pretty much, I'm probably leaning in your favor on jurisdiction, but where I see the problem is in the second part, because the second part says "restraining the assessment or collection of any tax." Now, here, Congress has nowhere used the word "tax." What it says is penalty. 16 Alderson Reporting Company Moreover, this is Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 not in the Internal Revenue Code "but for purposes of collection." And so why is this a tax? And I know you point to certain sentences that talk about taxes within the Code -- MR. LONG: Right. -- and this is not attached JUSTICE BREYER: to a tax. It is attached to a health care requirement. MR. LONG: Right. So why does it fall within JUSTICE BREYER: that word? MR. LONG: Well, I mean, the first point is -- our initial submission is you don't have to determine that this is a tax in order to find that the Anti-Injunction Act applies, because Congress very specifically said that it shall be assessed and collected in the same manner as a tax, even if it's a tax penalty and not a tax. JUSTICE BREYER: AIA applies. So that's one -- But that doesn't mean the I mean -- and then they provide some exceptions, but it doesn't mean the AIA applies. It says, "in the same manner as." It is then attached to Chapter 68, when that -- it references that as "being the manner of." Well, that it's being applied -- or if it's being collected in the same manner 17 Alderson Reporting Company Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 as a tax doesn't automatically make it a tax, particularly since the reasons for the AIA are to prevent interference with revenue sources. And here, an advance attack on this does not interfere with the collection of revenues. I mean, that's -- you have read the arguments, as have I. But I would like to know what you say succinctly in response to those arguments. MR. LONG: So, specifically on the argument that it is actually a tax, even setting aside the point that it should be assessed and collected in the same manner as a tax, the Anti-Injunction Act uses the term "tax"; it doesn't define it. Somewhat to my surprise, "tax" is not defined anywhere in the Internal Revenue Code. In about the time that Congress passed the Anti-Injunction Act, "tax" had a very broad definition. It's broad enough to include this exaction, which is codified in the Internal Revenue Code. taxpayer's annual income tax return. It's part of the The amount of the liability and whether you owe the liability is based in part on your income. IRS. JUSTICE SCALIA: There's at least some doubt It's assessed and collected by the about it, Mr. Long, for the reasons that Justice Breyer said, and I thought that we had a -- a principle that 18 Alderson Reporting Company Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ousters of jurisdiction are narrowly construed; that, unless it's clear, courts are not deprived of jurisdiction. clear. And I find it hard to think that this is Whatever else it is, it's easy to think that it's not clear. MR. LONG: Well, I mean, the Anti-Injunction Act applies not only to every tax in the code but, as far as I can tell, to every tax penalty in the code. And -- JUSTICE GINSBURG: Mr. Long, you said before -- and I think you were quite right -- that the Tax Injunction Act is modeled on the Anti-Injunction Act. And, under the Tax Injunction Act, what can't be enjoined is an assessment for the purpose of raising revenue. The Tax Injunction Act does not apply to penalties that are designed to induce compliance with the law, rather than to raise revenue. And this is not a revenue-raising measure because, if it's successful, they -- nobody will pay the penalty, and there will be no revenue to raise. MR. LONG: Well, in Bob Jones the Court said that they had gotten out of the business of trying to determine whether an exaction is primarily revenue-raising or primarily regulatory. And this one certainly raises -- is expected to raise very 19 Alderson Reporting Company Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 substantial amounts of revenues, at least $4 billion a year by the -- JUSTICE SOTOMAYOR: But Bob Jones involved a statute where it denominated the exaction as a tax. MR. LONG: That's -- Here we have one where JUSTICE SOTOMAYOR: the Congress is not denominating it a -- as a tax; it's denominating it as a penalty. MR. LONG: That's -- that's absolutely right, and that's obviously why -- if it were called a tax, there would be absolutely no question that the Anti-Injunction Act applies. JUSTICE SOTOMAYOR: Absolutely. But even the section of the code that you referred to previously, the one following 7421, the AIA, it does very clearly make a difference -- 7422 -- make a difference between tax and penalties. It's very explicit. Yes, that's -- it does; that is MR. LONG: correct. And there are many other places in the code where tax is -- JUSTICE BREYER: The best collection I've found in your favor, I think, is in Mortimer Caplin's brief on page 16, 17. He has a whole list. All right. And it So -- I got my law clerk to look all those up. seems to me that they all fall into the categories of 20 Alderson Reporting Company Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 either, one, these are penalties that were penalties assessed for not paying taxes; or, two, they involve matters that were called by the court taxes; or, three, in some instances they were deemed by the code to be taxes. Now, what we have here is something that's in a different statute that doesn't use the word "tax" once except for a collection device, and, in fact, in addition, the underlying AIA reason, which is to say to the Solicitor General: We don't care what you think; we, in Congress, don't want you in court where the revenue of a state -- Tax Injunction Act -- or the revenue of the federal government is at stake, and, therefore, you can't waive it. Now, I got that. Here it's not at stake, and here there are all the differences I just mentioned. So, I ask that because I want to hear your response. MR. LONG: Well, I mean, there are penalties in the Internal Revenue Code that you really couldn't say are related in any -- in any close way to some other tax provision. There's a penalty -- it's discussed in the briefs -- for selling diesel fuel that doesn't comply with EPA's regulations, you know. So, there are all kinds of penalties in the code, and I think it's -- that you could rely upon. 21 Alderson Reporting Company Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 -- JUSTICE KAGAN: Mr. Long, aren't there places in this Act -- fees and penalties -- that were specifically put under the Anti-Injunction Act? There's one on health care plans, there's one on pharmaceutical manufacturers, where Congress specifically said the Anti-Injunction Act is triggered for those. say that here. It does not Wouldn't that suggest that Congress meant for a different result to obtain? MR. LONG: Well, I mean, Congress didn't use the language the Anti-Injunction Act "shall apply" -- JUSTICE KAGAN: 9008 and in section 9010 -- MR. LONG: Right. -- it specifically referred No, but it -- it in section JUSTICE KAGAN: MR. LONG: Right. -- to the part of the JUSTICE KAGAN: code where the Anti-Injunction Act is. MR. LONG: Right, all of subtitle F, which picks up lots of administration and procedure provisions, but those -- those are fees, and they're not -- Congress did not provide, you know, in the sections themselves that they should be paid as part of a tax return. So they were free-standing fees, and by using that subtitle F language, Congress plugged in a 22 Alderson Reporting Company Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 whole set of rules for how to collect and administer the fees, and it went not just to assessment and collection -- and the IRS has recognized this -- but to examination, privacy, a whole series of additional things. So I think it would be a mistake to look at that language and say, oh, here's Congress saying they want the Anti-Injunction Act to apply. doing more than that. And, yes, I grant you, you could look at section 5000A, the individual coverage requirement, and say, well, they could have been clearer about saying the Anti-Injunction Act applied, and that's certainly true, but, again, they were trying to accomplish a lot. it's -- JUSTICE KENNEDY: Maybe it's easier to talk And They're actually about this case if we just forget the words "for the purpose of restraining assessment and collection." sense, that brings the jurisdictional question and Justice Breyer's question together. It seems to me -- maybe you could just comment on that language. Is that sort of language I In a usually contained in a jurisdictional provision? mean, you often don't know the purpose of a suit until after the thing is under way. 23 Alderson Reporting Company I can see it with Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 malicious prosecution and some civil rights cases. Does it strike you as somewhat unusual to have this provision in a jurisdictional case? MR. LONG: It does strike me, honestly -- Yes. JUSTICE KENNEDY: MR. LONG: an old statute. -- as a bit unusual, but this is I mean, this -- the core language is essentially unchanged since 1867, and it -- you know, I think that's part of the explanation for it. And, again, it's, you know, become the center of a series of provisions that very carefully control the circumstances in which litigation about federal taxes can take place. JUSTICE GINSBURG: Mr. Long, there's another argument that has been made that I would like you to address, and that is all this talk about tax penalty -- it's all beside the point because this suit is not challenging the penalty. This is a suit that is challenging the must-buy provision, and the argument is made that, if, indeed, "must-buy" is constitutional, then these complainants will not resist the penalty. So, what they're seeking is a determination that that the "must-buy" requirement, stated separately from the penalty, that "must-buy" is unconstitutional. And, if that's so, that's the end of the case; if it's not so, they're not resisting the penalty. 24 Alderson Reporting Company Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. LONG: Well, I think that argument I mean, first, if you doesn't work for two reasons. look at the plaintiffs' own complaint, they clearly challenge both the minimum coverage requirement and the penalty. At page 122 of the Joint Appendix, they challenge the requirement that the individuals obtain health care coverage or pay a penalty. JUSTICE ALITO: Well, why is that? If that's -- if that's They JUSTICE GINSBURG: the problem, it's easier to amend the complaint. can just take that out of the complaint. turn on that. MR. LONG: So, it can't Well -- and -- yes, I mean, it's -- or another complaint would be filed, but, still, I think that's a serious problem. But even if they had filed a different complaint, I don't think you -- in this case, I don't think you can separate the minimum coverage requirement from the penalty because the penalty is the sole means of enforcing the minimum coverage requirement. So, first, I mean, I think these plaintiffs would not be satisfied if the Court were to render a judgment saying the minimum coverage requirement is invalidated; the penalty, however, remains standing. Anybody who doesn't have insurance has to pay the 25 Alderson Reporting Company Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 penalty. Then they'd have to pay a penalty equal to the cost of insurance and they wouldn't even have insurance. So, I don't think that would be -- JUSTICE ALITO: obey the law -- MR. LONG: Right. -- and they say that your Well, they say they want to JUSTICE ALITO: argument puts them in the position of having to disobey the law in order to obtain review of their claim. what is your answer to that? MR. LONG: Well, I mean, first of all, I I And can't find that in the record, in their declarations. don't see a statement that they will, you know, never incur a penalty under any circumstances. But -- but even if that were so, what this Court has said in Americans United is the Anti-Injunction Act bars any suit, not just to enjoin the collection of your own taxes, but to enjoin the collection of anyone's taxes. And so even if it were really true that these plaintiffs were not interested in the penalty and would never pay the penalty, if they were to succeed in this case in striking down the minimum coverage requirement, the inevitable result would be that the penalty would fall as well, because the Government couldn't collect a penalty for failing to follow an 26 Alderson Reporting Company Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 unconstitutional requirement, and so it would still be barred because it would be a suit that would prevent the collection of some of the -- JUSTICE ALITO: Well, let me take us back to Justice Kennedy's question about the "for the purpose of" language. I take it you interpret the statute to "For the purpose of" means having mean the following: the effect of. Is that correct? Well, I mean, this Court in the MR. LONG: Bob Jones case, where a similar kind of argument was being made by the plaintiff in that case, said, you know, look, you know, where the -- where it's inevitable that this is what the suit is about, they're sort of two sides of the same coin, that clearly is a primary purpose of the suit. And it's -- and you can't by That's just the clever pleading get away from that. nature of the situation. JUSTICE KAGAN: But, Mr. Long, aren't you The statute trying to rewrite the statute, in a way? has two sections. One is the you have to have insurance The statute has section and the other is the sanction. two different sets of exceptions corresponding to those two different sections. the statute says: You are trying to suggest that Well, it's your choice, either buy insurance or pay a -- or pay a fee. 27 Alderson Reporting Company Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 But that's not the way the statute reads. And Congress, it must be supposed, you know, made a decision that that shouldn't be the way the statute reads, that it should instead be a regulatory command and a penalty attached to that command. MR. LONG: Well, I would not argue that this statute is a perfect model of clarity, but I do think the most reasonable way to read the entire statute is that it does impose a single obligation to pay a penalty if you are an applicable individual and you are not subject to an exemption. And