NOTICE: This opinion is subject to
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SUPREME COURT OF THE UNITED STATES
_________________
No. 19–631
_________________
WILLIAM P. BARR, ATTORNEY GENERAL, et al.,
PETITIONERS
v. AMERICAN ASSOCIATION OF POLITICAL
CONSULTANTS, INC., et al.
on writ of certiorari to the united states
court of appeals for the fourth circuit
[July 6, 2020]
Justice Kavanaugh announced the judgment of
the Court and delivered an opinion, in which The Chief Justice and
Justice Alito join, and in which Justice Thomas joins as to Parts I
and II.
Americans passionately disagree about many
things. But they are largely united in their disdain for robocalls.
The Federal Government receives a staggering number of complaints
about robocalls—3.7 million complaints in 2019 alone. The States
likewise field a constant barrage of complaints.
For nearly 30 years, the people’s
representatives in Congress have been fighting back. 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.
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.
See
infra, at 6–9;
post, at 1–2 (Sotomayor, J.,
concurring in judgment);
post, at 1, 3 (Gorsuch, J.,
concurring in judgment in part and dissenting in part). 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
infra, at 10–25;
post, at 2 (Sotomayor, J.,
concurring in judgment);
post, at 11–12 (Breyer, J.,
concurring in judgment with respect to severability and dissenting
in part). 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 judgment of the U. S. Court
of Appeals for the Fourth Circuit is affirmed.
I
A
In 1991, Congress passed and President George H.
W. Bush signed the Telephone Consumer Protection Act. The Act
responded to a torrent of vociferous consumer complaints about
intrusive robocalls. A growing number of telemarketers were using
equipment that could automatically dial a telephone number and
deliver an artificial or prerecorded voice message. At the time,
more than 300,000 solicitors called more than 18 million Americans
every day. TCPA, §2, ¶¶3, 6, 105Stat. 2394, note following 47
U. S. C. §227. Consumers were “outraged” and considered
robocalls an invasion of privacy “regardless of the content or the
initiator of the message.” ¶¶6, 10.
A leading Senate sponsor of the TCPA captured
the zeitgeist in 1991, describing robocalls as “the scourge of
modern civilization. They wake us up in the morning; they interrupt
our dinner at night; they force the sick and elderly out of bed;
they hound us until we want to rip the telephone right out of the
wall.” 137 Cong. Rec. 30821 (1991).
In enacting the TCPA, Congress found that
banning robocalls was “the only effective means of protecting
telephone consumers from this nuisance and privacy invasion.” TCPA
§2, ¶12. To that end, the TCPA imposed various restrictions on the
use of automated telephone equipment. §3(a), 105Stat. 2395. As
relevant here, one restriction prohibited “any call (other than a
call made for emergency purposes or made with the prior express
consent of the called party) using any automatic telephone dialing
system or an artificial or prerecorded voice” to “any telephone
number assigned to a paging service,
cellular telephone
service, specialized mobile radio service, or other radio
common carrier service, or any service for which the called party
is charged for the call.”
Id., at 2395–2396 (emphasis
added). That provision is codified in §227(b)(1)(A)(iii) of Title
47 of the U. S. Code.
In plain English, the TCPA prohibited almost all
robocalls to cell phones.[
1]
Twenty-four years later, in 2015, Congress
passed and President Obama signed the Bipartisan Budget Act. In
addition to making other unrelated changes to the U. S. Code,
that Act amended the TCPA’s restriction on robocalls to cell
phones. It stated:
“(a) In General.—Section 227(b) of the
Communications Act of 1934 (47 U. S. C. 227(b)) is
amended—
(1) in paragraph (1)—
(A) in subparagraph (A)(iii), by inserting
‘, unless such call is made solely to collect a debt owed to or
guaranteed by the United States’ after ‘charged for the
call.’ ” 129Stat. 588.[
2]
In other words, Congress carved out a new
government-debt exception to the general robocall restriction.
