The Volokh Conspiracy
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Today the Supreme Court decided Barr v. American Association of Political Consultants, in which the Court invalidated a provision of the Telephone Consumer Protection Act (TCPA) exempting calls to collect on government debt from a broader prohibition on robocalls. Eugene described the basic holding, particularly with regard to the First Amendment issues below.
In this post I want to highlight what the Court's decision has to say about severability, with a particular focus on the plurality opinion by Justice Kavanaugh and the separate opinion concurring in part and dissenting in part by Justice Gorsuch.
Justice Kavanaugh announced the judgment of the Court, and here is how he described the result in Barr v. AAPC:
Six Members of the Court today conclude that Congress has impermissibly favored debt-collection speech over political and other speech, in violation of the First Amendment. . . . Applying traditional severability principles, seven Members of the Court conclude that the entire 1991 robocall restriction should not be invalidated, but rather that the 2015 government-debt exception must be invalidated and severed from the remainder of the statute. . . . As a result, plaintiffs still may not make political robocalls to cell phones, but their speech is now treated equally with debt-collection speech.
The six justices who agreed that the provision in question is unconstitutional were the Chief Justice, and Justices Thomas, Alito, Sotomayor, Gorsuch, and Kavanaugh. The seven justices who sought to apply "traditional severability principles" were the Chief Justice and Justices Ginsburg, Breyer, Alito, Sotomayor, Kagan, and Kavanaugh.
On the question of severability, Justice Kavanaugh, joined by the Chief Justice and Justice Alito, argue that the Supreme Court's precedents embody a "strong presumption of severability" under which the Court is to presume "that an unconstitutional provision in a law is severable from the remainder of the law or statute. Kavanaugh writes:
it is sometimes said that courts applying severability doctrine should search for other indicia of congressional intent. For example, some of the Court's cases declare that courts should sever the offending provision unless "the statute created in its absence is legislation that Congress would not have enacted." Alaska Airlines, 480 U. S., at 685. But experience shows that this formulation often leads to an analytical dead end. That is because courts are not well equipped to imaginatively reconstruct a prior Congress's hypothetical intent. In other words, absent a severability or nonseverability clause, a court often cannot really know what the two Houses of Congress and the President from the time of original enactment of a law would have wanted if one provision of a law were later declared unconstitutional.
The Court's cases have instead developed a strong presumption of severability. The Court presumes that an unconstitutional provision in a law is severable from the remainder of the law or statute. For example, in Free Enterprise Fund v. Public Company Accounting Oversight Bd., the Court set forth the "normal rule": "Generally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem, severing any problematic portions while leaving the remainder intact." 561 U. S. 477, 508 (2010) (internal quotation marks omitted); . . . .
From Marbury v. Madison to the present, apart from some isolated detours mostly in the late 1800s and early 1900s, the Court's remedial preference after finding a provision of a federal law unconstitutional has been to salvage rather than destroy the rest of the law passed by Congress and signed by the President. The Court's precedents reflect a decisive preference for surgical severance rather than wholesale destruction, even in the absence of a severability clause.
Justice Kavanaugh also includes a passage that seems to have another case on the Supreme Court's docket in mind:
Applying the presumption, the Court invalidates and severs unconstitutional provisions from the remainder of the law rather than razing whole statutes or Acts of Congress. Put in common parlance, the tail (one unconstitutional provision) does not wag the dog (the rest of the codified statute or the Act as passed by Congress). Constitutional litigation is not a game of gotcha against Congress, where litigants can ride a discrete constitutional flaw in a statute to take down the whole, otherwise constitutional statute. If the rule were otherwise, the entire Judiciary Act of 1789 would be invalid as a consequence of Marbury v. Madison.
Justice Kavanaugh also takes time to address the suggestion by Justice Gorsuch that severability doctrine should be reconsidered from the ground up.
JUSTICE GORSUCH suggests more broadly that severability doctrine may need to be reconsidered. But when and how? As the saying goes, John Marshall is not walking
through that door. And this Court, in this and other recent decisions, has clarified and refined severability doctrine by emphasizing firm adherence to the text of severability clauses, and underscoring the strong presumption of severability. The doctrine as so refined is constitutionally wellrooted, see, e.g., Marbury v. Madison, 1 Cranch 137 (Marshall, C. J.), and can be predictably applied. True, there is no magic solution to severability that solves every conundrum, especially in equal-treatment cases, but the Court's current approach as reflected in recent cases such as Free Enterprise Fund and Seila Law is constitutional, stable, predictable, and commonsensical.
Justices Sotomayor, Breyer, Ginsburg and Kagan disagree with Kavanaugh on the First Amendment issues in the case, but all agree with Justice Kavanaugh's conclusion on severability.
Justice Gorsuch writes separately to echo the arguments made by Justice Thomas in recent cases that the Court's severability jurisprudence should be reconsidered. As in Seila Law, these two justices argue that the focus of the Court should be on ensuring that the plaintiff's injuries are redressed. In Seila Law, this meant invalidating the agency order in question. Here, Justice Gorsuch argues, it requires refusing to enforce the robocall prohibition on the plaintiffs, and that this obviates the need for a traditional severability analysis.
Because the challenged robocall ban unconstitutionally infringes on their speech, I would hold that the plaintiffs are entitled to an injunction preventing its enforcement against them. This is the traditional remedy for proven violations of legal rights likely to work irreparable injury in the future. Preventing the law's enforcement against the plaintiffs would fully address their injury. And going this far, but no further, would avoid "short circuit[ing] the democratic process" by interfering with the work of Congress any more than necessary. . . .
it's hard to see how today's use of severability doctrine qualifies as a remedy at all: The plaintiffs have not challenged the government-debt exception, they have not sought to have it severed and stricken, and far from placing "unequal treatment" at the "heart of their suit," they have never complained of unequal treatment as such. . . .The plaintiffs point to the governmentdebt exception only to show that the government lacks a compelling interest in restricting their speech. It isn't even clear the plaintiffs would have standing to challenge the government-debt exception. They came to court asserting a right to speak, not a right to be free from other speakers. Severing and voiding the government-debt exception does nothing to address the injury they claim; after today's ruling, federal law bars the plaintiffs from using robocalls to promote political causes just as stoutly as it did before. What is the point of fighting this long battle, through many years and all the way to the Supreme Court, if the prize for winning is no relief at all?
As in Seila Law, Justices Gorsuch and Thomas believe the Court should focus on ensuring that a successful plaintiff is afforded relief that redresses their injury, rather than own minimizing the effect of the Court's decision, and doing neither more nor less than that requires. They characterize this approach as more restrained than the severability approach embraced by the majority of the Court, and in some cases it is. In the Texas ACA case, for instance, their approach would seem to counsel invalidating the individual mandate, and doing nothing more than that, as invalidating the mandate would fully redress any injuries caused by the mandate. This would be a narrow result that would avoid a potentially complex severability analysis. Of note, this appears to be the approach adopted by Chief Justice John Marshall in Marbury v. Madison: Upon concluding that the relevant provisions of the Judiciary Act of 1789 were unconstitutional, he refused to give them effect, but left the remainder of the law intact.