                               PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 10-2347


LIBERTY UNIVERSITY, INCORPORATED, a Virginia Nonprofit
Corporation; MICHELE G. WADDELL; JOANNE V. MERRILL,

                Plaintiffs - Appellants,

          and

MARTHA A. NEAL; DAVID STEIN, M.D.; PAUSANIAS ALEXANDER; MARY
T. BENDORF; DELEGATE KATHY BYRON; JEFF HELGESON,

                Plaintiffs,

          v.

JACOB LEW, Secretary of the Treasury of the United States,
in his official capacity; KATHLEEN SEBELIUS, Secretary of
the United States Department of Health and Human Services,
in her official capacity; SETH HARRIS, Acting Secretary of
the United States Department of Labor, in his official
capacity; ERIC H. HOLDER, JR., Attorney General of the
United States, in his official capacity,

                Defendants - Appellees.

--------------------------------------

MOUNTAIN STATES LEGAL FOUNDATION; REVERE AMERICA FOUNDATION;
AMERICAN CIVIL RIGHTS UNION; FAMILY RESEARCH COUNCIL; BREAST
CANCER PREVENTION INSTITUTE; LIFE LEGAL DEFENSE FOUNDATION;
LANDMARK LEGAL FOUNDATION; PROJECT LIBERTY; DAVID BOYLE;
MEMBERS OF LEGATUS; CATHOLIC MEDICAL ASSOCIATION; FOUNDATION
FOR MORAL LAW; VIRGINIA FAMILY FOUNDATION; WEST VIRGINIA
FAMILY POLICY COUNCIL; MARYLAND FAMILY ALLIANCE; NORTH
CAROLINA FAMILY POLICY COUNCIL; PALMETTO FAMILY COUNCIL;
AMERICANS UNITED FOR LIFE; ALLIANCE DEFENDING FREEDOM,

                 Amici Supporting Appellants,
AMERICAN CIVIL LIBERTIES UNION; AMERICAN CIVIL LIBERTIES
UNION    OF     VIRGINIA,     INCORPORATED;    AMERICAN    NURSES
ASSOCIATION; AMERICAN ACADEMY OF PEDIATRICS, INCORPORATED;
AMERICAN MEDICAL STUDENT ASSOCIATION; CENTER FOR AMERICAN
PROGRESS, d/b/a Doctors for America; NATIONAL HISPANIC
MEDICAL ASSOCIATION; NATIONAL PHYSICIANS ALLIANCE; HARRY
REID, Senate Majority Leader; NANCY PELOSI, House Democratic
Leader; DICK DURBIN, Senator, Assistant Majority Leader;
CHARLES SCHUMER, Senator, Conference Vice Chair; PATTY
MURRAY, Conference Secretary; MAX BAUCUS, Senator, Committee
on Finance Chair; TOM HARKIN, Senator, Committee on Health,
Education, Labor and Pensions Chair; PATRICK LEAHY, Senator,
Committee on the Judiciary Chair; BARBARA MIKULSKI, Senator,
HELP Subcommittee on Retirement and Aging Chair; JOHN D.
ROCKEFELLER, IV, Senator, Committee on Commerce Chair; STENY
HOYER, Representative, House Democratic Whip; JAMES E.
CLYBURN, Representative, Democratic Assistant Leader; JOHN B
LARSON, Representative, Chair of Democratic Caucus; XAVIER
BECERRA, Representative, Vice Chair of Democratic Caucus;
JOHN D DINGELL, Representative, Sponsor of House Health Care
Reform Legislation; HENRY A. WAXMAN, Representative, Ranking
Member, Committee on Energy and Commerce; FRANK PALLONE,
JR., Representative, Ranking Member, Commerce Subcommittee
on Health; SANDER M LEVIN, Representative, Ranking Member,
Committee    on    Ways   and    Means;   FORTNEY   PETE   STARK,
Representative, Ranking Member, Ways and Means Subcommittee
on Health; ROBERT E. ANDREWS, Representative, Ranking
Member, Education and Workforce Subcommittee on Health;
JERROLD NADLER, Representative, Ranking Member, Subcommittee
on Constitution; GEORGE MILLER, Representative, Ranking
Member, Education and the Workforce Committee; JOHN CONYERS,
JR., Representative, Ranking Member, Committee on the
Judiciary; JACK M BALKIN, Knight Professor of Constitutional
Law and the First Amendment, Yale Law School; GILLIAN E
METZGER, Professor of Law, Columbia Law School; TREVOR W
MORRISON, Professor of Law, Columbia Law School; AMERICAN
ASSOCIATION OF PEOPLE WITH DISABILITIES; THE ARC OF THE
UNITED STATES; BREAST CANCER ACTION; FAMILIES USA; FRIENDS
OF CANCER RESEARCH; MARCH OF DIMES FOUNDATION; MENTAL HEALTH
AMERICA;    NATIONAL    BREAST     CANCER   COALITION;   NATIONAL
ORGANIZATION FOR RARE DISORDERS; NATIONAL PARTNERSHIP FOR
WOMEN AND FAMILIES; NATIONAL SENIOR CITIZENS LAW CENTER;
NATIONAL WOMEN’S HEALTH NETWORK; THE OVARIAN CANCER NATIONAL
ALLIANCE; AMERICAN HOSPITAL ASSOCIATION; ASSOCIATION OF
AMERICAN MEDICAL COLLEGES; FEDERATION OF AMERICAN HOSPITALS;
NATIONAL ASSOCIATION OF PUBLIC HOSPITALS AND HEALTH SYSTEMS;
CATHOLIC HEALTH ASSOCIATION OF THE UNITED STATES; NATIONAL

                                  2
ASSOCIATION OF CHILDREN’S HOSPITALS; CHRISTINE O GREGOIRE,
Governor; DR. DAVID CUTLER, Deputy, Otto Eckstein Professor
of Applied Economics, Harvard University; DR. HENRY AARON,
Senior Fellow, Economic Studies Bruce and Virginia MacLaury
Chair, The Brookings Institution; DR. GEORGE AKERLOF,
Koshland Professor of Economics, University of California-
Berkeley, 2001 Nobel Laureate; DR. STUART ALTMAN, Sol C.
Chaikin Professor of National Health Policy, Brandeis
University; DR. KENNETH ARROW, Joan Kenney Professor of
Economics and Professor of Operations Research, Stanford
University, 1972 Nobel Laureate; DR. SUSAN ATHEY, Professor
of Economics, Harvard University, 2007 Recipient of the John
Bates Clark Medal for the most influential American
economist under age 40; DR. LINDA J. BLUMBERG, Senior
Fellow, The Urban Institute, Health Policy Center; DR.
LEONARD E. BURMAN, Daniel Patrick Moynihan Professor of
Public Affairs at the Maxwell School, Syracuse University;
DR. AMITABH CHANDRA, Professor of Public Policy Kennedy
School of Government, Harvard University; DR. MICHAEL
CHERNEW, Professor, Department of Health Care Policy,
Harvard Medical School; DR. PHILIP COOK, ITT/Sanford
Professor of Public Policy, Professor of Economics, Duke
University; DR. CLAUDIA GOLDIN, Henry Lee Professor of
Economics, Harvard University; DR. TAL GROSS, Department of
Health Policy and Management, Mailman School of Public
Health, Columbia University; DR. JONATHAN GRUBER, Professor
of Economics, MIT; DR. JACK HADLEY, Associate Dean for
Finance and Planning, Professor and Senior Health Services
Researcher, College of Health and Human Services, George
Mason University; DR. VIVIAN HO, Baker Institute Chair in
Health   Economics   and   Professor  of   Economics,   Rice
University; DR. JOHN F. HOLAHAN, Ph. D., Director, Health
Policy Research Center, The Urban Institute; DR. JILL
HORWITZ, Professor of Law and Co-Director of the Program in
Law & Economics, University of Michigan School of Law; DR.
LAWRENCE KATZ, Elisabeth Allen Professor of Economics,
Harvard University; DR. FRANK LEVY, Rose Professor of Urban
Economics, Department of Urban Studies and Planning, MIT;
DR. PETER LINDERT, Distinguished Research Professor of
Economics,    University of California, Davis; DR. ERIC
MASKIN, Albert O. Hirschman, Professor of Social Science at
the Institute for Advanced Study, Princeton University, 2007
Nobel Laureate; DR. ALAN C. MONHEIT, Professor of Health
Economics, School of Public Health, University of Medicine &
Dentistry of New Jersey; DR. MARILYN MOON, Vice President
and Director Health Program, American Institutes for
Research; DR. RICHARD J. MURNANE, Thompson Professor of

                               3
Education and Society, Harvard University; DR. LEN M.
NICHOLS, George Mason University; DR. HAROLD POLLACK, Helen
Ross Professor of Social Service Administration, University
of Chicago; DR. MATTHEW RABIN, Edward G. and Nancy S. Jordan
Professor of Economics, University of California-Berkeley,
2001 Recipient of the John Bates Clark Medal for the most
influential American economist under age 40; DR. JAMES B.
REBITZER, Professor of Economics, Management, and Public
Policy, Boston University School of Management; DR. MICHAEL
REICH, Professor of Economics, University of California at
Berkeley; DR. THOMAS RICE, Professor, UCLA School of Public
Health; DR. MEREDITH ROSENTHAL, Department of Health Policy
and Management, Harvard University, Harvard School of Public
Health; DR. CHRISTOPHER RUHM, Professor of Public Policy and
Economics, Department of Economics, University of Virginia;
DR. JONATHAN SKINNER, Professor of Economics,            Dartmouth
College, and Professor of Community and Family Medicine,
Dartmouth Medical School; DR. KATHERINE SWARTZ, Professor,
Department of Health Policy and Management, Harvard School
of Public Health; DR. KENNETH WARNER, Dean of the School of
Public Health and Avedis Donabedian Distinguished University
Professor of Public Health, University of Michigan; DR. PAUL
N. VAN DE WATER, Senior Fellow, Center on Budget and Policy
Priorities; DR. STEPHEN ZUCKERMAN, Senior Fellow, The Urban
Institute; NATIONAL WOMEN’S LAW CENTER; AMERICAN ASSOCIATION
OF UNIVERSITY WOMEN; AMERICAN FEDERATION OF STATE, COUNTY
AND   MUNICIPAL     EMPLOYEES;     AMERICAN     MEDICAL     WOMEN’S
ASSOCIATION; ASIAN & PACIFIC ISLANDER AMERICAN HEALTH FORUM;
BLACK WOMEN'S HEALTH IMPERATIVE; CHILDBIRTH CONNECTION; IBIS
REPRODUCTIVE HEALTH; INSTITUTE OF SCIENCE AND HUMAN VALUES;
MARYLAND WOMEN’S COALITION FOR HEALTH CARE REFORM; MENTAL
HEALTH AMERICA; NATIONAL ASIAN PACIFIC AMERICAN WOMEN’S
FORUM; NATIONAL ASSOCIATION OF SOCIAL WORKERS; NATIONAL
COALITION FOR LGBT HEALTH; NATIONAL COUNCIL OF JEWISH WOMEN;
NATIONAL   COUNCIL    OF    WOMEN’S    ORGANIZATIONS;      NATIONAL
EDUCATION   ASSOCIATION;     NATIONAL    LATINA    INSTITUTE    FOR
REPRODUCTIVE HEALTH; OLDER WOMEN’S LEAGUE; PHYSICIANS FOR
REPRODUCTIVE CHOICE AND HEALTH; RAISING WOMEN’S VOICES;
SARGENT SHRIVER NATIONAL CENTER ON POVERTY LAW; SOUTHWEST
WOMEN’S LAW CENTER; WIDER OPPORTUNITIES FOR WOMEN; WOMEN’S
LAW CENTER OF MARYLAND, INCORPORATED; WOMEN’S LAW PROJECT;
PHYSICIANS FOR REPRODUCTIVE HEALTH; AMERICAN COLLEGE OF
OBSTETRICIANS   AND   GYNECOLOGISTS;     AMERICAN    SOCIETY    FOR
EMERGENCY CONTRACEPTION; ASSOCIATION OF REPRODUCTIVE HEALTH
PROFESSIONALS; AMERICAN SOCIETY FOR REPRODUCTIVE MEDICINE;
SOCIETY FOR ADOLESCENT HEALTH AND MEDICINE; AMERICAN MEDICAL
WOMEN’S   ASSOCIATION;     NATIONAL     ASSOCIATION     OF    NURSE

                                   4
PRACTITIONERS IN WOMEN’S HEALTH; SOCIETY OF FAMILY PLANNING;
JAMES TRUSSELL; SUSAN F. WOOD; DON DOWNING; KATHLEEN
BESINQUE; AMERICANS UNITED FOR SEPARATION OF CHURCH AND
STATE; THE ANTI-DEFAMATION LEAGUE; THE INTERFAITH ALLIANCE
FOUNDATION; THE NATIONAL COALITION OF AMERICAN NUNS; THE
NATIONAL COUNCIL OF JEWISH WOMEN; THE RELIGIOUS COALITION
FOR REPRODUCTIVE CHOICE; THE RELIGIOUS INSTITUTE; THE
UNITARIAN    UNIVERSALIST    ASSOCIATION;   THE    UNITARIAN
UNIVERSALIST WOMEN’S FEDERATION,

                Amici Supporting Appellees.


