Part IV: Barr v. AAPC and Modern Severability Doctrine

The Court's conservatives are sharply divided on severability.


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.

NEXT: Today in Supreme Court History: July 8, 1941

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  1. From Justice Gorsuch, "It is highly unusual for judges to render unlawful conduct that Congress has explicitly made lawful. . . ."

    If he means it doesn't happen often, then OK - but who cares.

    But if he means it's a departure from the Constitution then what the heck.

    Isn't that exactly what the Supreme Court is supposed to do?

    If Congress passed a law saying the FBI is authorized to conduct searches without search warrants then hopefully the SC would rule that law unconstitutional and enjoin its implementation.

    (Note: Even Justice Gorsuch makes the mistake of saying "unlawful.")

    1. Thinking back on recommendations from The Moon is a Harsh Mistress, I'd really like a court whose only purpose was to find reasons to strike down dodgy laws, for lack of clarity, for internal inconsistencies, for inconsistent enforcement.

    2. "If Congress passed a law saying the FBI is authorized to conduct searches without search warrants then hopefully the SC would rule that law unconstitutional and enjoin its implementation."

      I wouldn't view that in the same category. That would be a case of SCOTUS ruling that the federal government was not authorized to engaged in behavior in the same way that his preferred ruling here would say that the CFPB was not authorized to perform its investigation.

      I don't see how it makes sense to conflate the question of whether the government can restrict private activity and make it unlawful with the question of whether the government is authorized in performing some action- particularly when the government action is itself engaged in investigating and punishing some private activity. (There's a closer situation, perhaps, in cases where the federal government is engaged in affirmatively providing some good or service.)

    3. "Isn’t that exactly what the Supreme Court is supposed to do?"

      The Supreme Court very often declares that civil liberties require restriction on government behavior. It very rarely says that civil rights require that the Court impose restrictions on private behavior that the Legislature has not imposed. As said, it raises separation of powers concerns.

    4. A better comparison, perhaps, would be if somehow a state passed an unusual exception to their murder statute:

      "Pennsylvania: it is legal to murder someone if they just insulted one of the in-state professional sports franchises, but not those of other states."

      It is hard to believe in that hypothetical that the Supreme Court would say, "well, I guess all murder is legal in Pennsylvania now, at least until you pass a new law."

      There are a number of other countries whose highest Court will explicitly rule that a statute is unconstitutional but officially give the legislature a time limit to fix it, agreeing to enforce it until such date. SCOTUS does not do that to my knowledge; when the Justices feel that too much chaos would result, laws get increasingly dire warnings that maybe in a few years SCOTUS will strike down the law the next time they take it up, so please fix it before then. But not an absolute deadline in the decision.

      1. Yeah, I got that but it seems like they were talking specifically about Congress's actions and the Court, so I shied away from the examples you listed.

    5. "If Congress passed a law saying the FBI is authorized to conduct searches without search warrants then hopefully the SC would rule that law unconstitutional and enjoin its implementation."

      I'm not sure this example makes sense. Presumably courts can't require Congress to criminalize illegal searches, although they can provide other remedies.

  2. Gorsuch and Justice Thomas seem to be taking a swipe at universal injunctions so recently prominent, although an injunction naming the Attorney General could enjoin the DoJ's enforcement under any circumstances.

  3. I don't understand Gorsuch's reliance comments at all--is he suggesting that the federal debt collectors are being harmed, despite their reasonable reliance on the law? Maybe that's true, but his approach of making the entire law unenforceable has a negative effect on everyone that has bought a cell phone since the passage on the TCPA (i.e., everyone that has a cell phone) and they also don't have any chance to make their case for the preservation of the prohibition against calls.

    More generally, this "injunction plus stare decisis" approach that Professor Blackman favors seems like it would completely overwhelm the courts. Now everyone that wants to make a robocall gets to individually litigate the topic and get an injunction preventing the application of the law to their particular case? Presumably they'll win because of the Supreme Court precedent, but it seems like a really expensive (both for the business and for the courts) way to get a robocall license.

  4. The court's action seems to be based on a logical fallacy. The ability to enjoin the enforcement of unconstitutional laws comes from the fact that an unconstitutional law is no law at all. But it doesn't follow to say that an unconstitutional exemption is no exemption at all. They can't require the enforcement of the law against exempted parties.

  5. Did anyone consider that the "original" 1991 act forbade all robocalls, and it was an "amendment" under an Obama budget that created the exception? If the amendment was unconstitutional, striking that amendment and returning to the status-quo prior to that amendment seems right.

    I would also be very cautions to giving too much emphasis to the remedy Plaintiff sought... if the amendment is unconstitutional, they don't automatically get to violate a different part of the law.

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