the reason I say that, if you look at the exemptions from the penalty, the very first one is, you are exempt from the penalty because you can't afford to purchase insurance. And it just doesn't seem reasonable to me to interpret the statute as Congress having said, well, you know, this person is exempt from paying a penalty because we find they can't afford to buy insurance, however they still have a legal obligation to buy insurance. reasonable. So I -- so I do think, although it's -- I certainly wouldn't argue it's clear -- that that's the best way to understand the statute as a whole. But again, I would say, you know, that's not 28 Alderson Reporting Company That just doesn't seem Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 essential to the question we're discussing now of whether the Anti-Injunction Act applies. know, I think -- JUSTICE SOTOMAYOR: Could you tell me why Again, you you think the Solicitor General's reading creates a problem? MR. LONG: Well, in going back to -- so if the result were to say simply, this is not -- oh, I'm sorry. not -- JUSTICE SOTOMAYOR: That it is a The Solicitor General's reading. So now it's jurisdictional bar, but there's an exemption for those items that Congress has designated solely as penalties that are not like taxes. MR. LONG: Right. Well, I mean, I think the Solicitor General's reading would probably create the fewest problems, as I understand it. I mean, my -- my main objection to the Solicitor General's reading is I don't think it makes a whole lot of sense. I mean, basically, the Solicitor General says every penalty in the Internal Revenue Code, every other penalty in the Affordable Care Act is -- JUSTICE SOTOMAYOR: But that's not -- that's carrying it too far, because he says if a penalty is designated as a tax by Congress, then it's subject to 29 Alderson Reporting Company Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the AIA, and that's most of the code, the tax code. he says for those portions of the Affordable Care Act that designate things as taxes, the AIA applies. it's only -- and I haven't found another statute. going to ask him if there's another one. So And I'm It's only for those statutes in which Congress has designated something solely as a penalty. MR. LONG: Right. And not indicated that JUSTICE SOTOMAYOR: it is a tax. MR. LONG: Right. JUSTICE SOTOMAYOR: the AIA. MR. LONG: They don't fall within I think my -- my take on it is if you adopted the Solicitor General's approach, there are probably three penalties for alcohol and tobacco-related offenses at 5114(c), 5684, and 5761 that I think would be very difficult to distinguish from this one, and possibly the 527(j) penalty for failure to disclose political contributions. If there are no further questions, I would like to reserve my time. CHIEF JUSTICE ROBERTS: General Verrilli. ORAL ARGUMENT OF DONALD B. VERRILLI, JR., 30 Alderson Reporting Company Thank you, Mr. Long. Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ON BEHALF OF THE PETITIONERS GENERAL VERRILLI: it please the Court: This case presents issues of great moment, and the Anti-Injunction Act does not bar the Court's consideration of those issues. That is so even though Mr. Chief Justice and may the Anti-Injunction Act is a jurisdictional limit that serves what this Court described in Clintwood Elkhorn as an exceedingly strong interest in protecting the financial stability of the Federal Government, and even though the minimum coverage provision of the Affordable Care Act is an exercise of Congress's taxing power as well as its commerce power. Congress has authority under the taxing power to enact a measure not labeled as a tax, and it did so when it put section 5000A into the Internal Revenue Code. But for purposes of the Anti-Injunction Act, the precise language Congress used is determinative. And there is no language in the Anti-Injunction Act -- excuse me, no language in section 5000A of the Affordable Care Act or in the Internal Revenue Code generally that provides a textual instruction that -- JUSTICE ALITO: General Verrilli, today you Tomorrow you are arguing that the penalty is not a tax. 31 Alderson Reporting Company Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 are going to be back and you will be arguing that the penalty is a tax. Has the Court ever held that something that is a tax for purposes of the taxing power under the Constitution is not a tax under the Anti-Injunction Act? GENERAL VERRILLI: No, Justice Alito, but the Court has held in the license tax cases that something can be a constitutional exercise of the taxing power whether or not it is called a tax. And that's because the nature of the inquiry that we will conduct tomorrow is different from the nature of the inquiry that we will conduct today. Tomorrow the question is whether Congress has the authority under the taxing power to enact it and the form of words doesn't have a dispositive effect on that analysis. Today we are construing statutory text where the precise choice of words does have a dispositive effect on the analysis. JUSTICE SOTOMAYOR: Well, General, you also have the Bailey child labor tax cases, because there the Court said that the tax, which was a prohibitory tax alone, was a tax subject to the AIA, and then it said it was beyond the Court's taxing power in a separate case, correct? GENERAL VERRILLI: 32 Alderson Reporting Company Yes. I do think, Justice Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Sotomayor, that with respect to one of the arguments that my friend from the NFIB has made in of the brief, that Bailey against George is a significant problem because I think their argument on the constitutionality under the taxing power is essentially that the Affordable Care Act provision is the same thing as the provision that was held unconstitutional in Bailey against Drexel Furniture. JUSTICE SOTOMAYOR: issue. The question Justice -- GENERAL VERRILLI: But on the same day -- That's a different right, but on the same day as Bailey against Drexel Furniture, the Court issued Bailey against George, which held that the Anti-Injunction Act did bar a challenge to that provision, even though the Court had concluded that it was invalid under the tax power. So -- and I think the reason for that has been -- is clear now after Williams Packing and Bob Jones, in that, in order to find that the Anti-Injunction Act doesn't apply to something that otherwise would be a tax that triggers it, you have to conclude essentially that there is no substantial argument that can be made in defense of it as a tax. don't have that here, so I don't think you can get around the Anti-Injunction Act if the Court were to read 33 Alderson Reporting Company We Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 it, as the amicus suggest it should be read, on that theory, but -- JUSTICE GINSBURG: question about your argument. Mr. Verrilli, a basic If you are right about the second part, that is, for purposes of the statute, the Anti-Injunction statute, this penalty does not constitute a tax, then does the Court need to decide whether the Anti-Injunction Act in other cases, where it does involve a tax, is jurisdictional? GENERAL VERRILLI: No. I apologize if I'm We creating any confusion about that, Justice Ginsburg. think by far the better route here is to understand the statute as we have proposed that it be construed as not applying here. From the perspective of the United States -- and if I could, I'd like to take a minute on this -- the idea that the Anti-Injunction Act would be construed as not being a jurisdictional provision is very troubling, and we don't think it's correct. And I would, if I could, follow up on a question, Justice Ginsburg, that you asked Mr. Long in terms of the language of the Anti-Injunction Act, 7421(a), which can be found at page 16a of the appendix to our brief. I'd ask the Court to compare that to the language of the very next provision in the code, which 34 Alderson Reporting Company Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 is on the next page of our statutory appendix, 17a, which is the refund statute, which we've talked about a little bit so far this morning, 7422(a). The refund statute this Court held in Dolan was jurisdictional, and the Court in both Dolan and Brockamp held that the statute of limitations that applies to the refund statute cases is jurisdictional. The language in 7422(a) is virtually identical to the language in 7421(a) -- JUSTICE KENNEDY: That is correct, although in the refund context, you have the sovereign immunity problem, in which we presume that has not been waived. GENERAL VERRILLI: -JUSTICE KENNEDY: GENERAL VERRILLI: same -- JUSTICE KENNEDY: parallel. GENERAL VERRILLI: And, originally, they They were only The language is quite But you're -- -- and 7422(a) were the Right. But I -- 7421(a) were the same statutory provision. separated out later. So, I do think that's the strongest textual indication, Justice Ginsburg, that -- that 7421(a) is jurisdictional. JUSTICE KAGAN: 35 Alderson Reporting Company General -- Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 answer? position. JUSTICE GINSBURG: But the question that I asked you is, if you're right that this penalty is not covered by section 7421, if you're right about that, why should we deal with the jurisdictional question at all? Because this statute, correct, the way you're reading -- read it, doesn't involve a tax that's subject to the Anti-Injunction Act. GENERAL VERRILLI: Yes, that is exactly our And the reason we don't -- JUSTICE GINSBURG: So -- so, you agree that we would not -- if we agree with you about the correct interpretation of the statute, we need not decide the jurisdiction. GENERAL VERRILLI: There would be no reason to decide the jurisdictional issue. JUSTICE KENNEDY: Don't you want to know the (Laughter.) GENERAL VERRILLI: Justice Kennedy, I think we all want to know the answer to a lot of things in this case. But -- but I do -- but I do think that the prudent course here is to construe the statute in the manner that we read it. JUSTICE KENNEDY: But you indicated -- there was a discussion earlier about why does the government 36 Alderson Reporting Company Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 really care, they have competent attorneys, et cetera. But -- and you began your argument by saying it would be very troubling to say that it's not jurisdictional. I'd like you to comment on that. It's not It for us to tell a party what's in its best interests. would seem to me that there might be some instances in which the government would want to litigate the validity of a tax right away and would want to waive. But you say it's -- that's not true; that it's very troubling. GENERAL VERRILLI: problems. I think there are two One is the problem that Justice Scalia identified, that if it's not jurisdictional, then courts have authority to craft equitable exceptions. And it may seem from where we stand now that that authority is or could be very, very tightly cabined, but if -- if this Court were to conclude that it isn't jurisdictional, that does empower courts to find other circumstances in which they might find it equitable to allow cases to go forward in the absence of -- despite the existence of the Anti-Injunction Act. And, second, although I certainly am not going to stand up here and disparage the attorneys from the United States in the slightest, the reality is that if this isn't jurisdictional, then it's -- the argument -- it's open to the argument that it's subject to 37 Alderson Reporting Company Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 forfeiture by a simple omission in failing to raise it in an answer. prospect. JUSTICE KAGAN: General, can I ask -- How likely is it -- Justice Ginsburg. And that -- and that's a troubling JUSTICE GINSBURG: CHIEF JUSTICE ROBERTS: JUSTICE GINSBURG: How likely is it -- I mean, the government is going to be defending these suits. How likely is it that the government will It seems to me that overlook the Anti-Injunction Act? this is arming the government by saying it's waivable at the government's option. GENERAL VERRILLI: That's -- that is not our assessment of the institutional interests of the United States, Justice Ginsburg. And we do think that the -- the right way to go in this case is to read the statute as not applying to the minimum coverage provision of -- of the Affordable Care Act. CHIEF JUSTICE ROBERTS: It was -- it was the calculation of the interests of the United States that your predecessor made in the Davis case. There, the Solicitor General exercised the authority that we sanctioned to waive the Anti-Injunction Act. And, of course, that couldn't be done if it were jurisdictional. 