# Amicus Curiae Brief — Conestoga Wood Specialties Corp. v. Sebelius

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0929%3A54

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2013
- **Citation:** 571 U.S. 1067

## Text

Sirerorne Cour, US.
MLED

JAN 28 2914
LOPHICE OF THE OES |

Nos. 13-354 & 13-356
IN THE

Supreme Court of the United States

KATHLEEN SEBELIUS et al.,
Petitioners,

Vv.
Hoppy LOBBY STORES, INC., et al.,

Respondents.

CONESTOGA WOOD SPECIALTIES CORP., et ai.,

Petitioners,
Vv

KATHLEEN SEBELIUS, et al.,
Respondents.

On Writs of Certiorari
to the United States Court of Appeals
for the Third and Tenth Circuit

BRIEF OF THE INDEPENDENT
WOMEN’S FORUM AS AMICUS CURIAE
IN SUPPORT OF HOBBY LOBBY
AND CONESTOGA, ET AL.

ERIN MORROW HAWLEY
Counsel of Record
UNIVERSITY OF MISSOURI
212 Hulston Hall
Columbia, MO 65211
(573) 823-1256
hawleye@missouri.edu

Counsel for Amicus Curiae

EP ED

WILSON-EPES PRINTING CO., INC. — (202)789-0096 — WASHINGTON, D.C. 20002

Lytcary of Cann

TF ae. oes
Sat oe nd *- ,

TABLE OF CONTENTS

I. THE ANTI-INJUNCTION ACT IS NOT
JURISDICTIONAL AND THIS COURT
NEED NOT CONSIDER WHETHER IT

A. The AIA’s Text Does Not Clearly
Indicate Jurisdictional Status ............

B. The Structure Of The AIA Indicates

C. This Court’s Precedents Confirm That
The AIA Is Not Jurisdictional.............

1. Early Precedent Holds That The
AIA Is Not Jurisdictional...............

2. This Court’s Repeated Invocation
Of Two Judicially Created Excep-
tions Confirms That The AIA Is
Not Jurisdictional ........................5.

A. The Extraordinary Circum-
stances Exception .....................

B. The No Alternative Remedy At
LAW TEORIEIOR ..00.0ccccccercescocscsnes

3. This Court’s Repeated Waiver Of
The AIA Confirms That The AIA Is
Not Jurisdictional ......................00.

SN IT -sphctctritecictincianunsninechimedasnciabauniganminn

23
25

i

TABLE OF AUTHORITIES
CASES Page(s)
Acklin v. People’s Sav. Ass’n, 293 F. 392
a NT IIE sainioiccisscdinsnicistsans real nnabubaipeeicin 16
Allen v. Regents of Univ. of Georgia, 304
Ps SI ID Sinsintecinaciinintiulavanaiasunntagtein 19
Arbaugh v. Y & H Corp., 546 U.S. 500
TUN icines tuchtcilineisinthaaindisiesiaaicrwmennieinaimsiabicina 6, 8, 9, 14, 21
Bailey v. Drexel Furniture Co., 259 U.S. 20
Seay bicinnicisinnievnschitnistasoninannicnadiisionilinianinn 5
Bailey v. George, 259 U.S. 16 (1922).............. 18
Baltic Mills Co. v. Bitgood, 12 F. Supp. 132
is TR, II iis si noccusaussasisabaiatscrcinebinananniedis 17
Bob Jones Univ. v. Simon, 416 U.S. 725
PII nics iccuaickcinlaireianaaaeskicttnadlamacnteatnanenaaneaiinne 18, 21
Bowles v. Russell, 551 U.S. 205
—__,_ 5 Se Tee AE STO 8, 14, 22, 23, 24
Brushaber v. Union Pac. R.R. Co., 240
Sa Se AIEEE WachicinnccomuniiannaibnictabsiccadienAeneeinionicnane 19
Burgdorf v. District of Columbia, 7 App.
aes Te a BINED seiseicinneccnnacarncsnesnannsos 16
Cohen v. Durning, 11 F. Supp. 824
Say: MEI esienconbieninissnesinacoonmsnantiseiahamnnabuanes 17
Danahy Packing Co. v. McGowan, 11 F.
Supp. 920 (W.D.N.Y. 1935) .....................00 17
Dodge v. Brady, 240 U.S. 122 (1916)............. 18
Dodge v. Osborn, 240 U.S. 118 (1916). .......... 18

Dolan v. United States, 130 S. Ct. 2533
SII suis .citaslnrdtd niinesncsllcledapainiiebasideabecniaeteadicatant ties Q

TABLE OF AUTHORITIES—Continued

Page(s)
Enochs v. Williams Packing & Navigation
ig GU UES Be CIID vasesensesscsnsnsessnnssosenssos passim
Frayser v. Russell, 9 F. Cas. 728 (C.C.E.D.
Ti ccciinsonncudenssnankeunssanensnees 16
French Mortg. & Bond Co. v. Woodworth,
38 F.2d 841 (E.D. Mich. 1930)...........00000.... 16
Gold Medal Foods v. Landy, 11 F. Supp.
EE 17
Gonzalez v. Thaler, 132 S. Ct. 641
ea Dees iecanscatennanennssanssesexnes 8,9,13
Graham v. Du Pont, 262 U.S. 234 (1923)...... 18, 19
Grosvenor-Dale Co. v. Bitgood, 12 F. Supp.
ES BEIIIED aeecccosvcscnncscnsnconcosnsesssenss 17
Helvering v. Davis, 301 US. 619
i aiaetn sii cgtakesekanensensnseien 7,13, 14, 23, 24
Henderson ex rel. Henderson v. Shinseki,
Es EE GUIEED vsnsscniscevssessesssoversesens passim
Higgins Mfg. Co. v. Page, 20 F.2d 948
Need cscncsensabsnsstaneesssbnanse 17
Hill v. Wallace, 259 U.S. 44 (1922).....00000000... 18
Hobby Lobby Stores, Inc. v. Sebelius, 723
Pe SAN4 (IO Cir. BOTB) ........000.0.00.ccceee0 5
Huston v. Iowa Soap Co., 85 F.2d 649 (8th
TF SEEE PES NS ea 17

Inland Mill. Co. v. Huston, 11 F. Supp. 813
iin ncicidnpeiansenneswnabsacenseseans 17

iv

TABLE OF AUTHORITIES—Continued

Page(s)
John A. Gebelein, Inc. v. Milbourne, 12 F.

Supp. 106 (D. Bid. 1086).......:.......000000.0000s00 16
Jones v. Bock, 549 U.S. 199 (2007)................ 11
Kensett v. Stivers, 10 F. 517 (S.D.N-Y.