     On Remand from the Supreme Court of the United States.
                       (S. Ct. No. 11-438)


Argued:   May 16, 2013                    Decided:   July 11, 2013


Before MOTZ, DAVIS, and WYNN, Circuit Judges.


Affirmed by published opinion.       Judge Motz, Judge Davis, and
Judge Wynn wrote the opinion.


ARGUED: Mathew D. Staver, LIBERTY COUNSEL, Maitland, Florida,
for Appellants.   Alisa Beth Klein, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellees.    ON BRIEF: Anita L.
Staver, LIBERTY COUNSEL, Maitland, Florida; Stephen M. Crampton,
Mary E. McAlister, LIBERTY COUNSEL, Lynchburg, Virginia, for
Appellants. Timothy J. Heaphy, United States Attorney, Roanoke,
Virginia; Neal Kumar Katyal, Acting Solicitor General, Tony
West, Assistant Attorney General, Beth S. Brinkmann, Deputy
Assistant Attorney General, Mark B. Stern, Samantha L. Chaifetz,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellees.   Joel M. Spector, MOUNTAIN STATES LEGAL FOUNDATION,
Lakewood, Colorado, for Amicus Mountain States Legal Foundation.
Brian S. Koukoutchos, Mandeville, Louisiana; Charles J. Cooper,
David H. Thompson, COOPER & KIRK, PLLC, Washington, D.C., for
Amicus Revere America Foundation. Peter Ferrara, AMERICAN CIVIL
RIGHTS UNION, Falls Church, Virginia; Daniel M. Gray, LAW
OFFICES OF DANIEL M. GREY, LLC, Falls Church, Virginia; Richard
B. Rogers, RICHARD B. ROGERS,PLC, Alexandria, Virginia, for
Amicus American Civil Rights Union.       Kenneth A. Klukowski,
FAMILY RESEARCH COUNCIL, Washington, D.C., for Amicus Family

                                 5
Research Council.     Scott J. Ward, Timothy R. Obitts, GAMMON &
GRANGE, P.C., McLean, Virginia; Catherine W. Short, LIFE LEGAL
DEFENSE FOUNDATION, Ojai, California, for Amici Breast Cancer
Prevention Institute and Life Legal Defense Foundation. Richard
P. Hutchison, LANDMARK LEGAL FOUNDATION, Kansas City, Missouri;
Mark R. Levin, Michael J. O'Neill, Matthew C. Forys, LANDMARK
LEGAL FOUNDATION, Leesburg, Virginia, for Amicus Landmark Legal
Foundation. Stephen B. Presser, Raoul Berger Professor of Legal
History,   NORTHWESTERN     UNIVERSITY   SCHOOL    OF   LAW,   Chicago,
Illinois; Kathleen Cassidy Goodman, LAW OFFICE OF KATHLEEN
CASSIDY GOODMAN, Helotes, Texas; Steven W. Fitschen, THE
NATIONAL LEGAL FOUNDATION, Virginia Beach, Virginia; Allen E.
Parker, R. Clayton Trotter, THE JUSTICE FOUNDATION, San Antonio,
Texas, for Amicus Project Liberty.         David Boyle, Long Beach,
California, for Amicus David Boyle.        Nikolas T. Nikas, Dorinda
C. Bordlee, BIOETHICS DEFENSE FUND, Scottsdale, Arizona, for
Amici 281 Members of Legatus and Catholic Medical Association.
John A. Eidsmoe, FOUNDATION FOR MORAL LAW, Montgomery, Alabama,
for Amicus Foundation for Moral Law.        M. Casey Mattox, Michael
J.   Norton,   Steven    H.   Aden,   ALLIANCE    DEFENDING    FREEDOM,
Washington, D.C.; Anna R. Franzonello, Mailee Smith, AMERICANS
UNITED FOR LIFE, Washington, D.C., for Amici The Virginia Family
Foundation, West Virginia Family Policy Council, Maryland Family
Alliance, North Carolina Family Policy Council, Palmetto Family
Council, Americans United for Life and Alliance Defending
Freedom.    Rebecca Glenberg, AMERICAN CIVIL LIBERTIES UNION OF
VIRGINIA, Richmond, Virginia; Daniel Mach, AMERICAN CIVIL
LIBERTIES UNION FOUNDATION, Washington D.C.; Andrew D. Beck,
Brigitte Amiri, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New
York, New York, for Amici The American Civil Liberties Union,
The American Civil Liberties Union of Virginia, Americans United
for Separation of Church and State, The Anti-Defamation League,
The Interfaith Alliance Foundation, The National Coalition of
American Nuns, The National Council of Jewish Women, The
Religious Coalition for Reproductive Choice, The Religious
Institute, The Unitarian Universalist Association, and The
Unitarian Universalist Women’s Federation.             Ian Millhiser,
CENTER FOR AMERICAN PROGRESS, Washington, D.C., for Amici
American Nurses Association, American Academy of Pediatrics,
American Medical Student Association, Center for American
Progress D/B/A Doctors for America, National Hispanic Medical
Association, and National Physicians Alliance. Professor Walter
Dellinger, Washington, D.C.; Professor H. Jefferson Powell,
GEORGE WASHINGTON UNIVERSITY LAW SCHOOL, Washington, D.C., for
Amici Senate Majority Leader Harry Reid, House Democratic Leader
Nancy   Pelosi,   and   Congressional     Leaders    and   Leaders   of
Committees of Relevant Jurisdiction. Gillian E. Metzger, Trevor

                                  6
W. Morrison, New York, New York; Andrew J. Pincus, Charles A.
Rothfeld, Paul W. Hughes, Michael B. Kimberly, MAYER BROWN LLP,
Washington, D.C., for Amici Constitutional Law Professors.
Rochelle Bobroff, Simon Lazarus, NATIONAL SENIOR CITIZENS LAW
CENTER, Washington, D.C., for Amici The American Association of
People with Disabilities, The Arc of the United States, Breast
Cancer Action, Families USA, Friends of Cancer Research, March
of Dimes Foundation, Mental Health America, National Breast
Cancer Coalition, National Organization for Rare Disorders,
National Partnership for Women And Families, National Senior
Citizens Law Center, National Women’s Health Network, and The
Ovarian Cancer National Alliance.      Sheree R. Kanner, Catherine
E. Stetson, Dominic F. Perella, Michael D. Kass, Sara A. Kraner,
HOGAN LOVELLS US LLP, Washington, D.C.; Melinda Reid Hatton,
Maureen D. Mudron, AMERICAN HOSPITAL ASSOCIATION, Washington,
D.C.; Ivy Baer, Karen Fisher, ASSOCIATION OF AMERICAN MEDICAL
COLLEGES, Washington, D.C.; Jeffrey G. Micklos, FEDERATION OF
AMERICAN HOSPITALS, Washington, D.C.; Larry S. Gage, President,
NATIONAL ASSOCIATION OF PUBLIC HOSPITALS AND HEALTH SYSTEMS,
Washington,    D.C.;   Lisa   Gilden,    Vice   President,   General
Counsel/Compliance Officer, THE CATHOLIC HEALTH ASSOCIATION OF
THE UNITED STATES, Washington, D.C.; Lawrence A. McAndrews,
President and Chief Executive Officer, NATIONAL ASSOCIATION OF
CHILDREN’S HOSPITALS, Washington, D.C., for Amici American
Hospital Association, Association of American Medical Colleges,
Catholic Health Association of the United States, Federation of
American    Hospitals,    National    Association    of   Children’s
Hospitals, and National Association of Public Hospitals and
Health Systems.    Kristin Houser, Adam Berger, Rebecca J. Roe,
William   Rutzick,   SCHROETER,    GOLDMARK   &   BENDER,   Seattle,
Washington, for Amicus The Governor of Washington.        Richard L.
Rosen, ARNOLD & PORTER LLP, Washington, D.C., for Amici Economic
Scholars.    Marcia D. Greenberger, Emily J. Martin, Judith G.
Waxman, Lisa Codispoti, NATIONAL WOMEN’S LAW CENTER, Washington,
D.C.; Melissa Hart, UNIVERSITY OF COLORADO LAW SCHOOL, Boulder,
Colorado, for Amici The National Women’s Law Center, American
Association of University Women, American Federation of State,
County   and   Municipal   Employees,   American   Medical   Women’s
Association, Asian & Pacific Islander American Health Forum,
Black Women’s Health Imperative, Childbirth Connection, Ibis
Reproductive Health, Institute of Science and Human Values,
Maryland Women’s Coalition for Health Care Reform, Mental Health
America, National Asian Pacific American Women’s Forum, National
Association of Social Workers, National Coalition for LGBT
Health, National Council of Jewish Women, National Council of
Women’s Organizations, National Education Association, National
Latina Institute for Reproductive Health, Older Women’s League,

                                 7
Physicians for Reproductive Choice and Health, Raising Women’s
Voices, Sargent Shriver National Center on Poverty Law,
Southwest Women’s Law Center, Wider Opportunities for Women,
Women’s Law Center of Maryland, Incorporated, and Women’s Law
Project.   B. Robert Piller, Jennifer Blasdell, PHYSICIANS FOR
REPRODUCTIVE HEALTH, New York, New York; Bruce H. Schneider,
Michele L. Pahmer, STROOCK & STROOCK & LAVAN LLP, New York, New
York, for Amici Physicians for Reproductive Health, American
College of Obstetricians and Gynecologists, American Society for
Emergency Contraception, Association of Reproductive Health
Professionals, American Society for Reproductive Medicine,
Society for Adolescent Health and Medicine, American Medical
Women’s Association, National Association of Nurse Practitioners
in Women’s Health, Society of Family Planning, James Trussell,
Susan F. Wood, Don Downing, and Kathleen Besinque.




                               8
MOTZ, DAVIS, and WYNN, Circuit Judges:

     Liberty University and certain individuals (collectively,

“Plaintiffs”) brought this action challenging two provisions of

the Patient Protection and Affordable Care Act:                         the “individual

mandate,” which requires individuals to purchase a minimum level

of health insurance coverage, and the “employer mandate,” which

requires    certain       employers      to       offer      such    coverage      to    their

employees and their dependents.                     The district court dismissed

the lawsuit, upholding the constitutionality of both mandates.

On appeal we held that the Anti-Injunction Act barred us from

considering   Plaintiffs’         claims          and   remanded      the     case      to   the

district    court       with     instructions           to    dismiss        for     lack    of

jurisdiction.      See Liberty Univ., Inc. v. Geithner, 671 F.3d 391

(4th Cir. 2011).        The Supreme Court granted Plaintiffs’ petition

for certiorari, vacated our judgment, and remanded for further

consideration      in   light     of    National          Federation     of    Independent

Business v. Sebelius, 132 S. Ct. 2566 (2012) (“NFIB”).                                       See

Liberty Univ. v. Geithner, 133 S. Ct. 679 (2012).                            After careful

consideration      of     that   case,     we       affirm     the    judgment        of     the

district court.



                                           I.

     On    March    23,    2010,       President        Obama       signed    the     Patient

Protection and Affordable Care Act (“Affordable Care Act” or

                                              9
“the Act”) into law.              See Pub. L. No. 111-148, 124 Stat. 119

(2010).        Liberty and two unaffiliated individuals challenge the

individual mandate, which will become effective in 2014, and the

employer mandate, which will become effective in 2015.                            Before

resolving the legal questions, we summarize the requirements of

the mandates and the relevant facts and procedural history of

this case.

                                            A.

                                            1.

     With limited exceptions, the individual mandate imposes a

“penalty” on any taxpayer who is an “applicable individual” and

fails     to    obtain    “minimum      essential         coverage.”        26    U.S.C.

§ 5000A(a)-(b).          “Minimum essential coverage” includes coverage

under     various       government-sponsored            programs,      an    employer-

sponsored       plan,    or   a   health    plan    offered    in    the    individual

market within a state, as well as certain other coverage.                            Id.

§ 5000A(f).

     Any individual who does not qualify for a listed exemption

is an “applicable individual.”                    Id. § 5000A(d)(1).             The Act

provides       two   religion-based         exemptions.          The     “[r]eligious

conscience exemption” applies to an individual who is “a member

of   a    recognized      religious        sect    or     division     thereof,”     id.