38 Alderson Reporting Company Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 GENERAL VERRILLI: Mr. Chief Justice. That's true, Several points about that, though. We do agree with Mr. Long's analysis that Davis occurred in -- during a time in -- in which under the Standard Nut case, the Court had interpreted the Anti-Injunction Act as doing no more than codifying the traditional equitable principles which allowed courts discretion to conclude that in certain circumstances, a case could go forward. Williams Packing repudiated that analysis, and Bob Jones v. Simon again repudiated that analysis and said, no, we're no longer abiding by that. true that the Davis case has not formally been overruled, but we do think it's fundamentally inconsistent with the Court's understanding now of -- JUSTICE BREYER: Davis was the case that -- It is where a shareholder sues the corporation. GENERAL VERRILLI: JUSTICE BREYER: Yes. And the remedy is that the corporation shouldn't pay the money to the tax authority. Now, it's a little technical, but that isn't actually an injunction against the tax authority collecting. He's not -- they're not restraining the They're saying to the taxpayer, collection of the tax. don't pay it. 39 Alderson Reporting Company Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 gets you. GENERAL VERRILLI: JUSTICE BREYER: Yes. And -- I don't know how far that GENERAL VERRILLI: Well, in fairness, Justice Breyer, the United States did intervene in the -- in the Davis case and was a party, and so -- not as far as I'd like, I guess, is the answer. JUSTICE SCALIA: I think that goes too far. Don't do it again, because I don't think that's It's restraining restraining the collection of a tax. the payment of a tax. GENERAL VERRILLI: JUSTICE SCALIA: bone go, right? (Laughter.) GENERAL VERRILLI: is jurisdictional. Well -- You don't want to let that Our view here is that it Because it's jurisdictional as this Court understands jurisdiction now, it's not waivable. And, therefore, we don't think that -- that that part of the Davis decision is good law. JUSTICE KAGAN: Reed Elsevier? General, can I ask you about Justice Ginsburg suggested that the language was very similar in Reed Elsevier as it is here, but there are even further similarities. Reed Elsevier pointed out that the provision in question 40 Alderson Reporting Company Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 wasn't in Title 28. Here, too, it's not in Title 28. In Reed Elsevier, it was pointed out that the provision there had numerous exceptions to it. Here, too, there are numerous exceptions that we find that have been created by the courts over the years. In Reed Elsevier, the question was essentially one about timing. file your registration. about timing. pay your taxes. So, Reed Elsevier seems in multiple respects on all fours with this case. Why is that wrong? GENERAL VERRILLI: Kagan. I don't think so, Justice Come to court after you Here, too, the question is one Come to court after you make -- after you First, we think -- I guess I'm repeating myself But we think the closest analogue is and I apologize. the very next provision in the United States Code, 7422(a), which this Court has held is jurisdictional, and is phrased in exactly the same way as 7421(a). In fact, as I said, they were the same provision back in the earlier days. That's the closest analogue. This isn't -- and it's actually 7422 that's a statute that says do something first. But this statute is just a flat-out command that no suit shall be maintained to restrain -- 41 Alderson Reporting Company Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 difference. collection. JUSTICE KAGAN: I take the point -- -- the assessment or GENERAL VERRILLI: JUSTICE KAGAN: -- but if you would comment How on the similarities of Reed Elsevier to this case. do you think it's different, at all? GENERAL VERRILLI: Well, because the -- I think the best answer to that is there are no magic words, and that history and context matter, as the Court said in Henderson. And the history and context here is that 7422 and 7421 function together to protect an exceedingly strong interest that the Court has held with respect to 7422, sufficiently strong that it explains the jurisdictional nature of that. applies here. This isn't just a matter of do X and then you can -- and then you can come to court. It's just a The same interest fundamentally different set of interests at stake. So, we do think that that makes a big And -- JUSTICE GINSBURG: Why isn't Reed Elsevier -- if you're dividing jurisdiction from claims processing -- it says you have to register before you can sue. There are a lot of things you have to do So, why isn't Reed Elsevier like 42 Alderson Reporting Company before you can sue. Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you have to pay a filing fee before you can file a complaint? GENERAL VERRILLI: It is -- we do think it's very much in that nature and different from this case, Your Honor. And one way I think it's helpful to get at this is to look at the history. We've cited a string of court of appeals cases in a footnote in our opening brief, and over time, it's been very consistent that the courts of appeals have treated the Anti-Injunction Act as a jurisdictional provision. Again, if the Court agrees with our statutory construction, you don't need to reach this issue. But they have -- in fact, one of those cases, the Hansen case, the district court in that case had dismissed the complaint under Federal Rule of Civil Procedure 12(b)(6). The Court of Appeals vacated and sent it back with instructions to dismiss under 12(b)(1), which is the subject matter jurisdiction provision. So I do think that, to the extent this issue is before the Court, it is jurisdictional, but it doesn't need to be before the Court because of the statutory construction argument that we had offered. JUSTICE GINSBURG: 43 Alderson Reporting Company On your statutory Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 construction argument, is there any other exaction imposed under the Internal Revenue Code that would not qualify as a tax for Anti-Injunction Act purposes, or is 5000A just out there all by itself? GENERAL VERRILLI: all by itself. It's not quite out there There are other provisions that fall outside of subchapter B of chapter 68 and, therefore, wouldn't be governed by the instruction in Section 6671(a), which answers the question about the applicability of the Act for most penalties. The ones that we've identified, and I may be overlapping a little bit with Mr. Long here, one is 26 U.S.C. 857, which imposes certain penalties in connection with the administration of real estate investment trusts. There are provisions that Mr. Long identified in his brief, Sections 6038(a) through (c) of the Code, which impose certain penalties with respect to reporting requirements for foreign corporations. We have, in addition, in footnote 22 at page 36 of our brief, identified three provisions that Mr. Long also identified about -- about alcohol and tobacco. Now -- JUSTICE SOTOMAYOR: Could we address, General, the question of whether there are any 44 Alderson Reporting Company Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 collateral consequences for the failure to buy -- to not buy health insurance? payment of the penalty? The private respondents argue that there are other collateral consequences such as for people on probation who are disobeying the law, if they don't buy health insurance, they would be disobeying the law and could be subject to having their supervised release revoked. GENERAL VERRILLI: Yes. That is not a The And Is the only consequence the correct reading of the statute, Justice Sotomayor. only consequence that ensues is the tax penalty. the -- we have made a representation, and it was a carefully made representation, in our brief that it is the interpretation of the agencies charged with interpreting this statute, the Treasury Department and the Department of Health and Human Services, that there is no other consequence apart from the tax penalty. And I do think, if I could talk for a couple of minutes about the argument that was discussed as to whether this can be conceived of as a suit just challenging the requirement, which is entirely stand-alone based on inferences drawn from the exemptions. I really don't think that's right. And if I could spend a minute on it, I think it's important. 45 Alderson Reporting Company Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The exemptions in section 5000A, it is true that there are two categories of exemptions. There are exemptions to the penalty and exemptions to the subsection (a) requirement. But the -- but I think, not only as a practical matter, but I think there's a textual indication and even as a legal matter, they are -- they both function as exceptions to the requirement. First, as a practical matter, one of those exemptions is a hardship exemption. And if the Court will just bear with me for one minute here, it's at page 11A of the appendix to our brief. It provides that a person can go to the Secretary of HHS and obtain a hardship exemption for -- which would, as a formal matter here, excuse compliance with the penalty. It seems to me to make very little sense to say that someone who has gone to an official of the United States and obtained an exemption would, nonetheless, be in a position of being a law breaker. We think another way in which you can get to the same conclusion slightly differently is by considering the provision on the prior page, 10A, which is 5000A -- 5000A(e)(3), members of Indian tribes. Members of Indian tribes are exempt only from the penalty as a formal matter under the structure 46 Alderson Reporting Company Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of the statute here; but, the reason for that is because members of Indian tribes obtain their healthcare through the Indian Health Service, which is a clinic-based system that doesn't involve insurance at all. entirely different system. They were taken out of this statute because they get their healthcare through a different system. And it doesn't make any sense to think that persons getting their health care through the Indian Health Service are violating the law because -- exempt only from the penalty, but still under a legal obligation to have insurance, when the whole point of this is that they're supposed to be in a clinic-based system. JUSTICE SOTOMAYOR: Is your whole point that It's an this was inartful drafting by Congress, that, to the extent that there is an exemption under the penalty, it's an exemption from the legal obligation? GENERAL VERRILLI: I guess what I would say about it, Your Honor, is that the way in which this statute is drafted doesn't permit the inference that my friends from the NFIB are trying to draw from it. And there is an additional textual indication of that, which one can find at page 13 of our reply brief. This is a provision that is 42 U.S.C. A, This is a provision that provides for 47 Alderson Reporting Company section 18022(e). Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 a certification that certain individuals can get. it's the paragraph starting with the words "other provisions," contains the quote. And it says, an individual with a And certification that the individual is exempt from the requirement under section 5000A, by reason of section 5000A(e)(1) of such code, is entitled to a certificate that allows for enrollment in a particular program for this category of people. But you can see here, Congress is saying it's an exemption under 5000A(e)(1), which is the exemption from the penalty, and not the underlying requirement is, as Congress says, an exemption from the requirement of section 5000A. JUSTICE ALITO: Subsection A says directly, "an applicable individual shall ensure that the individual has the minimum essential coverage." And you are saying it doesn't really mean that, that if you're not subject to the penalty, you're not under an obligation to maintain the minimum essential coverage? GENERAL VERRILLI: That's correct. And we think that is what Congress is saying, both in the provision I just pointed to, Your Honor, and by virtue of the fact -- by virtue of the way the exemptions work. I just think that's the -- reading this in context, that 48 Alderson Reporting Company Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 is the stronger reading of the statute. CHIEF JUSTICE ROBERTS: It makes it easy for the Government to drop the other shoe in the future, right? You have been under the law subject to this You have been exempt from the mandate all along. penalty, so all they have to do is take away the penalty. GENERAL VERRILLI: so, Mr. Chief Justice. I don't -- I don't think I don't think it makes it easy We think this is the for the Government in the future. fairest reading of the statute, that the -- that the -- you cannot infer from the fact that someone is exempt from the penalty, that they are still under an obligation to have insurance. fairest reading of the statute. JUSTICE KAGAN: JUSTICE ALITO: JUSTICE KAGAN: Could I -- I'm sorry, go ahead. The nature of the That's just not the representation you made, that the only consequence is the penalty, suppose a person does not purchase insurance, a person who is obligated to do so under the statute, doesn't do it, pays the penalty instead, and that person finds herself in a position where she is asked the question, have you ever violated any federal law, would that person have violated a federal law? 49 Alderson Reporting Company Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 a tax? penalty -- GENERAL VERRILLI: No. Our position is that person should give the answer "no." JUSTICE KAGAN: And that's because -- That if they don't pay GENERAL VERRILLI: the tax, they violated a federal law. JUSTICE KAGAN: But as long as they pay the GENERAL VERRILLI: If they pay the tax, then they are in compliance with the law. JUSTICE BREYER: Why do you keep saying it's GENERAL VERRILLI: If they pay the tax penalty, they're in compliance with the law. JUSTICE BREYER: GENERAL VERRILLI: Justice Breyer. JUSTICE BREYER: GENERAL VERRILLI: JUSTICE ALITO: The penalty. Right. That's right. Thank you. Thank you, Suppose a person who has been receiving medical care in an emergency room -- has no health insurance but, over the years, goes to the emergency room when the person wants medical care -- goes to the emergency room, and the hospital says, well, fine, you are eligible for Medicaid, enroll in Medicaid. And the person says, no, I don't want that. 50 Alderson Reporting Company I want to Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 continue to get -- just get care here from the emergency room. Will the hospital be able to point to the mandate and say, well, you're obligated to enroll? GENERAL VERRILLI: No, I don't think so, I think Justice Alito, for the same reason I just gave. that the -- that the answer in that situation is that that person, assuming that person -- well, if that person is eligible for Medicaid, they may well not be in a situation where they are going to face any tax penalty and therefore -- JUSTICE ALITO: tax penalty. GENERAL VERRILLI: JUSTICE ALITO: Right, right. No, they are not facing the So the hospital will have to continue to give them care and pay for it themselves, and not require them to be enrolled in Medicaid. GENERAL VERRILLI: JUSTICE ALITO: Right. Will they be able to take this out and say, well, you really should -- you have a moral obligation to do it; the Congress of the United States has said, you have to enroll? that? GENERAL VERRILLI: I do think it's -- I No, they can't say think it's certainly fair to say that Congress wants people in that position to sign up for Medicaid. 