The TCPA imposes tough penalties for violating
the robocall restriction. Private parties can sue to recover up to
$1,500 per violation or three times their actual monetary losses,
which can add up quickly in a class action. §227(b)(3). States may
bring civil actions against robocallers on behalf of their
citizens. §227(g)(1). And the Federal Communications Commission can
seek forfeiture penalties for willful or repeated violations of the
statute. §503(b).
B
Plaintiffs in this case are the American
Association of Political Consultants and three other organizations
that participate in the political system. Plaintiffs and their
members make calls to citizens to discuss candidates and issues,
solicit donations, conduct polls, and get out the vote. Plaintiffs
believe that their political outreach would be more effective and
efficient if they could make robocalls to cell phones.[
3] But because plaintiffs are not in
the business of collecting government debt, §227(b)(1)(A)(iii)
prohibits them from making those robocalls.
Plaintiffs filed a declaratory judgment action
against the U. S. Attorney General and the FCC, claiming that
§227(b)(1)(A)(iii) violated the First Amendment. The U. S.
District Court for the Eastern District of North Carolina
determined that the robocall restriction with the government-debt
exception was a content-based speech regulation, thereby triggering
strict scrutiny. But the court concluded that the law survived
strict scrutiny, even with the content-based exception, because of
the Government’s compelling interest in collecting debt.
The U. S. Court of Appeals for the Fourth
Circuit vacated the judgment.
American Assn. of Political
Consultants, Inc. v.
FCC, 923 F.3d 159 (2019). The Court
of Appeals agreed with the District Court that the robocall
restriction with the government-debt exception was a content-based
speech restriction. But the court held that the law could not
withstand strict scrutiny and was therefore unconstitutional. The
Court of Appeals then applied traditional severability principles
and concluded that the government-debt exception was severable from
the underlying robocall restriction. The Court of Appeals therefore
invalidated the government-debt exception and severed it from the
robocall restriction.
The Government petitioned for a writ of
certiorari because the Court of Appeals invalidated part of a
federal statute—namely, the government-debt exception. Plaintiffs
supported the petition, arguing from the other direction that the
Court of Appeals did not go far enough in providing relief and
should have invalidated the entire 1991 robocall restriction rather
than simply invalidating the 2015 government-debt exception. We
granted certiorari. 589 U. S. ___ (2020).
II
Ratified in 1791, the First Amendment provides
that Congress shall make no law “abridging the freedom of speech.”
Above “all else, the First Amendment means that government”
generally “has no power to restrict expression because of its
message, its ideas, its subject matter, or its content.”
Police
Dept. of Chicago v.
Mosley,
408 U.S.
92, 95 (1972).
The Court’s precedents allow the government to
“constitutionally impose reasonable time, place, and manner
regulations” on speech, but the precedents restrict the government
from discriminating “in the regulation of expression on the basis
of the content of that expression.”
Hudgens v.
NLRB,
424 U.S.
507, 520 (1976). Content-based laws are subject to strict
scrutiny. See
Reed v.
Town of Gilbert, 576 U.S. 155,
163–164 (2015). By contrast, content-neutral laws are subject to a
lower level of scrutiny.
Id., at 166.
Section 227(b)(1)(A)(iii) generally bars
robocalls to cell phones. Since the 2015 amendment, the law has
exempted robocalls to collect government debt. The initial First
Amendment question is whether the robocall restriction, with the
government-debt exception, is content-based. The answer is yes.
As relevant here, a law is content-based if “a
regulation of speech ‘on its face’ draws distinctions based on the
message a speaker conveys.”
Reed, 576 U. S., at 163.
That description applies to a law that “singles out specific
subject matter for differential treatment.”
Id., at 169. For
example, “a law banning the use of sound trucks for political
speech—and only political speech—would be a content-based
regulation, even if it imposed no limits on the political
viewpoints that could be expressed.”
