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Justice Kavanaugh May Have Tipped SCOTUS’s Hand on Obamacare Decision Through … a Robocall Case


The U.S. Supreme Court on Monday ruled that decades-old robocall restrictions apply to the government as well as private entities–despite congressional efforts to bypass the law in order to allow for the collection of government debt. This decision could bode well for the constitutional longevity of the Affordable Care Act (ACA).

Justice Brett Kavanaugh wrote the majority opinion in the case stylized as Barr v. American Assn. of Political Consultants, Inc.. Largely decided on First Amendment grounds, the case could have much broader implications due to the secondary analysis used specifically to invalidate the government’s robocall exception.

The trajectory of the case is instructive. The plaintiffs are a collection of political and nonprofit groups who want the ability to make robocalls to cell phones. But the Telephone Consumer Protection Act of 1991 (TCPA) makes such calls illegal and provides steep penalties for violations. The Bipartisan Budget Act of 2015 threw the robocalling industry a lifeline by amending the TCPA to allow calls made “to collect a debt owed to or guaranteed by the United States.”

The consultants and nonprofits sued–arguing that the entire TCPA should be thrown out because the 2015 amendment made the whole statute unconstitutional. The plaintiffs argued, and the nation’s high court agreed, that the government debt collection exception created a content-based restriction on speech.

Under longstanding Supreme Court precedent, content-based restrictions are generally disfavored and they invite a reviewing court to subject the underlying statute to the legal term of art known as “strict scrutiny.” Under strict scrutiny, a reviewing court must find that the legislature was acting in service of a “compelling governmental interest” as well as that the statute was “narrowly tailored” to achieve that interest. In plain terms, the form of review generally gives the game away: statutes subject to strict scrutiny are almost never upheld as constitutional. And that’s what happened here.

Kavanaugh’s conclusion offers a tidy summary [emphasis added]:

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 italicized lines may have telegraphed the ACA’s salvation.

Under a severability analysis, a court looks at whether or not the unconstitutional provision can be severed from the remainder of the statute while leaving the overarching legislation intact.

Kavanaugh notes that in the absence of a severability clause or nonseverability clause, Supreme Court opinions have “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,” the opinion continues. And, Kavanaugh explains, it’s been like this for centuries:

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. 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.”

Legal experts quickly noticed the seven-justice majority’s embrace of severability and read the leaves of constitutional tea.

“Maybe the most important part of today’s SCOTUS robocall case (Barr) is that [seven] members of the Court agree the unconstitutional condition is ‘severable,’ meaning you can cut it out and save the rest of the statute,” noted UC Irvine Law Professor Rick Hasen via Twitter. “Important for Obamacare case to come.”

University of Texas Law Professor Steve Vladeck added his agreement: “The analysis of why the government-debt exception can be severed from the rest of the TCPA maps pretty easily onto why, even if there’s a majority to strike down the individual mandate, [seven] Justices seem unlikely to think the whole ACA falls.”

Aside from the overall import–and perhaps portability–of the decision in Barr, Kavanaugh also offered strong language that many observers viewed as particularly relevant to the fate of the ACA.

“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),” the conservative justice notes. “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.”

“This line from Kavanaugh in the robocall case–arguing that the entire law need not be invalidated–feels like something that will show up in the Obamacare case,” noted Bloomberg News Supreme Court reporter Greg Stohr–highlighting the agreement of Kavanaugh’s less and more conservative peers on the bench. “Roberts, Alito aboard for this part of opinion.”

American Civil Liberties Union attorney Josh Block also picked up on the relevance of Kavanaugh’s severability defense–focusing on a lengthy footnote that decries efforts by judges to invalidate statutes wholesale as “judicial policymaking” and “judicial legislation.”

The footnote reads:

If courts had broad license to invalidate more than just the offending provision, a reviewing court would have to consider what other provisions to invalidate: the whole section, the chapter, the statute, the public law, or something else altogether. Courts would be largely at sea in making that determination, and usually could not do it in a principled way. Here, for example, would a court invalidate all or part of the Bipartisan Budget Act of 2015 rather than all or part of the 1991 TCPA? After all, that 2015 Bipartisan Budget Act, not the 1991 TCPA, added the constitutionally problematic government-debt exception. That is the kind of free-wheeling policy question that the Court’s presumption of severability avoids.

“He might as well have started this footnote with ‘ATTN: Fifth Circuit…,'” Block wrote–referring to the appeals court that invalidated the ACA’s individual mandate in December of last year, thereby setting the stage for the eventual severability battle there.

Justices Neil Gorsuch and Clarence Thomas declined to concur with the severability analysis–while still concurring in part; they argued that the majority does not have the power “to rewrite the law in this way.”

Kavanaugh invokes the National Basketball Association to refute Gorsuch here–reconfiguring a famous quote by coach Rick Pitino.

“Justice Gorsuch suggests more broadly that severability doctrine may need to be reconsidered,” the decision reads. “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 sever-ability. The doctrine as so refined is constitutionally well-rooted, and can be predictably applied.”

Jerry Lambe contributed to this report.

[Image via MANDEL NGAN/AFP/Getty Images]

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