51 Alderson Reporting Company I Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 think that's absolutely right. And I think the statute is structured to accomplish that objective; but, the reality still is that the only consequence of noncompliance is the penalty. JUSTICE SOTOMAYOR: General, but I thought the people who were eligible for Medicaid weren't subject to the penalty. factually wrong. GENERAL VERRILLI: penalty is keyed to income. JUSTICE SOTOMAYOR: GENERAL VERRILLI: a number of things. Yes. And the -- it's keyed to Well, it all -- the Am I wrong? I could be just One is are -- are you making so little money that you aren't obligated to file a tax return. And if you're in that situation, you're not It's also if the cost of subject to the penalty. insurance would be more than 8 percent of your income, you aren't subject to the penalty. So, there isn't necessarily a precise mapping between somebody's income level and their Medicaid eligibility at the present moment. That will depend on where things are and what the eligibility requirements are in the State. JUSTICE SOTOMAYOR: below -- 52 Alderson Reporting Company But those people Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 saying? GENERAL VERRILLI: But, as a general matter, for people below the poverty line, it's almost inconceivable that they're ever going to be subject to the penalty, and they would, after the Act's Medicaid reforms go into place, be eligible for Medicaid. JUSTICE BREYER: So, is your point that the tax -- what we want to do is get money from these people. Most of them will bet -- get the money by But if buying the insurance, and that will help pay. they don't, they're going to pay this penalty, and that will help, too. And the fact that we put the latter in But as far as this brings it within the taxing power. Act is concerned, about the injunction, they called it a penalty and not a tax for a reason. fall outside that -- GENERAL VERRILLI: JUSTICE BREYER: chapter, et cetera. Is that what the heart of what you're Yes. -- it's in a different They wanted it to GENERAL VERRILLI: They called it a penalty. That's the essence of it. They didn't give any other textural instruction in the Affordable Care Act or in the Internal Revenue Code that that penalty should be treated as a tax -- 53 Alderson Reporting Company Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CHIEF JUSTICE ROBERTS: GENERAL VERRILLI: Act purposes. CHIEF JUSTICE ROBERTS: Well, except you -- -- for Anti-Injunction You agree with Mr. Long, isn't -- I mean, I thought you just agreed with Justice Breyer that one of the purposes of the provision is to raise revenue. GENERAL VERRILLI: will raise revenue. It will -- well, it It has been predicted by the CBO But even though that it will raise revenue, Your Honor. that's the case -- and I think that would be true of any -- of any penalty, that it will raise some revenue, but even though that's the case, there still needs to be textual instruction in the statute that this penalty should be treated as a tax for Anti-Injunction Act purposes, and that's what's lacking here. JUSTICE ALITO: After this takes effect, there may be a lot of people who are assessed the penalty and disagree either with whether they should be assessed the penalty at all or with the calculation of the amount of their penalty. So, under your interpretation of the Act, all of them can now go to court? Act? GENERAL VERRILLI: 54 Alderson Reporting Company None of them are barred by the Anti-Injunction Those are two different Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 things, Justice Alito. I think for reasons that Justice Kennedy, I think, suggested in one of his questions to Mr. Long, all of the other doctrines, exhaustion of remedies and related doctrines, would still be there, and the United States would rely on them in those circumstances. And -- and so, I don't think the answer is that they can all go to court, no. JUSTICE SOTOMAYOR: JUSTICE ALITO: Well, why isn't -- Two former -- two former commissioners of the IRS have filed a brief saying that your interpretation is going to lead to a flood of litigation. Are they wrong on that? GENERAL VERRILLI: Yes. We don't -- you know -- we've taken this position after very careful consideration, and we've assessed the institutional interests of the United States, and we think we're in the right place. JUSTICE SOTOMAYOR: But tell me something, why isn't this case subject to the same bars that -- that you list in your brief? The Tax Court, at least so far, considers constitutional challenges to statutes. So, why aren't we -- why isn't this case subject to a dismissal for failure to exhaust? GENERAL VERRILLI: Because we don't -- because the exhaustion would go to the individual amount 55 Alderson Reporting Company Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 owed, we think, and that's a different situation from this case. If the Court has no further questions. CHIEF JUSTICE ROBERTS: GENERAL VERRILLI: Thank you, General. Thank you. Mr. Katsas. CHIEF JUSTICE ROBERTS: ORAL ARGUMENT OF GREGORY G. KATSAS ON BEHALF OF THE RESPONDENTS MR. KATSAS: please the Court: Let me begin with the question whether the Anti-Injunction Act is jurisdictional. Justice Ginsburg, for reasons you suggested, we think the text of the Anti-Injunction Act is indistinguishable from the text of the statute that was unanimously held to be non-jurisdictional in Reed Elsevier. instituted. maintained. That statute said no suit shall be This statute says no suit shall be No -- JUSTICE GINSBURG: things. JUSTICE SOTOMAYOR: though -- JUSTICE GINSBURG: This says Big difference, They are different Mr. Chief Justice, and may it "immediately" -- the Reed Elsevier statute says 56 Alderson Reporting Company Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 immediately after instituted unless a copyright is registered. MR. KATSAS: registered. Unless the copyright is And this goes -- this goes to the character The statute in Reed Elsevier says of the lawsuit. register your copyright and then come back to court. JUSTICE GINSBURG: filing fee? So, why isn't that like a Before you can maintain a suit for copyright infringement, you have to register your copyright? MR. KATSAS: filing suit. It -- it's a precondition to The -- the analogous precondition here is The point pay your taxes and then come back to court. is -- JUSTICE SOTOMAYOR: true. action. No, that -- that's not The suit here has nothing to do with hearing the It has to do with the form of relief that It's not permitting -- it is not a It's not Congress is barring. tax case; you can come in afterwards. permitting the court to exercise what otherwise would be one of its powers. MR. KATSAS: It has to be the same challenge, Justice Sotomayor, or else South Carolina v. Regan would say the Anti-Injunction Act doesn't apply. You are right that once you file -- once 57 Alderson Reporting Company Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you pay your taxes and then file the refund action, the act of filing the taxes converts the suit from one seeking prospective relief into one seeking money damages. And in that sense, you could think of the statute as a remedial limitation on the courts. But whether you think of it as an exhaustion requirement or a remedial limitation, neither of those characterizations is jurisdictional. In Davis v. Passman you said that a remedial limitation doesn't go -- JUSTICE SOTOMAYOR: It does seem strange to think of a -- a law that says no court can entertain a certain action and give a certain remedy as merely a claim-processing rule. What the -- the court is being ousted from -- from what would otherwise be its power to hear something. MR. KATSAS: The suit is being delayed, I The think is the right way of looking at it. jurisdictional apparatus in the district court is present. Prospective relief under 1331, money damages If the Anti-Injunction Act were action under 1346. jurisdiction-ousting, one might have expected it to be in Title 28 and to qualify those statutes and to use jurisdictional limits. JUSTICE SOTOMAYOR: 58 Alderson Reporting Company So, how do you deal with Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 this case and our Gonzalez -- our recent Gonzalez case, where we talked about -- MR. KATSAS: Right. -- the language of the JUSTICE SOTOMAYOR: COA statute that no appeal will be heard absent the issuance of? MR. KATSAS: Gonzalez -- Gonzalez v. Thaler rests on a special rule that applies with respect to appeals from one Article III court to another. That's -- that explains Gonzalez, and it explains Bowles before it. You have five unanimous opinions in the last decade in which you have strongly gone the other direction on what counts as jurisdictional. JUSTICE SOTOMAYOR: There is an argument that we should just simply say that Bowles applies only to appeals, but we haven't said that. MR. KATSAS: No, you came very close. In Henderson, Justice Sotomayor, you said that Bowles, which is akin to Thaler, is explained by the special rule and understandings governing appeals from one Article III court to another. And you specifically said that it does not apply to situations involving a party seeking initial judicial review of agency action, which is what we have here. 59 Alderson Reporting Company Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 So, while you're right, the texts in Bowles and Thaler are not terribly different, those cases are explained by that principle. doesn't apply to this case. The text in this case speaks to the suit, the cause of action of the litigant. It doesn't speak The Under Henderson, it to the jurisdiction or power of the court. Anti-Injunction Act is placed in a section of the tax code governing procedure. It's not placed in -- Counsel, all of those -- JUSTICE SOTOMAYOR: all of that in particular -- MR. KATSAS: You did rely on that in Reed Elsevier as one consideration. JUSTICE SOTOMAYOR: it in other cases. MR. KATSAS: Another -- another And we haven't relied on consideration in Reed Elsevier that cuts in our favor is the presence of exceptions. You said three in Reed Elsevier cut against jurisdictional characterization. Here, there are 11. And -- Many of which themselves JUSTICE SOTOMAYOR: speak in very clear jurisdictional language. MR. KATSAS: Well, some of them have no jurisdictional language at all, and not a single one of them uses the word "jurisdiction" to describe the 60 Alderson Reporting Company Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ability of the court to restrain the assessment and collection of taxes, which is what one would have expected -- JUSTICE BREYER: Basically, it begs the There are a lot of difference -- language is relevant. relevant things. But one thing that's relevant in my mind is that taxes are, for better or for worse, the life's blood of government. MR. KATSAS: Yes. And so what Congress is JUSTICE BREYER: trying to do is to say there is a procedure here that you go through. You can get your money back, or you go through the Tax Court, but don't do this in advance for the reason that we don't want 500 Federal judge -- judges substituting their idea of what is a proper equitable defense, of when there is going to be an exception made about da, da, da, for the basic rule. No. Okay? And so there is strong reason that is there. You tried to apply that reason to the copyright law. You can't find it. Registration for the copyright Copyright register is not the life's blood of anything. exists regardless. So the reasoning isn't there. The language -- I see the similarity of language. I've got that. But it's the reasoning, the 61 Alderson Reporting Company Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 sort of underlying reason for not wanting a waiver here that --that is -- has a significant role in my mind of finding that it is jurisdictional. Plus the fact that we have said it nonstop since that Northrop or whatever that other case is. MR. KATSAS: Justice Breyer, as to reasoning, you -- you give an argument -- you give an argument why, as a policy matter, it might make sense to have a non-jurisdictional statute. But of course, this Court's recent cases time and again say Congress has to clearly rank the statute as non-jurisdictional in its text and structure. It seems to me a general appeal to statutory policies doesn't speak with sufficient clarity -- JUSTICE BREYER: That's fine. I just wanted to ask the question in case you wanted to answer the policy question. MR. KATSAS: As to policy -- as to policy, I think Helvering against Davis is the refutation of this view. It is true that in most cases, the Government doesn't want and Congress doesn't want people coming into court. But Davis shows there may be some cases including, for instance, constitutional challenges to landmark Federal statutes where the Government sensibly decides that its revenue-raising purposes are better 62 Alderson Reporting Company Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 served by allowing a party to come into court and waiving its defense. That's what the Solicitor General did in Davis, and this Court accepted that waiver. As for prior cases, we have the holding in Davis and the holding in all of the equitable exception cases like Williams Packing, the Government -- JUSTICE SOTOMAYOR: So why don't we say -- why don't we say it's jurisdictional except when the Solicitor General waives? MR. KATSAS: You have used -- Why would that not JUSTICE SOTOMAYOR: promote Congress's policy of ensuring -- or Congress, explicitly says -- MR. KATSAS: It's jurisdictional except when the Solicitor General waives it? JUSTICE SOTOMAYOR: contradiction in terms. disagree. MR. KATSAS: It is a contradiction in terms. Yes. It's a I don't I don't disagree. All of your cases analyze the situation as if the statute is jurisdictional, then it's not subject to waiver. If you were to construe this as such a one-of unique statute, it seems to me we would still win because the Solicitor General with full knowledge of the Anti-Injunction Act argument available to him 63 Alderson Reporting Company Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 affirmatively gave it up. This is not just a forfeiture where a Government lawyer is -- through inadvertence fails to raise an argument. Government -- JUSTICE SOTOMAYOR: gave it up. MR. KATSAS: They made it below. They know They raised it and then This is a case where the what it is; and not only are they not pursuing it here, they are affirmatively pursuing an argument on the other side. JUSTICE KAGAN: Mr. Katsas, is your basic position that when we are talking about the jurisdiction of the district courts, a statute has to say it's jurisdictional to be jurisdictional? MR. KATSAS: I wouldn't go quite that far. I think at a minimum, it has -- it has to either say that or at least be directed to the courts which is a formulation you have used in your cases and which is the formulation that Congress used in the Tax Injunction Act, but did not use in this Statute. JUSTICE KAGAN: Well, how would -- I mean, I suppose one could try to make a distinction between this case and Reed Elsevier by focusing on the difference between instituting something and maintaining something, and suggesting that instituting is more what a litigant 64 Alderson Reporting Company Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 does, and maintaining, as opposed to dismissing, is more of what judge does. MR. KATSAS: I don't think so, Justice Kagan, because we have an adversarial system, not an inquisitorial one. The parties maintain their lawsuits, I think, is the more natural way of thinking of it. If I could turn -- if I could turn to the merits question on the AIA before my time runs out. The purpose of this lawsuit is to challenge a requirement -- a Federal requirement to buy health insurance. That requirement itself is not a tax. And for that reason alone, we think the Anti-Injunction Act doesn't apply. What the amicus effectively seeks to do is extend the Anti-Injunction Act, not just to taxes which is how the statute is written, but to free-standing nontax legal duties. And it's just -- The whole point -- CHIEF JUSTICE ROBERTS: the whole point of the suit is to prevent the collection of penalties. MR. KATSAS: Of taxes, Mr. Chief Justice. Well, prevent the CHIEF JUSTICE ROBERTS: collection of taxes. But the idea that the mandate is something separate from whether you want to call it a penalty or tax just doesn't seem to make much sense. 