Supreme Court

Supreme Court Reaffirms Traditional Severability Principles in Barr v. AAPC

In a decision considering federal limitations on robocalls, the Supreme Court reaffirmed its longstanding approach to severability.


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.

NEXT: Hats off to the French! (I don’t say that often.)

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  1. Well, why can’t I tell the hospital to stop sending random robocalls to me?

    1. Go ahead. They didn’t say you can’t.

  2. Once again when Thomas is alone I am with him.

  3. IANAL — I’d like to ask a question about Marbury v Madison which I have never found an answer to. As I understand it, the decision rules that yes, Marbury had been wronged, and yes, Marbury had a right to a remedy per common law, but alas, the Congressional law which granted the Supreme Court original jurisdiction in the matter was unconstitutional, the Supreme Court had only appellate jurisdiction, and Marbury was out of luck.

    Assuming all that is correct, could Marbury have sued again, at a lower court which did have original jurisdiction? If so, did he try? If not, doesn’t that put the lie to the common law provision that anyone who is wronged has a right to a remedy?

    1. You do remember who neglected to get the appointment to Marbury in time…

      1. Yes. What does that have to do with what happened afterwards?

        My question is simple. No need to bring mystery into it.

  4. While I don’t completely agree with Gorsuch and Thomas, I am inclined to agree that federal courts can only provide remedies that plaintiffs have standing to obtain.

    Since invalidating the government debt provision did not redress any injury to the plaintiff, it represented an advisory opinion, an opinion not rooted in a case or controversy.

    The court should have waited for someone upset about being robocalled about government debt to decide whether or not to invalidate the government debt provision. This was simply not that case.

    The Supreme Court here made a decision in the absence of a case or controversy. Standing doctrine should have come before severability doctrine.

    The court should have held that the part of the law that the plaintiffs claimed injured them was constitutional, amd left it to a plaintiff with standing to decide on parts of the law that did not injre them.

    1. I think the issue is that the statute they were claiming was unconstitutional has already been held to be constitutional (rightly or wrongly). And there even seemed to be some confusion during the oral argument about whether they claim was that the TCPA itself was unconstitutional or whether the subsequent enactment of the exemption is what “created” the unconstitutionality by treating different speakers differently. That seems to be where much of this severability issue really falls. All but Thomas and Gorsuch seem to feel the TCPA itself is constitutional. The plurality and Sotomayor said that only the exemption was unconstitutional. Reading the Gorsuch opinion he thinks the TCPA itself is unconstitutional. For him that makes it easy since you don’t really have to get into severability (though it is proper to state the opinion since a majority disagreed). The plurality was in a tough spot. The injury the plaintiff’s were claiming really wasn’t unconstitutional in their view on its own. It was only because of the exemption which came later. So it had to wrestle with the idea that normal severability principles (in their view at least) counselled that the exemption is severed but that doesn’t provide any actual relief except for not nominally being subjected now to an unconstitutional speech restriction. Or they give the remedy that was sough which requires displacing normal severability rules.

      The way this law worked meant a good vehicle was impossible. Plaintiffs that wanted to speak wouldn’t get the relief they sought. Plaintiff’s claiming a 1st A violation in having to receive the exempted robocalls likely don’t have standing since their 1st A rights aren’t being violated.

  5. Professor Adler,

    Can you explain why this is an issue of severability instead of explicit/implied repeal. It seems to me severability should only apply intra-act. Inter-act issues are should be under the rubric of repeal. A subsequent law that amends a previously enacted law has a substantive effect (the actual language) and a procedural effect (repealing language in the previous statute that is incompatible). If a finding of unconstitutionality of the subsequent law then the courts decline to enforce it would almost always mean they’d have to decline to enforce the procedural aspect as well. And then the question is whether there is anything else that would repeal the previous statute. If not it is still good law.

    That seems to me to be on better footing. Intra-act is severability. Inter-act is about implied repeal. Has any court addressed this?

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