Thread by @marty_lederman

I've been critical of Justice Kavanaugh several times in recent weeks, but credit where it's due: Footnote 8 of his AAPC opinion today is a concise, effective way of explaining something that all first-year law students should learn, namely: /1

supremecourt.gov/opinions/19pdf…

that courts don't actually "invalidate" or "strike down" unconstitutional laws; they simply decline to enforce them or to give them legal effect in the case at hand--& when the SCOTUS does so, all other actors (other courts and executive officials) almost always follow suit. /2

In AAPC itself, however, it's not as simple as that, b/c BK is wrong that "the 2015 government-debt exception" is a "constitutionally offending provision." That exception doesn't prohibit any speech at all--to the contrary--and thus standing alone it's not unconstitutional. /3

The Court therefore *doesn't* decline to enforce that provision in the AAPC case, as it ordinarily would in a constitutional challenge. Indeed, the exception doesn't apply to any party in the case and neither party is asking any court not to "enforce" it. /4

What the SCOTUS *does* find to be unconstitutional isn't the exception but instead the restriction on all other robocalls once debt-collection calls are exempt, i.e., the *contrast* (discrimination) between the two provisions, *read together.* /5

Yet instead of refusing to enforce the law that *does* restrict private conduct, the Court (by a 7-2 vote) chooses to declare that henceforth all debt-collection robocalls --calls by parties not in the case -- *are* to be criminally prohibited, despite the fact ... /6

... noted by Justice Gorsuch, that "It is highly unusual for judges to render unlawful conduct that Congress
has explicitly made lawful," let alone to render unlawful *speech* that Congress decided not to prohibit. And *that's* what's strange & troubling about the decision: /7

The Court is undoubtedly right that *Congress* would surely opt for prohibiting all robocalls rather than none. But because Kavanaugh is also right that a court doesn't have the power to actually "invalidate" a statutory provision, including an exemption, ... /8

... it's not obvious where the Court derives the power to create new legal restrictions on private conduct by pretending that the exemption effectively no longer exists. /9

It's a really hard and fascinating puzzle--sure to engender 1001 law review articles. One mystery: Why did the Court feel it needed to resolve the "severability" question? Why couldn't it simply have declared ... /10

... that enforcing the law while it included the exemption would be unconstitutional, and let Congress decide whether to equalize "up" or "down"--which is, in effect, what the Court usually does with *state* statutes that include unconstitutional distinctions? /11

I imagine it didn't want to invite a glut of robocalls in the weeks or months until Congress acted. But it shouldn't take Congress very long to vote on a simple repeal, and the Court could have delayed the issuance of its mandate for a bit to avoid a "gap." /12

Addendum: In order to see how strange this "remedy" is, imagine that a district court purported to do the same thing: announced that henceforth debt-collection robocalls are unlawful, even though Congress specifically said they're lawful. ... /13

Could the USG then prosecute someone for making a debt-collection robocall, based on a single district court "declaration" in an earlier case not involving that caller? Presumably not. And if that's right, then what's the district court supposed to do in an AAPC-like case? /14

In order to remedy the unconstitutional discrimination that the plaintiff political organization suffers, doesn't the district court as a practical matter have to enjoin enforcement of the law as to that organization--i.e., afford an AAPC the remedy it was denied here? /15

I don't *think* there's an obvious or salutary answer to such questions. But of course I might be overlooking something. /16