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.