The Volokh Conspiracy

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Part I: Barr v. AAPC and Judicial Departmentalism

Justice Kavanaugh recognize the difference between a judgment and precedent, but falls back to judicial universality.


Yesterday, the Supreme Court decided Barr v. American Association of Political Consultants. (If you would like an edited copy of the case from the Barnett/Blackman supplement, please email me at josh-at-joshblackman-dot-com.) The case considered the constitutionality of a 2015 amendment to the Telephone Consumer Protection Act of 1991. Justice Kavanaugh's plurality offers a pithy summary:

As relevant here, the Telephone Consumer Protection Act of 1991, known as the TCPA, generally prohibits robocalls to cell phones and home phones. But a 2015 amendment to the TCPA allows robocalls that are made to collect debts owed to or guaranteed by the Federal Government, including robocalls made to collect many student loan and mortgage debts. This case concerns robocalls to cell phones. Plaintiffs in this case are political and nonprofit organizations that want to make political robocalls to cell phones. Invoking the First Amendment, they argue that the 2015 government-debt exception unconstitutionally favors debt-collection speech over political and other speech. As relief from that unconstitutional law, they urge us to invalidate the entire 1991 robocall restriction, rather than simply invalidating the 2015 government-debt exception.

The Court sharply divided. Here is the breakdown of the votes:

KAVANAUGH, J., announced the judgment of the Court and delivered an opinion, in which ROBERTS, C. J., and ALITO, J., joined, and in which THOMAS, J., joined as to Parts I and II. SOTOMAYOR, J., filed an opinion concurring in the judgment. BREYER, J., filed an opinion concurring in the judgment with respect to severability and dissenting in part, in which GINSBURG and KAGAN, JJ., joined. GORSUCH, J., filed an opinion concurring in the judgment in part and dissenting in part, in which THOMAS, J., joined as to Part II.

This split among the Court's conservatives reveals several important fissures on the Roberts Court. I plan to write at least four posts about the case. Part I will consider Justice Kavanaugh's partial-embrace of "judicial departmentalism." Part II will look at how the Court sharply divided on the First Amendment–so much so that there is no single majority opinion. Part III will contrast how the two newest members of the Court approach stare decisis. Part IV will turn to an area that is very much in flux: severability. And I will tie in the recent amicus brief I wrote for the Cato Institute in the ACA case. There are a lot of overlaps between brief, Justice Kavanaugh's plurality, and Justice Gorsuch's concurrence.

It is all too common for lawyers to say that courts "invalidate" a law. Regrettably, courts all-too-often assert a power they lack. Only legislatures can invalidate a statute. Courts lack, in Jonathan Mitchell's words, a writ of erasure. Justice Thomas stated the issue succinctly in Seila Law: "The Federal Judiciary does not have the power to excise, erase, alter, or otherwise strike down a statute." Justice Thomas no longer uses any of these synonyms. Nor does Justice Gorsuch. Nor do I.

Alas, there are countless Supreme Court precedents that invoke these concepts. What to do with these cases? Justice Kavanaugh's plurality offers a compromise. He attempts to redefine the word "invalidate" in Footnote 8. It begins:

FN8: The term "invalidate" is a common judicial shorthand when the Court holds that a particular provision is unlawful and therefore may not be enforced against a plaintiff.

If only that were true. Courts, drunk on judicial supremacy, routinely think that the term "invalidate" means exactly that: to strike a statute off the books. In any event, I hope other judges follow Justice Kavanaugh's lead. Recently, Judge Elrod (CA5) articulated this premise in Texas v. U.S. She wrote that if Jonathan Mitchell was correct, "then courts are speaking loosely when they state that they are 'invalidating' or 'striking down' a law." She's right.