65 Alderson Reporting Company Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. KATSAS: me explain to you why. It's entirely separate, and let CHIEF JUSTICE ROBERTS: mandate is a command. It's a command. A Now, if there is nothing behind the command, it's sort of, well, what happens if you don't follow the mandate? And the answer is nothing, it seems very artificial to separate the punishment from the crime. MR. KATSAS: I'm not sure the answer is nothing, but even assuming it were nothing, it seems to me there is a difference between what the law requires and what enforcement consequences happen to you. statute was very deliberately written to separate mandate from penalty in several different ways. They are put in separate sections. The This mandate is described as a "legal requirement" no fewer than 20 times, three times in the operative text and 17 times in the findings. mandatory verb "shall." It's imposed through use of a The requirement is very well defined in the statute, so it can't be sloughed off as a general exhortation, and it's backed up by a penalty. Congress then separated out mandate exceptions from penalty exceptions. It defined one One category of people not subject to the mandate. would think those are the category of people as to whom 66 Alderson Reporting Company Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Congress is saying: You need not follow this law. It then defined a separate category of people not subject to the penalty, but subject to the mandate. know what that could mean other than -- CHIEF JUSTICE ROBERTS: Why would you have a You know, buy I don't requirement that is completely toothless? insurance or else. Or else what? Or else nothing. MR. KATSAS: Because Congress reasonably could think that at least some people will follow the law precisely because it is the law. And let me give you an example of one category of person that might be -- the very poor, who are exempt from the penalty but subject to the mandate. Mr. Long says this must be a mandate exemption because it would be wholly harsh and unreasonable for Congress to expect people who are very poor to comply with the requirement to obtain health insurance when they have no means of doing so. That gets things exactly backwards. very poor are the people Congress would be most concerned about with respect to the mandate to the extent one of the justifications for the mandate is to prevent emergency room cost shifting when people receive uncompensated care. So they would have had very good The reason to make the very poor subject to the mandate, and then they didn't do it in a draconian way; they gave the 67 Alderson Reporting Company Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 very poor a means of complying with the insurance mandate, and that is through the Medicaid system. JUSTICE KAGAN: Mr. Katsas, do you think a person who is subject to the mandate but not subject to the penalty would have standing? MR. KATSAS: Yes, I think that person would, because that person is injured by compliance with the mandate. JUSTICE KAGAN: What would that look like? What would the argument be as to what the injury was? MR. KATSAS: The injury -- when that subject to the mandate, that person is required to purchase health insurance. unwanted good. That is a forced acquisition of an It's a classic pocketbook injury. But even if I'm wrong about that question, Justice Kagan, the question of who has standing to bring the challenge that we seek to bring seems to me very different -- your hypothetical plaintiff is very different from the actual plaintiffs. We have individuals who are planning for compliance in order to avoid a penalty, which is what their affidavits say. And we have the States, who will be subject no doubt to all sorts of adverse ramifications if they refuse to enroll in Medicaid the people who are forced into Medicaid by virtue of the mandate. 68 Alderson Reporting Company Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 So we don't have the problem of no adverse consequences in the case. And then, we have the separate distinction between the question of who has Article III standing in order to maintain a suit and the question of who is subject to a legal obligation. And you've said in your cases that even if there may be no one who has standing to challenge a legal obligation like the incompatibility clause or something, that doesn't somehow convert the legal obligation into a legal nullity. Finally, with respect to the States, even if we are wrong about everything I've said so far, the States clearly fall within the exception recognized in South Carolina against Regan. They are injured by the mandate because the mandate forces 6 million new people onto their Medicaid rolls. But they are not directly subject to the mandate, nor could they violate the mandate and incur a penalty. JUSTICE KAGAN: Could I just understand, Mr. Katsas, when the States say that they are injured, are they talking about the people who are eligible now, but who are not enrolled? Or are they also talking about people who will become newly eligible? MR. KATSAS: It's people who will enroll -- people who wouldn't have enrolled had they been given a 69 Alderson Reporting Company Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 voluntary choice. JUSTICE KAGAN: MR. KATSAS: But who are eligible now. I That's the largest category. think there could be future eligibles who would enroll because they are subject to a legal obligation but wouldn't have enrolled if given a voluntary choice. But I'm happy to -- I'm happy to focus on currently eligible people who haven't enrolled in Medicaid. That particular class is the one that gives rise to, simply in Florida alone, a pocketbook injury on the order of 500 to $600 million per year. JUSTICE KAGAN: But that does seem odd, to suggest that the State is being injured because people who could show up tomorrow with or without this law will -- will show up in greater numbers. I mean, presumably the State wants to cover people whom it has declared eligible for this benefit. MR. KATSAS: don't. They -- they could, but they What the State wants to do is make Medicaid available to all who are eligible and choose to obtain it. And in any event -- JUSTICE GINSBURG: choose to obtain it? Why would somebody not Why -- that's one puzzle to me. There's this category of people who are Medicaid eligible; Medicaid doesn't cost them anything. 70 Alderson Reporting Company Why Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 would they resist enrolling? MR. KATSAS: Ginsburg. I -- I don't know, Justice All I know is that the difference between current enrollees and people who could enroll but have not is, as I said, on the -- is a $600 million delta. And -- JUSTICE GINSBURG: But it may be just that they haven't been given sufficient information to understand that this is a benefit for them. MR. KATSAS: It's possible, but all we're talking about right now is the standing of the States. And the only arguments made against the standing of the States -- I mean, there is a classic pocketbook injury here. The only arguments made about -- against the standing of the States are, number one, this results from third-party actions. That doesn't work, because the third-party actions are not unfettered in -- in the sense of Lujan; they are coerced in the sense of Bennett v. Spear. Those people are enrolling because they are under a legal obligation to do so. The second argument made against the States' standing is that the States somehow forfeit their ability to challenge the constitutionality of a provision of Federal law because they voluntarily choose to participate -- 71 Alderson Reporting Company Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to -- confused. JUSTICE SOTOMAYOR: I'm -- I'm a little bit And this is what I'm confused about. There -- there is a challenge to the individual mandate. MR. KATSAS: Yes. All right. What is -- JUSTICE SOTOMAYOR: the fact that the State is challenging Medicaid, how does it give the State standing to challenge an obligation that is not imposed on the State in any way? MR. KATSAS: The -- the principal theory for State standing is that States are challenging the mandate because the mandate injures them when people are forced to enroll in Medicaid. Now, it is true they are not directly subject to the mandate, but -- JUSTICE SOTOMAYOR: MR. KATSAS: Okay. Yes. That's what I'm -- Let me -- let me try JUSTICE SOTOMAYOR: MR. KATSAS: finish the thought? -- a little confused by. Let me try it this way -- may I CHIEF JUSTICE ROBERTS: MR. KATSAS: Go ahead. In South Carolina v. Regan, the The State State was not subject to the tax at issue. was harmed because -- as the issuer of the bonds, and the bond holders were the ones subject to the tax. 72 Alderson Reporting Company So Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the State is injured not because it is the direct object of the Federal tax, but because of its relationship to the regulated party as issuer/bond holder. CHIEF JUSTICE ROBERTS: Mr. Katsas. MR. KATSAS: Thank you, Mr. Chief Justice. Mr. Long, you have 5 Thank you, CHIEF JUSTICE ROBERTS: minutes remaining. REBUTTAL ARGUMENT OF ROBERT A. LONG FOR COURT-APPOINTED AMICUS CURIAE MR. LONG: Everyone agrees that the section 5000A penalty shall be assessed and collected in the same manner as taxes. And the parties' principal argument why that does not make the Anti-Injunction Act applicable is that, well, that simply goes to the Secretary's activities. And I would simply ask, if -- if you look at chapters 63 and 64 of the Internal Revenue Code, which are the chapters on assessment and collection, they are not just addressed to the Secretary. There are many provisions in there that are addressed to courts and indeed talk about this interaction, the very limited situations in which courts are permitted to restrain the assessment and collection of taxes. There was a statement made that there 73 Alderson Reporting Company Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 aren't -- and many of the exceptions to the Anti-Injunction Act are in the assessment and collection provisions -- there was a statement made that none of these directly confer jurisdiction to restrain the assessment and collection of taxes. That's not true. In footnote 11 of our opening brief, we cite several. I'll simply mention section 6213 as an example. That says -- I quote: "Notwithstanding the provisions of section 7421(a), the making of such assessment or the beginning of such proceeding or levy during the time such prohibition is in force may be enjoined by a proceeding in the proper court, including the Tax Court. The Tax Court shall have no jurisdiction to enjoin any action or proceeding or order any refund under this subsection unless a timely petition for redetermination of the deficiency has been filed, and then only in respect of the deficiency that is the subject of such petition." JUSTICE BREYER: And all that's going to really what I think Congress's intent was meant to be in sticking the collection thing into chapter 68, and -- and it's certainly an argument in your favor. The -- the over-arching thing in my mind is it's -- it's up to Congress, within leeway. And they did not use that word "tax," and they did have a couple 74 Alderson Reporting Company Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of exceptions. And it is true that all this language that you quote -- you know, the first two sentences and so forth, it talks about the use of tax in the IRC. talks about the penalties and liabilities provided by this subchapter. And we look over here and it's a It penalty and liability provided by a different law, which says collect it through the subchapter, and it has nothing to do with the IRC. See? So we've got it in a separate place, we can see pretty clearly what they're trying to do. They couldn't really care very much about interfering with collecting this one. That's all the statutory argument. Are you following me? You see? that kind of argument. MR. LONG: I mean, I think I'm following I'm trying to get you to focus on you, but -- but the fact that it's not in the particular subchapter for assessable penalties in my view makes no difference, because they said it's still clearly -- it's assessed and collected in the same manner -- JUSTICE BREYER: MR. LONG: Yes, it is. -- as the penalty in that subchapter, and those penalties are collected in the same manner as taxes. JUSTICE BREYER: 75 Alderson Reporting Company Yes, yes. Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. LONG: And so that's -- I think it's -- it's rather detailed, but I think it's a rather clear indication that the Anti-Injunction Act applies. The -- the refund statute that does specifically refer to penalties, that has nothing to do with this argument that it's assessed and collected in the same manner as a tax. That would simply go to the point that well, you can't just call it a tax, because they've referred to it as a penalty. And finally, on jurisdiction, you know, I think the key point is we have a long line of this Court's decisions that's really been ratified by Congress, with all these exceptions in jurisdictional terms. As I read Bowles and John R. Sand & Gravel, the -- the gist of those decisions was not any special sort of rule about appeals, it's that when we have that situation, which I would submit applies as much to the collection of Federal taxes as it does to appeals from Federal district courts when we have this degree of -- of precedent, including precedent from Congress in the form of amendments to this Anti-Injunction Act, that should be -- the presumption should be that this is jurisdictional. If there are no further questions. 76 Alderson Reporting Company Official - Subject to Final Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CHIEF JUSTICE ROBERTS: Mr. Long, you were invited by this Court to defend the proposition that the Anti-Injunction Act barred this litigation. You have ably carried out that responsibility, for which the Court is grateful. MR. LONG: Thank you. We will continue CHIEF JUSTICE ROBERTS: argument in this case tomorrow. (Whereupon, at 11:41 a.m., the case in the above-entitled matter was submitted.) 77 Alderson Reporting Company Official - Subject to Final Review 78 A abiding 39:12 ability 61:1 71:23 able 6:2 51:2,18 ably 77:4 above-entitled 1:12 77:10 absence 37:19 absent 59:5 absolutely 6:21 12:9 20:9,11,13 52:1 accept 4:16 16:20 accepted11:4 13:13,20 63:3 accomplish 23:14 52:2 acquiesced12:2 12:6,7 acquisition 68:13 act 3:11,13,18 4:3 5:4,9,23 6:10,21 7:13,15 7:21 8:8,13,15 8:20,25 9:1,3 9:13 10:4,25 11:8,13,24 14:1 14:21,22 17:15 18:12,16 19:7 19:12,13,13,15 20:12 21:12 22:2,3,6,10,18 23:8,13 26:16 29:2,22 30:2 31:5,7,12,18 31:20,21 32:5 33:6,14,20,25 34:8,16,21 36:7 37:20 38:10,18 38:24 39:6 43:10 44:3,10 53:13,23 54:3 54:15,22,24 56:12,14 57:24 58:2,21 60:8 63:25 64:20 65:12,15 73:14 74:2 76:3,22 77:3 action 8:11 9:9 9:13 57:17 58:1 58:13,21 59:24 60:6 74:14 actions 71:16,17 active 9:6 activities 73:16 actual 68:19 Act's 53:4 addition 7:2 21:9 44:20 additional 23:4 47:22 address 24:15 44:24 addressed4:12 9:4 73:20,21 addressing 4:22 adjudicate 4:17 administer23:1 administration 22:20 44:14 administrative 5:12 6:3,7 administratively 5:15 adopted30:15 advance 18:4 61:13 adversarial 65:4 adverse 68:23 69:1 affidavits 68:21 affirmatively 64:1,9 afford 28:14,18 Affordable 29:22 30:2 31:11,21 33:6 38:18 53:23 agencies 45:15 agency 59:24 agree 36:10,11 39:3 54:4 agreed54:5 agrees 43:12 73:11 ahead 49:17 72:21 AIA 15:11 17:20 17:21 18:2 20:15 21:9 30:1 30:3,13 32:22 65:8 akin 59:20 AL 1:4,7 alcohol 30:16 44:22 Alito 10:2,8,17 14:14 25:8 26:4 26:7 27:4 31:24 32:6 48:15 49:17 50:19 51:5,11,14,18 54:17 55:1,9 allow37:19 allowed5:20 39:7 allowing 12:13 63:1 allows 48:8 amend 25:10 amendments 11:23 13:23 76:22 Americans 26:16 amicus 1:17 2:4 2:13 3:8 34:1 65:14 73:10 amount 18:19 54:21 55:25 amounts 20:1 analogous 57:12 analogue 41:16 41:21 analysis 32:16 32:18 39:3,10 39:11 analyze 63:20 annual 18:19 answer4:19 5:2 16:9 26:10 36:17,20 38:2 40:7 42:8 50:2 51:6 55:7 62:16 66:6,9 answers 44:9 Anthracite 11:5 Anti-Injunction 3:11,18 4:3 5:4 5:9,23 6:10,21 7:21 8:8,19 9:1 9:3 10:4,25 11:8,13,24 14:1 14:21,22 17:15 18:12,16 19:6 19:12 20:12 22:3,6,10,18 23:8,13 26:16 29:2 31:5,7,17 31:20 32:5 33:14,20,25 34:6,8,16,21 36:7 37:20 38:10,24 39:6 43:10 44:3 54:2 54:15,23 56:12 56:14 57:24 58:21 60:8 63:25 65:12,15 73:14 74:2 76:3 76:22 77:3 Anybody 25:25 anyone's 26:18 apart 45:18 apologize 34:10 41:16 apparatus 58:19 apparent 15:21 appeal 59:5 62:12 appeals 43:8,10 43:17 59:9,17 59:21 76:17,19 APPEARANC... 1:15 appellate 13:7 appendix 25:5 34:22 35:1 46:12 applicability 44:10 applicable 6:7,8 28:10 48:16 73:15 application 7:15 applied17:25 23:13 applies 3:13,18 5:9 17:15,20,21 19:7 20:12 29:2 30:3 35:7 42:15 59:8,16 76:3,18 apply 5:4,24,24 6:4,10,13 7:3,7 14:23 19:15 22:10 23:8 33:20 57:25 59:23 60:4 61:20 65:13 applying 34:14 38:17 approach 30:15 argue 28:6,23 45:4 argued8:7,21 arguing 31:25 32:1 argument 1:13 2:2,5,8,11 3:4,7 10:14 16:18 18:9 24:14,18 25:1 26:8 27:10 30:25 33:4,23 34:4 37:2,24,25 Alderson Reporting Company Official - Subject to Final Review 79 43:24 44:1 45:20 56:7 59:15 62:7,8 63:25 64:3,9 68:10 71:21 73:9,14 74:22 75:12,15 76:6 77:8 arguments 18:7 18:8 33:1 71:12 71:14 arming 38:11 Article 59:9,22 69:4 artificial 66:7 aside 18:10 asked14:14 34:20 36:2 49:24 asking 7:17 asks 16:9 assess 4:20 assessable 75:18 assessed 3:20 4:1,22 5:6 17:16 18:11,21 21:2 54:18,20 55:15 73:12 75:20 76:6 assessing 4:24 assessment 3:13 3:22 4:4 5:1 6:11 7:23 14:11 16:23 19:14 23:2,18 38:14 42:2 61:1 73:19 73:24 74:2,5,10 Assumes 15:22 assuming 14:14 15:10 51:7 66:10 attached17:7,8 17:23 28:5 attack 18:4 attorneys 37:1 56:8 benefit 70:17 71:9 Bennett 71:19 best 11:15 12:25 20:21 28:24 37:5 42:8 bet 53:8 better34:12 61:7 62:25 beyond 32:23 B big 42:19 56:22 B 1:18 2:6 30:25 biggest 7:11 44:7 billion 20:1 back 5:11 12:5 bit 24:6 35:3 12:15 14:13 44:12 72:1 27:4 29:7 32:1 blood 61:8,22 41:20 43:18 Bob 8:2 19:21 57:6,13 61:12 20:3 27:10 backed66:21 33:18 39:11 backwards 67:18 bond 72:25 Bailey 32:20 bonds 72:24 33:3,7,12,13 bone 40:14 bar 29:12 31:5 Bowles 13:6 33:14 59:10,16,19 barred27:2 60:1 76:15 54:23 77:3 breaker46:19 barring 57:18 Breyer16:17 bars 26:16 55:19 17:7,10,19 based9:1 18:20 18:24 20:21 45:23 39:16,19 40:2,5 baseline 7:1 50:10,14,16,17 basic 34:3 61:17 53:6,17 54:6 64:11 61:4,10 62:6,15 basically 29:20 74:19 75:21,25 61:4 Breyer's 23:20 basis 7:25 brief 12:4 20:23 bear 46:11 33:2 34:23 43:9 bears 3:23 44:17,21 45:14 began 37:2 46:12 47:24 beginning 9:6,15 55:10,20 74:6 74:10 briefs 21:22 begs 61:4 bring 68:16,17 behalf 1:19,21 brings 7:10 23:19 2:7,10 31:1 53:12 37:22 authority 31:14 32:14 37:13,14 38:23 39:21,22 automatically 18:1 available 63:25 70:20 avoid 68:21 a.m 1:14 3:2 77:9 broad 18:16,17 Brockamp 35:6 business 19:22 buy 27:24 28:19 28:20 45:1,2,6 65:10 67:6 buying 53:9 C c 2:1 3:1 44:17 cabined37:15 calculation 38:20 54:20 call 10:23 14:16 65:24 76:8 called20:10 21:3 32:9 53:13,22 Caplin's 20:22 care 17:8 21:10 22:4 25:7 29:22 30:2 31:12,21 33:6 37:1 38:18 47:9 50:20,22 51:1,15 53:23 67:23 75:11 careful 55:14 carefully 5:16 24:11 45:14 Carolina 12:19 12:25 57:24 69:14 72:22 carried77:4 carrying 29:24 case 3:4 5:3,25 7:11,12,18 8:3 8:7 9:5 10:3,14 11:5,6 12:10,20 13:4,10,21,21 23:17 24:3,24 25:17 26:22 27:10,11 31:4 32:23 36:21 38:16,21 39:5,9 39:13,16 40:6 41:12 42:5 43:4 43:15,15 54:11 54:13 55:19,22 56:2 57:19 59:1 59:1 60:4,5 62:5,16 64:3,23 69:2 77:8,9 cases 4:17 7:10 8:2,8 10:10,12 10:23 11:15,20 13:12,14 14:17 15:9,17,24 24:1 32:7,20 34:8 35:7 37:19 43:8 43:14 60:2,15 62:10,20,22 63:4,6,20 64:18 69:7 categories 20:25 46:2 category 48:9 66:24,25 67:2 67:11 70:3,24 cause 60:6 CBO 54:9 center24:10 central 3:12 6:22 certain 15:1 17:4 39:8 44:13,18 48:1 58:13,13 certainly 10:9 15:16 19:25 23:13 28:23 37:21 51:24 74:22 certificate 48:7 certification 48:1 48:5 cetera 37:1 53:18 challenge 5:17 5:25 25:4,6 33:14 57:23 65:9 68:17 69:8 71:23 72:3,7 challenges 55:21 Alderson Reporting Company Official - Subject to Final Review 80 62:23 challenging 24:17,18 45:22 72:6,10 chapter17:23 44:7 53:18 74:21 chapters 73:18 73:19 character57:4 characterization 60:19 characterizatio... 58:8 charged45:15 Chief 3:3,9 7:7 11:25 12:9 30:23 31:2 38:6 38:19 39:2 49:2 49:9 54:1,4 56:4,6,9 65:18 65:21,22 66:3 67:5 72:21 73:4 73:6,7 77:1,7 child 32:20 choice 27:24 32:17 70:1,6 choose 70:20,23 71:24 circumstances 12:14 14:6 24:11 26:14 37:18 39:8 55:6 cite 74:6 cited43:7 civil 8:11 9:9 24:1 43:16 claim 13:9,18 14:5,17 15:7 26:9 claims 10:19 11:1 42:22 claims-process... 10:6 claim-processi... 58:14 clarity 28:7 62:14 class 15:17 70:9 classic 68:14 71:13 clause 69:9 clear 19:2,4,5 28:23 33:18 60:22 76:2 clearer14:8 23:12 clearest 10:17 10:18 clearly 20:15 25:3 27:14 62:11 69:13 75:10,19 clerk 20:24 clever15:20 27:16 clinic-based47:3 47:13 Clintwood31:8 close 21:20 59:18 closest 41:16,21 COA 59:5 coal 11:5 code 3:15 6:20 6:24 7:3 17:1,5 18:15,18 19:7,8 20:14,19 21:4 21:19,24 22:18 29:21 30:1,1 31:17,22 34:25 41:17 44:2,18 48:7 53:24 60:9 73:18 codified18:18 codifying 7:21 39:6 coerced71:18 coin 27:14 collateral 45:1,5 collect 4:20 23:1 26:25 75:7 collected3:20 4:1 5:6 17:17 17:25 18:11,21 73:12 75:20,23 76:6 collecting 4:25 39:23 75:12 collection 3:13 4:4 6:12 7:24 14:11 16:23 17:2 18:5 20:21 21:8 23:3,18 26:17,18 27:3 39:24 40:10 42:3 61:2 65:19 65:23 73:19,24 74:2,5,21 76:19 come 10:13,24 13:23 16:1 41:7 41:9 42:17 57:6 57:13,19 63:1 comes 15:11 coming 9:19 62:21 command 28:4,5 41:24 66:3,4,5 comment 23:22 37:4 42:4 commerce 31:13 commissioners 55:10 common6:19 7:2 compare 34:24 competency 15:23 competent 37:1 complainants 24:20 complaint 25:3 25:10,11,14,16 43:2,16 completely 67:6 compliance 19:16 46:15 50:9,13 68:7,20 comply 21:23 67:16 complying 68:1 conceived45:21 concerned53:13 67:20 conclude 3:18 33:22 37:16 39:8 concluded33:15 conclusion 46:21 conduct 32:10,12 confer74:4 confused72:2,2 72:18 confusion 34:11 Congress 3:15 3:19,21,25 5:17 9:24 11:21 12:2 12:6 13:20,24 14:9 16:24 17:15 18:15 20:7 21:11 22:5 22:7,9,22,25 23:7 28:2,16 29:13,25 30:6 31:14,18 32:13 47:15 48:10,13 48:22 51:20,24 57:18 61:10 62:10,21 63:12 64:19 66:22 67:1,8,15,19 74:24 76:13,21 Congress's 31:12 63:12 74:20 connection 44:14 consequence 45:2,12,18 49:19 52:3 consequences 45:1,5 66:12 69:2 consideration 31:6 55:15 60:13,17 considering 46:22 considers 55:21 consistent 12:3,9 12:17 43:9 constitute 34:7 Constitution 32:5 constitutional 24:19 32:8 55:21 62:23 constitutionality 7:13 33:4 71:23 construction 43:13,24 44:1 construe 36:22 63:22 construed19:1 34:13,17 construing 32:16 contained23:23 contains 48:3 context 35:11 42:9,10 48:25 continue 51:1,15 77:7 contradiction 63:17,19 contrary 3:17 9:25 contrast 8:22 contrasts 8:13 contributions 30:20 control 24:11 convert 69:9 converts 58:2 cooperation 9:6 9:14,16 copyright 57:1,3 57:6,9,10 61:20 Alderson Reporting Company Official - Subject to Final Review 81 61:21,22 core 24:7 corporation 39:17,20 corporations 44:19 correct 20:19 27:8 32:24 34:18 35:10 36:5,11 45:11 48:21 corresponding 27:22 cost 26:2 52:16 67:22 70:25 Counsel 10:1 60:10 count 13:11 counts 59:14 couple 45:19 74:25 course 7:16 36:22 38:24 62:9 court 1:1,13 3:10 4:5 5:13,20 6:2 6:15 7:9,20,23 8:1,4,14,17,19 8:19,24 9:7,14 9:17,23 10:2,10 10:21 11:4,9,17 12:13 13:1,7,10 13:12 14:5,7,10 15:14 16:4 19:21 21:3,11 25:22 26:15 27:9 31:3,8 32:3,7,21 33:13 33:15,25 34:7 34:24 35:4,5 37:16 39:5 40:18 41:7,9,18 42:9,12,17 43:8 43:12,15,17,22 43:23 46:10 54:23 55:7,20 56:3,10 57:6,13 57:20 58:12,14 58:19 59:9,22 60:7 61:1,13 62:22 63:1,3 74:12,13,13 77:2,5 courts 4:11,14 4:15 6:11,13 8:16 9:4 14:18 15:10 16:7 19:2 37:12,17 39:7 41:5 43:10 58:5 64:13,17 73:21 73:23 76:20 court's 9:15 11:15,21 13:12 31:5 32:23 39:15 62:10 76:12 Court-appointed 1:17 2:4,13 3:8 73:10 court-directed 8:23 cover70:16 coverage 23:11 25:4,7,18,20 25:23 26:22 31:11 38:17 48:17,20 covered36:3 craft 37:13 create 29:16 created41:5 creates 29:5 creating 34:11 crime 66:8 curiae 1:17 2:4 2:13 3:8 73:10 current 71:4 currently 70:8 cut 12:15 60:19 cuts 60:17 definition 18:16 degree 76:20 D 3:1 delayed58:17 da 61:17,17,17 deliberately dam9:22 66:13 damages 58:4,20 delta 71:5 Davis 7:11,17,19 7:25 8:3,7 11:3 denominated 20:4 38:21 39:4,13 denominating 39:16 40:6,20 20:7,8 58:9 62:19,22 Department 1:3 63:3,5 1:19 3:4 45:16 day 33:11,12 45:17 days 41:21 depend 52:22 deal 36:4 58:25 depends 4:7 dealing 15:2 deprived19:2 decade 59:13 describe 60:25 decide 34:7 described31:8 36:12,15 66:16 decided7:20 designate 30:3 decides 62:25 designated29:13 deciding 13:4 29:25 30:6 16:4 designed19:16 decision 8:1 despite 15:15 11:22 28:3 37:19 40:20 detailed76:2 decisions 8:4 determination 9:20,25 76:12 24:21 76:16 determinative declarations 31:19 26:12 determine 17:14 declared70:17 19:23 deem15:7 device 21:8 deemed21:4 diesel 21:22 defend 77:2 difference 7:9 defending 38:8 20:16,16 42:20 defense 15:12 56:22 61:5 33:23 61:16 64:23 66:11 63:2 71:3 75:19 deficiency 5:21 differences 5:8 74:16,17 21:16 define 13:18 different 5:6 9:2 18:13 9:8 10:4 21:7 defined5:16 22:8 25:16 18:14 66:20,23 27:22,23 32:11 67:2 D 33:9 42:6,18 43:4 47:5,7 53:17 54:25 56:1,20 60:2 66:14 68:18,19 75:6 differently 10:13 10:25 46:21 difficult 30:18 direct 73:1 directed3:19,25 4:13 8:19 64:17 direction 59:14 directive 4:2,8,9 4:11 directives 4:12 directly 48:15 69:16 72:13 74:4 disagree 54:19 63:17,18 disclose 30:19 discretion 39:8 discussed21:21 45:20 discussing 29:1 discussion 36:25 dismiss 43:18 dismissal 55:23 dismissed10:10 43:16 dismissing 65:1 disobey 26:8 disobeying 45:6 45:7 disparage 37:22 dispositive 32:15 32:18 dispute 5:3 distinction 64:22 69:3 distinguish30:18 distinguishing 10:18 district 8:14 Alderson Reporting Company Official - Subject to Final Review 82 Elsevier8:11,20 40:22,23,25 41:2,6,11 42:5 42:22,25 56:17 56:25 57:5 60:13,17,19 64:23 emergency 50:20,22,23 51:1 67:22 empower37:17 enact 31:15 32:14 enacted12:12 enforce 7:9,10 enforcement 66:12 enforcing 25:19 enjoin 8:14 26:17 26:18 74:14 enjoined19:14 74:12 enjoining 7:23 enroll 50:24 51:3 E 51:21 68:24 E 2:1 3:1,1 69:24 70:4 71:4 earlier36:25 72:12 41:21 enrolled51:16 easier23:16 69:22,25 70:6,8 25:10 enrollees 71:4 easy 19:4 49:2,9 enrolling 71:1,19 effect 27:8 32:15 enrollment 48:8 32:18 54:17 ensues 45:12 effectively 8:3 ensure 48:16 65:14 ensuring 63:12 either21:1 27:24 entertain 58:12 54:19 64:16 entire 28:8 eligibility 52:21 entirely 45:22 52:22 47:5 66:1 eligible 50:24 entitled48:7 51:8 52:6 53:5 EPA's 21:23 69:21,23 70:2,8 equal 26:1 70:17,20,25 equitable 7:22 eligibles 70:4 11:12 12:14,21 Elkhorn 31:8 13:1 37:13,18 43:15 58:19 64:13 76:20 disturbed9:24 11:21 dividing 42:22 doctrine 6:20 doctrines 55:3,4 doing 4:15 23:9 39:6 67:17 Dolan 35:4,5 DONALD 1:18 2:6 30:25 doubt 11:19 18:23 68:22 draconian 67:25 drafted47:20 drafting 47:15 draw47:21 drawn 45:23 Drexel 33:8,12 drop49:3 duties 65:17 D.C 1:9,16,19,21 39:7 61:16 63:5 ESQ 1:16,18,21 2:3,6,9,12 essence 53:21 essential 29:1 48:17,20 essentially 3:14 24:8 33:5,22 41:7 estate 44:14 et 1:4,7 37:1 53:18 event 70:21 exaction 18:17 19:23 20:4 44:1 exactly 36:8 41:19 67:18 examination 23:4 example 67:11 74:7 exceedingly 31:9 42:12 exception 3:16 11:12 12:21 13:1,5 16:5 61:17 63:5 69:13 exceptions 12:14 12:14 13:16,25 14:2 17:21 27:22 37:13 41:3,4 46:7 60:18 66:23,23 74:1 75:1 76:13 excuse 31:20 46:15 exempt 28:14,17 46:24 47:10 48:5 49:5,12 67:12 exemption 28:11 29:12 46:10,14 46:18 47:16,17 48:11,12,13 67:14 exemptions 28:13 45:24 46:1,2,3,3,10 48:24 exercise 