Ibid.; see,
e.g.,
Simon & Schuster, Inc. v.
Members of N.
Y. State Crime Victims Bd.,
502 U.S.
105, 116 (1991);
Arkansas Writers’ Project, Inc. v.
Ragland,
481 U.S.
221, 229–230 (1987);
Widmar v.
Vincent,
454 U.S.
263, 265, 276–277 (1981);
Carey v.
Brown,
447 U.S.
455, 459–463 (1980);
Erznoznik v.
Jacksonville,
422 U.S.
205, 211–212 (1975);
Mosley, 408 U. S., at
95–96.
Under §227(b)(1)(A)(iii), the legality of a
robocall turns on whether it is “made solely to collect a debt owed
to or guaranteed by the United States.” A robocall that says,
“Please pay your government debt” is legal. A robocall that says,
“Please donate to our political campaign” is illegal. That is about
as content-based as it gets. Because the law favors speech made for
collecting government debt over political and other speech, the law
is a content-based restriction on speech.
The Government advances three main arguments for
deeming the statute content-neutral, but none is persuasive.
First, the Government suggests that
§227(b)(1)(A)(iii) draws distinctions based on speakers (authorized
debt collectors), not based on content. But that is not the law in
front of us. This statute singles out calls “made solely to collect
a debt owed to or guaranteed by the United States,” not all calls
from authorized debt collectors.
In any event, “the fact that a distinction is
speaker based” does not “automatically render the distinction
content neutral.”
Reed, 576 U. S., at 170;
Sorrell v.
IMS Health Inc.,
564
U.S. 552, 563–564 (2011). Indeed, the Court has held that
“ ‘ laws favoring some speakers over others demand strict
scrutiny when the legislature’s speaker preference reflects a
content preference.’ ”
Reed, 576 U. S., at 170
(quoting
Turner Broadcasting System, Inc. v.
FCC,
512 U.S.
622, 658 (1994)).
Second, the Government argues that the
legality of a robocall under the statute depends simply on whether
the caller is engaged in a particular economic activity, not on the
content of speech. We disagree. The law here focuses on whether the
caller is
speaking about a particular topic. In
Sorrell, this Court held that a law singling out
pharmaceutical marketing for unfavorable treatment was
content-based. 564 U. S., at 563–564. So too here.
Third, according to the Government, if
this statute is content-based because it singles out
debt-collection speech, then so are statutes that
regulate
debt collection, like the Fair Debt Collection Practices Act. See
15 U. S. C. §1692
et seq.[
4] That slippery-slope argument is unpersuasive in this
case. As we explained in
Sorrell, “the First Amendment does
not prevent restrictions directed at commerce or conduct from
imposing incidental burdens on speech.” 564 U. S., at 567. The
law here, like the Vermont law in
Sorrell, “does not simply
have an effect on speech, but is directed at certain content and is
aimed at particular speakers.”
Ibid. The Government’s
concern is understandable, but the courts have generally been able
to distinguish impermissible content-based speech restrictions from
traditional or ordinary economic regulation of commercial activity
that imposes incidental burdens on speech. The issue before us
concerns only robocalls to cell phones. Our decision today on that
issue fits comfortably within existing First Amendment precedent.
Our decision is not intended to expand existing First Amendment
doctrine or to otherwise affect traditional or ordinary economic
regulation of commercial activity.
In short, the robocall restriction with the
government-debt exception is content-based. Under the Court’s
precedents, a “law that is content based” is “subject to strict
scrutiny.”