BT ckicnceicahiiviacdeieianshinsiasdigatdimenastncnsahanabdaiaaatedaetas 17
Kingan & Co. v. Smith, 16 F. Supp. 549

I I SI asics dsictictsvanncsitondtcesetedtantseraenes 17
Kontrick v. Ryan, 540 U.S. 443 (2004) ........ 6, 8, 22
Lafayette Worsted Co. v. Page, 6 F.2d 399

i: HEE ibiiiiispitduiuaaigosammamsnabentapleiihcanauasen 16
Landgraf v. USI Film Products, 511 U.S.

ee es ccsihccisisistenins ccicniectioaiaigalgkdestadaninicainipeeies 10
Larabee Flour Mills Co. v. Nee, 12 F. Supp.

TE a BCID iscansiniscennssnnanaidinairenniionn 16
Lipke v. Lederer, 259 U.S. 557 (1922)............ 18
Miller v. Standard Nut, 284 U.S. 498

Peikcrircancaccodbdicccrnencansmeedinsiialces 7, 15, 16, 20, 24
Neild Mfg. Corp. v. Hassett, 11 F. Supp.

I Ces BI, TI nc cisicercscnieeianctctsninansannsss 17
Pac. Steam Whaling Co. v. United States,

Se eis MEE Civ hckcsatssncsincrnsacnnanmsenssonc 17
Pollock v. Farmers’ Loan & Trust Co., 157

A TD wiinestnnicccensnsttemnnneinevtiotian 14, 19, 24
Reed Elsevier, Inc. v. Muchnick, 130 S. Ct.

ET Ma iicrliststhaniaiduaeciidceasatnanineiiouainens 8,11, 12, 14

Regal Drug Corp. v. Wardell, 260 U.S. 386
Sai cica'c nissieanevinkiceecnsssiiaincaieeebbiatndeadibteigaiades 18

i

TABLE OF AUTHORITIES—Continued

Page(s)
Regents of Univ. Sys. Of Georgia v. Page,
81 F.2d 577 (5th Cir. 1936) ........................ 17
Rieder v. Rogan, 12 F. Supp. 307 (S.D. Cal.
I sdicichicielishiablacsi tonics ail Siaacahiccieuhinsbsbieesibvenimebabonaonsiee 17
Republican Nat. Bank of Miami, 506 U:S.
SUIT iscsi oibeinbsude chan chainisibeigenbshiceencatctibinnen 10
Rickert Rice Mills v. Fontenot, 296 U.S.
RE eee nce n enn een rn 18
Snyder v. Marks, 109 U.S. 189 (1883)........... 17
South Carolina v. Regan, 465 U.S. 367
TT ices siciiniasaniastaincnseiintehibabitetviiaiinicaaniinina 7,10, 21, 22
State R.R. Tax Cases, 92 U.S. 575 (1875)...... 17
Steel Co. v. Citizens for a Better Environ-
Penemed,, GS A. Ge CRD cvesevcceesccssscsccsssesees 7,8
Sunshine Anthracite Coal Co. v. Adkins,
Se es I I ariiennirinadinnsienicnstioniasienioansinion 13, 23
Trinacia Real Estate Co. v. Clarke, 34 F.2d
IE «. I iceninsconenennnentonesincsestnsecs 17
Union Pac. R.R. Co. v. Brotherhood of
Locomotive Engrs & Trainmen Gen.
Comm. of Adjustment, Cent. Region, 558
RESET AR ESRC oS Oe 7
United States v. Curry, 47 U.S. 106
a aiecisdilngush timsaiscsasieaidlaasiesinbanniaisasarsiiadies 23

Zipes v. TransWorld Airlines, Inc., 455

III Sieh iccdacccidaciunsasanpubedinusixennssien

vi

TABLE OF AUTHORITIES—Continued

STATUTES Page(s)
a: Oe ns cacanaausaadiebennshanannscevess 1
Ss Ae ID veiisnncssavndsnensaaeerdssencseneaiianen 12
in cn ciisnnthinssankcassnrnencckauneaniciin 12
Se Re Se IID scsinnsasesvsveccsrensnnsconvetnssnsenens 12
Be ass WF IC EDs nc ssccncanennassssascctnesenssbasnas 12
ER, i I oilanincasuadnsinissvansnncnanssansnakiaein 12
Se Es TF PPIEID scsicsscseissesescsnessxcennnssnnaie 12
Anti-Injunction Act, 26 U.S.C. § 7421(a)

IN laa ince stalk Ack eins cdvbeghoonnaeendibenainuaseiaed passim
Tax Injunction Act, 28 U.S.C. § 1341 (2008)... 9,11

RULES
Ey es Oe MUNN nnissdsnenndnccscsnsvasnesnaieans 22

COURT FILINGS

Brief for Petioners Helvering & Welch,
Helvering v. Davis, 301 U.S. 619 (1937)
NN iia ssildabakeadsnauhianennsnanansaaoneecamaiaan 13, 14, 23

Brief for the Appellee, Sunshine Anthracite
Coal v. Adkins, 310 U.S. 381 (1940) (No.

Statement as to Jurisdiction, Sunshine
Anthracite Coal Co. v. Adkins, 310 U.S.
BPR CEO) CINO. BE) a ccecinccscesccccccccssscescsssasss 24

vii
TABLE OF AUTHORITIES—Continued
SECONDARY SOURCES Page(s)

Clarence A. Miller, Restraining the
Collection of Federal Taxes and Penalties
by Injunction, 71 U. Pa. L. REV. 318 (1922-
CSREES AS on nan 19

Douglas Laycock, The Death of the
Irreparable Injury _ 103 HARV. L. REV.

EERE Fear nN 6
John C. Gall, Enjoining the United States, 10

VA. L. REV. 194 (1923-24) .......................000 19
Jonathan Haidt, THE RIGHTEOUS MIND

ERLE “ORR - RES E NO” mene aaa 4

Joseph L. Lewinson, Restraining the Assess-
ment or Collection of a Federal Tax, 14
CAL. L. REV. 461 (1925-26) ......................0 19

Kevin Seamus Hasson, THE RIGHT TO BE
EEN ER OR aE 4

INTEREST OF AMICUS CURIAE '

The Independent Women’s Forum (“IWF”) is a
non-partisan, 501(cX3) research and educational
institution. [IWF seeks the advancement of women in
today’s marketplace and the full flourishing of human
dignity through freedom and choice. IWF believes
that gender equality and access to health care,
including preventative services like contraception, are
compelling government interests. IWF is concerned,
however, that the contraception mandate may
disadvantage women by adversely affecting health
and employment options and impinging on religious
liberty.