§ 5000A(d)(2)(A),         and     “an   adherent     of    established      tenets    or

teachings of such sect or division by reason of which he is

                                            10
conscientiously opposed to acceptance of the benefits of any

[life, disability, old-age, retirement, or medical] insurance,”

id. § 1402(g)(1).       The sect must have been in existence at all

times   since    December     31,   1950,        and     must    “make       provision    for

[its]   dependent     members.”          Id.        The    “[h]ealth          care    sharing

ministry”    exemption        applies       to      a     member       of     a     501(c)(3)

organization     that   “has      been   in      existence        at    all    times    since

December 31, 1999,” the “members of which share a common set of

ethical or religious beliefs[,] . . . share medical expenses

among members in accordance with those beliefs,” and “retain

membership even after they develop a medical condition.”                                  Id.

§ 5000A(d)(2)(B).

     The    penalty     for       failing      to       obtain     minimum          essential

coverage is tied to the individual’s income but cannot exceed

the cost of “the national average premium for qualified health

plans” meeting a certain level of coverage.                       See id. § 5000A(c).

The Secretary of the Treasury has the authority to “assess[] and

collect[] [the penalty] in the same manner” as a tax.                                    Id.

§§ 5000A(g)(1), 6671(a).

                                          2.

     If     an   “applicable        large        employer”         fails       to     provide

affordable health care coverage to its full-time employees and

their     dependents,       the     employer            mandate        may     require     an

“assessable payment” by the employer.                     Id. § 4980H(a)-(b).             The

                                          11
Act defines an “applicable large employer” as an employer who

employed an average of at least fifty full-time employees during

the preceding year.               Id. § 4980H(c)(2).

      Such      an    employer       must   make      an   assessable   payment       if    at

least     one        of     its    full-time         employees     qualifies       for     “an

applicable premium tax credit or cost-sharing reduction” to help

pay for health care coverage.                   Id. § 4980H(a)-(b).           An employee

is eligible for an “applicable premium tax credit” or “cost-

sharing reduction” if the employer fails to offer the employee

“affordable”          coverage          providing       “minimum     value”        and     the

employee’s income falls between 100% and 400% of the poverty

line.         Id.    §§     4980H(c)(3),        36B(a)-(c);      Affordable        Care    Act

§ 1402(a), (b), (f)(2) (codified at 42 U.S.C. § 18071(a), (b),

(f)(2)). 1

        The    amount       of    the    assessable        payment   that     an   employer

required to make such a payment must pay depends on whether the

employer offers “minimum essential coverage” to its full-time

employees and their dependents.                      26 U.S.C. § 4980H(a)-(b).              If

the   employer            fails    to   offer    such      coverage,    the    assessable


      1
        Coverage is “affordable” if the employee’s required
contribution to the plan does not exceed an indexed percentage
of his household income.  26 U.S.C. § 36B(c)(2)(C)(i).  A plan
fails to provide “minimum value” if the plan’s share of the
employee’s health costs is less than 60% of total costs.   Id.
§ 36B(c)(2)(C)(ii).



                                                12
payment is       calculated         by   multiplying           $2000      by    the         number    of

full-time employees (less thirty), prorated over the number of

months    the    employer        is      liable.              Id.   §     4980H(a),           (c)(1),

(c)(2)(D)(i).          If the employer does offer such coverage, the

assessable payment is calculated by multiplying $3000 by the

number of employees receiving an applicable premium tax credit

or cost-sharing reduction, prorated on a monthly basis.                                              Id.

§ 4980H(b)(1).           The    amount        of    the       payment     under         §    4980H(b)

cannot exceed the amount the employer would owe if liable under

§ 4980H(a).       Id. § 4980H(b)(2).                As with the individual mandate,

the Secretary of the Treasury has the authority to assess and

collect    the    exaction          in   the       same       manner      as       a   tax.          Id.

§§ 4980H(d)(1), 6671(a).

     “Minimum         essential       coverage”       includes           coverage           under     an

“eligible employer-sponsored plan,” other than coverage of only

certain excepted benefits (like limited scope dental or vision

benefits),       which       does     not     qualify.              Id.       §§       4980H(a)(1),

5000A(f)(2)-(3); Public Health Service Act § 2791(c) (codified

at 42 U.S.C. § 300gg-91(c)).                       An “eligible employer-sponsored

plan”     includes       a     “group       health        plan,”         which         is     a     plan

established      or    maintained        by    an    employer           for    the      purpose       of

providing medical care to employees and their dependents.                                             26

U.S.C.    § 5000A(f)(2);            42      U.S.C.        §    300gg-91(a);             29        U.S.C.

§ 1002(1).       Thus, employer-provided health care coverage would

                                               13
seem       to    qualify        as    minimum        essential       coverage         unless     that

coverage applies only to excepted benefits.                                    In effect, then,

§ 4980H(a)            imposes        an    assessable        payment      on     an      applicable

employer who fails to offer coverage to its full-time employees

and their dependents, while § 4980H(b) imposes an assessable

payment on an applicable employer who provides coverage that

does not satisfy the mandate’s affordability criteria.

                                                     B.

       On       March     23,       2010,      the    day     the    President          signed    the

Affordable        Care        Act     into     law,       Plaintiffs      filed       this     action

against         the     Secretary         of    the       Treasury    and      other      officials

(collectively,             “the           Secretary”).               Plaintiffs          sought     a

declaration            that     the       individual        and     employer      mandates        are

invalid and an order enjoining their enforcement.

                                                     1.

       In       their         second        amended         complaint,         the       individual

plaintiffs, Michele G. Waddell and Joanne V. Merrill, assert

that they have “made a personal choice not to purchase health

insurance        coverage        and       [do]   not      want     to”   do    so. 2      Further,

Waddell and Merrill allege that the Act will force them to “pay


       2
       The district court found that three of the individual
plaintiffs, David Stein, Kathy Byron, and Jeff Helgeson, lacked
standing. Liberty Univ., Inc. v. Geithner, 753 F. Supp. 2d 611,
621-22 (W.D. Va. 2010).      Plaintiffs do not challenge that
determination on appeal.


                                                     14
for health insurance coverage that is not necessary or desirable

or face significant penalties.”                They also assert that they are

Christians     “who     have    sincerely      held       religious      beliefs         that

abortions,    except     where     necessary        to    save     the    life      of    the

pregnant    mother,     are    murder    and    morally      repugnant”            and   that

“they should play no part in such abortions, including no part

in   facilitating,      subsidizing,        easing,       funding,       or   supporting

such abortions since to do so is evil and morally repugnant

complicity.”

       Liberty alleges that it employs approximately 3900 full-

time faculty and staff, and that it is self-insured and offers

“health savings accounts, private insurance policies and other

health     care   reimbursement         options      to    qualified          employees.”

Liberty asserts that “depending upon how the federal government

defines     ‘minimum     essential       coverage’        and     the    affordability

index,”     the     University     could       be   found        to   offer        coverage

insufficient      “to    satisfy    the     federal        definition         of    minimum

essential coverage or coverage that is deemed unaffordable . . .

and therefore could be subjected to significant penalties” and

“substantial financial hardship.”               Liberty also alleges that the

employer mandate will “increase the cost of care . . . [and]

will     directly     and      negatively      affect       [the      University]         by

increasing the cost of providing health insurance coverage and



                                          15
thus directly affect the ability of the University to carry on

its mission.”

       Finally,       Liberty       asserts          that     it     “is     a     Christian

educational institution whose employees are Christians who have

sincerely held religious beliefs that abortions, except where

necessary to save the life of the pregnant mother, are murder

and morally repugnant.”                It further explains that its religious

beliefs     bar      it    from    “play[ing]          [any]       part     in    abortions,

including       [any]     part     in    facilitating,          subsidizing,         easing,

funding, or supporting abortions since to do so is evil and

morally repugnant complicity.”

                                               2.

       Before     the     district      court,       Plaintiffs      asserted      that   the

individual and employer mandates exceeded Congress’s Article I

powers and violated the Tenth Amendment, the Establishment and

Free   Exercise      Clauses      of     the    First       Amendment,      the    Religious

Freedom Restoration Act, the Fifth Amendment, the right to free

speech    and     free     association         under    the    First       Amendment,     the

Article     I,       Section       9     prohibition          against        unapportioned

capitation      or    direct      taxes,       and    the    Guarantee      Clause.       The

Secretary moved to dismiss the second amended complaint for lack

of   jurisdiction,         arguing      that    Plaintiffs         lacked    standing     and

that the Anti-Injunction Act barred the suit.                               Alternatively,

the Secretary moved to dismiss all counts for failure to state a

                                               16
claim upon which relief could be granted.                              The district court

concluded       that     it        possessed     jurisdiction           but     granted       the

Secretary’s motion to dismiss for failure to state a claim.                                   See

Liberty Univ., Inc. v. Geithner, 753 F. Supp. 2d 611 (W.D. Va.

2010).         Plaintiffs           appealed      only      as    to     the        Article     I,

Establishment       Clause,         Free   Exercise        Clause,      Religious       Freedom

Restoration Act, and Fifth Amendment claims.

      When we considered the case on appeal, we did not reach the

merits    of    those     claims       because       we    concluded         that    the   Anti-

Injunction Act deprived us of jurisdiction.                            See Liberty Univ.,

671 F.3d 391.          After initially denying certiorari, Liberty Univ.

v.   Geithner,      133       S.    Ct.    60    (2012),     on     reconsideration            the

Supreme     Court      granted       certiorari,          vacated      our    judgment,        and

directed us to give further consideration to the case in light

of NFIB, see Liberty Univ., 133 S. Ct. 679.                            In NFIB, the Court

held that the Anti-Injunction Act did not bar a challenge to the

individual mandate and upheld that mandate as a lawful exercise

of Congress’s taxing power.                     132 S. Ct. at 2584, 2600.                     Five

members of the Court, however, concluded that the individual

mandate exceeds Congress’s power under the Commerce Clause.                                    Id.

at   2593      (Roberts,       C.J.);      id.       at   2644-50      (Scalia,        Kennedy,

Thomas, and Alito, JJ., dissenting) (“joint dissent”).

      On remand, we must decide whether the Anti-Injunction Act

bars this pre-enforcement challenge to the employer mandate, and

                                                17
whether Plaintiffs have standing to challenge the mandates.                         If

neither jurisdictional hurdle prevents our consideration of the

merits of the case, we must determine whether Congress acted

within the scope of its constitutionally delegated powers when

it enacted the employer mandate.                     Finally, if we find that the

mandates are a valid exercise of Congress’s Article I powers, we

must address Plaintiffs’ religion-based arguments. 3                      Our review

is de novo.          E.I. du Pont de Nemours & Co. v. Kolon Indus.,

Inc.,      637   F.3d     435,   440   (4th    Cir.     2011)   (reviewing   de    novo

district court’s grant of motion to dismiss for failure to state

a claim under Fed. R. Civ. P. 12(b)(6)); Estate of Michael ex

rel.       Michael   v.    Lullo,      173    F.3d    503,   506   (4th   Cir.    1999)

(reviewing de novo district court’s decision whether to dismiss

for lack of jurisdiction).



                                             II.

        The Anti-Injunction Act (“AIA”) provides that “no suit for

the purpose of restraining the assessment or collection of any


       3
       The plaintiffs raise on appeal new arguments that the
Affordable Care Act violates the Origination Clause and
impermissibly conflicts with various state laws. Plaintiffs had
the opportunity to raise these arguments in the district court
and in the original briefing in this case but did not do so;
thus the arguments are waived.    See Wash. Metro. Area Transit
Auth. v. Precision Small Engines, 227 F.3d 224, 227-28 (4th Cir.
2000).



                                              18
tax shall be maintained in any court by any person.”                           26 U.S.C.

§ 7421(a).          Where it applies, the AIA thus deprives courts of

jurisdiction         to    entertain      pre-enforcement        suits    seeking       to

enjoin the collection of federal taxes.                   See Enochs v. Williams

Packing & Navigation Co., 370 U.S. 1, 5 (1962). 4

       Liberty’s        challenge    to    the     employer     mandate    is    a    pre-

enforcement suit to enjoin the collection of an exaction that is

codified in the Internal Revenue Code, and which the Secretary

of the Treasury is empowered to collect in the same manner as a

tax.       In NFIB, however, the Supreme Court made clear that the

AIA does not apply to every exaction that functions as a tax or

even       to   every     exaction     that    passes    muster     as    a     tax    for

constitutional purposes.               Rather, the AIA applies only where

Congress intends it to.              See NFIB, 132 S. Ct. at 2583 (noting

that, although “Congress cannot change whether an exaction is a

tax    .    .   .   for    constitutional          purposes,”    the     AIA    and    the

Affordable Care Act “are creatures of Congress’s own creation”

and “[h]ow they relate to each other is up to Congress”).



