Justice Sutherland Endures: Sutherland's Legacy and the Affordable Care Act

• Jurisdiction: United States,Federal
• Citation: Vol. 26 No. 1 Pg. 38
• Pages: 38
• Publication year: 2013

Utah Bar Journal Volume 26.

Vol. 26, No. 1. 38. Justice Sutherland Endures: Sutherland's Legacy and the Affordable Care Act

Utah Bar Journal
Volume 26 No. 1
Jan/Feb 2013

Justice Sutherland Endures: Sutherland's Legacy and the Affordable Care Act

by Lindsay K. Nash, Bradley D. Masters, and Nathanael J Mitchell

Introduction

The United States Supreme Court recently upheld the Affordable Care Act in National Federation of Independent Business v. Sebelius, 132 S.Ct. 2566 (2012). The decision is the most important case decided this term. As such, we take particular pride in the influence Utah's most famous jurist, United States Supreme Court Justice George Sutherland, had on the decision. Justice Sutherland served in the Court from 1922 until 1938; however, his jurisprudence lays foundation for many sections of the decision. At such a juncture in constitutional history, it seems appropriate to honor Justice Sutherland, whose reputation of "even-handed" jurisprudence remains alive and well today.

In this article, we discuss how Justice Sutherland's work is used in sections of Chief Justice Roberts's opinion of the court, Justice Ginsburg's concurrence, and the joint dissent.

The Opinion of the Court

Chief Justice Roberts wrote the opinion of the court, which readily reflects the legacy of Justice Sutherland. Roberts upholds the constitutionality of the Patient Protection and Affordable Care Act's most critical component, the individual mandate, which requires all individuals to obtain health insurance coverage. NFIB, 132 S.Ct. at 2577. The Chief Justice's legal analysis surprised and confused some observers. Few expected him to find that the individual mandate was a valid exercise of the taxing power, while at the same time unconstitutional under the Commerce Clause. Erwin Chemerinsky, A Surprise?, SCOTUSblog (June 29, 2012, 9:27 AM), http://www.scotusblog.com/2012/06/a-surprise/. Despite observers' responses to the decision, however, perhaps Justice Sutherland would not have been so surprised. For the Court's opinion, at least in its reference to Congress's taxing and spending powers, embraces Justice Sutherland's jurisprudence.

After determining that the individual mandate was an improper exercise of congressional authority under the Commerce Clause, Chief Justice Roberts faced the task of determining whether it was possible to construe the mandate as a lawfully enacted tax. Roberts turned to two cases to resolve this question: United States v. La Franca, 282 U.S. 568 (1931), and United States v. Reorganized CF and I Fabricators of Utah, Inc., 518 U.S. 213 (1996). See NFIB, 132 S.Ct. at 2596.

First, the La Franca decision, authored by Sutherland, supplies Roberts with adequate authority to declare the mandate a tax, despite the fact that Congress labeled it a "penalty." In La Franca, the government sued a liquor merchant in federal court for failure to pay certain exactions, which were required of anyone selling alcohol. La Franca, 282 U.S. at 570. Upon failing to pay these taxes, the merchant incurred additional exactions. Id. Here, the Court questioned whether these additional fines should be considered penalties or taxes. Id. at 572.

Justice Sutherland resolved the dispute: "A 'tax' is an enforced contribution to provide for the support of government; a 'penalty,' as the word is here used, is an exaction imposed by statute as punishment for an unlawful act . . . No mere exercise of lexicography can alter the essential nature of an act or a thing." Id. Sutherland reasoned that the Court must look beyond any categorization or label that Congress attaches to an exaction. Instead, the Court must independently ask whether the government imposed the exaction because the party engaged in an unlawful act. Id. Justice Sutherland's distinction in La Franca has resolved tax-penalty questions in past decisions and continues to do so today. For example, years after La Franca, Justice Souter relied heavily upon Justice Sutherland's tax-penalty distinction. Reorganized CF and I, 518 U.S. at 224 (addressing a question nearly identical to the one raised in La Franca).

Similarly, Chief Justice Roberts relies on both La Franca and Reorganized to utilize Justice Sutherland's distinction between taxes and penalties. In...