IWF believes that women have ready access to
affordable contraceptives. Nine in ten employer-based
insurance plans cover the full range of contraceptives.
Twenty-eight states require insurers that cover
prescription drugs to cover the full range of FDA-
approved contraceptive drugs and devices. And a
plethora of federal and state programs currently
provide free contraceptive services to women with low
incomes. Public funding for these services totaled
$2.37 billion in 2010. In addition to public sources,
clinics and other entities like Planned Parenthood
provide free access to contraception.

1 Pursuant to Supreme Court Rule 37.6, amicus curiae
Independent Women's Forum states that no counsel for any party
authored this brief in whole or in part and that no entity or
person, aside from amicus curiae, its members, and its counsel,
made any monetary contribution toward the preparation or
submission of this brief. Pursuant to Supreme Court Rule 37.3,
counsel of record for al] parties received notice of amicus curiae’s
intent to file this brief. Petitioner and respondent have consented
to the filing of this brief and letters reflecting their consent have
been filed with the Clerk of Court.

2

For women who make too much to qualify for free
preventative care services, contraceptives are an
affordable healthcare option. Generic contraceptives
can be purchased for as low as $9 per month.
Non-prescription options with similar efficacy rates,
like condoms and vaginal sponges, are easy to
purchase and inexpensive. The American Pregnancy
Association, for example, estimates that condoms cost
as little as twenty cents each—less than a pack of
chewing gum. There is, in short, no need for the
contraception mandate.

Perhaps for this reason, the Government has
exempted over 190 million health plan participants
from the contraception mandate. The requirement
does not apply to employers with fewer than fifty full-
time employees, grandfathered health plans, and
certain religious non-profits, like churches. Exempt
from the mandate also are certain forms of
contraception—including those that can be used by
men. That the Government chose to exempt hundreds
of millions of women (and all men) undermines any
asserted compelling interest in public health or a one-
size-fits-all insurance system.

IWF believes the Government can promote public
health in other ways. It could, for example, expand
eligibility for the federal programs already in
existence, offer tax deductions, credits, or federal
reimbursements for the purchase of contraceptive
services, or provide incentives for pharmaceutical
companies to provide products free of charge. Indeed,
and ironically, the best way to broaden access to birth
control might be to heed the American College of
Obstetricians and Gynecologists recommendation and
make birth control available without a prescription.

3

IWF believes that the contraception mandate will
make contraception more expensive. Because insurers
are required to provide first-dollar coverage, price
will no longer be a consideration. This will result in
higher health-care costs and make contraceptives
less affordable, and thus less accessible, to miilions
of uninsured women. According to CBO, some 30
million people will remain uninsured after full
implementation of the Affordable Care Act. Even if
only half are women, the mandate will have a
detrimental impact on millions. And of course there is
no such thing as a free lunch, even to the insured. The
(higher) costs of contraception coverage likely will be
passed on to employees through lower salaries or
decreased benefits.

IWF also is concerned that the contraception
mandate may have other detrimental effects on
women’s health. Studies have shown, for example,
that increased access to other contraceptives
decreases condom usage—a means of preventing
sexually transmitted diseases in addition to
pregnancy.

The contraception mandate also overlooks that
women and their families benefit from a flexible work
environment that allows them the option of their
preferences. Women may choose to prioritize a higher
salary, or the ability to work from home, over more
generous contraceptive coverage. And older women, in
particular, may prioritize other health benefits, like
cancer coverage.

This case is about more than contraception. It is
about the principles of liberty that animate our
Constitution. It is about empowering women to choose
the healthcare and salary options that best fit their
needs. And it is about employers, many of them

4

women, being able to follow their deeply held religious
conviction that life begins at conception.

IWF believes in a pluralistic society and that the
Government should not require individuals to pay for
services contrary to their faith. The burden becomes
clear when one’s own moral wrong is required by law.
See JONATHAN HAIDT, THE RIGHTEOUS MIND (2012).
Take, for example, a hypothetical example of a
different administration requiring that all group
health insurance plans cover conversion and
reparative therapy. The fact that an employee would
make the individual choice to receive such therapy
would do little to assuage the moral qualms of
individuals and companies who support same-sex
couples. Such individuals and companies would be
forced to pay premiums for, and facilitate use of,
health services they find abhorrent.

There is historical precedent for precisely this
challenge of conscience versus the perceived greater
good. The Quaker faith forbids taking up arms against
another. During the Revolutionary War, the colonies
required able-bodied men to serve in the militia or
pay a stiff fine. A wealthy landowner could avoid the
draft by hiring a soldier as his substitute. But the
Quakers refused not only to fight but also to send
someone else to fight in their stead or to pay fines to
finance what they saw as a morally objectionable
war. See KEVIN SEAMUS HASSON, THE RIGHT TO BE
WRONG 49-52 (2005).

IWF believes that all of these arguments should not
be foreclosed solely because the penalties imposed by
the contraception mandate are made payable to the
IRS. The Government does not argue that the Anti-
Injunction Act applies to this case. Accordingly, the

5

defense is forfeited and poses no bar to resolution of
the critical constitutional questions at issue here.

If the Supreme Court’s privacy jurisprudence tells us
anything, it is that the deeply personal choices about
when life begins and whether or not to use birth control
are decisions for individuals and families, not the
Government. IWF believes that the Government should
leave those decisions to women and their families.

SUMMARY OF ARGUMENT

The Anti-Injunction Act (“AIA”), 26 U.S.C. § 7421(a),
provides: “no suit for the purpose of restraining the
assessment or collection of any tax shall be maintained
in any court by any person, whether or not such person
is the person against whom such tax was assessed.”
That provision does not bar review of this case. A
unanimous Tenth Circuit concluded that the Anti-
Injunction Act does not apply because the relevant
penalties are not taxes within the meaning of the
AIA. Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d
1114, 127-28 (10th Cir. 2013); see also Bailey v.
Drexel Furniture Co., 259 U.S. 20, 36-38 (1922)
(distinguishing taxes from penalties by heavy burden,
scienter, and partial enforcement by a non-IRS agency).
But there is no need to answer that question at all.
The Anti-Injunction Act does not apply first and fore-
most because it is not jurisdictional and because the
Government has forfeited any reliance on the statute.

It is a hallmark of our judicial system that, subject
to standing requirements, a litigant ordinarily is
entitled to her day in court before she suffers the
penalties for noncompliance with an unconstitutional
statute or regulation. Pre-enforcement challenges are
a commonplace. To hold that the Anti-Injunction Act
bars suit here would turn that principle on its head.

6

If the AIA were jurisdictional, the Greens and
Hahns would be forced to pay millions of dollars in
penalties and file a refund suit before raising their
First Amendment claims. This is constitutionally
troublesome. The choice between massive penalties
and conscience rights may not be a realistic one
for many employers. And more importantly, pre-
enforcement review is almost always available in
cases like this one because damage remedies (like a
refund) are wholly inadequate to compensate a
plaintiff for the loss of a First Amendment right.
Douglas Laycock, THE DEATH OF THE IRREPARABLE
INJURY RULE, 103 HARV. L. REV. 687, 707-09 (1990).
Religious liberty is not a freedom reserved for the
wealthy.