If courts do not "strike down" laws, then what does "invalidate" mean? Footnote 8 continues:

To be clear, however, when it "invalidates" a law as unconstitutional, the Court of course does not formally repeal the law from the U. S. Code or the Statutes at Large. Instead, in Chief Justice Marshall's words, the Court recognizes that the Constitution is a "superior, paramount law," and that "a legislative act contrary to the constitution is not law" at all. Marbury v. Madison (1803). The Court's authority on this front "amounts to little more than the negative power to disregard an unconstitutional enactment." Mas­sachusetts v. Mellon (1923).

This definition is perfect. Courts have an obligation to follow the higher law. In a conflict between a statute, and the Constitution, the latter prevails. Hamilton explained this judicial "duty" in Federalist No. 78:

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

Next, Justice Kavanaugh turns to the position stated by Justice Thomas, and now Justice Gorsuch. Here, the Court's newest member is trying to find some middle ground to avoid fissures:

JUSTICE THOMAS's thoughtful approach to severability as outlined in Murphy v. National Collegiate Athletic Assn. (2018) and Seila Law LLC v. Consumer Financial Pro­tection Bureau, (joined by JUSTICE GORSUCH in the latter) would simply enjoin enforcement of a law as applied to the particular plaintiffs in a case.

And Kavanaugh explains that the plurality's approach, is similar to Thomas's approach:

Under either the Court's approach or JUSTICE THOMAS's approach, an offending provision formally remains on the stat­ute books (at least unless Congress also formally repeals it).

True enough. Courts cannot strike statutes off the books. Kavanaugh continues:

Under ei­ther approach, the formal remedy afforded to the plaintiff is an injunc­tion, declaration, or damages.

I think this statement is accurate only in the most literal sense. Under Thomas's approach, an injunction and declaration takes its usual form: a judgment that binds specific parties. Under Justice Kavanaugh's alternate approach, an injunction and declaration in a case would immediately bind all parties, everywhere. Debates about "nationwide" or "cosmic" injunctions mistake the real grievance: the geographic scope is far less important than the people who are bound by the order.

Justice Kavanaugh acknowledges this disparity. He writes:

One difference between the two approaches is this: Under the Court's approach, a provision is declared invalid and cannot be lawfully enforced against others.

After an admirable effort to redefine the phrase "invalidate," Kavanaugh falls back on the phrase "declared invalid." Old habits die hard. No, courts cannot declare a law "invalid"–that is unenforceable writ large. Courts can only enjoin enforcement of a law in specific cases for specific parties.

Justice Kavanaugh then distills Justice Thomas's approach into four premises (I added numbers in brackets):

Under JUSTICE THOMAS's approach, [1] the Court's ruling that a provision cannot be en­forced against the plaintiff, [2] plus executive respect in its enforcement pol­icies for controlling decisional law, [3] plus vertical and horizontal stare de­cisis in the courts, [4] will mean that the provision will not and cannot be lawfully enforced against others.

Premise #1 is unobjectionable. Under traditional rules of equity, a judgment is only enforceable against the named Plaintiffs and Defendants. Every 1L learns this rule in CivPro, but promptly forgets it when they study ConLaw. Remember, the Supreme Court is a court like any other. (See my article, The Irrepressibly Myth of Cooper v. Aaron).

Premise #2 reflects the distinction between a judgment and a precedent. Even if a case results in a binding judgment between specific parties, the government may choose to follow that case as a precedent in similar situations. (See my article with Howard Wasserman, The Process of Marriage Equality). Indeed, the entire basis of qualified immunity is that government actors will choose to follow clearly-established precedent; the failure to do so can result in monetary damages. But we should not conflate a voluntary willingness to follow precedent, with a judgment that binds. The government may believe a non-binding precedent is wrong, and choose to ignore it to tee up a test case.

Premise #3 appears to state an obvious rule: courts will follow precedent. First, under the concept of vertical stare decisis, lower courts will follow the decisions of the Supreme Court. I don't think this rule is compelled by Article III–judges take an oath to the Constitution, not the Supreme Court–but that is a debate for another day. And under the concept of horizontal stare decisis, lower courts will follow judgements from sister courts. That latter rule is more contestable. The entire nature of circuit splits refutes the notion that the Ninth Circuit will find itself bound to follow the Ninth Circuit. But I accept the general premise.