       4
       We note that Plaintiffs request declaratory as well as
injunctive relief.     The Declaratory Judgment Act authorizes
federal courts to issue declaratory judgments, except “with
respect to Federal taxes.”   28 U.S.C. § 2201(a).    Because the
Declaratory Judgment Act’s tax exception is coextensive with the
AIA, the following analysis also applies to Plaintiffs’ request
for declaratory relief. See Sigmon Coal Co. v. Apfel, 226 F.3d
291, 299 (4th Cir. 2000).


                                              19
      When concluding that Congress did not intend to bar pre-

enforcement challenges to the individual mandate, the Court in

NFIB found it most significant that Congress chose to describe

the shared responsibility payment as a “penalty” rather than a

“tax.”      See id. (noting that “[t]here is no immediate reason to

think that a statute applying to ‘any tax’ would apply to a

‘penalty’”).         Thus, we begin our AIA inquiry with particular

attention to how Congress characterized the exaction set forth

in the employer mandate.

      In    maintaining         that    the    AIA    bars    this     challenge      to    the

employer mandate, the Secretary relies heavily on the fact that

the   Act    twice    refers       to   the    employer       mandate      exaction        as   a

“tax.”      See 26 U.S.C. § 4980H(b)(2), (c)(7).                       In doing so, the

Secretary     virtually          ignores      the    fact    that    the    Act     does    not

consistently characterize the exaction as a tax.                              Rather, the

Act initially identifies the employer mandate exaction as an

“assessable     payment.”              See    id.    §     4980H(a).       The     Act     then

proceeds to characterize the exaction as an “assessable payment”

six more times.           See id. § 4980H(b)(1), (c)(2)(D)(i)(I), (d)(1),

(d)(2),     (d)(3).            Additionally,         the    Act   once     refers    to     the

exaction       as         an      “assessable            penalt[y].”              See       id.

§ 4980H(c)(2)(D).

      Further,       on    one    of    the    two    occasions      in    which     the    Act

refers to the employer mandate exaction as a “tax,” it does so

                                               20
in a tax-specific context, where the use of another word would

create confusion.          Section 4980H(c)(7) provides:                 “For denial of

deduction     for    the   tax    imposed        by    this    section,     see    section

275(a)(6).”      Section 275(a) states that “[n]o deduction shall be

allowed for the following taxes” and then lists various taxes,

including “[t]axes imposed by chapter[] . . . 43.”                          The employer

mandate is codified in chapter 43 of the Code.                            Thus, the Act

presumably refers to the employer mandate exaction as a “tax”

when   cross-referencing          §   275(a)(6)        to     make    clear     that,    for

purposes of determining deductibility, the exaction is a tax

imposed by chapter 43.

       There may be no equally obvious explanation for the other

instance in which the Act characterizes the employer mandate

exaction as a “tax.”              See 26 U.S.C. § 4980H(b)(2) (providing

that    the    “aggregate        amount     of       tax”     assessed    for     offering

coverage      that   is    unaffordable       cannot        exceed    the     amount    the

employer would owe under section 4980H(a) for failing to offer

minimum essential coverage).                But we simply cannot place much

significance on a single unexplained use of that term.                             Because

Congress initially and primarily refers to the exaction as an

“assessable      payment”     and     not        a    “tax,”    the      statutory      text

suggests that Congress did not intend the exaction to be treated

as a tax for purposes of the AIA.



                                            21
       Furthermore, Congress did not otherwise indicate that the

employer mandate exaction qualifies as a tax for AIA purposes,

though of course it could have done so.                                 As the Supreme Court

pointed    out      in     NFIB,     26    U.S.C.       §     6671(a)        provides         that   the

“penalties       and      liabilities”          found        in       subchapter        68B    of    the

Internal Revenue Code are “treated as taxes” for purposes of the

AIA.     See NFIB, 132 S. Ct. at 2583.                        The employer mandate, like

the individual mandate, is not included in subchapter 68B, and

no     other    provision            indicates         that       we        are    to    treat       its

“assessable payment” as a tax.                         See id. (making the same point

with regard to the individual mandate).

         Finally, we note that to adopt the Secretary’s position

would    lead       to    an    anomalous       result.               The    Supreme     Court       has

expressly held that a person subject to the individual mandate

can    bring    a    pre-enforcement            suit        challenging           that   provision.

But, under the Secretary’s theory, an employer subject to the

employer       mandate         could      bring        only       a    post-enforcement              suit

challenging         that       provision.         It        seems      highly       unlikely         that

Congress meant to signal -- with two isolated references to the

term “tax” –- that the mandates should be treated differently

for     purposes         of    the     AIA’s      applicability.                   Tellingly,        the

Government          has       pointed      to     no        rationale             supporting         such

differential treatment.



                                                  22
      For     these    reasons,     we   hold        that    the    employer      mandate

exaction,      like     the   individual         mandate         exaction,    does     not

constitute a tax for purposes of the AIA.                          Therefore, the AIA

does not bar this suit.



                                         III.

      The Secretary argues that another jurisdictional hurdle –-

standing -- prevents our consideration of the merits of this

case.    To establish standing at the motion to dismiss stage, a

plaintiff must plausibly allege that:                    “(1) it has suffered an

injury in fact that is (a) concrete and particularized and (b)

actual or imminent, not conjectural or hypothetical; (2) the

injury   is    fairly    traceable       to    the     challenged      action     of   the

defendant;      and     (3)   it    is    likely,           as   opposed     to    merely

speculative, that the injury will be redressed by a favorable

decision.”      Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.

(TOC), Inc., 528 U.S. 167, 180–81 (2000) (internal quotation

marks omitted); see Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007) (at motion to dismiss stage, plaintiff must allege

sufficient     facts    to    render     claim    plausible).          The     Secretary

contends that all plaintiffs lack standing because they allege

no   actual    or     imminent     injury.        We    address      first    Liberty’s

standing and then that of the individual plaintiffs.



                                          23
                                         A.

      Liberty has more than fifty full-time employees, and the

Secretary    does    not   contest   that     it   is   an    “applicable   large

employer” subject to the employer mandate.                    Nevertheless, the

Secretary argues that Liberty has failed to establish standing

because it is speculative whether Liberty will be subject to an

assessable payment under 26 U.S.C. § 4980H.                   Specifically, the

Secretary    contends      that    the    health     care     coverage    Liberty

acknowledges it already provides to its employees qualifies as

minimum essential coverage that may also satisfy the employer

mandate’s affordability criteria.

      The Secretary’s argument may well be correct -– as far as

it goes. 5   But Liberty need not show that it will be subject to

an   assessable     payment   to   establish       standing    if   it   otherwise

      5
       Liberty alleges that it “could be determined to not offer
coverage sufficient to satisfy the federal definition of minimum
essential coverage or coverage that is deemed unaffordable . . .
and therefore could be subjected to significant penalties.” But
“minimum essential coverage” seems to include coverage under any
employer-sponsored plan, unless that plan covers only excepted
benefits. See 26 U.S.C. §§ 4980H(a), 5000A(f)(2)-(3). Liberty
does not suggest its current plan covers only excepted benefits.
Thus, by definition that plan appears to meet the “minimum
essential coverage” requirement.   Further, while it is possible
that Liberty’s current plan fails to provide affordable
coverage, subjecting Liberty to an assessable payment under
§ 4980H(b), Liberty alleges only that its coverage “could” be
deemed   unaffordable.     The  Supreme   Court  has  held  that
“threatened injury must be certainly impending to constitute
injury in fact” and “[a]llegations of possible future injury are
not sufficient.” Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138,
1147 (2013) (internal quotation marks omitted).


                                         24
alleges    facts   that     establish     standing.        In    this     case,   in

addition to alleging that it “could” be subject to an assessable

payment,   Liberty     alleges     that      the   employer     mandate    and    its

“attendant burdensome regulations will . . . increase the cost

of care” and “directly and negatively affect [it] by increasing

the cost of providing health insurance coverage.”

      “[G]eneral factual allegations of injury resulting from the

defendant’s conduct may suffice, for on a motion to dismiss we

presum[e] that general allegations embrace those specific facts

that are necessary to support the claim.”                Lujan v. Defenders of

Wildlife, 504 U.S. 555, 561 (1992) (internal quotation marks

omitted); see Bennett v. Spear, 520 U.S. 154, 167-68 (1997).

Thus, to establish standing, Liberty need not prove that the

employer mandate will increase its costs of providing health

coverage; it need only plausibly allege that it will.

      Liberty’s allegation to this effect is plausible.                    Even if

the   coverage     Liberty       currently     provides       ultimately      proves

sufficient, it may well incur additional costs because of the

administrative burden of assuring compliance with the employer

mandate,   or    due   to   an   increase     in   the   cost    of   care.       See

generally Ass’n of Private Sector Colls. & Univs. v. Duncan, 681

F.3d 427, 457-58 (D.C. Cir. 2012) (increased compliance costs

constitute injury in fact sufficient to confer standing); N.Y.

Civil Liberties Union v. Grandeau, 528 F.3d 122, 131 (2d Cir.

                                        25
2008)    (administrative        burden     constitutes      injury      in   fact   for

standing purposes); Frank v. United States, 78 F.3d 815, 823-24

(2d Cir. 1996) (same), vacated on other grounds, 521 U.S. 1114

(1997).

       Moreover,       Liberty’s   injury       is   imminent    even    though     the

employer mandate will not go into effect until January 1, 2015,

as Liberty must take measures to ensure compliance in advance of

that date.       See Virginia v. Am. Booksellers Ass’n, 484 U.S. 383,

392-93        (1988)    (holding     booksellers         had     standing       though

challenged law had not yet been enforced because they “w[ould]

have     to    take    significant       and    costly      compliance       measures”

beforehand       “if    their     interpretation       of      the   statute    [wa]s

correct”).       Thus, Liberty has standing to challenge the employer

mandate.

                                           B.

       The individual plaintiffs, after alleging that they do not

have or want to purchase health insurance coverage, assert that

the individual mandate “will create a financial hardship in that

[they] will have to either pay for health insurance coverage

. . . or face significant penalties.”

       The Secretary maintains that the individual plaintiffs lack

standing because they may be exempt from the individual mandate

penalty,      either    because    their    income     is   below    the     mandate’s

threshold level or because they qualify for a proposed hardship

                                           26
exemption.         See 26 U.S.C. § 5000A(e)(2) (exempting individuals

with income below filing threshold); 78 Fed. Reg. 7348, 7354-55

(Feb. 1, 2013) (describing proposed hardship exemptions).                              But,

again,       at    this     early    stage,         plaintiffs    need     only    provide

“general factual allegations of injury.”                          Lujan, 504 U.S. at

561.     And, we must “accept[] all well-pleaded allegations in the

plaintiff’s complaint as true.”                      De’Lonta v. Angelone, 330 F.3d

630, 633 (4th Cir. 2003).

       The    individual       plaintiffs        allege     the    individual      mandate

will obligate them to buy insurance or pay a penalty, and their

alleged lack of insurance provides sufficient support for that

allegation         at   this   stage      of   the     proceedings.         Further,      the

individual plaintiffs’ injury is imminent because they must make

preparations to obtain insurance before the mandate goes into

effect.      See Am. Booksellers Ass’n, 484 U.S. at 392-93.

       Thus,       we   conclude     that      the     individual        plaintiffs    have

standing      to    challenge       the   individual        mandate.        We    therefore

proceed to the merits.



                                               IV.

                                               A.

       Liberty argues that the employer mandate exceeds Congress’s

commerce      power       because   Congress         does   not   have    “the    power   to

order employers to provide government-defined health insurance

                                               27
to their employees.”         Post-Remand Opening Br. 18.                     This is so,

Liberty     contends,    because      the       employer           mandate     “compel[s]

employers    to    engage    in    particular          conduct        or     purchase    an

unwanted    product,”    contrary     to       the    dictates       of    NFIB.    Post-

Remand Reply Br. 16.         In Liberty’s view, “[a]llowing Congress to

mandate that employers provide health insurance . . . goes far

beyond regulations of wages and hours upheld under the Commerce

Clause.”    Post-Remand Opening Br. 19.

     The Secretary counters that the employer mandate is a valid

exercise    of    Congress’s      authority          under    the     Commerce     Clause

because “[h]ealth coverage benefits form part of an employee’s

compensation      package,   and    ‘it    is    well-established             in   Supreme

Court   precedent     that   Congress      has       the     power    to   regulate     the

terms and conditions of employment.’”                  Post-Remand Resp. Br. 25.

