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Barr v. American Association of Political Consultants

Supreme Court of the United States · 2020 · Constitutional Law

Constitutional LawFirst AmendmentSeverabilityseverability clausegovernment-debt exceptionrobocall restrictionTCPACommunications Act

Facts

The Communications Act of 1934 contains an express severability clause applicable to the chapter that includes 47 U.S.C. § 227. In 1991, Congress added a general robocall restriction to cell phones, and in 2015 Congress amended that restriction by adding an exception for calls made solely to collect debts owed to or guaranteed by the United States. The Court concluded that the 2015 amendment created an unconstitutional discriminatory exception favoring debt-collection robocalls over political and other robocalls. The dispute on remedy was whether to invalidate the entire robocall restriction or only the 2015 government-debt exception.

Issue

When a statutory exception to a robocall restriction is unconstitutional, should the Court invalidate the entire robocall restriction or sever only the unconstitutional exception and leave the remainder in force? In an equal-treatment First Amendment case, does the proper remedy here extend the restriction to the formerly exempted class by severing the exception?

Rule

When a statute contains a severability clause, courts generally must follow that text absent extraordinary circumstances. Even without such a clause, there is a strong presumption of severability: courts should invalidate only the unconstitutional provision and leave the remainder intact so long as the remainder is capable of functioning independently and is fully operative as a law. In equal-treatment cases, courts generally cure the violation by severing the discriminatory exception or classification and extending the statutory benefits or burdens to the previously exempted class, rather than nullifying the statute for all, unless some independent constitutional problem prevents that result.

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Congress enacted the Digital Contact Privacy Act, which includes a clause providing that if any provision of that chapter is held invalid, the remainder of the chapter shall not be affected. Years later, Congress amended the same chapter to ban most automated text messages to mobile phones but exempted messages sent solely to collect city parking fines. A trade group in Phoenix successfully argues that the parking-fine exemption is an unconstitutional speech-based exception.

What is the most likely remedy?

Explanation. When Congress includes an express severability clause in the relevant statute, courts ordinarily follow that text absent extraordinary circumstances. The majority emphasized that the proper course is to invalidate only the unconstitutional exception and leave the rest intact if the remainder can function independently. Here, the clause covers the chapter containing the later-added exemption, so the discriminatory exception should be severed while the general restriction remains operative.