Reed, 576 U. S., at 165. The Government
concedes that it cannot satisfy strict scrutiny to justify the
government-debt exception. We agree. The Government’s stated
justification for the government-debt exception is collecting
government debt. Although collecting government debt is no doubt a
worthy goal, the Government concedes that it has not sufficiently
justified the differentiation between government-debt collection
speech and other important categories of robocall speech, such as
political speech, charitable fundraising, issue advocacy,
commercial advertising, and the like.[
5]
III
Having concluded that the 2015 government-debt
exception created an unconstitutional exception to the 1991
robocall restriction, we must decide whether to invalidate the
entire 1991 robocall restriction, or instead to invalidate and
sever the 2015 government-debt exception. Before we apply ordinary
severability principles, we must address plaintiffs’ broader
initial argument for why the entire 1991 robocall restriction is
unconstitutional.
A
Plaintiffs correctly point out that the
Government’s asserted interest for the 1991 robocall restriction is
consumer privacy. But according to plaintiffs, Congress’s
willingness to enact the government-debt exception in 2015 betrays
a newfound lack of genuine congressional concern for consumer
privacy. As plaintiffs phrase it, the 2015 exception “undermines
the credibility” of the Government’s interest in consumer privacy.
Tr. of Oral Arg. 38. Plaintiffs further contend that if Congress no
longer has a genuine interest in consumer privacy, then the
underlying 1991 robocall restriction is no longer justified
(presumably under any level of heightened scrutiny) and is
therefore now unconstitutional.
Plaintiffs’ argument is not without force, but
we ultimately disagree with it. It is true that the Court has
recognized that exceptions to a speech restriction “may diminish
the credibility of the government’s rationale for restricting
speech in the first place.”
City of Ladue v.
Gilleo,
512 U.S.
43, 52 (1994). But here, Congress’s addition of the
government-debt exception in 2015 does not cause us to doubt the
credibility of Congress’s continuing interest in protecting
consumer privacy.
After all, the government-debt exception is only
a slice of the overall robocall landscape. This is not a case where
a restriction on speech is littered with exceptions that
substantially negate the restriction. On the contrary, even after
2015, Congress has retained a very broad restriction on robocalls.
The pre-1991 statistics on robocalls show that a variety of
organizations collectively made a huge number of robocalls. And
there is no reason to think that the incentives for those
organizations—and many others—to make robocalls has diminished in
any way since 1991. The continuing robocall restriction proscribes
tens of millions of would-be robocalls that would otherwise
occur
every day. Congress’s continuing broad prohibition of
robocalls amply demonstrates Congress’s continuing interest in
consumer privacy.
The simple reality, as we assess the legislative
developments, is that Congress has competing interests. Congress’s
growing interest (as reflected in the 2015 amendment) in collecting
government debt does not mean that Congress suddenly lacks a
genuine interest in restricting robocalls. Plaintiffs seem to argue
that Congress must be interested either in debt collection or in
consumer privacy. But that is a false dichotomy, as we see it. As
is not infrequently the case with either/or questions, the answer
to this either/or question is “both.” Congress is interested both
in collecting government debt and in protecting consumer
privacy.
Therefore, we disagree with plaintiffs’ broader
initial argument for holding the entire 1991 robocall restriction
unconstitutional.
B
Plaintiffs next focus on ordinary severability
principles. Applying those principles, the question before the
Court is whether (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.
We agree with the Government that we must
invalidate the 2015 government-debt exception and sever that
exception from the remainder of the statute. To explain why, we
begin with general severability principles and then apply those
principles to this case.
1
When enacting a law, Congress sometimes
expressly addresses severability. For example, Congress may include
a
severability clause in the law, making clear that the
unconstitutionality of one provision does not affect the rest of
the law. See,
e.g., 12 U. S. C. §5302; 15
U. S. C. §78gg; 47 U. S. C. §608.
Alternatively, Congress may include a
nonseverability
clause, making clear that the unconstitutionality of one provision
means the invalidity of some or all of the remainder of the law, to
the extent specified in the text of the nonseverability clause.