(quoting    Liberty     Univ.,     753     F.    Supp.        2d     at    635).        More

specifically, the Secretary argues that

     [i]f employees put their insurance at risk when they
     change jobs, they may be “reluctant to switch jobs in
     the first place (a phenomenon known as ‘job lock’).”
     [Congressional Budget Office, Key Issues in Analyzing
     Major   Health   Insurance  Proposals   8  (Dec.   2008)
     [hereinafter   “CBO,   Key  Issues”]].     As   Congress
     understood, the prospect of losing employee insurance
     benefits may obstruct interstate mobility, which the
     Constitution   generally,   and   the   commerce   power
     specifically, were designed to prevent.

Original Resp. Br. 46–47.          The Secretary further contends that

     Congress found that “employers who do not offer health
     insurance to their workers gain an unfair economic

                                          28
     advantage relative to those employers who do provide
     coverage, and millions of hard-working Americans and
     their families are left without health insurance.”
     H.R. Rep. No. 111-443(II), at 985 (2010). Congress
     noted that this state of affairs results in “a vicious
     cycle   because  these   uninsured  workers  turn   to
     emergency rooms for health care which in turn
     increases costs for employers and families with health
     insurance,” making it more difficult for employers to
     provide coverage. Id. at 985–86.

Id. at 53.        Thus, the Secretary concludes, “[t]he provision of

health    coverage    substantially         affects    commerce    just      as    other

forms    of    compensation     and    terms     of   employment       do,    and   the

businesses run by large employers likewise substantially affect

commerce.”       Post-Remand Resp. Br. 27–28.               We think the Secretary

has the better argument.

                                         B.

     “[T]he determinative test of the exercise of power by the

Congress      under   the   Commerce        Clause     is     simply   whether      the

activity sought to be regulated is commerce which concerns more

States than one and has a real and substantial relation to the

national      interest.”      Heart    of    Atlanta    Motel,    Inc.       v.   United

States,    379    U.S.   241,   255     (1964)    (internal       quotation       marks

omitted).        “The power of Congress in this field is broad and

sweeping . . . .”           Katzenbach v. McClung, 379 U.S. 294, 305

(1964); see also NFIB, 132 S. Ct. at 2585 (Roberts, C.J.) (“[I]t

is now well established that Congress has broad authority under

the [Commerce] Clause.”).             “[T]he power to regulate commerce is


                                         29
the     power     to     enact      all     appropriate         legislation        for    its

protection      or     advancement;        to    adopt     measures      to     promote   its

growth and insure its safety; to foster, protect, control, and

restrain.”        NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1,

36–37 (1937) (internal citations and quotation marks omitted).

      Among Congress’s expansive Commerce Clause powers is the

authority       to     regulate      “those          activities      that     substantially

affect interstate commerce.”                     United States v. Morrison, 529

U.S. 598, 609 (2000).              So broad is this power that Congress may

regulate    activity        without       showing       that    it    has   “any    specific

effect     upon        interstate         commerce,”       so     long      as,    “in    the

aggregate,” the activity “would represent ‘a general practice

. . . subject to federal control.’”                      Citizens Bank v. Alafabco,

Inc., 539 U.S. 52, 56-57 (2003) (ellipsis in original) (quoting

Mandeville Island Farms, Inc. v. Am. Crystal Sugar Co., 334 U.S.

219, 236 (1948)).                Moreover, Congress need not show that the

activity     “taken         in    the     aggregate,        substantially          affect[s]

interstate commerce in fact,” but only that “a ‘rational basis’

exists for so concluding.”                  Gonzales v. Raich, 545 U.S. 1, 22

(2005) (emphasis added) (quoting United States v. Lopez, 514

U.S. 549, 557 (1995)).

      To be sure, Congress’s authority under the Commerce Clause

is not without limits.               In NFIB, five justices of the Supreme

Court    found       that   the     individual         mandate       exceeded     Congress’s

                                                30
commerce power.       132 S. Ct. at 2585–93 (Roberts, C.J.); id. at

2644–50     (joint      dissent).             Although       “[t]here         has        been

considerable debate about whether the statements [in NFIB] about

the Commerce Clause are dicta or binding precedent,” 6 these five

justices agreed that the Commerce Clause does not grant Congress

the authority to “compel” or “mandate” an individual to enter

commerce by purchasing a good or service.                    See NFIB, 132 S. Ct.

at 2587 (Roberts, C.J.) (finding the individual mandate beyond

Congress’s    commerce       power    because    it    “compels        individuals         to

become active in commerce by purchasing a product”) (emphasis in

original);     id.     at     2646–47     (joint       dissent)         (noting          that

“mandating    of   economic     activity”       is    beyond     the    scope       of    the

Commerce Clause).           Rather, these justices concluded that the

Commerce     Clause    permits       Congress    to    regulate        only     existing

activity.

     Chief    Justice       Roberts’s    --    and,    to    a   large    degree,         the

joint    dissenters’     --    analysis       focused       on   the     text    of       the

Commerce Clause, the Court’s cases interpreting that clause, and


     6
       United States v. Henry, 688 F.3d 637, 641 n.5 (9th Cir.
2012) (citing David Post, Commerce Clause “Holding v. Dictum
Mess” Not So Simple, The Volokh Conspiracy (July 3, 2012, 8:17
AM), http://www.volokh.com/2012/07/03/commerce-clause-holding-v-
dictum-mess-not-so-simple/), cert. denied, 133 S. Ct. 996
(2013); see also United States v. Roszkowski, 700 F.3d 50, 58
n.3 (1st Cir. 2012) (declining to “express [an] opinion as to
whether the . . . Commerce Clause discussion was indeed a
holding of the Court”).


                                         31
the practical effect and operation of the individual mandate.

As to the text, Chief Justice Roberts noted that the Commerce

Clause “grants Congress the power to ‘regulate Commerce.’”                     Id.

at 2586 (emphasis in original) (citing U.S. Const. art. I, § 8,

cl. 3).       In the Chief Justice’s view, “[t]he power to regulate

commerce presupposes the existence of commercial activity to be

regulated.”      Id. (emphasis in original).            In the same vein, the

joint dissenters cited definitions of “regulate” common at the

time of the Constitution’s drafting, and concluded that under

these definitions “regulate” “can mean to direct the manner of

something but not to direct that something come into being.”

Id. at 2644.

     As to the Court’s prior cases, the Chief Justice noted that

“all have one thing in common:              They uniformly describe the

power    as    reaching    ‘activity.’”     Id.    at    2587;   see   also    id.

(citing Lopez, 514 U.S. at 560; Perez v. United States, 402 U.S.

146, 154 (1971); Wickard v. Filburn, 317 U.S. 111, 125 (1942);

NLRB,    301    U.S.      at   37).   The   joint       dissenters     similarly

distinguished the Commerce Clause cases on which the government

relied    as    “involv[ing]      commercial      activity,”     id.   at     2648

(emphasis in original), and “not represent[ing] the expansion of

the federal power to direct into a broad new field,” id. at

2646.



                                      32
      Finally,       both    Chief     Justice    Roberts      and     the   joint

dissenters expressed substantial concern about the practical and

operational effects of the individual mandate.                    Chief Justice

Roberts suggested that construing the commerce power to allow

Congress      to   mandate   the     purchase    of   health   insurance     would

“permit Congress to regulate individuals precisely because they

are   doing    nothing,”     and   “would     bring   countless      decisions    an

individual could potentially make within the scope of federal

regulation . . . .”          Id. at 2587 (emphasis in original).                 The

joint dissenters expressed a similar concern, stating that

      [i]f Congress can reach out and command even those
      furthest   removed   from  an  interstate   market  to
      participate in the market, then the Commerce Clause
      becomes a font of unlimited power, or in Hamilton’s
      words, “the hideous monster whose devouring jaws . . .
      spare neither sex nor age, nor high nor low, nor
      sacred nor profane.”

Id. at 2646 (ellipsis in original) (citing The Federalist No.

33, at 202 (Clinton Rossiter ed., 1961)).

                                         C.

      For the reasons set forth within, we find that the employer

mandate is no monster; rather, it is simply another example of

Congress’s         longstanding      authority        to   regulate      employee

compensation offered and paid for by employers in interstate

commerce.      To begin, we note that unlike the individual mandate

(as construed by five justices in NFIB), the employer mandate

does not seek to create commerce in order to regulate it.                         In

                                         33
contrast    to       individuals,      all     employers           are,    by    their    very

nature, engaged in economic activity.                     All employers are in the

market for labor.           And to the extent that the employer mandate

compels employers in interstate commerce to do something, it

does not compel them to “become active in commerce,” NFIB, 132

S. Ct. at 2587 (Roberts, C.J.) (emphasis in original); it merely

“regulate[s]         existing     commercial           activity,”         id.,    i.e.,    the

compensation of employees, see Congressional Budget Office, CBO,

Key   Issues     5    (observing      that     “[e]mployers’          contributions         [to

health    insurance        coverage]     are      simply       a    form    of     [employee]

compensation”).            Liberty     fails      to    recognize         the    distinction

between     individuals         not    otherwise         engaged      in     commerce       and

employers necessarily so engaged.

      Further,       contrary     to    Liberty’s         assertion,         the      employer

mandate    does      not   require     employers         to    “purchase         an   unwanted

product.”      Post-Remand Reply Br. 16.                      Although some employers

may have to increase employee compensation (by offering new or

modified health insurance coverage), employers are free to self-

insure, and many do.            See 78 Fed. Reg. 7314, 7318 (Feb. 1, 2013)

(confirming that a self-insured group health plan is an eligible

employer-sponsored plan satisfying the Act’s “minimum essential

coverage”      requirement);          Paul     Fronstin,           “Self-Insured         Health

Plans: State Variation and Recent Trends by Firm Size,” Notes

(Employee Benefit Research Inst.), Nov. 2012, at 2 (“In 2011,

                                             34
68.5 percent of workers in firms with 50 or more employees were

in self-insured plans . . . .”). 7

       Having found that the provision regulates existing economic

activity (employee compensation), and therefore stands on quite

a   different       footing       from         the    individual          mandate,    we    further

conclude         that    the    employer          mandate       is    a    valid     exercise      of

Congress’s authority under the Commerce Clause.                                      It has long

been settled that Congress may impose conditions on terms of

employment        that    substantially              affect     interstate         commerce,      see

United States v. Darby, 312 U.S. 100 (1941) (upholding minimum

wage and overtime provisions of the Fair Labor Standards Act);

NLRB,      301    U.S.    1    (upholding            National    Labor       Relations      Act    of

1935,      which    prohibited             unfair     labor     practices),        and     regulate

activities         that        have        a    substantial          impact     on     interstate

mobility,         see    Heart        of       Atlanta    Motel,      Inc.,     379      U.S.     241

(prohibiting discrimination by hotel operators); Katzenbach, 379

U.S.       294    (prohibiting         discrimination            by       restaurant       owners).

Here, Congress did both.

       First, the employer mandate regulates a term of employment

(compensation) that substantially affects interstate commerce.


       7
       We express no opinion as to whether the limitation on the
commerce power announced by five justices in NFIB constitutes a
holding of the Court.    Rather, we assume without deciding that
it does, and conclude that the employer mandate is not
restricted by that limitation.


                                                     35
Health insurance provided as part of employees’ compensation “is

the primary source of coverage for the nonelderly,” CBO, Key

Issues 4, and “[h]ealth insurance and health care services are a

significant      part     of     the    national       economy,”         42        U.S.C.

§ 18091(2)(B).

      National health spending is projected to increase from
      [$2.5 trillion], or 17.6 percent of the economy, in
      2009 to [$4.7 trillion] in 2019.        Private health
      insurance spending is projected to be [$854 billion]
      in 2009, and pays for medical supplies, drugs, and
      equipment that are shipped in interstate commerce.

Id.   “[E]mployers who do not offer health insurance to their

workers   gain   an     unfair    economic     advantage     relative         to    those

employers who do provide coverage,” and perpetuate a “vicious

cycle,” H.R. Rep. No. 111-443(II), at 985 (2010):                        “uninsured

workers turn to emergency rooms for health care” they cannot

afford, id.; “health care providers pass on the cost [of the

uncompensated      care]         to    private        insurers,”     42            U.S.C.

§ 18091(2)(F);     and    insurers     “pass     on    the   cost   to    families”

through premium increases, id., making it more expensive -- and

thus, more difficult -- for employers to insure their employees.

“The cost of providing uncompensated care to the uninsured was

[$43 billion] in 2008,” id., and “[t]he economy loses up to

[$207 billion] a year because of the poorer health and shorter

lifespan of the uninsured,” id. § 18091(2)(E).                      Accordingly,




                                        36
health insurance provided as part of employee compensation has a

substantial impact on interstate commerce.