The Anti-Injunction Act is not jurisdictional because
its text does not contain the clear jurisdictional
limitation this Court’s cases require. Arbaugh v. Y &
H Corp., 546 U.S. 500, 515-16 (2006). It is a claims-
processing statute that speaks to the obligations of
litigants, not the power of the federal courts. It is
placed in a miscellaneous tax code provision that
governs administration and procedure. And it
contains numerous statutory and judicially created
exceptions. While the Court occasionally has referred
in passing to the AIA as “jurisdictional,” this Court’s
more recent cases teach that loose language does not a
jurisdictional provision make. It is the substance of
this Court’s decisions, and not imprecise use of the
term jurisdiction that governs. Kontrick v. Ryan, 540
U.S. 443, 454 (2004) (courts may not rely on “less than
meticulous” use of the term “jurisdictional”).

From its earliest days, moreover, this Court has
interpreted the AIA to be non-jurisdictional. The
Court consistently has held the AIA subject to

7

traditional equitable exceptions. See, e.g., Miller v.
Standard Nut, 284 U.S. 498 (1932). These exceptions
have culminated in two well-established exceptions
today. See Enochs v. Williams Packing & Navigation
Co., 370 U.S. 1 (1962); South Carolina v. Regan, 465
U.S. 367 (1984). In several cases, moreover, the Court
also has permitted the Government to waive the AIA
defense and proceeded to the merits. See, eg.,
Helvering v. Davis, 301 U.S. 619 (1937). If a provision
is truly jurisdictional, equitable exceptions are taboo
and waiver impossible. Taken individually, then, each
of these precedents would cast doubt on a
jurisdictional AIA; taken as a whole, they foreclose
that possibility.

ARGUMENT

I. THE ANTI-INJUNCTION ACT IS NOT
JURISDICTIONAL AND THIS COURT
NEED NOT CONSIDER WHETHER IT
APPLIES

The federal government has forfeited any reliance
upon the Anti-Injunction Act and this Court need not
consider whether it applies unless the prohibition is
jurisdictional. See Henderson ex rel. Henderson uv.
Shinseki, 131 S. Ct. 1197, 1202 (2011). The AIA is not
jurisdictional and this Court may proceed to the merits.

This Court recently has emphasized that
jurisdiction has become “a word of many, too many,
meanings.” Steel Co. v. Citizens for a Better
Environment, 523 U.S. 83, 90 (1998). Because courts
have been overinclusive—“profligate” even, see Union
Pac. R.R. Co. v. Brotherhood of Locomotive Eng’rs &
Trainmen Gen. Comm. of Adjustment, Cent. Region,
558 U.S. 67, 81 (2009)—in their use of the term, this
Court has sought to restore “discipline” to the phrase
jurisdictional. Henderson, 131 S. Ct. at 1202-03.

8

There is a distinction, this Court’s recent cases
teach, between “claims-processing” rules and truly
jurisdictional provisions. Jurisdictional statutes
speak to the very power of a federal court to hear a
case; they govern the court’s “adjudicatory authority.”
Kontrick, 540 U.S. at 455; see also Steel Co., 523 U.S.
at 89 (“subject-matter jurisdiction” refers to “the
courts’ statutory or constitutional power to adjudicate
the case”) (emphasis in original). In contrast, claims-
processing rules simply “seek to promote the orderly
progress of litigation by requiring that the parties take
certain procedural steps at certain specified times.”
Henderson, 131 S. Ct. at 1203.

To differentiate between claims-processing rules
and jurisdictional limitations, this Court looks to text,
structure, and context. First, the Court employs a
“clear-statement principle,” to determine whether
the text plainly indicates that a procedural
requirement is jurisdictional. Gonzalez v. Thaler, 132
S. Ct. 641, 649 (2012). The Court then considers
whether the structure of the statute compels a
jurisdictional conclusion. See Reed Elsevier, Inc. v.
Muchnick, 130 S. Ct. 1237, 1245-46 (2010). Finally,
the Court considers context, which sometimes may
include past precedent. See Bowles v. Russell, 551
U.S. 205, 209-11 (2007). Each of these factors
indicates that the Anti-Injunction Act is not
jurisdictional.

A. The AIA’s Text Does Not Clearly
Indicate Jurisdictional Status

The first question is whether the text of the AIA
contains a clear statement limiting jurisdiction.
Henderson, 131 S. Ct. at 1203 (citing Arbaugh, 546
U.S. at 515-16). The answer is no. A provision is
jurisdictional only where Congress “clearly state[s]

9

that [the] threshold limitation on a statute’s scope
shall count as jurisdictional... .” Arbaugh, 546 U.S.
at 515-16. In contrast, “when Congress does not rank
a statutory limitation as jurisdictional, then courts
should treat the provision as nonjurisdictional in
character.” Id.

The text of the AIA contains no such clear
statement. At the outset, the AIA does not mention
jurisdiction in so many words. See Thaler, 132 S. Ct.
at 651 (citing Henderson, 131 S. Ct. at 1205) (rejecting
notion that “all mandatory prescriptions, however
emphatic, are . . . properly typed jurisdictional”);
Dolan v. United States, 130 S. Ct. 2533, 2539 (2010)
(“shall” does not render a requirement jurisdictional).
This is important because Congress knows how to
speak in jurisdictional terms when it chooses.
Consider some forthrightly jurisdictional statutes.
The Tax Injunction Act, for example, is directed to the
adjudicatory power of the federal courts: “The district
courts shall not enjoin, suspend or restrain the
assessment, levy or collection of any tax under State
law where a plain, speedy and efficient remedy may be
had in the courts of such State.” 28 U.S.C. § 1341
(emphasis added). Congress’s failure to use similar
“unambiguous jurisdictional terms,” Thaler, 132 S. Ct.
at 649, “indicates” that the AIA operates differently.
Williams Packing, 370 U.S. at 6 (if Congress desired
the AIA to have the same effect as the TIA “it would
have said so explicitly”); see also Thaler, 132 S. Ct. at
649 (“unambiguous jurisdictional terms” in a related
statute are evidence that Congress “would have
spoken in clearer terms if it intended [the statute] to
have similar jurisdictional force”).

What the text indicates instead is that the AIA is a
claims-processing statute. As this Court previously

10

has explained, the AIA “was merely intended to
require taxpayers to litigate their claims in a
_ designated proceeding.” Regan, 465 U.S. at 374. This
is the very definition of a claims-processing rule. The
AIA does nothing more than “seek to promote the
orderly progress of litigation by requiring that the
parties take certain procedural steps at certain
specified times.” Henderson, 131 S. Ct. at 1203
(defining claims-processing rules).

