First, on August 31, the D.C. Circuit issued this order instructing the parties to file supplemental briefs addressing the following two questions:
(1) Is the “penalty” referred to in 26 U.S.C. § 5000A punitive or non-punitive? Cf. Hudson v. United States, 522 U.S. 93 (1997); Dep’t of Revenue of Mont. v. Kurth Ranch, 511 U.S. 767 (1994); Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963). If the penalty is non-punitive, may the Federal Government impose a non-punitive civil penalty under the authority of the Constitution’s tax power if the penalty is not expressly labeled a “tax” in the statute? Cf. License Tax Cases, 72 U.S. 462, 471, 473 (1867).
(2) How is the constitutional analysis under the Taxation Clause affected, if at all, by the fact that the tax penalty at issue here does not purport only to encourage or discourage conduct but is accompanied by a specific legal mandate: “An applicable individual shall for each month beginning after 2013 ensure that the individual . . . is covered under minimum essential coverage for such month.” 26 U.S.C. § 5000A(a)?Second, on Monday, the parties filed the called-for supplemental briefs:
* You can access the plaintiff-appellants' brief here.
* You can access the United States's brief here.
Third, the D.C. Circuit has subsequently issued two other orders. This order provides that each side has 40 minutes for argument (a portion of which they can allocate to amici if they so desire. And this order states that the parties are to address the questions at argument in the following order:
1. Commerce Clause
2. Taxing Clause
3. Anti-Injunction Act
