The Volokh Conspiracy
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I have published three posts on Barr v. AAPC. The first considered judicial departmentalism. The second focused on content-based restrictions. The third analyzed stare decisis. This post turns to severability. Justice Kavanaugh's plurality opinion provides a helpful count of the votes:
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. See (SOTOMAYOR, J., concurring in judgment); (BREYER, J., concurring in judgment with respect to severability and dissenting in part).
What about the other two members? Justices Thomas and Gorsuch would not have "invalidated" anything. They have accepted the model of judicial departmentalism, and eschew any notion that courts can "invalidate" a statute. Rather, they would have issued an injunction to prevent the enforcement of the unconstitutional law against the plaintiffs.
This post will explain how the Court's conservatives reached such different results.
"Ordinary Severability Principles"
Justice Kavanaugh wrote the plurality opinion in Barr v. AADC. It was joined by Chief Justice Roberts and Justice Alito. The plurality purported to apply "ordinary severability principles." Those "ordinary severability principles" left the Court with two options: "(i) to invalidate the entire 1991 robocall restriction, as plaintiffs want, or (ii) to invalidate just the 2015 government-debt exception and sever it from the remainder of the statute, as the Government wants."
I appreciate that Justice Kavanaugh purported to redefine the phrase "invalidate." This framing, however, follows the traditional meaning of "invalidate": render the statute unenforceable in all regards. Justice Kavanaugh concluded that the Court "must invalidate the 2015 government-debt exception and sever that exception from the remainder of the statute." To do so, he followed "general severability principles."
But the Court's current "general severability principles" differ from the Court's outmoded severability principles. In the bad old days "courts paid less attention to statutory text as the definitive expression of Congress's will." Judges would try to focus on Congress's "actual intent." Now, things are much better: "courts today zero in on the precise statutory text and, as a result, courts hew closely to the text of severability or nonseverability clauses." Here, Justice Kavanaugh cited Chief Justice Roberts's recent decision in Seila Law.
But what if there is no "text" to "hew closely to"? Should courts "search for other indicia of congressional intent"? The plurality doesn't say no. Instead, the plurality says "this formulation often leads to an analytical dead end." Why? "[C]ourts are not well equipped to imaginatively reconstruct a prior Congress's hypothetical intent."
The plurality explains that the "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." (The plurality tries to ground its analysis in Marbury v. Madison–more on that argument in Part V.) And, in a sentence made to be quoted, Justice Kavanaugh wrote, "The Court's precedents reflect a decisive preference for surgical severance rather than wholesale destruction, even in the absence of a severability clause." And another quotable quote: "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."
Justice Gorsuch's concurrence
Justice Gorsuch, joined by Justice Thomas, rejected the plurality's approach to severability. What would be his preferred remedy? A traditional injunction with respect to the named parties:
With a First Amendment violation proven, the question turns to remedy. 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. Washington State Grange v. Washington State Republican Party (2008).
Gorsuch is exactly right. This is the only remedy necessary in this case. It mirrors the remedy he favored a week earlier in Seila Law. Justice Thomas and Gorsuch concluded:
Given my concerns about our modern severability doctrine and the fact that severability makes no difference to the dispute before us, I would resolve this case by simply denying the CFPB's petition to enforce the civil investigative demand.
The Court should only halt the illegal action in this particular case. There is no need, or license, to "invalidate" anything.
Justice Gorusch criticizes the plurality's approach:
JUSTICE KAVANAUGH's opinion pursues a different course. Invoking "severability doctrine," it declares the government-debt exception void and severs it from the statute. As revised by today's decision, the law prohibits nearly all robocalls to cell phones, just as it did back in 1991….
Gorsuch describes the majority's approach for what it is: judicial legislation:
I am doubtful of our authority to rewrite the law in this way. Many have questioned the propriety of modern severability doctrine, [FN1] and today's case illustrates some of the reasons why.
FN1: See, e.g., Seila Law LLC v. Consumer Financial Protection Bureau (THOMAS, J., concurring in part and dissenting in part); Harrison, Severability, Remedies, and Constitutional Adjudication, (2014); see also Movsesian, Severability in Statutes and Contracts (1995) (collecting academic criticism of severability doctrine).
Gorsuch explains that "severability doctrine" is not an equitable remedy at all:
To start, 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.
Moreover, severance does not actually address the Plaintiffs' injury:
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?
Indeed, this bold remedy raises separation of powers questions:
It is highly unusual for judges to render unlawful conduct that Congress has explicitly made lawful—let alone to take such an extraordinary step without warning to those who have ordered their lives and livelihoods in reliance on the law, and without affording those individuals any opportunity to be heard. This assertion of power strikes me as raising serious separation of powers questions, and it marks no small departure from our usual reliance on the adversarial process.
He concludes that it is time to "reconsider" severability doctrine:
In the end, I agree that 47 U. S. C. §227(b)(1)(A)(iii) violates the First Amendment, though not for the reasons JUSTICE KAVANAUGH offers. Nor am I able to support the remedy the Court endorses today. Respectfully, if this is what modern "severability doctrine" has become, it seems to me all the more reason to reconsider our course.
The Plurality Responds to Justice Gorsuch
Justice Kavanaugh's plurality opinion responded to Justice Gorsuch's concurrence:
JUSTICE GORSUCH's well-stated separate opinion makes a number of important points that warrant this respectful response.
Justice Kavanaugh critiques the narrow approach of Justice Gorsuch's remedy. He dubs it "injunctive relief, plus stare decisis." But that is all courts can do. Issue a judgment in a particular case, and set a precedent for future cases. Justice Kavanaugh's focus on "invalidation" merges these steps. But under judicial departmentalism, the steps are distinct.
The conservatives on the Roberts Court are fractured on severability. Justice Thomas, and now Justice Gorsuch, reject the notion of modern "severability doctrine." Rather, they would tailor remedies in individual case to affect specific plaintiffs. Justice Kavanaugh seems to recognize the merit of the Gorsuch/Thomas position, but wants to stand by the Court's severability precedent. Chief Justice Roberts reaffirmed this traditional doctrine in Seila Law. And we know from NFIB v. Sebelius that Justice Alito was content to kill the entire Affordable Care Act.
So far, this schism has not had any practical consequences. In Seila Law, Justice Kagan and company shrewdly joined the Chief's severability analysis, so there was a clear majority to sever the for-cause tenure protection. And in AAPC, Justice Breyer and company shrewdly joined Justice Kavanaugh's severability analysis, so there was a clear majority to leave the underlying statute in place. But soon enough, there will come a case where the Court's progressives cannot be counted on to provide a strategic join. Indeed, we may see a case where a conservative majority of the Court finds a statute is unconstitutional, but the progressives will join with Thomas and Gorsuch to yield an outcome where the statute largely survives. The game theory here can complicate already-complicated vote counting.