The AIA, in other words, is not jurisdictional
because it is addressed to litigants, not the adjudica-
tory authority of federal courts. “[J]urisdictional
statutes ‘speak to the power of the court rather than
to the rights or obligations of the parties.” Landgraf
v. USI Film Products, 511 U.S. 244, 274 (1994)
(quoting Republican Nat. Bank of Miami, 506 U.S. 80,
100 (1992) (Thomas, J., concurring)). The AIA focuses
on party obligations. Section 7421(a) provides that “no
suit [to restrain taxes] shall be maintained in any
court by any person.” 26 U.S.C. § 7421(a) (emphasis
added). Congress amended the AIA in 1964 to add the
phrase “by any person whether or not the person is the
person against whom such tax was assessed.” This
phrase clarifies that the AIA applies to persons
whether or not that person bears the incidence of the
tax, see Regan, 465 U.S. at 377, and confirms that the
AIA speaks to litigants, not the federal courts.

The requirement that a party satisfy some step
prior to bringing suit in federal court is hardly novel:
it is an exhaustion requirement. Exhaustion require-
ments are “quintessential claims-processing rules.”
Henderson, 131 S. Ct. at 1203. Because exhaustion
requirements merely “seek to promote the orderly
progress of litigation by requiring that the parties take
certain procedural steps at certain specified times,”

11

id., this Court has time and again found them to be
non-jurisdictional. See e.g., Reed alsevier, Inc., 1305S.
Ct. at 1246-47 (citing cases).

In Jones v. Bock, for instance, this Court held that
the Prison Litigation Reform Act’s administrative
exhaustion requirement—“no action shall be brought
with respect to prison conditions . . . until such
administrative remedies as are available are
exhausted” is not jurisdictional. 549 U.S. 199, 211-12
(2007). So too here. The AIA is not jurisdictional
because it focuses on a litigant’s exhaustion
obligations. And like other exhaustion regimes, the
AIA does not forever bar federal court review of a class
of cases (as does the Tax Injunction Act), but instead
assumes that suits blocked by the AIA eventually may
end up in federal court.

Reed Elsevier, Inc. v. Muchnick is also instructive.
In that case, the Court held Section 411(a) of the
Copyright Act—“no civil action for infringement of the
copyright in any United States work shall be
instituted” until the copyright is registered—to be
non-jurisdictional. Reed Elsevier, 130 S. Ct. at 1249.
Because Section 411(a) placed conditions on plaintiffs
(and not the federal courts), the Court found the
provision did not “clearly state[]” that its registration
requirement was jurisdictional. Jd. at 1245-46. The
relevant text of Section 411(a)—‘“no civil action...
shall be instituted”—bears a striking resemblance to
the AIA’s language—“no suit . . . shall be maintained.”
Both are addressed to particular litigants, couched in
mandatory language, and part of a remedial scheme.
Like Section 411(a), the AIA does not “clearly state”
that its pre-payment requirement is jurisdictional.

In sum, the text of the AIA does not clearly indicate
jurisdictional status. The statute does not employ

12

jurisdictional language, it is addressed to private
litigants, and it is part of an exhaustion regime that
eventually provides for federal court review.

B. The Structure Of The AIA Indicates
That The Statute Is Not Jurisdictional

The structure of the Anti-Injunction Act also
indicates that the statute is a “claims-processing” rule,
not a jurisdictional bar. Congress did not locate the
operative provision in a jurisdiction granting section.
This fact supports a non-jurisdictional reading. Reed
Elsevier, 130 S. Ct. at 1245 (finding provision non-
jurisdictional because it “is located in a provision
‘separate’ from those granting federal courts subject-
matter jurisdiction”). Rather, signaling its claims-
processing nature, the AIA resides instead in a
miscellaneous tax code section that governs procedure
and administration.

Moreover, that the AIA expressly authorizes some
pre-enforcement tax challenges indicates’ that
Congress did not mean to impose an absolute bar
on federal court review. The Reed Elsevier Court
found it “important” that Section 411(a) permitted
the adjudication of unregistered claims in three
circumstances. Reed Elsevier, 130 S. Ct. at 1246. The
AIA contains fourteen statutory exceptions. 26 U.S.C.
§ 7421(a). A taxpayer who receives a deficiency notice
may file suit notwithstanding the AIA. §§ 6213(a) and
§ (c). So too for taxpayers who are innocent joint filers,
§ 6015(e), who have a third-party interest in property,
8§ 7426(a) and (b)(1), and whose property has been
levied. § 6330(e)(1). As this Court has explained, “[i]t
would be at least unusual to ascribe jurisdictional
significance to a condition subject to these sorts of
exceptions.” See Reed Elsevier, 130 S. Ct. at 1246;
Zipes v. TransWorld Airlines, 455 U.S. 385, 393-94,

13

397 (1982) (exception to EEOC filing requirement
indicates the provision is non-jurisdictional).

This Court has sometimes looked to the purpose of a
statute as part of its context inquiry. See Thaler, 132
S. Ct. at 650. Here, the purpose of the AlA—to
facilitate the prompt and efficient assessment and
collection of taxes on which the Government depends,
see Williams Packing, 370 U.S. at 7—suggests that the
AIA is not jurisdictional. As the Government has
repeatedly explained, this purpose often may be best
served by pre-enforcement review.

In Helvering v. Davis, 301 U.S. 619 (1937), for
example, a shareholder brought suit to restrain the
Edison corporation from deducting payroll taxes as
required by the Social Security Act. In light of the
serious budgetary and administrative problems that
would result from a delay in determining the validity
of the Social Security tax, the Government intervened
and sought pre-enforcement review from this Court.
Brief for Petitioners Helvering & Welch at 22,
Helvering, 301 U.S. 619 (1937) (No. 910). The AIA
did not apply, the Government argued, because it
“was enacted to promote, not to discourage, the
orderly administration and collection of Government
revenues.” Id. at 31. And in Helvering, “the litigation
of an injunction suit [wa]s more important for the
protection of the revenues than insistence upon
adherence to the ordinary procedure of payment
followed by a suit for refund.” 7d.

Helvering was not a one-off decision. The
Government also sought preenforcement review of the
Bituminous Coal Act of 1937 in Sunshine Anthracite
Coal Co. v. Adkins, 310 U.S. 381 (1940). Brief for the
Appellee at 9, Sunshine Anthracite, 310 U.S. 381
(1940) (No. 804). Similarly, the Government urged the

14

Court to review the constitutionality of a tax prior to
its enforcement in Pollock v. Farmers’ Loan & Trust

Co., 157 U.S. 429, 554 (1895).