       Second,     the       employer       mandate      regulates       an    activity

(employee     compensation)          that       substantially     affects      workers’

interstate mobility.              The availability and breadth of employer-

sponsored health coverage varies, see, e.g., CBO, Key Issues 44

(observing    that     “large       employers      are    more   likely     than    small

employers to offer health insurance”), and “[t]he availability

of health insurance options can affect people’s incentives to

enter the labor force, work fewer or more hours, retire, change

jobs, or even prefer certain types of firms or jobs,” id. at

162.    “[E]mployees and their dependents typically have to change

plans when changing jobs and could become uninsured if their new

employer does not offer coverage,” id. at 8; “[e]mployment-based

insurance     offers     a    number       of    advantages,”     including        “lower

administrative costs” and “favorable tax treatment” that “may be

difficult    or    impossible        for    workers      to   obtain   by     purchasing

insurance individually,” id. at 164.                      And “[p]eople who have

medical problems (or have family members with medical problems)

can have an incentive to stay in a job that provides health

insurance     benefits        in     order       to   cover      those      preexisting

conditions,       even       if     more    productive        opportunities        exist

elsewhere.”       Id. at 164–65.           Thus, health insurance provided as



                                            37
part of employee compensation substantially affects interstate

mobility, and thereby interstate commerce.

      Our   recognition       of     Congress’s    authority          to        enact     the

employer    mandate    does    not    “open    a   new   and        potentially          vast

domain to congressional authority,” NFIB, 132 S. Ct. at 2587

(Roberts, C.J.), or “enable the Federal Government to regulate

all private conduct,” id. at 2643 (joint dissent).                               Requiring

employers    to     offer     their     employees        a     certain          level     of

compensation       through    health     insurance       coverage          is     akin     to

requiring employers to pay their workers a minimum wage, Darby,

312 U.S. at 115, or “time and a half for overtime,” Overnight

Motor Transp. Co. v. Missel, 316 U.S. 572, 577 (1942).                                  Thus,

our conclusion fits squarely within the existing core of the

Supreme Court’s jurisprudence, including the admonition of five

justices in NFIB that Congress may not, through its commerce

power, seek to create commerce in order to regulate it.

                                         D.

      For   all    these   reasons,     we    conclude       that    Congress       had    a

rational basis for finding that employers’ provision of health

insurance    coverage      substantially       affects       interstate          commerce,

see Raich, 545 U.S. at 22, and Congress’s regulation of this

activity does not run afoul of NFIB’s teachings.                           Accordingly,

we   hold   that    the    employer     mandate    is    a     valid       exercise       of

Congress’s authority under the Commerce Clause.

                                         38
                                             V.

                                             A.

       Plaintiffs      contend     that      “[t]he       Taxing     and     Spending    or

General Welfare Clause does not vest Congress with the authority

to   enact    the    [individual       and    employer]          mandates.”      Original

Opening Br. 40.         But in NFIB, the Supreme Court held that the

individual mandate exaction constituted a tax and that Congress

acted    well    within      the   scope     of    its    constitutionally          granted

authority in imposing it.              132 S. Ct. at 2594-2600.                  Clearly,

then, Plaintiffs’ contention fails with regard to the individual

mandate.        And although NFIB did not present the Supreme Court

with    an   opportunity      to    address        the    constitutionality         of   the

employer mandate, we are convinced that the NFIB taxing power

analysis inevitably leads to the conclusion that the employer

mandate exaction, too, is a constitutional tax.

                                             B.

       The Constitution unambiguously grants Congress the power to

“lay and collect Taxes . . . .”                   U.S. Const. art. I, § 8, cl. 1.

The Supreme Court has defined a tax as a “pecuniary burden laid

upon individuals or property for the purpose of supporting the

government,”        United    States    v.        New    York,    315   U.S.    510,     515

(1942),      and     described      Congress’s           taxing      power     as     “very

extensive,”        License Tax Cases, 72 U.S. 462, 471 (1866).



                                             39
      In    NFIB,     the   Supreme       Court     gleaned      from    precedent       a

“functional        approach”      for    determining       whether      an     exaction,

whatever Congress calls it, constitutes a tax.                          132 S. Ct. at

2595.      Under that approach, the “essential feature” of any tax

is that “it produces at least some revenue for the Government.”

Id. at 2594.          Additional characteristics indicative of a tax

include:      the absence of a scienter requirement, collection by

the     Internal     Revenue      Service    through       the     normal      means   of

taxation, and the absence of negative legal consequences beyond

requiring payment to the IRS.                    Id. at 2595-97.          The Supreme

Court illustrated its functional approach with a hypothetical:

      Suppose Congress enacted a statute providing that
      every taxpayer who owns a house without energy
      efficient windows must pay $50 to the IRS. The amount
      due is adjusted based on factors such as taxable
      income and joint filing status, and is paid along with
      the taxpayer’s income tax return.   Those whose income
      is below the filing threshold need not pay.        The
      required payment is not called a “tax,” a “penalty,”
      or anything else.    No one would doubt that this law
      imposed a tax, and was within Congress’s power to tax.
      . . .    Interpreting such a law to be a tax would
      hardly    “[i]mpos[e]    a   tax    through   judicial
      legislation.”   Rather, it would give practical effect
      to the Legislature’s enactment.

Id. at 2597-98 (citation omitted).

      By     contrast,      the    Supreme       Court     dismissed      as     largely

irrelevant the “regulatory motive or effect of revenue-raising

measures.”     Id.     at 2599.         The Court recognized that some of its

older      cases    suggested      a     dichotomy       between     regulatory        and


                                            40
revenue-raising taxes:        “A few of our cases policed the[] limits

[of    Congress’s   ability    to   use   its   taxing   power   to   influence

conduct] aggressively . . . .”              Id. (citing United States v.

Butler, 297 U.S. 1 (1936); Bailey v. Drexel Furniture Co., 259

U.S. 20 (1922)).         But the Court rejected the revenue-versus-

regulatory    distinction      as   defunct.      Id.     Accordingly,     that

Congress “plainly designed” the Affordable Care Act “to expand

health insurance coverage” did not impact the Court’s taxing

power analysis in NFIB.         Id. at 2596.       The Court did, however,

attempt to distinguish taxes from penalties, explaining that “if

the concept of penalty means anything, it means punishment for

an unlawful act or omission.”          Id. (quotation marks omitted).

                                       C.

       First, we examine the factors the Supreme Court considered

in upholding the individual mandate exaction as a constitutional

tax.     In applying its “functional approach” to that exaction,

the Supreme Court concluded that it “looks like a tax in many

respects.”       Id. at 2594.       First and foremost, it will produce

“at least some revenue for the Government” -- namely “about $4

billion    per    year   by   2017.”      Id.     Further   attributes     that

convinced the Supreme Court that the individual mandate exaction

constitutes a tax include:          its “pa[yment] into the Treasury by

taxpayers when they file their tax returns”; the fact that “its

amount is determined by such familiar factors as taxable income,

                                       41
number    of    dependents,    and    joint      filing     status”;      and     its

inclusion “in the Internal Revenue Code and enforce[ment] by the

IRS, which . . . must assess and collect it in the same manner

as taxes.”       Id. (citations, quotation marks, and alterations

omitted).      The Supreme Court also distinguished the individual

mandate   tax    from   an    exaction     the    Court     invalidated      as    an

impermissible penalty in Bailey v. Drexel Furniture Co.                           The

Court noted that the individual mandate, unlike the provision at

issue in Drexel, contains no scienter requirement and does not

constitute     “prohibitory    financial        punishment.”        Id.    at     2596

(internal quotation marks omitted).

      Underscoring that the exaction was no penalty, the Supreme

Court stated that “[n]either the [Affordable Care] Act nor any

other law attaches negative legal consequences to not buying

health insurance, beyond requiring a payment to the IRS . . . .

[I]f someone chooses to pay rather than obtain health insurance,

they have fully complied with the law.”                 Id. at 2597.      The Court

noted that an exaction may become so punitive that the taxing

power no longer authorizes it.             Id. at 2599-2600.         But because

the   individual    mandate    exaction      easily       passed    taxing      power

muster, the Court refrained from delving deeper into that issue.

Id. at 2600 (“[T]he shared responsibility payment’s practical

characteristics     pass     muster   as    a     tax     under    our    narrowest

interpretations of the taxing power.             Because the tax at hand is

                                      42
within even those strict limits, we need not here decide the

precise point at which an exaction becomes so punitive that the

taxing    power       does    not   authorize    it.”    (internal     citation

omitted)).

      Finally,    the    Supreme    Court   swiftly     dispelled    any   notion

that the individual mandate constituted a direct tax subject to

the constitutional apportionment requirement.               See id. at 2598-

99; see also U.S. Const. art. I, § 9, cl. 4 (“No Capitation, or

other direct, Tax shall be laid, unless in Proportion to the

Census . . . .”).            Having recognized only two types of direct

taxes    --   those    on    individuals    as   individuals   and    those   on

property -- the Supreme Court held that the individual mandate

payment fits into neither category.              NFIB, 132 S. Ct. at 2598-

99.

      At the end of the day, the Supreme Court concluded that

when an exaction “need not be read to do more than impose a

tax[,]” “[t]hat is sufficient to sustain it.”               Id. at 2598.      The

Court held that because the Affordable Care Act’s individual

mandate could be read simply as imposing a tax, Congress had the

power to enact it.            The Supreme Court thus squarely rejected

Plaintiffs’ contention that the individual mandate exaction is

not a constitutional tax.




                                       43
                                                 D.

      Turning now to the employer mandate, it is clear from the

provision’s face that it possesses the “essential feature” of

any     tax:         “it    produces        at        least    some   revenue        for    the

Government.”          NFIB, 132 S. Ct. at 2594; see 26 U.S.C. § 4980H.

Indeed,    the       Congressional         Budget        Office    estimated        that    the

employer mandate exaction will generate $11 billion annually by

2019.     See Liberty Univ., 671 F.3d at 419 (Wynn, J., concurring)

(citing Letter from Douglas W. Elmendorf, Dir., Cong. Budget

Office,        to    Hon.      Nancy      Pelosi,         Speaker,       U.S.       House    of

Representatives,            tbl.      4    (Mar.         20,    2010),       available        at

http://www.cbo.gov/ftpdocs/113xx/doc11379/AmendReconProp.pdf).

      Looking         beyond       the       “essential           feature”      to         other

“functional” characteristics, the exaction the Affordable Care

Act   imposes        on    large   employers           “looks     like   a    tax    in     many

respects.”          Cf. NFIB, 132 S. Ct. at 2594.                  The exaction is paid

into the Treasury, “found in the Internal Revenue Code[,] and

enforced by the IRS,” which “must assess and collect it in the

same manner as” a tax.             Id.; see also 26 U.S.C. §§ 4980H(d)(1),

6671(a).            Further,    the       employer       mandate      lacks     a    scienter

requirement, does not punish unlawful conduct, and leaves large

employers with a choice for complying with the law -- provide

adequate, affordable health coverage to employees or pay a tax.

26 U.S.C. § 4980H(a)-(b).                   And finally, because the exaction

                                                 44
taxes neither individuals as such nor property, it is not a

direct tax subject to the apportionment requirement.                       Cf. NFIB,

132 S. Ct. at 2598-99.

      Relying exclusively on Drexel, Liberty contends that the

employer mandate exaction nevertheless “cross[es] the line” from

a     reasonable      payment      to        a        “potentially       destructive”

unconstitutional      penalty.          Post-Remand          Opening     Br.    24-25.

Fatally for Liberty’s argument, Drexel is easily distinguishable

from the case at hand.

      In Drexel, the Supreme Court invalidated a “so-called tax

on employing child laborers” as an impermissible penalty.                         See

NFIB, 132 S. Ct. at 2595 (citing Drexel, 259 U.S. 20).                            The

Supreme   Court     did    so   ostensibly        because     the    penalty:      (1)

carried a scienter requirement “typical of punitive statutes,

because    Congress        often   wishes        to      punish   only    those   who

intentionally break the law”; (2) imposed an “exceedingly heavy”

financial burden -- 10 percent of an offender’s net income --

even if the offender employed only one child laborer for only

one day of the year; and (3) was enforced at least in part by

the    Department     of     Labor,     an       agency     responsible     not   for

collecting    revenue        but      rather       for     punishing      labor    law

violations.    NFIB, 132 S. Ct. at 2595 (citing Drexel, 259 U.S.

at 36-37).    In stark contrast to the penalty the Court struck

down in Drexel, the employer mandate exaction is devoid of any

                                         45
scienter      requirement       and   does   not   punish      unlawful    behavior.

Further,      the    exaction    is   collected     by   the    Secretary    of   the

Treasury in the same manner as a tax.                26 U.S.C. §§ 4980H(d)(1),

6671(a).

