To the extent the claim is that the State must offer coverage that includes the Essential Health Benefits package defined in § 1302, that is not the case. 26 U.S.C. § 5000A(f)(1)(B), (2)(A). The Lieutenant Governor as an individual cannot be subject to these assessments, and thus lacks standing to challenge them, for the reasons discussed above.

And any payment required varies with income, subject to a cap equal to the cost of qualifying coverage. PPACA § 1501(b) (adding 26 U.S.C. § 5000A(c)(1)-(2), (e)(1)-(2)). Accordingly, even if plaintiffs could revive the “capitation tax” doctrine from its long desuetude, it would not apply here.

The religious conscience exemption covers only individuals who are members of “a recognized religious sect or division thereof described in section 1402(g)(1).” Compare 26 U.S.C. § 5000A(d)(2)(A) and Compl. ¶ 5 (omitting italicized language). Case 3:12-cv-03251-P Document 15

Bob Jones Univ. v. Simon, 416 U.S. 725, 742 n.16 (1974). Without apparent irony, Klemencic notes that his maximum possible liability under 26 U.S.C. § 5000A for 2014 is only $150 (or about $12.50 per month, as that assessment is determined on a monthly basis), and he contends that it would not be worth the effort for him to pursue a tax refund action for such a small sum.

See Pub. L. No. 111- 148, § 1501(b) (adding 26 U.S.C. § 5000A(e)). 13 In light of the scant attention paid by plaintiffs to their RFRA claims, defendants believe it unnecessary to reassert the government’s compelling interests.

The religious conscience exemption covers only individuals who are members of “a recognized religious sect or division thereof described in section 1402(g)(1).” Compare 26 U.S.C. § 5000A(d)(2)(A) and Compl. ¶ 5 (omitting italicized language).

Moreover, as Defendants admit, Def. Mem. 50 n.21, the penalty cannot be enforced through criminal prosecution or a tax lien or levy – the customary enforcement mechanisms when the public fisc is implicated. See 26 U.S.C. § 5000A(g). Because the mandate is purely a regulatory measure enforced by a penalty, the AIA does not apply. 29 Even if the penalty were a “tax,” the AIA would not bar Plaintiff States‟ challenge.

26 U.S.C. § 5000A(a) (“An applicable individual shall for each month beginning after 2013 ensure that the individual, and any dependent of the individual who is an applicable individual, is covered under minimum essential coverage for such month.”); see also National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566, 2580 (2012) (citing 26 U.S.C. § 5000A and observing that its “individual mandate requires most Americans to maintain ‘minimum essential’ health insurance coverage”). Section 1302 of the Affordable Care Act requires that the following “Essential Health Care Requirements” be included in all health insurance plans: (A) Ambulatory patient services.

U.S. Preventive Services Task Force, About the USPSTF, http://www.uspreventiveservicestaskforce.org/about.htm. The Affordable Care Act in turn will soon require all Americans to obtain health insurance, 26 U.S.C. § 5000A, and further requires that all private insurers, Medicare, and Medicaid “shall, at a minimum provide coverage for and shall not impose any cost sharing requirements for,” inter alia, “evidence-based items or services that have in effect a rating of ‘A’ or ‘B’ in the current recommendations of the [U.S.] Preventive Services Task Force.” 42 U.S.C. § 300gg-13. As a result, the vast majority of individuals will be able to receive for free— without even making a co-payment—any screening that is federally recommended as the standard of care. Screening for many conditions—e.g., anemia, high blood pressure, cervical cancer, high cholesterol, colon cancer, diabetes, HIV/AIDS, and skin cancer—are already recommended for at-risk groups and must be provided to 23 them for free. USPSTF A and B Recommendations, U.S. Preventive Services Task Force, http://www.uspreventiveservicestaskforce.org/uspstf/uspsabrecs.htm. Medical monitoring causes of action would seek screening for many o

No reasonable construction of the Constitution, with or without Wickard, before or after Wickard, would render Congress categorically powerless to pass any law at all with respect to that enormous stream of commerce. The framers The minimum coverage provision, section 1501 of the Affordable Care Act, 26 U.S.C.8 § 5000A, which has been challenged in many cases, though not by the Complaint in this case, is likewise a proper exercise of Congress’ power to tax, Liberty Univ. v. Geithner, 2011 WL 3962915, at *16-*21 (4 Cir. Sept. 8, 2011) (Wynn, J., concurring), petition for cert. filed, No.th 11-438 (Oct. 7, 2011), although a number of lower courts have thought otherwise, e.g., Florida ex rel. Attorney General v. Dep't of Health and Human Services, 648 F.3d 1235, 1313-20 (11th Cir. 2011), petitions for cert. filed, Nos. 11-393, 11-398, 11-400 (U.S. Sept. 27 & 28, 2011). -14- Case 5:11-cv-00026-C Document 25 Filed 10/19/11 Page 19 of 22 PageID 898 surely understood as well as we do today that illness and disease do not respect state boundaries and that health care can be a fit subject for the national legislature to address. The first President to sign a law making a federal health care service available “to any citizen of the United States” was not Barack Obama, or Lyndon Johnson, or even Fr