To clothe the AIA with jurisdictional status would in
every case preclude this Court’s prompt review of a
tax. As the Government argued in Helvering, this
would “discourage” rather than encourage the “orderly
administration and collection of Government revenues.”
Brief for Petioners Helvering & Welch at 31,
Helvering, 301 U.S. 619 (1937) (No. 910). The AIA was
intended to protect the public treasury, not limit the
authority of federal courts. The core purpose of the
AIA, and its structure more generally, indicate that
the Anti-Injunction Act is not jurisdictional.

C. This Court’s Precedents Confirm That
The AIA Is Not Jurisdictional

Congress’s failure clearly to indicate that a
provision is jurisdictional is ordinarily dispositive.
Reed Elsevier, 130 S. Ct. at 1244; Arbaugh, 546 U.S. at
515-16 (Congress must “clearly state[] that a threshold
limitation on a _ statute’s scope shall count as
jurisdictional.”). On rare occasions, however, uniform
undeviating precedent may tip the scales. See Bowles,
551 U.S. at 209-11.

This Court’s precedents are far from uniform.
Rather, they are irreconcilable with a jurisdictional
reading of the AIA in three ways. First, the Supreme
Court’s early interpretation of the AIA as an equitable
statute subject to a number of exceptions cannot be
reconciled with a jurisdictional statute. Second, two
judicially-created exceptions to the AJA are well-
established: The Supreme Court has long held
that the AIA does not apply in “extraordinary
circumstances” and also when the party challenging a

15

tax statute has no alternative remedy at law. Finally,
the Court has repeatedly accepted the Government’s
waiver of the AIA defense, and proceeded to the
merits—actions inconsistent with a jurisdictional

reading of the AIA.

1. Early Precedent Holds That The AIA
Is Not Jurisdictional

This Court’s early interpretations of the AIA as an
equitable statute sound the death knell for a
jurisdictional interpretation. Culminating in its 1932
decision in Miller v. Standard Nut, 284 U.S. 498
(1932), this Court repeatedly has recognized a variety
of equitable exceptions to the AIA. See 284 U.S. at
510-11. Because jurisdictional statutes are strict
limits on a court’s power, each of these judicially
created exceptions demonstrates that the AIA is not
jurisdictional.

In Standard Nut, the IRS imposed a ten-cent per
pound back-tax on Southern Nut Product, a vegetable-
based spread, under the Oleomargarine Act of 1886.
284 U.S. at 505-06. Prior to the assessment, three
federal courts had held similar products non-taxable,
and, by letter-ruling, the IRS had informed Standard
Nut that its product was not subject to the tax. Id. at
504. After Standard Nut marketed its product at a
three-cent per pound profit, the IRS changed its mind
and sought to collect the ten-cent tax. Id. at 508.
Standard Nut filed a pre-enforcement suit. Id. at 505.

This Court enjoined collection of the tax. The AIA
“d{id] not apply,” this Court wrote, because of “special
and extraordinary facts and circumstances.” Id. at
511. The Act was merely “declaratory of the principle”
that equity usually disallows tax injunction suits. Id.
at 509. As a result, “extraordinary and exceptional

16

circumstances”—though not mentioned in the text of
the AIA—“render[ed] its provisions inapplicable.” Zd.
at 510. Foreshadowing the Court’s clear statement
requirement, the Standard Nut Court wrote that
“[t]he general words employed [by Congress] are not
sufficient, and it would require specific language
undoubtedly disclosing that purpose, to warrant the
inference that Congress intended to abrogate th[e]
salutary and well-established rule” that extraordinary
circumstances permit a court to enjoin a tax. Id.
at 509. The Court noted it had “never held the [AIA]
to be absolute”—as would be true of a jurisdictional
statute—“but ha[d] repeatedly indicated that extra-
ordinary and exceptional circumstances render its
provisions inapplicable.” Jd. at 509-10 (citing cases
recognizing extraordinary circumstances exceptions).

Standard Nut is no outlier. It is consistent with a
long line of prior cases treating the AIA as a claims-
processing statute subject to equitable exceptions. Early
lower courts crafted all sorts of exceptions to the AIA?

2 See, e.g., Frayser v. Russell, 9 F. Cas. 728, 729 (C.C.E.D. Va.
1878) (challenge does not fall “within the letter, or spirit, or
intention” of the AIA; multiplicity of suit exception applies);
Burgdorf v. District of Columbia, 7 App. D.C. 405, 414 (D.D.C.
1896) (exception for “additional special circumstances, bringing
the case under some recognized head of equity jurisdiction, such
as irreparable injury, multiplicity of suits, or cloud on the title of
the complainant”); Acklin v. People’s Sav. Ass’n, 293 F. 392, 394
(N.D. Ohio 1923) (recognizing the “existence of exceptional cases”
which permit review notwithstanding the AIA); Lafayette
Worsted Co. v. Page, 6 F.2d 399, 400 (D.R.I. 1925) (exceptional
circumstances exception); French Mortg. & Bond Co. v.
Woodworth, 38 F.2d 841 (E.D. Mich. 1930) (same); John A.
Gebelein, Inc. v. Milbourne, 12 F. Supp. 105, 121 (D. Md. 1935)
(enjoining tax and finding that the AIA does not apply to novel
cases resulting in “exceptional and unusual hardship” and
“irreparable damage.”); Larabee Flour Mills Co. v. Nee, 12 F.

17

and went on to enjoin various taxes.* So too for the
Supreme Court. See, e.g., State R.R. Tax Cases, 92
U.S. 575, 613-14 (1875) (AIA codifies the traditional
equitable rules that govern tax injunctions); Pac.
Steam Whaling Co. v. United States, 187 U.S. 447, 452
(1903) (considering equitable exceptions to the AIA).

Beginning in the early 1900s, this Court repeatedly
held that the AIA was “inapplicable” in “extra-

Supp. 395, 399 (W.D. Mo. 1935) (The AIA “does not prohibit a suit
in equity to restrain the collection of a tax where the tax is
illegally exacted and where the taxpayer has no adequate remedy
at law for its recovery if it is paid by him; [and such] remedy at
law must not only be adequate ... {but also) clear and
unquestioned.”); Cohen v. Durning, 11 F. Supp. 824 (S.D.NLY.
1935) (adequate remedy at law exception); Grosvenor-Dale Co. v.
Bitgood, 12 F. Supp. 416 (D. Conn. 1935) (same); Rieder v. Rogan,
12 F. Supp. 307 (S.D. Cal. 1935) (same); Huston v. lowa Soap Co.,
85 F.2d 649, 652 (8th Cir. 1936) (The AIA “is not an absolute bar
in every case to injunctive relief.”).