     Moreover, the amount of the employer mandate exaction is

proportionate rather than punitive.                If Liberty offers adequate

health coverage, but that coverage fails to satisfy the employer

mandate’s affordability and minimum value requirements, Liberty

will be taxed $3000 times the number of employees who receive

government assistance, prorated on a monthly basis and subject

to a cap.           Id. § 4980H(b)(1)-(2); see supra at 13.                  And if

Liberty fails to offer adequate health coverage to its full-time

employees, it will be taxed $2000 times thirty less than its

number   of    full-time    employees        --   presumably    all   of   whom   are

being deprived of coverage -- prorated over the number of months

for which Liberty is liable.                  26 U.S.C. § 4980H(a), (c)(1),

(c)(2)(D)(i); see supra at 12-13.

     We therefore reject Liberty’s argument that the employer

mandate imposes a penalty rather than a tax.

                                         E.

     In conclusion, the Supreme Court has already upheld the

individual mandate exaction as a constitutional tax.                       NFIB, 132

S. Ct. at 2594-2600.            Similarly, the employer mandate exaction

“need not be read to do more than impose a tax.”                      Id. at 2598.

                                         46
Accordingly, Congress had the power to enact it, and we must

uphold it.        For these reasons, as well as those provided supra

in   Part   IV,    we   reject   Plaintiffs’      contention   that   Congress

lacked authority under Article I of the Constitution to enact

the employer mandate.



                                       VI.

      Finally, Plaintiffs challenge the Act on various religion-

based grounds.          In their second amended complaint, Plaintiffs

allege that the Act violates their rights under the First and

Fifth   Amendments       and   the   Religious    Freedom   Restoration   Act

(“RFRA”), 42 U.S.C. § 2000bb-1.              For the first time on this

appeal, they also seek to challenge on religious grounds certain

regulations implementing the Act.                We initially consider the

claims alleged in the second amended complaint and then those

raised for the first time on this appeal.

                                       A.

                                       1.

      Plaintiffs maintain that both the employer mandate and the

individual mandate violate their free exercise rights under the

First Amendment and RFRA.            Specifically, they allege that the

mandates unlawfully force them to violate their religious belief




                                       47
that       “they    should    play      .    .    .   no    part   in     facilitating,

subsidizing, easing, funding, or supporting . . . abortions.” 8

       The Free Exercise Clause provides that “Congress shall make

no law . . . prohibiting the free exercise” of religion.                               U.S.

Const. amend. I.           However, the Clause does not compel Congress

to exempt religious practices from a “valid and neutral law of

general      applicability.”          Emp’t       Div.,    Dep’t   of   Human    Res.    v.

Smith,      494     U.S.   872,    879      (1990)     (internal     quotation      marks

omitted).          This is so even if such a law “has the incidental

effect of burdening a particular religious practice.”                           Church of

the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520,

531 (1993).

       A    neutral    law    of     general       applicability        thus    does     not

violate the Free Exercise Clause.                     The Act is just such a law.

It has no object that “infringe[s] upon or restrict[s] practices

because of their religious motivation,” id. at 533 (emphasis

added), and imposes no “burden[] only on conduct motivated by

religious      belief,”      id.   at    543     (emphasis    added).          Relying   on

       8
        Plaintiffs have also attempted to characterize their
complaint as raising other religious liberty claims, for
example, that “[t]hey are Christians who believe in living out
their sincerely held religious beliefs in everyday life,
including in the lifestyle choices they make, of which managing
their health care privately is but one example.”     See, e.g.,
Original Opening Br. 10. But, as the district court recognized,
“[a] fair reading of the complaint does not support this novel
characterization, and the parties have not briefed these
issues.” Liberty Univ., 753 F. Supp. 2d at 641 n.17.


                                             48
Lukumi,       Plaintiffs         contend      that        the     Act       somehow          effects     a

“religious gerrymander[].”                   Original Opening Br. 45; see Lukumi,

508 U.S. at 534-35 (internal quotation marks omitted).                                              But it

does     no   such    thing.           Unlike       the        ordinances         struck         down   in

Lukumi, the        Act     does      not     set    apart        any    particular            religious

group.        See 508 U.S. at 535-38.                      The Act therefore does not

violate the Free Exercise Clause.

         Plaintiffs’       RFRA      claim    fares        no     better.              RFRA      provides

that,     “even      if    the      burden     results          from        a    rule       of   general

applicability,”           the       “Government          may      substantially               burden     a

person’s      exercise         of    religion           only    if     it       demonstrates          that

application of the burden to the person -- (1) is in furtherance

of   a    compelling       governmental            interest;         and        (2)    is     the    least

restrictive       means        of    furthering          that     compelling               governmental

interest.”        42 U.S.C. § 2000bb-1(a)-(b).

         Thus, by its own terms, RFRA directs application of strict

scrutiny       only       if     the    Government              “substantially               burden[s]”

religious       practice.            Id.;     see        also     Goodall             by    Goodall      v.

Stafford Cnty. Sch. Bd., 60 F.3d 168, 171 (4th Cir. 1995) (“[I]f

the [plaintiffs] cannot show that their exercise of religion is

substantially         burdened          by     the        [government’s]                   policy,      the

[government] is not required to come forth with proof of its

interest.”).              A      substantial             burden,        in        turn,          requires

“substantial pressure on an adherent to modify his behavior and

                                                   49
to violate his beliefs.”            Thomas v. Review Bd. of Ind. Emp’t

Sec. Div., 450 U.S. 707, 718 (1981).

     Plaintiffs       present      no     plausible            claim        that   the     Act

substantially     burdens        their       free    exercise          of    religion,      by

forcing them to facilitate or support abortion or otherwise.

The Act specifically provides individuals the option to purchase

a plan that covers no abortion services except those for cases

of rape or incest, or where the life of the mother would be

endangered.     See    42    U.S.C.      §    18054(a)(6)        (requiring         that   at

least one plan on each exchange exclude non-excepted abortions

from coverage).       The Act also does nothing to prevent employers

from providing such a plan.                   Furthermore, the Act allows an

individual to obtain, and an employer to offer, a plan that

covers no abortion services at all, not even excepted services.

See 42 U.S.C. § 18023(b)(1)(A)(i). 9

     Given that the mandates themselves impose no substantial

burden,   the   option      of   paying       a     tax   to    avoid        the   mandates’

requirements certainly imposes no substantial burden.                                On the


     9
       Plaintiffs also argue that a requirement “that individuals
and employers pay at least one dollar per person per month
directly into an account to cover elective abortions” unlawfully
burdens their religious exercise.     Post-Remand Opening Br. 37
(citing 42 U.S.C. § 18023(b)(2)).     But this provision applies
only if individuals choose to enroll in a plan through a health
insurance exchange that elects to cover abortions, for which
federal funding may not be used.     Post-Remand Resp. Br. 34-35
n.13; see 42 U.S.C. § 18023(b)(1)(B)(i), (b)(2)(A)-(B).


                                             50
contrary, this option underscores the “lawful choice” Plaintiffs

have to avoid any coverage they might consider objectionable.

See NFIB, 132 S. Ct. at 2600; see also Goodall, 60 F.3d at 171

(“It is well established that there is no substantial burden

placed on an individual’s free exercise of religion where a law

or policy merely operates so as to make the practice of the

individual’s         religious     beliefs         more    expensive.”      (internal

quotation marks omitted)).

       To    the     extent   Plaintiffs      contend      that   the     tax    payment

itself is a substantial burden, as the district court explained,

the    Act    “contains       strict    safeguards        at   multiple    levels    to

prevent federal funds from being used to pay for [non-excepted]

abortion services.”           Liberty Univ., 753 F. Supp. 2d at 642-43;

see 42 U.S.C. § 18023(b)(2)(A) (prohibiting use of the Act’s

cost-sharing reduction or tax credits for abortion coverage);

id.    § 18023(b)(2)(B)-(C)            (requiring         separate      premiums    for

coverage of abortion services); Exec. Order No. 13,535, 75 Fed.

Reg.        15,599      (Mar.     29,      2010)          (implementing         abortion

restrictions).         We note also that “[t]axpayers generally are not

permitted      to     avoid   payment    of    a    tax    when   their    objections

concern the manner in which government revenues are expended.”

Olsen v. Comm’r, 709 F.2d 278, 282 (4th Cir. 1983) (collecting

cases); see also Doremus v. Bd. of Educ., 342 U.S. 429, 433

(1952) (“[T]he interests of a taxpayer in the moneys of the

                                          51
federal treasury are too indeterminable, remote, uncertain and

indirect to furnish a basis for an appeal to the preventive

powers of the Court over their manner of expenditure.”).

       Accordingly, Plaintiffs’ free exercise claims –- both under

the Constitution and under RFRA -- fail.

                                        2.

       Plaintiffs also allege that the two religious exemptions in

the    Act    violate    the     Establishment   Clause      and   their    Fifth

Amendment      equal    protection     rights.         Of   course,   the     mere

existence      of    religious     exemptions    in     a   statute   poses    no

constitutional problem.          Rather, the Constitution freely permits

exemptions that will allow “religious exercise to exist without

sponsorship and without interference.”                Walz v. Tax Comm’n, 397

U.S.   664,    669     (1970).     Permissible    benevolence      morphs     into

impermissible sponsorship only when the “proposed accommodation

singles out a particular religious sect for special treatment.”

Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S.

687, 706-07 (1994).         Thus, a court applies strict scrutiny only

to statutes that “make[] explicit and deliberate distinctions

between different religious organizations.”                 Larson v. Valente,

456 U.S. 228, 246-47 & n.23 (1982).

       A statute without such distinctions, even one that has a

disparate impact on different denominations, need only satisfy

the less rigorous test set forth in Lemon v. Kurtzman, 403 U.S.

                                        52
602 (1971).         See Hernandez v. Comm’r, 490 U.S. 680, 695 (1989);

Koenick      v.     Felton,     190    F.3d        259,   264-65         (4th      Cir.    1999)

(“[U]ntil      the    Supreme       Court    overrules         Lemon     and     provides       an

alternative analytical framework, this Court must rely on Lemon

in   evaluating       the     constitutionality           of   legislation          under       the

Establishment Clause.” (internal quotation marks omitted)); cf.

Cutter    v.       Wilkinson,       544     U.S.     709,      717     n.6,      720      (2005)

(rejecting an Establishment Clause challenge to a statute making

no   explicit        religious        distinction,        without          reaching       Lemon,

“because it alleviates exceptional government-created burdens on

private      religious       exercise”).            The    Lemon       test      requires       “a

secular   legislative          purpose,”      a     “principal        or    primary       effect

. . .    that      neither     advances       nor    inhibits        religion,”           and   no

“excessive government entanglement with religion.”                               403 U.S. at

612-13 (internal quotation marks omitted).

      The first exemption Plaintiffs challenge is the individual

mandate’s         religious     conscience          exemption.             See     26     U.S.C.

§ 5000A(d)(2)(A).              Plaintiffs          maintain       that      this     exemption

discriminates against their religious practice by applying only

to   sects     that    conscientiously         oppose       all    insurance         benefits,

provide      for    their     own     members,      and     were     established          before

December 31, 1950.            The religious conscience exemption adopts an

exemption of the Social Security Amendments of 1965 under 26

U.S.C.    §        1402(g),     which       courts        have       consistently          found

                                              53
constitutional     under    the   Establishment      Clause     and    the    Fifth

Amendment.       See, e.g., Droz v. Comm’r, 48 F.3d 1120, 1124-25

(9th Cir. 1995); Hatcher v. Comm’r, 688 F.2d 82, 84 (10th Cir.

1979) (per curiam); Jaggard v. Comm’r, 582 F.2d 1189, 1189-90

(8th Cir. 1978) (per curiam); Henson v. Comm’r, 66 T.C. 835,

838-40 (1976); Palmer v. Comm’r, 52 T.C. 310, 314-15 (1969).                     As

the   Supreme    Court   explained     with    respect     to   the    §    1402(g)

exemption, “Congress granted an exemption . . . [to] a narrow

category which was readily identifiable,” i.e., “persons in a

religious community having its own ‘welfare’ system.”                        United

States v. Lee, 455 U.S. 252, 260-61 (1982).

      Moreover, this exemption makes no “explicit and deliberate

distinctions” between sects, Larson, 456 U.S. at 246 n.23, and

so is subject only to the Lemon test, see Droz, 48 F.3d at 1124.

The exemption passes the Lemon test because it has a secular

purpose:     “to ensure that all persons are provided for, either

by the [Act’s insurance] system or by their church.”                       Id.; see

also Corp. of Presiding Bishop of the Church of Jesus Christ of

Latter-Day Saints v. Amos, 483 U.S. 327, 335 (1987) (“[I]t is a

permissible      legislative      purpose      to    alleviate        significant

governmental      interference     with       the   ability      of    religious

organizations      to    define    and      carry    out    their       religious

missions.”).       The   exemption’s     principal    effects     also      neither

advance    nor    inhibit    religion,      but     only   assure      that     all

                                       54
individuals are covered, one way or the other.                              And there is no

excessive entanglement with religion.                            Cf. Zelman v. Simmons-

Harris,     536       U.S.   639,   668      (2002)       (O’Connor,       J.,      concurring)

(noting that the Court has previously “folded the entanglement

inquiry into the primary effect inquiry,” which “ma[kes] sense

because both inquiries rely on the same evidence”); Madison v.