31:12 32:8 57:20 exercised38:22 exhaust 5:11 55:23 exhausted6:16 exhausting 6:3 exhaustion 6:8 6:14 55:4,25 58:6 exhortation 66:21 existence 37:20 exists 61:23 expect 67:15 expected19:25 58:22 61:3 explain 66:2 explained59:20 60:3 explains 42:13 59:10,10 explanation 24:9 explicit 20:17 explicitly 63:13 express 14:2 extend 65:15 extent 43:21 47:16 67:21 extraordinary 12:13 13:20 extremely 7:5 F F 22:19,25 face 51:9 facing 51:11 fact 21:8 41:20 43:14 48:24 49:12 53:11 62:3 72:6 75:17 factually 52:8 failing 26:25 38:1 fails 64:3 failure 30:19 45:1 55:23 fair 51:24 fairer13:19 fairest 49:11,15 fairly 12:3 fairness 40:4 fall 17:10 20:25 26:24 30:12 44:6 53:15 69:13 far 16:19 19:8 29:24 34:12 35:3 40:2,7,9 53:12 55:21 64:15 69:12 favor 16:20 20:22 60:17 74:22 federal 3:12 16:4 16:6,14 21:13 24:12 31:10 43:16 49:24,25 50:5 61:14 62:24 65:10 71:24 73:2 76:19,20 fee 27:25 43:1 57:8 feels 10:21 fees 22:2,21,24 23:2 fewer66:16 fewest 29:17 file 14:25 41:8 43:1 52:14 57:25 58:1 filed25:14,16 55:10 74:16 filing 43:1 57:8 57:12 58:2 Alderson Reporting Company Official - Subject to Final Review 83 finally 69:11 76:10 financial 31:10 find 14:14 17:14 19:3 26:12 28:18 33:19 37:17,18 41:4 47:23 61:21 finding 62:3 findings 66:18 finds 49:23 fine 50:24 62:15 finish72:20 first 3:12,19 4:19 5:8,10,19 6:25 6:25 9:19 12:11 14:19,25 15:16 17:12 25:2,21 26:11 28:13 41:15,23 46:9 75:2 five 59:12 flat-out 41:24 flood 55:11 Florida 1:7 3:5 70:10 focus 70:7 75:14 focusing 64:23 follow8:6 26:25 34:19 66:6 67:1 67:9 following 6:15 20:15 27:7 75:13,16 footnote 43:8 44:20 74:6 force 74:11 forced68:13,24 72:12 forces 69:15 foreign 44:19 forfeit 71:22 forfeiture 38:1 64:1 forget 23:17 form 32:15 57:17 76:22 formal 46:14,25 formally 39:13 former55:9,9 formulas 8:17 formulation8:12 64:18,19 forth 12:5 75:3 forward 6:1 37:19 39:9 found 20:22 30:4 34:22 four 13:12 fours 41:12 framed13:25 free-standing 22:24 65:16 friend 33:2 friends 47:21 fuel 21:22 full 63:24 function 42:11 46:7 fundamentally 39:14 42:18 Furniture 33:8 33:13 further30:21 40:24 56:3 76:25 future 49:3,10 70:4 37:10 38:4,13 38:22 39:1,18 40:1,4,12,16 40:21 41:14 42:2,7 43:3 44:5,25 45:10 47:18 48:21 49:8 50:1,4,8 50:12,15,18 51:4,13,17,23 52:5,9,12 53:1 53:1,16,21 54:2 54:8,25 55:13 55:24 56:4,5 62:12 63:2,9,15 63:24 66:21 generally 31:22 General's 29:5,9 29:16,18 30:15 George 33:3,13 getting 4:10 47:9 Ginsburg 8:5 9:8 19:10 24:13 25:9 34:3,11,20 35:23 36:1,10 38:5,6,7,15 40:22 42:21 43:25 56:13,20 56:24 57:7 70:22 71:3,7 gist 76:16 give 5:14 50:2 51:15 53:22 58:13 62:7,7 G 67:10 72:7 G 1:21 2:9 3:1 given9:19 13:17 56:7 69:25 70:6 71:8 general 1:18 gives 70:9 11:4 13:13 go 5:13,13 6:2 21:10 29:20 9:5 14:13 37:19 30:24 31:2,24 38:16 39:9 32:6,19,25 40:14 46:13 33:11 34:10 49:17 53:5 35:13,16,20,25 54:22 55:7,25 36:8,14,19 58:10 61:12,12 64:15 72:21 76:7 goes 4:10,14 40:9 50:21,23 57:4,4 73:15 going 6:1 14:23 15:20 16:1,3,4 16:5 29:7 30:5 32:1 37:22 38:8 51:9 53:3,10 55:11 61:16 74:19 Gonzalez59:1,1 59:7,7,10 good 40:20 67:23 68:14 gotten19:22 governed44:8 governing 59:21 60:9 government 4:8 7:14 10:15 11:10 15:11,18 15:23 21:13 26:24 31:10 36:25 37:7 38:8 38:9,11 49:3,10 61:8 62:20,24 63:6 64:2,4 government's 38:12 grant 23:10 grateful 77:5 Gravel 76:15 great 16:16 31:4 greater70:15 GREGORY1:21 2:9 56:7 grounds 15:10 guess 40:7 41:15 47:18 H half 16:18 Hansen43:15 happen16:3,13 66:12 happens 66:5 happy 70:7,7 hard 11:7 19:3 hardship 46:10 46:14 harm 11:11 harmed72:24 harsh67:14 health 1:3 3:5 17:8 22:4 25:7 45:2,7,17 47:3 47:9,9 50:21 65:10 67:16 68:13 healthcare 47:2 47:7 hear 3:3 13:10 13:21 21:17 58:16 heard 59:5 hearing 57:16 heart 53:19 held 32:3,7 33:7 33:14 35:4,6 41:18 42:12 56:16 help 53:9,11 helpful 43:6 helps 12:2 Helvering 7:19 7:25 62:19 Henderson 42:10 59:19 60:3 HHS 46:13 history 13:7,12 13:17 42:9,10 43:7 holder73:3 holders 72:25 holding 63:4,5 honestly 16:13 24:4 Alderson Reporting Company Official - Subject to Final Review 84 Honor 43:5 47:19 48:23 54:10 horribles 14:16 16:6 hospital 50:23 51:2,14 Human1:4 3:5 45:17 hurdle 7:11 hypothetical 68:18 I idea 12:1 34:16 61:15 65:23 identical 35:9 identified37:12 44:11,17,21,22 III 59:9,22 69:4 imagine 14:18 15:10 immediate 15:12 immediately 5:13 15:21 56:25 57:1 immunity 35:11 important 45:25 impose 14:5 28:9 44:18 imposed3:16 6:20 44:2 66:18 72:8 imposes 3:11 44:13 inadvertence 64:2 inartful 47:15 inclined9:18,21 include 18:17 included3:22 including 62:23 74:12 76:21 income 18:19,21 52:10,17,20 incompatibility 69:8 inconceivable 53:3 inconsistency 12:11 inconsistent 12:22 39:15 incur 26:14 69:18 Indian 46:23,24 47:2,3,9 indicated30:9 36:24 indication 35:23 46:6 47:23 76:3 indicia 3:24 indistinguisha... 56:15 individual 23:11 28:10 48:4,5,16 48:17 55:25 72:3 individuals 25:6 48:1 68:20 induce 19:16 inevitable 26:23 27:12 infer49:12 inference 47:20 inferences 45:23 information71:8 infringement 8:11 9:9 57:9 initial 9:18 17:13 59:24 initiate 9:13 injunction6:17 8:13,15,18,25 19:12,13,15 21:12 39:22 53:13 64:19 injured68:7 69:14,20 70:13 73:1 injures 72:11 injury 68:10,11 68:14 70:10 71:13 inquiry 32:10,11 inquisitorial 65:5 insist 7:14 instance 62:23 instances 21:4 37:6 instituted8:12 9:10,10 56:18 57:1 instituting 64:24 64:25 institutional 38:14 55:15 instruction 31:23 44:8 53:23 54:14 instructions 43:18 insurance 25:25 26:2,2 27:20,25 28:15,19,20 45:2,7 47:4,12 49:14,21 50:21 52:17 53:9 65:11 67:7,17 68:1,13 intelligent 16:4,7 intent 74:20 interaction 73:22 interest 5:11 31:9 42:12,14 interested26:20 interests 37:5 38:14,20 42:18 55:16 interfere 18:4 interference 18:3 interfering 75:11 Internal 3:14 17:1 18:14,18 21:19 29:21 31:16,21 44:2 53:24 73:18 interpret 13:3 27:6 28:16 interpretation 11:15 36:12 45:15 54:22 55:11 interpreted7:20 39:5 interpreting 11:16 13:2 45:16 intervene 40:5 invalid 33:16 invalidated 25:24 investment 44:15 invited77:2 involve 21:2 34:9 36:6 47:4 involved20:3 involving 59:23 IRC 75:3,8 irreparable 11:11 IRS 18:22 23:3 55:10 issuance 59:6 issue 7:14 8:10 8:20 10:22 13:14 33:10 36:15 43:14,21 72:23 issued33:13 issuer72:24 issuer/bond 73:3 issues 13:7 31:4 31:6 items 29:13 J job15:11 John 76:15 Joint 25:5 Jones 8:2 19:21 20:3 27:10 33:19 39:11 JR 1:18 2:6 30:25 judge 61:14 65:2 judges 61:15 judgment 25:23 judicial 59:24 judicially 6:19 jurisdiction9:20 13:9 14:10 16:19,21 19:1,3 36:13 40:18 42:22 43:19 60:7,25 64:12 74:4,13 76:10 jurisdictional 7:8 7:16 9:21,24 10:5,11,16,19 10:24 11:8,16 11:17,22 12:5 12:23 13:2,8,18 14:1,15,23 16:2 16:3,10 23:19 23:23 24:3 29:12 31:7 34:9 34:17 35:5,7,24 36:4,15 37:3,12 37:17,24 38:25 40:17,17 41:18 42:14 43:11,22 56:12 58:8,19 58:24 59:14 60:19,22,24 62:3 63:8,14,21 64:14,14 76:13 76:24 jurisdiction-ou... 58:22 Justice 1:19 3:3 3:9 4:7,19,24 6:6,13,23 7:7 8:5 9:8 10:1,2,8 Alderson Reporting Company Official - Subject to Final Review 85 10:17 11:25 12:9,18 13:6,15 13:22 14:4,13 14:14 15:4,6,9 15:14,22,25 16:12,17 17:7 17:10,19 18:23 18:24 19:10 20:3,6,13,21 22:1,11,14,17 23:16,20 24:5 24:13 25:8,9 26:4,7 27:4,5 27:18 29:4,11 29:23 30:9,12 30:23 31:2,24 32:6,19,25 33:9 33:10 34:3,11 34:20 35:10,15 35:18,23,25 36:1,10,16,19 36:24 37:11 38:4,5,6,6,7,15 38:19 39:2,16 39:19 40:2,5,8 40:13,21,22 41:14 42:1,4,21 43:25 44:24 45:11 47:14 48:15 49:2,9,16 49:17,18 50:3,6 50:10,14,16,17 50:19 51:5,11 51:14,18 52:5 52:11,24 53:6 53:17 54:1,4,6 54:17 55:1,2,8 55:9,18 56:4,6 56:9,13,20,22 56:24 57:7,15 57:23 58:11,25 59:4,15,19 60:10,14,21 61:4,10 62:6,15 63:7,11,16 64:5 64:11,21 65:3 kind 12:4,20 65:18,21,22 27:10 75:15 66:3 67:5 68:3 kinds 14:17 68:9,16 69:19 21:24 70:2,12,22 71:2 know6:14 8:6 71:7 72:1,5,15 10:15,16 14:25 72:18,21 73:4,6 15:2 17:3 18:7 73:7 74:19 21:23 22:22 75:21,25 77:1,7 23:24 24:8,10 justifications 26:13 27:12,12 67:21 28:2,17,25 29:3 36:16,20 40:2 K 55:14 64:7 67:4 Kagan 12:18 67:6 71:2,3 13:15 22:1,11 75:2 76:10 22:14,17 27:18 knowledge 63:24 35:25 38:4 knows 14:5 40:21 41:15 L 42:1,4 49:16,18 50:3,6 64:11,21 labeled31:15 65:4 68:3,9,16 labor 32:20 69:19 70:2,12 lack 15:22 Katsas 1:21 2:9 lacking 54:16 56:6,7,9 57:3 landmark 62:24 57:11,22 58:17 language 8:6,8 59:3,7,18 60:12 8:10 9:2 22:10 60:16,23 61:9 22:25 23:7,22 62:6,18 63:10 23:22 24:7 27:6 63:14,19 64:7 31:18,19,20 64:11,15 65:3 34:21,25 35:8,9 65:21 66:1,9 35:18 40:23 67:8 68:3,6,11 59:4 60:22,24 69:20,24 70:3 61:5,24,25 75:1 70:18 71:2,10 largest 70:3 72:4,9,16,19 Laughter36:18 72:22 73:5,6 40:15 keep 50:10 law6:19 7:3 Kennedy 6:6,13 19:17 20:24 6:23 23:16 24:5 26:5,9 40:20 35:10,15,18 45:6,7 46:19 36:16,19,24 47:10 49:4,25 55:2 49:25 50:5,9,13 Kennedy's 27:5 58:12 61:20 key 3:23 76:11 66:11 67:1,10 keyed 52:10,12 67:10 70:14 71:24 75:6 lawsuit 57:5 65:9 lawsuits 65:5 lawyer64:2 lead 55:11 leaning 16:20 leeway 74:24 legal 28:19 46:6 47:11,17 65:17 66:16 69:6,8,10 69:10 70:5 71:20 level 52:20 levy 74:10 liabilities 75:4 liability 18:20,20 75:6 license 32:7 life's 61:8,22 light 13:3 limit 31:7 limitation 58:5,7 58:9 limitations 6:4 35:6 limited13:25 14:12 73:22 limits 7:6 58:24 line 53:2 76:11 list 20:23 55:20 litigant 60:6 64:25 litigants 9:5 litigate 3:12 5:10 7:1 16:14 37:7 litigation 6:22 24:12 55:12 77:3 little 35:3 39:21 44:12 46:16 52:14 72:1,18 long 1:16 2:3,12 3:6,7,9 4:18 5:1 6:9,18,24 7:19 8:5,24 9:12 10:7,9 11:14 12:8,24 13:6,7 13:22 14:9,19 15:5,8,13,16 15:25 16:12 17:6,9,12 18:9 18:24 19:6,10 19:21 20:5,9,18 21:18 22:1,9,13 22:16,19 24:4,6 24:13 25:1,13 26:6,11 27:9,18 28:6 29:7,15 30:8,11,14,23 34:20 44:12,16 44:22 50:6 54:5 55:3 67:13 73:7 73:9,11 75:16 75:22 76:1,11 77:1,6 longer39:12 Long's 39:3 look 20:24 23:6 23:10 25:3 27:12 28:12 43:7 68:9 73:17 75:5 looked13:7 looking 58:18 lose 16:18 lot 9:22 10:23 23:14 29:19 36:20 42:24 54:18 61:5 lots 22:20 Lujan71:18 M magic 42:8 main 5:8 29:18 maintain 9:14 48:20 57:8 65:5 69:5 maintained4:5 8:9,13,21 9:4 Alderson Reporting Company Official - Subject to Final Review 86 9:10 41:25 56:19 maintaining 64:24 65:1 making 52:13 74:9 malicious 24:1 mandate 49:5 51:2 65:23 66:4 66:6,14,16,22 66:24 67:3,13 67:14,20,21,24 68:2,4,8,12,25 69:15,15,17,18 72:3,11,11,14 mandatory 10:6 10:19 11:1 14:17 15:7 66:19 manner3:21 4:2 4:14,15,16,21 4:22,25 5:6 17:17,22,24,25 18:12 36:23 73:13 75:20,24 76:7 manufacturers 22:5 mapping 52:20 March 1:10 matter1:12 5:2,5 5:15 6:19 9:18 42:9,16 43:19 46:5,6,9,15,25 53:1 62:8 77:10 matters 21:3 mean 6:14,21 7:2 8:24 9:5,12,17 12:24 16:13 17:12,19,20,21 18:6 19:6 21:18 22:9 23:24 24:7 25:2,13,21 26:11 27:7,9 29:15,17,19 38:8 48:18 54:5 64:21 67:4 70:15 71:13 75:16 means 25:19 27:7 67:17 68:1 meant 22:8 74:20 measure 19:18 31:15 Medicaid 50:24 50:24 51:8,16 51:25 52:6,21 53:4,5 68:2,24 68:25 69:16 70:9,19,24,25 72:6,12 medical 50:20,22 members 46:23 46:24 47:2 mention 74:7 mentioned13:15 21:16 merely 58:13 merits 65:8 million69:15 70:11 71:5 mind 61:7 62:2 74:23 minimum 25:4,17 25:19,23 26:22 31:11 38:17 48:17,20 64:16 minute 34:15 45:25 46:11 minutes 45:20 73:8 mistake 23:6 model 28:7 modeled19:12 moment 31:4 52:21 Monday 1:10 money 39:20 52:14 53:7,8 58:3,20 61:12 option 38:12 oral 1:12 2:2,5,8 3:7 30:25 56:7 order17:14 26:9 O 33:19 68:20 O 2:1 3:1 69:5 70:11 obey 26:5 74:14 object 73:1 originally 35:20 objection 29:18 ousted58:15 objective 52:2 ousters 19:1 N obligated49:21 outside 44:7 N 2:1,1 3:1 51:3 52:14 53:15 narrow13:4 obligation 10:21 overlapping narrowly 19:1 28:9,20 47:11 44:12 natural 65:6 47:17 48:20 overlook 38:10 nature 27:17 49:14 51:20 overrule 7:17 32:10,11 42:14 69:6,8,10 70:5 overruled8:4 43:4 49:18 71:20 72:8 39:14 necessarily obtain 22:8 25:6 overtaken8:7 10:13 16:15 26:9 46:13 47:2 over-arching 52:19 67:16 70:20,23 74:23 need34:7 36:12 obtained46:18 owe 18:20 43:13,23 67:1 obviously 20:10 owed56:1 needs 54:13 occurred39:4 P neither58:7 occurring 14:16 never5:19 26:13 occurs 15:17 P 3:1 26:21 odd 70:12 Packing 8:1 11:6 new69:15 offenses 30:17 11:17 12:10,16 newly 69:23 offered43:24 12:19 33:18 NFIB 33:2 47:21 official 46:17 39:10 63:6 noncompliance oh 23:7 29:8 page 2:2 20:23 52:4 Okay 61:18 25:5 34:22 35:1 nonstop 62:4 72:16 44:20 46:11,22 nontax 65:17 old 24:7 47:23 non-jurisdictio... omission 38:1 paid 5:18 22:23 56:16 62:9,11 once 21:8 57:25 parade 14:15 Northrop 62:4 57:25 16:6 notice 5:21 ones 44:11 72:25 paragraph 48:2 notwithstanding one-of 63:22 parallel 35:19 14:3,10 74:8 open37:25 part 16:22,22 nullity 69:10 opening 43:8 18:18,21 22:17 number3:4 74:6 22:23 24:9 34:5 10:10 52:13 operative 66:17 40:19 71:15 opinions 59:12 participate 71:25 numbers 70:15 opposed65:1 particular7:10 months 5:14 7:4 moral 51:20 morning 3:4 35:3 Mortimer20:22 move 5:19 multiple 9:23 41:11 must-buy 24:18 24:19,22,23 numerous 11:23 41:3,4 Nut 39:5 Alderson Reporting Company Official - Subject to Final Review 87 48:8 60:11 70:9 75:17 particularly 4:23 18:2 parties 65:5 73:13 parts 5:2 party 4:23 9:13 37:5 40:6 59:23 63:1 73:3 passed11:23 18:15 Passman 58:9 pattern 8:15 pay 3:11 5:9,12 6:25 19:19 25:7 25:25 26:1,21 27:25,25 28:9 39:20,25 41:10 43:1 50:4,6,8 50:12 51:15 53:9,10 57:13 58:1 paying 21:2 28:18 payment 40:11 45:3 pays 49:22 penalties 3:22 5:7 19:16 20:17 21:1,1,18,24 22:2 29:13 30:16 44:10,13 44:18 65:20 75:4,18,23 76:5 penalty 3:14,16 3:20,23 4:1,10 5:4,5,10,18 6:1 6:12 16:25 17:18 19:8,19 20:8 21:21 24:15,17,20,23 24:25 25:5,7,18 25:19,24 26:1,1 26:14,20,21,24 26:25 28:5,9,13 28:14,18 29:20 29:21,24 30:7 30:19 31:25 32:2 34:6 36:2 45:3,12,18 46:3 46:15,25 47:11 47:16 48:12,19 49:6,7,13,20 49:22 50:7,13 50:17 51:9,12 52:4,7,10,16 52:18 53:4,10 53:14,22,24 54:12,14,19,20 54:21 65:25 66:14,21,23 67:3,12 68:5,21 69:18 73:12 75:6,22 76:9 people 15:3 16:14 45:5 48:9 51:25 52:6,24 53:2,8 54:18 62:21 66:24,25 67:2,9,15,19 67:22 68:24 69:15,21,23,24 69:25 70:8,13 70:16,24 71:4 71:19 72:11 percent 52:17 perfect 28:7 period 7:20 12:10,12 permit 47:20 permitted5:17 73:23 permitting 57:18 57:20 person 4:6 28:17 46:13 49:20,21 49:23,25 50:2 50:19,22,25 51:7,7,8 67:11 68:4,6,7,12 persons 47:8 perspective 34:14 petition 74:15,18 Petitioners 1:5 1:20 2:7 31:1 pharmaceutical 22:4 phrased41:19 picks 22:20 place 24:12 53:5 55:17 75:9 placed60:8,9 places 20:19 22:2 plaintiff 11:11 27:11 68:18 plaintiffs 15:19 25:3,21 26:20 68:19 planning 68:20 plans 22:4 pleading 27:16 please 3:10 31:3 56:10 plugged22:25 Plus 62:3 pocketbook 68:14 70:10 71:13 point 12:4 17:4 17:12 18:10 24:16 42:1 47:12,14 51:2 53:6 57:13 65:18,19 76:8 76:11 pointed40:25 41:2 48:23 points 4:8 12:1 39:2 policies 62:13 policy 62:8,17,18 62:18 63:12 political 30:20 poor 67:12,16,19 67:24 68:1 portions 30:2 position 26:8 36:9 46:19 49:23 50:1 51:25 55:14 64:12 possible 71:10 possibly 30:19 poverty 53:2 power13:10 31:12,13,15 32:4,9,14,23 33:5,16 53:12 58:15 60:7 