* Trinacia Real Estate Co. v. Clarke, 34 F.2d 325 (N.D.N.Y.
1929) (issuing injunction); Higgins Mfg. Co. v. Page, 20 F.2d 948,
949 (DRI. 1927) (granting injunction; “where there is no
adequate remedy at law, the court should have power to grant
relief”); Baltic Mills Co. v. Bitgood, 12 F. Supp. 132, 135 (D. Conn.
1935) (granting injunction because of inadequate remedy at law
and multiplicity of suit); Danahy Packing Co. v. McGowan, 11 F.
Supp. 920 (W.D.N_Y. 1935) (issuing injunction); Neild Mfg. Corp.
v. Hassett, 11 F. Supp. 642 (D. Mass. 1935) (same); Inland Mill.
Co. v. Huston, 11 F. Supp. 813 (S.D. lowa 1935) (same); Gold
Medal Foods v. Landy, 11 F. Supp. 65 (D. Minn. 1935) (same);
Regents of Univ. Sys. of Georgia v. Page, 81 F.2d 577 (5th Cir.
1936) (same); Kingan & Co. v. Smith, 16 F. Supp. 549 (S.D. Ind.
1936) (same). Other early cases exist in which the federal courts
dismissed under the Anti-Injunction Act but those cases do not
indicate that the AIA is ju.isdictional. In those cases, the
taxpayers argued only that the AIA did not apply to invalid taxes
and the federal courts disagreed. See, e.g., Snyder v. Marks, 109
US. 189, 192-94 (1883); Kensett v. Stivers, 10 F. 517, 522-29
(S.D.N.Y. 1880) (describing cases).

18

ordinary and exceptional circumstance[s].” Bailey v.
George, 259 U.S. 16, 20 (1922); Dodge v. Osborn, 240
U.S. 118, 122 (1916) (the AIA “plainly forbids the
enjoining of a tax unless by some extraordinary and
entirely exceptional circumstance its provisions are
not applicable”).

The Court’s early invocation of the extraordinary
circumstances exception was not dicta. In Dodge v.
Brady, the Court relied upon the exception to find the
AIA inapplicable: “we think that this [tax] case is so
exceptional in character as not to justify us in holding
that reversible error was committed by the court below
in passing upon the case upon its merits[.]” 240 U.S.
122, 126 (1916). And in 1922, the Court held the AIA
inapplicable to tax penalties for regulatory commands
in no less than three cases. See Hill v. Wallace, 259
U.S. 44 (1922); Lipke v. Lederer, 259 U.S. 557 (1922);
Regal Drug Corp. v. Wardell, 260 U.S. 386 (1922).
While the Court subsequently clarified that the AIA
would apply to “truly revenue-raising tax statutes,” it
has not renounced the underlying equitable exception.
See Bob Jones University v. Simon, 416 U.S. 725, 743
(1974) (citing Graham v. Du Pont, 262 U.S. 234
(1923)). And in 1935, this Court granted a “motion|[]
for injunction restraining the collection of the assailed
tax” pending certiorari. Rickert Rice Mills v. Fontenot,
296 U.S. 569, 569 (1935). This remarkable injunction
and exercise of jurisdiction over a suit seeking to
“restrain[] the collection” of a tax is irreconcilable with
a jurisdictional AIA.

From its earliest days, the AIA also was interpreted
to permit a taxpayer without an adequate remedy
at law to enjoin a tax. Beginning in the late 1800s,
this Court permitted shareholders to challenge “the
assessment or collection” of corporate income taxes

19

on grounds that the shareholders had no adequate
remedy at law once tax voluntarily was paid.
Brushaber v. Union Pac. R.R. Co., 240 U.S. 1, 21-24
(1916); Graham, 262 U.S. at 257; Pollock, 157 U.S. at
554. The AIA was “inapplicable” where the remedy
provided by law was inadequate. Allen v. Regents of
University of Georgia, 304 U.S. 439, 448-49 (1938).
Each of these shareholder cases fell squarely within
the terms of the AIA, and yet because equity
authorized federal courts to enjoin tax cases when the
remedy at law was inadequate, the Court repeatedly
found jurisdiction to exist.

Early interpretations of the AIA as an equitable
statute did not escape notice. Commentators routinely
described a non-jurisdictional AIA. The AIA,
Professor Charles Miller wrote, “prohibits the
granting of an injunction restraining the collection of
federal taxes unless its provisions are rendered
inapplicable to a particular case because of extra-
ordinary and exceptional circumstances.” Clarence A.
Miller, Restraining the Collection of Federal Taxes and
Penalties by Injunction, 71 U. PA. L. REV. 318, 339
(1922-23). See also John C. Gall, Enjoining the United
States, 10 VA. L. REV. 194, 194 (1923-24) (“[DJespite
the fact that the text of the AIA does not “make any
provision whatever for unusual cases which may arise
... upon an examination of the decided cases we find
that a great number of suits of this character have
been entertained in the federal courts.”); Joseph L.
Lewinson, Restraining the Assessment or Collection of
a Federal Tax, 14 CAL. L. REV. 461, 462 (1925-26)
(summarizing case law and concluding “it would
appear that [the AIA] may not be read literally”).

Jurisdictional limits are not descriptions of general
equitable principles and the Court’s early precedents

20

holding the AIA synonymous with equitable rules are
irreconcilable with a jurisdictional reading. In short,
as the Supreme Court explained in Standard Nut,
while the early Supreme Court gave effect to the AIA
in a number of cases, “[iJt had never held the rule to
be absolute,” 284 U.S. at 510-11—as would be true of
a jurisdictional statute.

2. This Court’s Repeated Invocation Of
Two Judicially Created Exceptions
Confirms That The AIA Is Not
Jurisdictional

The early case law authorizing federal courts to
entertain tax challenges has resulted in two well-
established judicial exceptions to the AIA. Because
federal courts are not authorized to craft equitable
exceptions to jurisdictional rules, these present-day
exceptions demonstrate that the AJA is not a
jurisdictional statute.

a. The Extraordinary Circumstances
Exception

As explained above, the Supreme Court has long
taken the view that the Anti-Injunction Act does not
always apply to cases seemingly within its terms. In
1962, the Court reaffirmed that equitable exceptions
apply to the AIA. In Williams Packing, the Court of
Appeals had enjoined a tax on the ground that
“collection would destroy [the taxpayer's] business.”
370 U.S. at 2. This Court reversed, but not because
the AIA is an absolute bar on federal court review. Far
from repudiating exceptions to the AIA, the Williams
Packing Court endorsed them: “if it is clear that under
no circumstances could the Government ultimately
prevail, the attempted collection may be enjoined if
equity jurisdiction otherwise exists.” Id. at 7. This

21

merits-based inquiry cannot be squared with a
jurisdictional AIA.