So far, Justice Kavanaugh has articulated, with clarity, the doctrine of judicial departmentalism. My colleague Howard states the issue well:

The injunction prohibits enforcement of the law against the plaintiff; the executive voluntarily respects decisional law in future enforcement efforts (but is not required to do so); and stare decisis means any enforcement fails in the courts.

But Premise #4 goes awry. Kavanaugh wrote that because of Premise #1, #2, and #3, "the provision will not and cannot be lawfully enforced against others." Wrong. It likely will not be enforced against others. But enforcing that law "against others" would not be unlawful. Regrettably, Justice Kavanaugh buys into the myth of what I call judicial universality–that is,"the Supreme Court's constitutional interpretations obligate not only the parties in a given case, but also other similarly situated parties in later cases." If he believes the first three premises are true, the fourth cannot follow.

Justice Kavanaugh came close to embracing judicial departmentalism, but stopped short.

Footnote 8 concludes:

The Court and JUSTICE THOMAS take different analytical paths, but in many cases, the different paths lead to the same place.

I disagree. Seila Law and now AAPC illustrate how different the remedies are. I will address severability in the fourth part of this series.

NEXT: Today in Supreme Court History: July 7, 1893

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22 responses to “Part I: Barr v. AAPC and Judicial Departmentalism

  1. Unsurprisingly, Blackman’s gossipy and perosnality-driven drivel has left me less informed than if I had read nothing.

    At least Baude and Alder actually wrote things that contained legal-like substance.

    1. “Unsurprisingly, Blackman’s gossipy and perosnality-driven drivel has left me less informed than if I had read nothing.”

      Don’t blame Blackman. You were less informed than if you had read nothing long before he started posting here.

      1. Hey look- it’s the guy who still thinks his name is clever. Oh, so cute.

        Hey, I saw you are still keeping up your “both sides” argument. I have to admit, it’s pretty impressive. What was the last one, oh yeah …

        “The reason Trump keeps doing terrible things is because those crazy Dems are making him do it!”

        You must have been a hoot at your court-ordered domestic violence anger management courses.

        “Yeah, I know I shouldn’t hit my wife, but maybe she shouldn’t be so mouthy. BOTH SIDES!”

        1. ““The reason Trump keeps doing terrible things is because those crazy Dems are making him do it!””

          Did I say that before or after I hit my wife? God I hope you’re not masturbating when you have these fantasies. Because the one about me arguing with my relatives is really weird. But whatever floats your boat, I guess?

          1. Aw, the clown with the “edgy” username is resorting to, um, edging.

            You’re predictably sad. Like a clown.

  2. “Part I …”
    “I will address severability in the fourth part of this series.”

    Oh no! You really know how to threaten the readers of the VC, don’t you?

    Can we put together a GoFundMe? If we raise $50, do you promise not to go to Part 2?

    We have gone from …. oh my … Blue June to Please, God, Someone Let Blackman out of the House and into the Sunlight July.

    1. I for one can’t wait for the twenty part series for when the Court rules against the plaintiffs 7-2 in the ACA suit, followed by a five part rebuttal to Professor Adler’s one post taking a well-deserved victory lap.

      1. 20?

        If that’s the over/under, I’m taking the over. Way over.

  3. “Courts, drunk on judicial supremacy, routinely think that the term ‘invalidate’ means exactly that: to strike a statute off the books.”


    From a law professor in a law blog, this is garbage.

    Absolute, unmitigated garbage.

  4. In Silveria v. Lockyer, the ninth circuit found that a provision in California’s assault weapons ban exempting retired LEO’s violated the EPC, and purported to sever that provision.

    I’m not sure what would have happened if California tried to prosecute a retired LEO for possessing an assault weapon, but I don’t see how the ninth’s ruling would bind state courts, who would be free to find that the LEO’s were exempt from the ban.

    So it’s not clear how severing an exemption for conduct not at issue in the case before the court can function as a remedy outside the supreme court.