See,
e.g., 4 U. S. C. §125; note following 42
U. S. C. §300aa–1; 94Stat. 1797.
When Congress includes an express severability
or nonseverability clause in the relevant statute, the judicial
inquiry is straightforward. At least absent extraordinary
circumstances, the Court should adhere to the text of the
severability or nonseverability clause. That is because a
severability or nonseverability clause leaves no doubt about what
the enacting Congress wanted if one provision of the law were later
declared unconstitutional. A severability clause indicates “that
Congress did not intend the validity of the statute in question to
depend on the validity of the constitutionally offensive
provision.”
Alaska Airlines, Inc. v.
Brock,
480 U.S.
678, 686 (1987). And a nonseverability clause does the
opposite.
On occasion, a party will nonetheless ask the
Court to override the text of a severability or nonseverability
clause on the ground that the text does not reflect Congress’s
“actual intent” as to severability. That kind of argument may have
carried some force back when courts paid less attention to
statutory text as the definitive expression of Congress’s will. But
courts today zero in on the precise statutory text and, as a
result, courts hew closely to the text of severability or
nonseverability clauses. See
Seila Law LLC v.
Consumer
Financial Protection Bureau,
ante, at 33 (plurality
opinion); cf.
Milner v.
Department of Navy,
562 U.S.
562, 569–573 (2011).[
6]
Of course, when enacting a law, Congress often
does not include either a severability clause or a nonseverability
clause.
In those cases, 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); see also
Seila Law,
ante, at 32 (same). In
Regan v.
Time, Inc., the plurality opinion likewise described a
“presumption” in “favor of severability” and stated that the Court
should “refrain from invalidating more of the statute than is
necessary.”
468 U.S.
641, 652–653 (1984).
The Court’s power and preference to partially
invalidate a statute in that fashion has been firmly established
since
Marbury v.
Madison. There, the Court
invalidated part of §13 of the Judiciary Act of 1789. 1 Cranch 137,
179–180 (1803). The Judiciary Act did not contain a severability
clause. But the Court did not proceed to invalidate the entire
Judiciary Act. As Chief Justice Marshall later explained, if any
part of an Act is “unconstitutional, the provisions of that part
may be disregarded while full effect will be given to such as are
not repugnant to the constitution of the United States.”
Bank of
Hamilton v.
Lessee of Dudley, 2 Pet. 492, 526 (1829);
see also
Dorchy v.
Kansas,
264
U.S. 286, 289–290 (1924) (“A statute bad in part is not
necessarily void in its entirety. Provisions within the legislative
power may stand if separable from the bad”);
Loeb v.
Columbia Township Trustees,
179 U.S.
472, 490 (1900) (“one section of a statute may be repugnant to
the Constitution without rendering the whole act void”).
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.
The Court’s presumption of severability supplies
a workable solution—one that allows courts to avoid judicial
policymaking or
de facto judicial legislation in
determining just how much of the remainder of a statute should be
invalidated.[
7] The presumption
also reflects the confined role of the Judiciary in our system of
separated powers—stated otherwise, the presumption manifests the
Judiciary’s respect for Congress’s legislative role by keeping
courts from unnecessarily disturbing a law apart from invalidating
the provision that is unconstitutional. Furthermore, the
presumption recognizes that plaintiffs who successfully challenge
one provision of a law may lack standing to challenge
other
provisions of that law. See
Murphy v.
National Collegiate
Athletic Assn., 584 U. S. ___, ___–___ (2018) (Thomas, J.,
concurring) (slip op., at 5–6).
Those and other considerations, taken together,
have steered the Court to a presumption of severability. 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.[
8]
Before severing a provision and leaving the
remainder of a law intact, the Court must determine that the
remainder of the statute is “capable of functioning independently”
and thus would be “fully operative” as a law.
Seila Law,
ante, at 33; see
Murphy, 584 U. S., at ___–___
(slip op., at 25–30). But it is fairly unusual for the remainder of
a law not to be operative.[
9]
2
We next apply those general severability
principles to this case.
