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Monday, July 06, 2020

On invalidating laws and universal declaratory judgments

After the jump is FN 8 of Kavanaugh's plurality in Barr v. AAPC. As I said, I wanted to include this in its own post.

The term “invalidate” is a common judicial shorthand when the Court holds that a particular provision is unlawful and therefore may not be enforced against a plaintiff. To be clear, however, when it “invalidates” a law as unconstitutional, the Court of course does not formally repeal the law from the U. S. Code or the Statutes at Large. Instead, in Chief Justice Marshall’s words, the Court recognizes that the Constitution is a “superior, paramount law,” and that “a legislative act contrary to the constitution is not law” at all. Marbury v. Madison, 1 Cranch 137, 177 (1803). The Court’s authority on this front “amounts to little more than the negative power to disregard an unconstitutional enactment.” Massachusetts v. Mellon, 262 U. S. 447, 488 (1923).

JUSTICE THOMAS’s thoughtful approach to severability as outlined in Murphy v. National Collegiate Athletic Assn., 584 U. S. ___, ___–___ (2018) (slip op., at 2–6), and Seila Law LLC v. Consumer Financial Protection Bureau, ante, at 14–24, (joined by JUSTICE GORSUCH in the latter) would simply enjoin enforcement of a law as applied to the particular plaintiffs in a case. Under either the Court’s approach or JUSTICE THOMAS’s approach, an offending provision formally remains on the statute books (at least unless Congress also formally repeals it). Under either approach, the formal remedy afforded to the plaintiff is an injunction, declaration, or damages. One difference between the two approaches is this: Under the Court’s approach, a provision is declared invalid and cannot be lawfully enforced against others. Under JUSTICE THOMAS’s approach, the Court’s ruling that a provision cannot be enforced against the plaintiff, plus executive respect in its enforcement policies for controlling decisional law, plus vertical and horizontal stare decisis in the courts, will mean that the provision will not and cannot be lawfully enforced against others. The Court and JUSTICE THOMAS take different analytical paths, but in many cases, the different paths lead to the same place.

This is important in several respects.

It clearly explains that "invalidating" a law is merely "common judicial shorthand," that what the Court is really doing is holding that a provision "may not be enforced against a plaintiff." The Court does not say the law cannot be enforced at all or against all people, only against a plaintiff. But no matter what, the law remains on the statute books until Congress repeals it, a task only Congress can perform.

Kavanaugh perfectly describes judicial departmentalism: The injunction prohibits enforcement of the law against the plaintiff; the executive voluntarily respects decisional law in future enforcement efforts (but is not required to do so); and stare decisis means any enforcement fails in the courts. Under Kavanaugh's approach, by contrast, the declaration of a provision as invalid means it cannot be lawfully enforced against others. But Kavanaugh does not explain why this is so and I do not see why it should be. The statement conflicts with the Court's statement in Doran v. Salem Inn that a declaratory judgment does not stop a state government from enforcing a law against other persons and leaves government free to do so. And if declaratory judgment is a milder form of relief than an injunction, it should not have a broader party scope than an injunction.

Posted by Howard Wasserman on July 6, 2020 at 02:05 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink


Can the plaintiffs ask for dismissal of their case now, since they know they are not getting what they want anyway? (And for all I know, they might want the government-backed debt exception to remain.) If so, does that mean that the exception remains until the next case reaches the SC?

Posted by: Jr | Jul 8, 2020 6:18:48 AM

On your Twitter thread, if you're following this space, I just have a few tentative questions:

Does your argument not apply to any leveling-down remedy, like the one for an equal protection violation in Morales-Santana? If so, do you think the Court can't level down?

Why does the Court's remedy depend on "pretending" the exception no longer exists? Why doesn't the remedy just depend on instructing lower courts that they may not give the exemption legal effect in a civil suit or civil forfeiture proceeding (I don't think there are, actually, criminal prosecutions under the TCPA)?

Re: the "what if a district court did this" hypo, which isn't so far from this case (the Fourth Circuit did what the Court did), isn't the answer just that in the future, if someone sued a government debt collector before that district judge, he would adhere to his prior ruling, deem the exception unconstitutional, and adjudicate the suit as he would an ordinary TCPA case? I suppose, at least, that that's what would have happened in a Fourth Circuit district court after the Fourth Circuit's decision, and that non-government debt collectors in the Fourth Circuit would therefore no longer be subject to an unconstitutionally content-based restriction.

Posted by: Asher Steinberg | Jul 7, 2020 4:29:16 PM

In PHH v CFPB, then-Judge Kavanaugh purported in his majority opinion to make the director of the Consumer Finance Protection Bureau removable at-will by the president. He writes like the Court of Appeal can make that happen by removing the offending provision of law. For me this seems to be a similar issue, but on the Court of Appeal level.

Posted by: Jr | Jul 7, 2020 4:26:26 PM


Posted by: Howard Wasserman | Jul 7, 2020 1:44:38 PM

I suspect Kavanaugh would agree that a legal actor can "lawfully" disregard a SCOTUS precedent in a test case in order to tee up a request for the Court to revisit the question. And also that an actor can't be held in contempt for violating a SCOTUS "decree" if the actor wasn't a party to the case or the subject of an injunction If that's right, I doubt there's any distance between him and Thomas other than rhetorical.

The problem, as I discuss in the thread, is that the actual *judgment* in AAPC itself appears to depend upon the idea that the Court *has* actually "struck" the loan-collection provision--a notion inconsistent with note 8.

Posted by: Marty Lederman | Jul 7, 2020 12:27:34 PM

Marty: I had seen your Twitter thread and agreed about the strangeness of the case. I guess the question is whether there is a difference between SCOTUS's declaration of law (or declaratory judgment) and its judicial opinion serving as precedent. If there isn't, I agree with you, both formally and practically. If there is, I think I still have a problem with Kavanaugh's framing, even if we end up in the same place.

Posted by: Howard Wasserman | Jul 7, 2020 12:08:25 PM

Howard: Kavanaugh is describing when *the Supreme Court* "declares" a provision invalid. I think he's essentially conceding Thomas's point that the reason that law "cannot be lawfully enforced against others" going forward is the effect of stare decisis once the SCOTUS speaks. (I actually think there's also a due process constraint against enforcing a law against a private party when it's inevitable the SCOTUS won't allow it.)

Interestingly, the rest of BK's opinion is difficult to reconcile with his footnote 8 point about how the Court doesn't really "strike" a law from the books. See thread:


Posted by: Marty Lederman | Jul 7, 2020 8:25:51 AM

Wasserman, the first amendment provides as follows:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

End of quotation:

Congress then, can't legislate against or in violation of first amendment. Now, you can't expect the Congress, to legislate, and repeal its own law, by his own initiative. That is to say, that the constitution, has granted, implicitly at least, power to courts, to scrutinize such law, and effectively rendering it invalid, but:

Also, to order the Congress itself, to repeal formally the law from the books. Otherwise:

Who would do that? That is what the constitution orders or dictates. Anyway:

It means also, that it is not enforced towards only one plaintiff or party, but, globally so. Precisely because Congress, at first place, couldn't make it. As Justice Marshall quoted by you:

" a legislative act contrary to the constitution is not law"

So, how only on one party implied?

It is more complicated than that, but, right now, only concerning the post, and first amendment.


Posted by: El roam | Jul 6, 2020 5:22:18 PM

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