    1. And ISTM it can’t be a remedy even at SCOTUS for a party seeking retrospective relief.

    2. Prosecute him/her/it for possessing one prior to the ruling?
      Wouldn’t that be both ex post facto and due process?

      Robocalls are like rapes — you are subject to prosecution for PAST ones that you have made and I believe that the provision included skip tracing so you had prosperous businesspeople (not parties to the loans) being called about stepcousins and such.

      1. What I am trying to say is that in striking down an exemption to a CRIMINAL statute, SCOTUS retroactively criminalized previously lawful behavior, i.e. calls made last month.

        This would be like the legislature RETROACTIVELY raising the age of consent to 30, so that the previously legal tryst you had with a 29-year-old is now statutory rape.

  5. So let’s say SCOTUS can only heavily imply that enforcement of an “invalidated” law would be illegal, if cops, let’s say, enforced it, the victim would be forced to go to court and get an injunction. We’d like that process to be as automatic as possible — and if impossible, we’d at least like to deter such behavior by cops — so we create the fees shifting aspect of section 1983. If enforcement requires legal process, that would be bound by the rules against frivolous filings. Our system makes the practical effect the same, but if we made this express, the system may get overloaded with strategic enforcement or suits to enforce. What’s the advantage?

  6. Unlike my commenting colleagues, I find this more akin to describing shoe fashions among the angels dancing on heads of pins. Quibbles that only a select few lawyers could find even remotely interesting.

    But IANAL, and may as well dare to venture where the educated fear to tread.

    Seems to me the difference between invalidating and disregarding laws is that if the superior law is someday amended, the disregarded inferior law may slumber, unexpected, forgotten, until some junior lawyer in his ignorance stumbles across it while researching angelic socks or shoelaces, brushes off the dust, and concocts a stunning surprise to make his name a legend and becomes a partner, or at least the basis for a Hollywood script. Could make for some unpleasant scrambling among legislators and judges.

  7. It likely will not be enforced against others. But enforcing that law “against others” would not be unlawful.

    What kind of game are you playing – the executive may legally ignore the implications of judicial findings, it just never has?

    1. Reading between the lines, no one tries to enforce the disregarded law because all appeals would knock it down. What’s the point?

      1. It’s a weird formalist flex without much purpose I can see.

        Unless it’s paving the way for Trump to ignore a SCOTUS decision. But that’s not politically viable.
        Nor is it practically viable, for the reason you lay out.

        So it just looks lame.

        1. I think his weird formalist flex is in part related to his and the DOJ’s insistence that they’re actually not trying to invalidate the entire ACA. They just want the limited relief in a particular case that says the mandate is now unconstitutional and unseverable and therefore the ACA cannot be enforced against the plaintiffs.

          Never mind that the plaintiffs are half the states and that the federal government’s voluntary compliance with a persuasive SCOTUS ruling or the next case would immediately result in the suspension of Medicaid payments, the shutting down of exchanges, the resurrection of pre-existing conditions as bars to insurance, cancelling plans when people get sick, and the imposition of life-time caps.

          All of those seemingly obvious results don’t flow from the plaintiffs position in the litigation or a favorable SCOTUS decision, so you can’t blame them.

      2. Since the federal government is often a party, they are indeed bound by the case. But take, for instance the Alabama abortion case. Only the State of Alabama and its officials are bound by that decision to not enforce that particular law. It has no binding effect on the state of New York if it wished to pass the same law. Of course, doing so would likely be futile because of the SCOTUS precedent, but they can try.

        Such things have often been successful for liberals in the 9th Circuit where District and Circuit judges would uphold statutes that would clearly be struck down if it made its way to SCOTUS, but since so few cases do, many of those rulings remained in place.

    2. Agreed; this is nonsense. Of course enforcing the law against others wouldn’t violate a judgment, but that doesn’t make it lawful.

  8. “See my article, The Irrepressibly Myth of Cooper v. Aaron”

    Josh, you’re blogging too much when you get the name of your own article wrong.