Recall how this statute came together. Passed by
Congress and signed by President Franklin Roosevelt in 1934, the
Communications Act is codified in Title 47 of the U. S. Code.
The TCPA of 1991 amended the Communications Act by adding the
robocall restriction, which is codified at §227(b)(1)(A)(iii) of
Title 47. The Bipartisan Budget Act of 2015 then amended the
Communications Act by adding the government-debt exception, which
is codified along with the robocall restriction at
§227(b)(1)(A)(iii) of Title 47.
Since 1934, the Communications Act has contained
an express severability clause: “If any provision of
this
chapter or the application thereof to any person or
circumstance is held invalid, the remainder of the chapter and the
application of such provision to other persons or circumstances
shall not be affected thereby.” 47 U. S. C. §608
(emphasis added). The “chapter” referred to in the severability
clause is Chapter 5 of Title 47. And Chapter 5 in turn encompasses
§151 to §700 of Title 47, and therefore covers §227 of Title 47,
the provision with the robocall restriction and the government-debt
exception.[
10]
Enacted in 2015, the government-debt exception
added an unconstitutional discriminatory exception to the robocall
restriction. The text of the severability clause squarely covers
the unconstitutional government-debt exception and requires that we
sever it.
To get around the text of the severability
clause, plaintiffs point out that the Communications Act’s
severability clause was enacted in 1934, long before the TCPA’s
1991 robocall restriction and the 2015 government-debt exception.
But a severability clause must be interpreted according to its
terms, regardless of when Congress enacted it. See n. 6,
supra.
Even if the severability clause did not apply to
the government-debt provision at issue in this case (or even if
there were no severability clause in the Communications Act), we
would apply the presumption of severability as described and
applied in cases such as
Free Enterprise Fund. And under
that presumption, we likewise would sever the 2015 government-debt
exception, the constitutionally offending provision.
With the government-debt exception severed, the
remainder of the law is capable of functioning independently and
thus would be fully operative as a law. Indeed, the remainder of
the robocall restriction did function independently and fully
operate as a law for 20-plus years before the government-debt
exception was added in 2015.
The Court’s precedents further support severing
the 2015 government-debt exception. The Court has long applied
severability principles in cases like this one, where Congress
added an unconstitutional amendment to a prior law. In those cases,
the Court has treated the original, pre-amendment statute as the
“valid expression of the legislative intent.”
Frost v.
Corporation Comm’n of Okla.,
278 U.S.
515, 526–527 (1929). The Court has severed the “exception
introduced by amendment,” so that “the original law stands without
the amendatory exception.”
Truax v.
Corrigan,
257 U.S.
312, 342 (1921).
For example, in
Eberle v.
Michigan, the Court held that “discriminatory wine-and-cider
amendments” added in 1899 and 1903 were severable from the
underlying 1889 state law generally prohibiting the manufacture of
alcohol.
232 U.S.
700, 704–705 (1914). In
Truax, the Court ruled that a
1913 amendment prohibiting Arizona courts from issuing injunctions
in labor disputes was invalid and severable from the underlying
1901 law authorizing Arizona courts to issue injunctions generally.
257 U. S., at 341–342. In
Frost, the Court concluded
that a 1925 amendment exempting certain corporations from making a
showing of “public necessity” in order to obtain a cotton gin
license was invalid and severable from the 1915 law that required
that showing. 278 U. S., at 525–528. Echoing
Marbury,
the Court in
Frost explained that an unconstitutional
statutory amendment “is a nullity” and “void” when enacted, and for
that reason has no effect on the original statute. 278 U. S.,
at 526–527 (internal quotation marks omitted).[
11]
Similarly, in 1932, Congress enacted the Federal
Kidnaping Act, and then in 1934, added a death penalty provision to
the Act. The death penalty provision was later declared
unconstitutional by this Court. In considering severability, the
Court stated that the “law as originally enacted in 1932 contained
no capital punishment provision.”
United States v.
