“Severability” to the Rescue Again: A Further Note on Today’s Supreme Court Robocalling Decision

Steve Gardner has given a great and succinct summary of todays decision in Barr v. AAPC. The Telephone Consumer Protection Act lives, minus its obnoxious exception for government debt collection robocalls. What's not to like about that bottom line?

I want to make an additional point about the significance of the decision. For the second time in a week, it is the Supreme Court's application of "severability" doctrine—the practice of invalidating only the specific part of a statute that creates a constitutional problem, rather than the whole statute—that has turned a potentially bad ruling into one that has an upside for consumers.

Last week’s example was the Seila Law decision, which held that the statutory provision protecting the CFPB director from being fired at will by the President was unconstitutional, but severed that provision from the rest of the laws giving authority to the CFPB. The result is that the agency remains intact, but the director can now be terminated by the President at any time.

In the long run, consumers would probably be better off with an independent CFPB, and consumer interests would be best served if Congress had the authority to structure regulatory agencies in ways that limit political interference with the agencies’ conscientious performance of their duties. But at least the decision may allow a pro-consumer President to unceremoniously rid the CFPB of a director who lacks commitment to the agency’s consumer-protection role—a scenario that could possibly play out next January.

This week, the Barr decision adopts a rigid view of the First Amendment that is likely to be less accommodating to legitimate, pro-consumer regulations of commercial speech and activity than the approach Justice Breyer advocates in his partial dissent. (Thankfully, however, Justice Kavanaugh’s opinion goes out of its way to emphasize that the Court’s approach does not condemn laws like the Fair Debt Collection Practices Act, which, as part of regulation of commercial activity, incidentally regulate the communications that are an inseparable part of that activity.)

But regardless of what one thinks about the debate between Kavanaugh and Breyer over the best reading of the First Amendment, the Court’s severability analysis has the effect of improving the protections offered by the TCPA by eliminating the loophole Congress ill-advisedly opened when it exempted government-debt-collection robocalls from the Act.

Looking ahead, both Barr and Seila Law give good reason for optimism about the result in the next major showdown over severability: California v. Texas, in which the Court will decide next Term whether the entire Affordable Care Act must fall if Texas, and the Trump Administration, are correct in arguing that its individual mandate became unconstitutional when Congress zeroed out the tax consequences for noncompliance.

Justice Kavanaugh’s emphasis in Barr on the strong presumption in favor of severability, and the Chief Justice’s focus in Seila Law on whether Congress would have preferred no law at all to one with an unconstitutional provision severed, both make it highly unlikely that the Court will toss out the entire ACA even if it concludes the individual mandate has become unconstitutional. If the ACA survives, consumers will again benefit enormously from the Court’s approach to severability.

As Justice Kavanaugh put it today: “[T]he 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 that approach holds, the ACA should be safe.

So three cheers for severability! The government-debt-collection exception is dead; long live the TCPA!

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