Bob Jones University also confirms that the AIA is
not jurisdictional. That case involved a University’s
constitutional challenge to the [RS’s revocation of its
tax-exempt status. Bob Jones, 416 U.S. at 735-36.
This Court first held that the action was a suit “for the
purpose of restraining the assessment or collection of
any tax” within the terms of the Anti-Injunction Act.
Id. at 737-38. But that was not the end of the matter.
The Court went on to describe a two-factor exception
to the “literal terms of § 7421(a)”: “first, irreparable
injury .. . ; and second, certainty of success on the
merits.” Jd. at 737. This Court’s recognition of a
success-on-the-merits exception means the AIA is not
jurisdictional.‘

b. The No Alternative Remedy At
Law Exception

A second present-day exception to the AIA is well-
established. As late as 1984, in South Carolina v.
Regan, this Court confirmed that the AIA does not
apply when the remedy at law is inadequate. 465 U.S.

* These two cases do refer to the AIA as “jurisdictional.” In
Williams Packing, the Supreme Court wrote, “The object of §
7421(a) is to withdraw jurisdiction from the state and federal
courts to entertain suits seeking injunctions prohibiting the
collection of federal taxes.” 370 U.S. at 5. In Bob Jones
University, the Court wrote that “the Court of Appeals did not err
in holding that § 7421(a) deprived the District Court of
jurisdiction to issue the injunctive relief petitioner sought.” Bob
Jones, 416 U.S. at 749. The substance of the cases, however, and
the equitable exceptions they endorse make plain that the statute
is anything but jurisdictional. Any loose language as to
jurisdiction is entitled to no “precedential effect.” See Arbaugh,
546 U.S. at 511-512.

22

367, 373-74 (1984). In Regan, South Carolina
challenged the constitutionality of “a tax on the
interest earned on state obligations issued in bearer
form.” Jd. at 372. The Court acknowledged that an
identical lawsuit by a bondholder would have been
barred. Id. If the AJA governed jurisdiction, the Court
would have been required to dismiss. See Fed. R. Civ.
P. 12(h)\(3) (“If the court determines at any time that
it lacks subject-matter jurisdiction, the court must
dismiss the action.”). Instead, this Court looked to the
purposes of the AIA.

Using claims-processing language, the Regan Court
noted that the AIA “was merely intended to require
taxpayers to litigate their claims in a designated
proceeding.” Regan, 465 U.S. at 374. Since South
Carolina was “unable to utilize any statutory
procedure” to challenge the bond tax, it had no
alternate remedy at law, and the AIA did not prevent
the issuance of an injunction. /d. at 378. Under
Regan, the AIA is a claims-processing rule with
equitable exceptions; it directs litigants, but does not
speak to the power of the courts.

This Court’s continued adherence to two equitable
exceptions cannot be reconciled with a jurisdictional
AIA. These judicial carve-outs cannot be gleaned
from the text of the AIA and courts have “no authority
to create equitable exceptions to jurisdictional require-
ments.” Bowles, 551 U.S. at 214; Kontrick, 540 U.S. at
452 (“Only Congress may determine a lower federal
court’s subject-matter jurisdiction”). Because the
Court’s power to hear a case is granted by Congress,
Congress alone may determine “the manner in which
the case shall be brought,” and courts “ha[ve] no power
to dispense with any of these provisions, nor to change

23

or modify them.” United States v. Curry, 47 U.S. 106,
113 (1848).

3. This Court’s Repeated Waiver Of The
AIA Confirms That The AIA Is Not
Jurisdictional
The AIA cannot be jurisdictional because, in
addition to subjecting the statute to equitable
exceptions, the Court has permitted waiver in at least
three cases. Because federal courts “must raise and
decide jurisdictional questions” on their own,
Henderson, 131 S. Ct. at 1202, waiver of a
jurisdictional limitation is “impossible.” Bowles, 551
U.S. at 216. Yet the Government repeatedly has
argued that it might waive the AIA defense, and this
Court repeatedly has proceeded to the merits.

In 1937, the Government explained its view that the
AIA “may be waived by an appropriate officer of the
United States.” Br. for Pet’rs Helvering & Welch at
31, Helvering v. Davis, 301 U.S. 619 (1937) (No. 36-
910). In Helvering, the First Circuit held that payroll
taxes violated the Tenth Amendment. 301 U.S. at 638.
Before this Court, the Government argued, not that
the First Circuit’s decision was premature, but that
the Court “should render a decision on the merits”
because “waiver [of the AIA] is certainly within the
power of the appropriate officers of the Government/[.]”
Brief for Petioners Helvering & Welch at 28, 31,
Helvering, 301 U.S. 619 (1937) (No. 910). This Court
did just that.

Helvering is not an anomaly. This Court has
accepted the Government’s waiver of the AIA in other
pre-enforcement challenges to federal taxes. In
Sunshine Anthracite, the plaintiff brought suit
“praying for a temporary injunction suspending and

24

restraining the assessing and collecting or attempting
to assess and collect” two taxes imposed by the
Bituminous Coal Act of 1937. Statement as to
Jurisdiction at 11, Sunshine Anthracite, 310 U.S. 381
(1940) (No. 804). Even though the prayer for relief fell
within the terms of the AIA, the Government
“expressly waived” its defense under the AIA, and the
Court decided the case on the merits. See Brief for the
Appellee at 9, Sunshine Anthracite, 310 U.S. 381
(1940) (No. 804). Even earlier, in Pollock, the
Government “explicitly waived” any question as to the
AIA during oral argument. 157 U.S. at 554. Once
again, the Court rendered a decision on the merits.

Waiver is not an attribute of a jurisdictional statute.
This series of cases demonstrates that this Court has
long considered the AIA to be non-jurisdictional. See
Bowles, 551 U.S. at 216 (“[I)f a limit is taken to be
jurisdictional, waiver becomes impossible[.]”).

At the end of the day, this Court’s precedents from
Standard Nut to Williams Packing to Helvering
foreclose any argument that the AIA is jurisdictional.
Under all of these cases, the federal courts retain
discretion to exercise jurisdiction in circumstances not
contemplated by the plain text. Because the AJA is not
“absolute,” Standard Nut, 284 U.S. at 509-10, it is not
jurisdictional.

25
CONCLUSION

The conscience rights asserted by the plaintiffs in
these consolidated cases raise important questions
about fundamental liberty interests. Because this
Court’s cases teach that the AIA is not jurisdictional,
it need consider the AIA no further, and may reach the
weighty constitutional issues implicated by the
contraception mandate.

Respectfully submitted,

ERIN MORROW HAWLEY
Counsel of Record
UNTVERSITY OF MISSOURI
212 Hulston Hall
Columbia, MO 65211
(573) 823-1256
hawleye@missouri.edu

Counsel for Amicus Curiae

January 28, 2004

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0929%3A54. Public record. Not legal advice.