Jackson,
390 U.S.
570, 586 (1968). And when Congress amended the Act in 1934 to
add the death penalty, “the statute was left substantially
unchanged in every other respect.”
Id., at 587–588. The
Court found it “difficult to imagine a more compelling case for
severability.”
Id., at 589. So too here.
In sum, the text of the Communications Act’s
severability clause requires that the Court sever the 2015
government-debt exception from the remainder of the statute. And
even if the text of the severability clause did not apply here, the
presumption of severability would require that the Court sever the
2015 government-debt exception from the remainder of the
statute.
3
One final severability wrinkle remains. This is
an equal-treatment case, and equal-treatment cases can sometimes
pose complicated severability questions.
The “ First Amendment is a kind of Equal
Protection Clause for ideas.”
Williams-Yulee v.
Florida
Bar, 575 U.S. 433, 470 (2015) (Scalia, J., dissenting). And
Congress violated that First Amendment equal-treatment principle in
this case by favoring debt-collection robocalls and discriminating
against political and other robocalls.
When the constitutional violation is unequal
treatment, as it is here, a court theoretically can cure that
unequal treatment either by extending the benefits or burdens to
the exempted class, or by nullifying the benefits or burdens for
all. See,
e.g.,
Heckler v.
Mathews,
465 U.S.
728, 740 (1984). Here, for example, the Government would prefer
to cure the unequal treatment by extending the robocall restriction
and thereby proscribing nearly all robocalls to cell phones. By
contrast, plaintiffs want to cure the unequal treatment by
nullifying the robocall restriction and thereby allowing all
robocalls to cell phones.
When, as here, the Court confronts an
equal-treatment constitutional violation, the Court generally
applies the same commonsense severability principles described
above. If the statute contains a severability clause, the Court
typically severs the discriminatory exception or classification,
and thereby extends the relevant statutory benefits or burdens to
those previously exempted, rather than nullifying the benefits or
burdens for all. In light of the presumption of severability, the
Court generally does the same even in the absence of a severability
clause. The Court’s precedents reflect that preference for
extension rather than nullification. See,
e.g.,
Sessions v.
Morales-Santana, 582 U. S. ___, ___
(2017) (slip op., at 25);
Califano v.
Westcott,
443 U.S.
76, 89–91 (1979);
Califano v.
Goldfarb,
430 U.S.
199, 202–204, 213–217 (1977) (plurality opinion);
Jimenez v.
Weinberger,
417 U.S.
628, 637–638 (1974);
Department of Agriculture v.
Moreno,
413 U.S.
528, 529, 537–538 (1973);
Frontiero v.
Richardson,
411 U.S.
677, 678–679, 690–691 (1973) (plurality opinion);
Welsh
v.
United States,
398 U.S.
333, 361–367 (1970) (Harlan, J., concurring in result).
To be sure, some equal-treatment cases can raise
complex questions about whether it is appropriate to extend
benefits or burdens, rather than nullifying the benefits or
burdens. See,
e.g.,
Morales-Santana, 582 U. S.
___. For example, there can be due process, fair notice, or other
independent constitutional barriers to extension of benefits or
burdens. Cf.
Miller v.
Albright,
523 U.S.
420, 458–459 (1998) (Scalia, J., concurring in judgment); see
generally Ginsburg, Some Thoughts on Judicial Authority to Repair
Unconstitutional Legislation, 28 Clev. St. L. Rev. 301 (1979).
There also can be knotty questions about what is the exception and
what is the rule. But here, we need not tackle all of the possible
hypothetical applications of severability doctrine in
equal-treatment cases. The government-debt exception is a
relatively narrow exception to the broad robocall restriction, and
severing the government-debt exception does not raise any other
constitutional problems.