Riter, 355 F.3d 310, 319 (4th Cir. 2003) (same).

      The      second        individual      mandate        exemption          challenged     by

Plaintiffs is the health care sharing ministry exemption.                                    See

26    U.S.C.      §    5000A(d)(2)(B).                 Plaintiffs        maintain     that   it

unconstitutionally            selects        an        arbitrary       formation      date    of

December 31, 1999 as the eligibility cutoff.                               But even if the

exemption’s            cutoff       date          is      arbitrary,           it     is     not

unconstitutional.            For neither the cutoff’s text nor its history

suggests       any       deliberate        attempt          to        distinguish      between

particular religious groups.                  Accordingly, the cutoff need only

satisfy the Lemon test.                See Hernandez, 490 U.S. at 695-96; cf.

Larson, 456 U.S. at 254 (applying strict scrutiny only when the

legislative history demonstrated “the provision was drafted with

the    explicit         intention       of        including           particular      religious

denominations and excluding others”).

      Applying         Lemon,    the    date       serves        at    least    two    “secular

legislative purpose[s].”                403 U.S. at 612.                 First, the cutoff

ensures     that       the   ministries       provide       care        that   possesses     the

                                              55
reliability that comes with historical practice.                                     Second, it

accommodates       religious           health        care      without            opening     the

floodgates       for   any       group    to        establish       a    new      ministry      to

circumvent       the   Act.         The     “primary         effect”         of    the      cutoff

accordingly       “neither       advances       nor     inhibits         religion.”           Id.

Further, given that it applies only secular criteria, the cutoff

does    not     “foster     an    excessive          government         entanglement         with

religion.”      Id. at 613 (internal quotation marks omitted).

       Plaintiffs      additionally         contend         that    both       the    religious

conscience       exemption       and     the        health    care       sharing         ministry

exemption violate their Fifth Amendment equal protection rights.

In     furtherance     of     this       argument       they       maintain          that    both

exemptions are subject to the heightened scrutiny that applies

“if the plaintiff can show the basis for the distinction was

religious . . . in nature.”               Olsen, 709 F.2d at 283; Post-Remand

Opening Br. 56.           Of course, “[i]f the justification for the

distinction is secular, it need only be rational.”                                   Olsen, 709

F.2d at 283; see also City of Cleburne v. Cleburne Living Ctr.,

473 U.S. 432, 441-42 (1985).                Here, the distinction made between

sects that oppose insurance and provide for themselves in their

own welfare system and those that do not, and the distinction

made    between    ministries        formed         before    1999       and      those     formed

after,    are    secular      and    thus      subject       only       to   rational       basis

review.       See Olsen, 709 F.2d at 283.                       Both distinctions are

                                               56
rationally related to the Government’s legitimate interest in

accommodating religious practice while limiting interference in

the   Act’s     overriding     purposes.       Cf.    Corp.    of   the    Presiding

Bishop, 483 U.S. at 335.

      We therefore conclude that Plaintiffs have failed to state

any plausible claim that the Establishment Clause or the Fifth

Amendment provide a basis for relief.

                                         B.

      In     their   recent    post-remand     briefs,       Plaintiffs    argue    at

length     that      certain     regulations      implementing       neither       the

individual nor the employer mandate but another portion of the

Act -- § 1001, codified in part at 42 U.S.C. § 300gg-13 --

violate their religious rights. 10            See, e.g., Post-Remand Opening

Br.   2-5,     43-44.    These    new   regulations      require     group    health

plans to cover all FDA-approved contraceptive methods.                       See 45

C.F.R.     §   147.130(a)(1)(iv)        (2011);      HRSA,    Women’s     Preventive

Services:       Required Health Plan Coverage Guidelines, available

at http://www.hrsa.gov/womensguidelines.

      Plaintiffs’       second     amended     complaint        mentions     neither

§ 1001 of the Affordable Care Act nor 42 U.S.C. § 300gg-13.


      10
        Section 1001 of the Affordable Care Act, inter alia,
amended the Public Health Service Act to require “[a] group
health plan and a health insurance issuer offering group or
individual health insurance” to provide, “with respect to
women,” free “preventative care and screenings.”


                                         57
Further, the complaint does not mention contraception.              To be

sure, the complaint specifies that Plaintiffs have “sincerely

held religious beliefs that abortions . . . are murder and . . .

they should play . . . no part in facilitating, subsidizing,

easing,   funding,   or   supporting    .   .   .   abortions.”   But   the

complaint gives no notice that Plaintiffs challenge methods of

contraception or include within their challenge to “abortion”

all the forms of contraception they now label “abortifacients.” 11

     Moreover, Plaintiffs did not challenge these regulations,

or make any argument related to contraception or abortifacients,

in the district court, in their first appeal before us, or in

their Supreme Court briefs.      The Supreme Court in turn ordered a

limited remand simply “for further consideration in light of

National Federation of Independent Business v. Sebelius,” which

did not discuss this issue.     See Liberty Univ., 133 S. Ct. 679.



     11
        In their new briefs, Plaintiffs seek to challenge as
abortifacients forms of FDA-approved contraception that may act
after fertilization, including emergency contraceptive pills and
intra-uterine devices.   See Post-Remand Opening Br. 3-5.     But
the   Government  does   not   define   such  contraceptives   as
abortifacients or abortion.       Well-established federal law
defines “pregnancy” to “encompass[] the period of time from
implantation until delivery.” 45 C.F.R. 46.202(f) (2001). The
forms of contraception that Plaintiffs now challenge, as they
themselves recognize, do not act after implantation, so they do
not terminate a “pregnancy” as defined in this regulation. See
FDA, Birth Control: Medicines To Help You, available at
http://www.fda.gov/ForConsumers/ByAudience/ForWomen/FreePublicat
ions/ucm313215.htm.


                                   58
       Nevertheless,      for     the     first      time     in    their     post-remand

briefs,     Plaintiffs       seek       to        challenge        these     regulations.

Generally, “a federal appellate court does not consider an issue

not passed upon below.”             Singleton v. Wulff, 428 U.S. 106, 120

(1976); accord Muth v. United States, 1 F.3d 246, 250 (4th Cir.

1993).    This rule applies with equal force when a party attempts

to raise an issue for the first time after remand.                           See Rowland

v. Am. Gen. Fin., Inc., 340 F.3d 187, 191 n.1 (4th Cir. 2003).

       Of course, in our discretion, we can make “[e]xceptions to

this     general    rule”    but     we      do     so    “only      in    very   limited

circumstances.”       Muth, 1 F.3d at 250.                  The Supreme Court has

explained that we are “justified” in making such an exception

when the “proper resolution is beyond any doubt” or “injustice

might otherwise result.”            Singleton, 428 U.S. at 121 (internal

quotation marks omitted).            We have also recognized that certain

other    “limited    circumstances”          may     justify       such    action,   e.g.,

when refusal to do so would constitute plain error or result in

a fundamental miscarriage of justice, Muth, 1 F.3d at 250, or

where there is an intervening change in the case law, Holland v.

Big River Minerals Corp., 181 F.3d 597, 605 (4th Cir. 1999).

       Plaintiffs    do     not    contend         that   any      of     these   “limited

circumstances” apply here.              There is good reason for this; none

does.     We recognize that the Government initially promulgated

the regulations in question while this case was pending (i.e.,

                                             59
approximately                a    month     before      the    issuance         of   our    earlier

opinion).              See Liberty Univ., 671 F.3d 391; 76 Fed. Reg. 46,621

(Aug.      3,       2011).          But     a   new     implementing       regulation         cannot

“become        a       vehicle      for    converting         plaintiffs’       lawsuit      into    a

challenge to the new regulation” when a “challenge to th[at]

regulation would raise substantially different legal issues from

the   .    .       .    arguments         [already]        propounded     in    th[e]      lawsuit.”

Phillips v. McLaughlin, 854 F.2d 673, 676-77 (4th Cir. 1988);

see also Kinney v. Dist. of Columbia, 994 F.2d 6, 10 (D.C. Cir.

1993) (“[T]he term ‘intervening change in the law,’ [does] not

refer[]        to       a    prospective        [regulatory]         change     that     could   not

affect rights already accrued . . . .”).

      Furthermore,                several       compelling       reasons        counsel     against

taking up Plaintiffs’ challenge to the new regulations here.                                        To

do    so    would            require      us    not     only    to    resolve        a   claim   not

considered below, but also to do this in a second appeal three

years after the initiation of this lawsuit.                               To do so would also

require         us          to    interpret       new       regulations,        implementing        a

provision          of       the   Act     never   challenged         in   the    second     amended

complaint. 12               And to do so would require us to consider at this


      12
       Contrary to the Plaintiffs’ assertion, the second amended
complaint’s reference to § 1302 of the Affordable Care Act did
not preserve for our review a challenge to 42 U.S.C. § 300gg-13.
See Post-Remand Reply Br. 17–20 & n.7 (arguing that the
definition   of  “‘minimum   essential   coverage’  requires   a
(Continued)
                                                      60
premature stage an argument that other appellate courts have

before them in cases in which plaintiffs have properly pled the

issue and a district court has addressed it.

      Indeed, several of our sister circuits are considering such

cases,     timely     filed     after     the   regulations        at     issue    were

promulgated.        See, e.g., Hobby Lobby Stores, Inc. v. Sebelius,

No.   12-6294,      2013   WL   3216103    (10th    Cir.    June    27,    2013)    (en

banc); Gilardi v. U.S. Dep’t of HHS, No. 13-5069 (D.C. Cir.

docketed    Mar.     5,    2013);   Conestoga      Wood    Specialties      Corp.   v.

Sec’y of HHS, No. 13-1144, 2013 WL 1277419 (3d Cir. Feb. 8,




circuitous trip through various sections of the Act,” including
§ 1302, which defines “essential health benefits” to “include at
least preventive and wellness services partially defined in 42
U.S.C. § 300gg-13” and “has been part of Plaintiffs’ challenges
from the outset”). Section 1302, codified at 42 U.S.C. § 18022,
gives the Secretary authority to define what must be included in
an “essential health benefits package,” a “wholly different
term” from “minimum essential coverage.” Florida ex rel. Att’y
Gen. v. U.S. Dep’t of HHS, 648 F.3d 1235, 1251 (11th Cir. 2011),
rev’d in part on other grounds, NFIB, 132 S. Ct. 2566.

      The term “essential health benefits package” refers to
      the comprehensive benefits package that must be
      provided by plans in the individual and small group
      markets by 2014.      The Act does not impose the
      essential health benefits package on plans offered by
      large group employers to their employees . . . .
      “Minimum essential coverage” is the type of plan
      needed to satisfy the individual mandate . . . . Many
      . . . plan types will satisfy the mandate even if they
      do not have the “essential health benefits package”
      and regardless of the level of benefits or coverage.

Id. at 1250–51 (internal citations omitted).


                                          61
2013); Grote v. Sebelius, 708 F.3d 850 (7th Cir. 2013); Annex

Med., Inc. v. Sebelius, No. 13-1118 (8th Cir. docketed Jan. 14,

2013); Korte v. Sebelius, No. 12-3841, 2012 WL 6757353 (7th Cir.

Dec. 28, 2012); Autocam Corp. v. Sebelius, No. 12-2673 (6th Cir.

docketed Dec. 26, 2012); Wheaton Coll. v. Sebelius, 703 F.3d 551

(D.C. Cir. 2012); O’Brien v. U.S. Dep’t of HHS, No. 12-3357 (8th

Cir. docketed Oct. 4, 2012).

     Finding no circumstance justifying a premature resolution

of Plaintiffs’ new arguments and compelling reasons for refusing

to do so in this case, we decline to reach Plaintiffs’ challenge

to the new regulations. 13



                               VII.

     In sum, in light of the Supreme Court’s teachings in NFIB,

we hold that we have jurisdiction to decide this case.    On the

merits, we affirm the judgment of the district court dismissing

the complaint in its entirety for failure to state a claim upon

which relief can be granted.

                                                         AFFIRMED



     13
        For similar reasons, we decline to address Plaintiffs’
post-remand arguments that the regulations exempting religious
employers from required contraception coverage and accommodating
eligible non-profit employers unconstitutionally discriminate
against their religious views.   See 45 C.F.R. 147.130; 78 Fed.
Reg. 39,869 (July 2, 2013).


                                62