powers 57:21 practical 5:2,5 46:5,9 precedent 76:21 76:21 precise 31:18 32:17 52:19 precisely 67:10 precondition 57:11,12 predecessor 38:21 predict 16:13 predicted54:9 presence 60:18 present 52:21 58:20 presents 31:4 presumably 70:16 presume 35:12 presumption 76:23 pretty 16:20 75:10 prevent 18:3 27:2 65:19,22 67:22 previously 20:14 pre-statutory 7:22 primarily 19:23 19:24 primary 27:14 principal 72:9 73:13 principle 18:25 60:3 principles 7:22 39:7 prior46:22 63:4 privacy 23:4 private 45:4 probably 16:20 29:16 30:16 probation 45:6 problem16:21 25:10,15 29:6 33:3 35:12 37:11 69:1 problems 29:17 37:11 procedure 22:20 43:17 60:9 61:11 proceeding 4:16 8:16 74:10,12 74:14 proceedings 8:18 process 5:22 processing 10:20 11:1 13:9,18 14:6,17 15:7 42:23 program48:8 prohibited7:23 prohibition6:11 74:11 prohibitory 32:21 promote 63:12 proper61:15 74:12 Alderson Reporting Company Official - Subject to Final Review 88 proposed34:13 proposition 77:2 prosecution 24:1 prospect 38:3 prospective 58:3 58:20 protect 42:11 protecting 31:9 prove 14:5 provide 17:20 22:22 provided3:21 75:4,6 provides 4:3 31:22 46:12 47:25 provision 10:19 11:8 12:6 21:21 23:23 24:2,18 31:11 33:6,7,15 34:17,25 35:21 38:17 40:25 41:2,17,20 43:11,20 46:22 47:24,25 48:23 54:7 71:24 provisions 7:5 22:21 24:11 44:6,16,21 48:3 73:21 74:3,9 prudent 36:22 punishment 66:7 purchase 28:15 49:20 68:12 pure 13:9 purpose 4:4 13:3 19:14 23:18,24 27:5,7,15 65:9 purposes 3:22 17:1 31:17 32:4 34:5 44:3 54:3 54:6,16 62:25 pursuing 64:8,9 put 22:3 31:16 53:11 66:15 read 10:12 13:16 18:6 28:8 33:25 34:1 36:6,23 Q 38:16 76:15 qualify 44:3 reading 29:5,9 58:23 29:16,18 36:5 question 14:14 45:11 48:25 15:4,6,15 16:8 49:1,11,15 16:9 20:11 reads 28:1,4 23:19,20 27:5 real 44:14 29:1 32:13 reality 37:23 33:10 34:4,20 52:3 36:1,4 40:25 really 21:19 41:6,8 44:9,25 26:19 37:1 49:24 56:11 45:24 48:18 62:16,17 65:8 51:19 74:20 68:15,16 69:4,5 75:11 76:12 questions 13:11 reason 3:15 21:9 30:21 55:3 56:3 28:12 33:17 76:25 36:9,14 47:1 quickly 12:15 48:6 51:5 53:14 quite 7:12 9:1 61:14,19,20 19:11 35:18 62:1 65:12 44:5 64:15 67:24 quote 48:3 74:8 reasonable 28:8 75:2 28:16,21 reasonably 67:8 R reasoning 61:23 R 3:1 76:15 61:25 62:7 raise 10:21 15:18 reasons 3:17 19:17,20,25 18:2,24 25:2 38:1 54:7,9,10 55:1 56:13 54:12 64:3 REBUTTAL raised64:5 2:11 73:9 raises 15:11 receive 67:22 19:25 receiving 50:20 raising 19:14 recognized23:3 ramifications 69:13 68:23 record 26:12 rank 62:11 redetermination ratified76:12 74:16 rational 16:15 Reed 8:10,20 reach 14:18 40:22,23,24 15:10,15 43:13 41:2,6,11 42:5 reached13:14 42:21,25 56:16 puts 26:8 puzzle 70:23 56:25 57:5 60:12,17,18 64:23 refer76:5 references 17:23 referred20:14 22:14 76:9 reforms 53:5 refund 7:3 14:20 14:24,25 35:2,4 35:7,11 58:1 74:14 76:4 refuse 68:23 refutation 62:19 Regan 12:19,25 57:24 69:14 72:22 regardless 13:17 61:23 register42:23 57:6,9 61:22 registered57:2,4 registration 41:8 61:21 regulated73:3 regulations 21:23 regulatory 19:24 28:4 rejected8:1 related21:20 55:4 relationship 73:2 release 45:8 relevant 61:5,6,6 relied60:14 relief 57:17 58:3 58:20 rely 21:25 55:5 60:12 remaining 73:8 remains 25:24 remarkably 8:9 remedial 58:5,7 58:9 remedies 5:12 6:3,7,16 55:4 remedy 39:19 58:13 render25:22 repeating 41:15 reply 47:24 reporting 44:19 representation 45:13,14 49:19 repudiated39:10 39:11 require 51:16 required68:12 requirement 17:8 23:11 24:22 25:4,6,18 25:20,23 26:23 27:1 45:22 46:4 46:8 48:6,13,14 58:7 65:10,10 65:11 66:16,19 67:6,16 requirements 44:19 52:23 requires 9:15 66:11 reserve 30:22 resist 24:20 71:1 resisting 24:25 resolved5:15 respect 33:1 42:13 44:18 59:8 67:20 69:11 74:17 respects 41:11 respondents 1:22 2:10 45:4 56:8 response 16:1 18:8 21:17 responsibility 77:4 restrain 14:11 41:25 61:1 Alderson Reporting Company Official - Subject to Final Review 89 73:23 74:4 restraining 4:4 6:11 16:22 23:18 39:23 40:10,10 rests 59:8 result 10:3 22:8 26:23 29:8 results 71:15 return 18:19 22:24 52:15 revenue 3:14 17:1 18:3,14,18 19:15,17,20 21:12,13,19 29:21 31:17,22 44:2 53:24 54:7 54:9,10,12 73:18 revenues 18:5 20:1 revenue-raising 19:18,24 62:25 review26:9 59:24 revoked45:9 rewrite 27:19 right 7:14 8:24 9:1 14:19 15:8 17:6,9 19:11 20:10,23 22:13 22:16,19 26:6 29:15 30:8,11 33:12 34:4 35:13 36:2,3 37:8 38:16 40:14 45:24 49:4 50:18,18 51:13,13,17 52:1 55:17 57:25 58:18 59:3 60:1 71:11 72:5 rights 24:1 rise 70:10 ROBERT 1:16 2:3,12 3:7 73:9 ROBERTS 3:3 7:7 11:25 30:23 38:6,19 49:2 54:1,4 56:4,6 65:18,22 66:3 67:5 72:21 73:4 73:7 77:1,7 role 62:2 rolls 69:16 room 50:20,22 50:23 51:2 67:22 route 34:12 rule 3:12 6:7,8 6:14 7:8 10:8 10:20 11:1 12:21,22 13:9,9 13:16 14:6,17 15:7 16:2 43:16 58:14 59:8,21 61:17 76:17 rules 5:24 16:10 23:1 runs 65:8 rush5:20 27:24 29:20,24 30:2 41:23 42:23 48:4,13 48:15 50:23,25 56:18,24,25 57:5 58:12 63:13 67:13 74:8 75:7 Scalia 4:7,19,24 15:25 16:12 18:23 37:11 40:8,13 second 3:21 5:11 16:18,22,22 34:5 37:21 71:21 Secretary 4:9,13 4:20 5:14,14,18 5:21 6:5 46:13 73:20 Secretary's 73:16 section 3:16,19 3:23,25 5:5 6:1 14:3 20:14 22:11,12 23:11 27:21 31:16,20 36:3 44:8 46:1 S 47:25 48:6,6,14 S 2:1 3:1 60:8 73:11 74:7 sanction 27:21 74:9 sanctioned38:23 sections 22:23 Sand 76:15 27:20,23 44:17 satisfied25:22 66:15 saying 9:3 10:10 Security 7:13 14:2,20 23:7,12 see 5:15 14:16 25:23 37:2 15:19 16:21 38:11 39:24 23:25 26:13 48:10,18,22 48:10 61:24 50:10 53:20 75:8,10,14 55:10 67:1 seek 68:17 says 4:21 6:25 seeking 24:21 6:25 7:2 8:14 58:3,3 59:24 8:15,20 14:9,24 seeks 65:14 16:22,25 17:22 selling 21:22 sends 5:21 sense 13:8 23:19 29:19 46:16 47:8 58:4 62:8 65:25 71:18,18 sensibly 62:24 sent 43:18 sentences 17:4 75:2 separate 12:1 25:17 32:23 65:24 66:1,7,13 66:15 67:2 69:3 75:9 separated35:22 66:22 separately 24:22 series 8:2 23:4 24:10 serious 25:15 served63:1 serves 31:8 Service 47:3,10 Services 1:4 3:5 45:17 set 23:1 42:18 sets 27:22 setting 18:10 shareholder 39:17 shifting 67:22 shoe 49:3 show70:14,15 shows 62:22 side 11:2,3 64:10 sides 27:14 sign 51:25 significant 33:3 62:2 similar 7:12 8:10 14:22 27:10 40:23 similarities 40:24 42:5 similarity 61:24 Simon 39:11 simple 38:1 simply 4:15 6:12 7:21 8:6 10:25 11:20 29:8 59:16 70:10 73:15,17 74:7 76:7 single 28:9 60:24 situation 27:17 51:6,9 52:15 56:1 63:20 76:18 situations 5:17 59:23 73:23 slightest 37:23 slightly 46:21 sloughed66:20 Social 7:13 sole 25:19 solely 29:13 30:7 Solicitor 1:18 11:4 13:13 21:10 29:5,9,16 29:18,20 30:15 38:22 63:2,9,15 63:24 somebody 70:22 somebody's 52:20 somewhat 11:7 18:13 24:2 sorry 15:5 29:9 49:17 sort 23:22 27:13 62:1 66:5 76:17 sorts 68:23 Sotomayor 10:1 13:6,22 14:4,13 15:4,6,9,14,22 20:3,6,13 29:4 29:11,23 30:9 30:12 32:19 33:1,9 44:24 45:11 47:14 Alderson Reporting Company Official - Subject to Final Review 90 52:5,11,24 55:8 55:18 56:22 57:15,23 58:11 58:25 59:4,15 59:19 60:10,14 60:21 63:7,11 63:16 64:5 72:1 72:5,15,18 sound 11:12 sources 18:3 South 12:19,25 57:23 69:14 72:22 sovereign 35:11 speak 60:6,22 62:13 speaks 60:5 Spear 71:19 special 3:16 13:4 59:8,20 76:16 specific 7:5,6 specifically 14:7 17:16 18:9 22:3 22:5,14 59:22 76:5 spend 45:25 spent 16:19 sponte 10:22 stability 31:10 stake 21:13,15 42:18 stand 37:14,22 Standard 39:5 standing 25:24 68:5,16 69:4,7 71:11,12,15,22 72:7,10 stand-alone 45:23 start 5:21 starting 48:2 state 8:17,18 21:12 52:23 70:13,16,19 72:6,7,8,10,23 72:23 73:1 stated24:22 statement 13:19 26:13 73:25 74:3 States 1:1,13 8:16 34:15 37:23 38:15,20 40:5 41:17 46:18 51:21 55:5,16 68:22 69:11,13,20 71:11,13,15,21 71:22 72:10 stating 11:22 statute 6:22 8:20 9:18,22,24 11:16,18,22 12:12 13:2,3 14:20,24,24 20:4 21:7 24:7 27:6,19,19,21 27:24 28:1,3,7 28:8,16,24 30:4 34:5,6,13 35:2 35:4,6,7 36:5 36:12,22 38:16 41:23,24 45:11 45:16 47:1,6,20 49:1,11,15,22 52:1 54:14 56:15,17,18,25 57:5 58:5 59:5 62:9,11 63:21 63:23 64:13,20 65:16 66:13,20 76:4 statutes 13:18 13:19 15:2 30:6 55:21 58:23 62:24 statutory 8:6 32:16 35:1,21 43:13,24,25 62:13 75:12 stay 8:16 sticking 74:21 strange 58:11 strike 24:2,4 striking 26:22 string 43:7 strong 31:9 42:12,13 61:19 stronger49:1 strongest 35:23 strongly 59:13 structure 46:25 62:12 structured52:2 studied6:14 sua 10:22 subchapter44:7 75:5,7,18,23 subject 28:11 29:25 32:22 36:6 37:25 43:19 45:8 48:19 49:4 52:7 52:16,18 53:3 55:19,22 63:21 66:24 67:2,3,13 67:24 68:4,4,11 68:22 69:6,17 70:5 72:14,23 72:25 74:18 submission 17:13 submit 9:2 76:18 submitted77:10 subsection 46:4 48:15 74:15 subsequent 8:2,4 substantial 20:1 33:22 substituting 61:15 subtitle 22:19,25 succeed26:21 successful 19:18 succinctly 18:8 sue 42:24,25 sues 39:17 suffer11:11 sufficient 62:13 71:8 sufficiently 42:13 suggest 22:7 27:23 34:1 70:13 suggested40:22 55:2 56:13 suggesting 64:25 suit 4:3 8:9,12,21 9:3 11:9 15:20 23:24 24:16,17 26:17 27:2,13 27:15 41:24 45:21 56:17,18 57:8,12,16 58:2 58:17 60:5 65:19 69:5 suitor-directed 8:22 suits 38:9 Sunshine 11:5 supervised45:8 suppose 49:20 50:19 64:22 supposed28:2 47:13 Supreme 1:1,13 sure 12:7 66:9 surprise 18:13 system47:4,5,7 47:13 65:4 68:2 talk 17:4 23:16 24:15 45:19 73:22 talked35:2 59:2 talking 64:12 69:21,22 71:11 talks 75:3,4 tax 3:13,14,24 4:5,22,25 5:7 5:10,12,18,20 6:25 8:13,14,25 13:14 16:23,25 17:3,8,14,17 17:18,18 18:1,1 18:10,12,13,14 18:16,19 19:7,8 19:12,13,15 20:4,7,11,17 20:20 21:7,12 21:21 22:24 24:15 29:25 30:1,10 31:15 31:25 32:2,4,5 32:7,9,20,21 32:21,22 33:16 33:21,23 34:7,9 36:6 37:8 39:20 39:22,24 40:10 40:11 44:3 45:12,18 50:5,8 50:11,12 51:9 51:12 52:14 53:7,14,25 54:15 55:20 57:19 60:8 61:13 64:19 65:11,25 72:23 T 72:25 73:2 T 2:1,1 74:13,13,25 take 24:12 25:11 75:3 76:7,8 27:4,6 30:14 taxes 3:21,22 4:2 34:15 42:1 49:6 4:21 5:7 6:24 51:18 7:24 14:11 15:3 taken47:6 55:14 16:15 17:4 21:2 takes 54:17 21:3,5 24:12 Alderson Reporting Company Official - Subject to Final Review 91 26:18,18 29:14 30:3 41:10 57:13 58:1,2 61:2,7 65:15,21 65:23 73:13,24 74:5 75:24 76:19 taxing 31:12,14 32:4,8,14,23 33:5 53:12 taxpayer5:19 6:1 39:24 taxpayer's 18:19 technical 39:21 tell 19:8 29:4 37:5 55:18 term 18:12 terms 6:4 14:1 34:21 63:17,19 76:14 terribly 60:2 text 4:19 32:16 56:14,15 60:5 62:12 66:17 texts 60:1 textual 31:22 35:23 46:6 47:22 54:14 textural 53:23 Thaler59:7,20 60:2 Thank 30:23 50:14,15 56:4,5 73:4,6 77:6 theory 34:2 72:9 they'd 26:1 thing 23:25 33:6 61:6 74:21,23 things 23:5 30:3 36:20 42:24 52:13,22 55:1 56:21 61:6 67:18 think 3:15 4:18 5:3 6:19 7:11 10:12,14 11:14 11:14 12:24 14:20,23 15:19 15:25 16:1,10 16:15 19:3,4,11 20:22 21:10,24 23:6 24:9 25:1 25:15,16,17,21 26:3 28:7,22 29:3,5,15,19 30:14,17 32:25 33:4,17,24 34:12,18 35:22 36:19,21 37:10 38:15 39:14 40:9,9,19 41:14 41:15,16 42:6,8 42:19 43:3,6,21 45:19,24,25 46:4,5,20 47:8 48:22,25 49:8,9 49:10 51:4,5,23 51:24 52:1,1 54:11 55:1,2,6 55:16 56:1,14 58:4,6,12,18 62:19 64:16 65:3,6,12 66:25 67:9 68:3,6 70:4 74:20 75:16 76:1,2,11 thinking 12:22 65:6 third 3:23 5:16 third-party 71:16 71:17 thought 18:25 52:5 54:5 72:20 three 3:17 5:8 13:14 21:3 30:16 44:21 60:18 66:17 three-part 4:18 TIA 8:17 tightly 37:15 time 6:2 7:6 9:19 15:1 16:19 18:15 30:22 39:4 43:9 62:10 65:8 74:11 timely 15:18 74:15 times 8:25 9:23 10:3 13:19 66:17,17,18 timing 41:7,9 Title 41:1,1 58:23 tobacco 44:22 tobacco-related 30:16 today 9:19 31:24 32:12,16 tomorrow31:25 32:11,13 70:14 77:8 toothless 67:6 traditional 13:8 39:7 Treasury 4:9 45:16 treated43:10 53:25 54:15 tribes 46:23,24 47:2 tried61:20 triggered22:6 triggers 4:2 33:21 troubling 34:18 37:3,9 38:2 true 23:13 26:19 37:9 39:1,13 46:1 54:11 57:16 62:20 72:13 74:5 75:1 trusts 44:15 try 64:22 72:16 72:19 trying 19:22 23:14 27:19,23 47:21 61:11 75:10,14 turn 9:11 25:12 65:7,7 two 5:2 12:1 21:2 25:2 27:13,20 27:22,23 37:10 46:2 54:25 55:9 55:9 75:2 types 15:24 U unanimous 59:12 unanimously 56:16 unchanged24:8 uncompensated 67:23 unconstitutional 24:23 27:1 33:7 underlying 21:9 48:12 62:1 understand 11:7 28:24 29:17 34:12 69:19 71:9 understanding 7:24 12:25 39:15 understandings 59:21 understands 40:18 understood 12:20 unfettered71:17 unique 63:23 United1:1,13 8:16 26:16 34:14 37:23 38:14,20 40:5 41:17 46:18 51:20 55:5,16 unreasonable 67:15 unusual 24:2,6 unwanted68:14 use 21:7 22:9 58:23 64:20 66:18 74:25 75:3 uses 18:12 60:25 usually 7:22 23:23 utterly 12:16 U.S.C 44:13 47:24 V v 1:6 3:5 7:19,25 12:19,25 39:11 57:24 58:9 59:7 71:19 72:22 vacated43:17 validity 37:7 verb 66:19 Verrilli 1:18 2:6 30:24,25 31:2 31:24 32:6,25 33:11 34:3,10 35:13,16,20 36:8,14,19 37:10 38:13 39:1,18 40:1,4 40:12,16 41:14 42:2,7 43:3 44:5 45:10 47:18 48:21 49:8 50:1,4,8 50:12,15,18 51:4,13,17,23 52:9,12 53:1,16 53:21 54:2,8,25 55:13,24 56:5 versus 13:18 view40:16 62:20 75:18 viewed10:5,6 viewing 11:7 Alderson Reporting Company Official - Subject to Final Review 92 41:19 43:6 46:20 47:19 48:24 58:18 65:6 67:25 72:8 72:19 ways 66:14 went 23:2 weren't 52:6 we're 29:1 39:12 55:16 71:10 W we've 12:4 35:2 wait 6:5 7:4 43:7 44:11 waivable 38:11 55:14,15 75:9 40:18 wholly 67:14 waive 7:17 21:14 Williams 8:1 37:8 38:23 11:6,17 12:10 waived7:14 12:16,19 33:18 10:15,20 15:19 39:10 63:6 35:12 win 11:10 63:23 waiver11:4,6 word 16:25 17:11 13:13 62:1 63:3 21:7 60:25 63:22 74:25 waives 63:9,15 wording 14:22 waiving 63:2 words 23:17 want 14:7 16:17 32:15,17 42:9 21:11,17 23:8 48:2 26:4 36:16,20 work 25:2 48:24 37:7,8 40:13 71:16 50:25,25 53:7 worse 61:7 61:14 62:21,21 wouldn't 15:21 65:24 22:7 26:2 28:23 wanted53:14 44:8 64:15 62:15,16 69:25 70:6 wanting 62:1 written14:2 wants 50:22 65:16 66:13 51:24 70:16,19 wrong 41:13 52:7 Washington 1:9 52:8 55:12 1:16,19,21 68:15 69:12 wasn't 15:4 41:1 X water9:22 way 10:18 11:10 x 1:2,8 42:16 15:18,20 21:20 Y 23:25 27:19 year 20:2 70:11 28:1,3,8,24 years 12:10,11 36:5 38:16 violate 69:17 violated49:24 49:25 50:5 violating 47:10 virtually 35:8 virtue 48:23,24 68:25 voluntarily 71:24 voluntary 70:1,6 41:5 50:21 $ $4 20:1 $600 70:11 71:5 1 10A 46:22 10:12 1:14 3:2 11 60:20 74:6 11A 46:12 11-398 1:5 3:4 11:41 77:9 12(b)(1) 43:19 12(b)(6) 43:17 122 25:5 13 47:23 1331 58:20 1346 58:21 16 20:23 16a 34:22 17 20:23 66:17 17a 35:1 18022(e) 47:25 1867 12:12 24:8 2 20 66:17 2000s 13:24 2012 1:10 22 44:20 2283 8:15 26 1:10 44:12 28 41:1,1 58:23 3 3 2:4 30 2:7 36 44:21 4 42 47:24 5 5 73:7 50 12:10,11 500 61:14 70:11 9008 22:12 9010 22:12 5000A 3:17,20 3:23,25 5:5 6:1 23:11 31:16,21 44:4 46:1,23 48:6,14 73:12 5000A(e)(1) 48:7 48:11 5000A(e)(3) 46:23 5114(c) 30:17 527(j) 30:19 56 2:10 5684 30:17 5761 30:17 6 6 5:14 7:4 69:15 6038(a) 44:17 6213 74:7 63 73:18 64 73:18 6671(a) 44:9 68 17:23 44:7 74:21 7 70s 13:24 73 2:13 7421 14:3,10 20:15 36:3 42:11 7421(a) 34:22 35:9,13,24 41:19 74:9 7422 20:16 41:22 42:11,13 7422(a) 35:3,8 35:16 41:18 8 8 52:17 857 44:13 9 90s 13:24 Alderson Reporting Company