Plaintiffs insist, however, that a
First
Amendment equal-treatment case is different. According to
plaintiffs, a court should not cure “a First Amendment violation by
outlawing more speech.” Brief for Respondents 34. The implicit
premise of that argument is that extending the robocall restriction
to debt-collection robocalls would be unconstitutional. But that is
wrong. A generally applicable robocall restriction would be
permissible under the First Amendment. Extending the robocall
restriction to those robocalls raises no First Amendment problem.
So the First Amendment does not tell us which way to cure the
unequal treatment in this case. Therefore, we apply traditional
severability principles. And as we have explained, severing the
2015 government-debt exception cures the unequal treatment and
constitutes the proper result under the Court’s traditional
severability principles. In short, the correct result in this case
is to sever the 2015 government-debt exception and leave in place
the longstanding robocall restriction.[
12]
4
Justice Gorsuch’s well-stated separate opinion
makes a number of important points that warrant this respectful
response.
Justice Gorsuch suggests that our decision
provides “no relief” to plaintiffs.
Post, at 6. We disagree.
Plaintiffs want to be able to make political robocalls to cell
phones, and they have not received
that relief. But the
First Amendment complaint at the heart of their suit was unequal
treatment. Invalidating and severing the government-debt exception
fully addresses that First Amendment injury.[
13] Justice Gorsuch further suggests that
plaintiffs may lack standing to challenge the government-debt
exception, because that exception merely favors others. See
ibid. But the Court has squarely held that a plaintiff who
suffers unequal treatment has standing to challenge a
discriminatory exception that favors others. See
Heckler v.
Mathews, 465 U. S., at 737–740 (a plaintiff who suffers
unequal treatment has standing to seek “withdrawal of benefits from
the favored class”); see also
Northeastern Fla. Chapter,
Associated Gen. Contractors of America v.
Jacksonville,
508 U.S.
656, 666 (1993) (“The ‘injury in fact’ in an equal protection
case of this variety is the denial of equal treatment resulting
from the imposition of the barrier, not the ultimate inability to
obtain the benefit”).
Justice Gorsuch also objects that our decision
today “harms strangers to this suit” by eliminating favorable
treatment for debt collectors.
Post, at 6. But that is
necessarily true in many cases where a court cures unequal
treatment by, for example, extending a burden or nullifying a
benefit. See,
e.g.,
Morales-
Santana, 582 U.
S., at ___ (slip op., at 28) (curing unequal treatment of children
born to unwed U. S.-citizen fathers by extending a burden to
children of unwed U. S.-citizen mothers);
Orr v.
Orr,
374 So. 2d 895, 896–897 (Ala. Civ. App. 1979) (extending
alimony obligations to women after a male plaintiff successfully
challenged Alabama’s discriminatory alimony statute in this
Court).
Moreover, Justice Gorsuch’s approach to this
case would not solve the problem of harming strangers to this suit;
it would just create a different and much bigger problem. His
proposed remedy of injunctive relief, plus
stare decisis,
would in effect allow all robocalls to cell phones—notwithstanding
Congress’s decisive choice to prohibit most robocalls to cell
phones. That is not a judicially modest approach but is more of a
wolf in sheep’s clothing. That approach would disrespect the
democratic process, through which the people’s representatives have
made crystal clear that robocalls must be restricted. Justice
Gorsuch’s remedy would end up harming a different and far larger
set of strangers to this suit—the tens of millions of consumers who
would be bombarded every day with nonstop robocalls notwithstanding
Congress’s clear prohibition of those robocalls.
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 well-rooted, 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.
* * *
In 1991, Congress enacted a general
restriction on robocalls to cell phones. In 2015, Congress carved
out an exception that allowed robocalls made to collect government
debt. In doing so, Congress favored debt-collection speech over
plaintiffs’ political speech. We hold that the 2015 government-debt
exception added an unconstitutional exception to the law. We cure
that constitutional violation by invalidating the 2015
government-debt exception and severing it from the remainder of the
statute. The judgment of the U. S. Court of Appeals for the
Fourth Circuit is affirmed.
It is so ordered.