One of the most theoretically important and underappreciated Supreme Court decisions of 2020 was Barr v. AAPC, though it has been discussed repeatedly on this blog. In Barr, a fractured group of Supreme Court Justices concluded that it was unconstitutional for Congress to ban most “robocalls” while privileging those robocalls that try to collect government debt; and that in light of this, the statute should be read to ban all robocalls.

The opinion expressing both of those views was a plurality opinion by Justice Kavanaugh that was not supported by five votes. In addition to questions of free speech and severability, the plurality addressed in a footnote the question of liability for those who had made robocalls to collect government debt in the past:

As the Government acknowledges, although our decision means the end of the government-debt exception, no one should be penalized or held liable for making robocalls to collect government debt after the effective date of the 2015 government-debt exception and before the entry of final judgment by the District Court on remand in this case, or such date that the lower courts determine is appropriate. See Reply Brief 24. On the other side of the ledger, our decision today does not negate the liability of parties who made robocalls covered by the robocall restriction.

At the time, I wrote: “This conclusion is perfectly logical, but its legal basis is a bit mysterious to me.” The plurality had purported to agree, in its severability analysis, that courts do not actually have the power to invalidate statutes in the sense of repealing them or changing the law—rather, the “term ‘invalidate’ is a common judicial shorthand” employed when 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.” It would seem to follow that whatever the law is after the Supreme Court’s decision in Barr was also the law before the Supreme Court’s decision in Barr.

I will add that I was especially puzzled by the plurality’s expectation that this immunity from enforcement of the robocall prohibition would continue into the future until “the entry of final judgment by the District court on remand” or some other unknown date for unknown reasons.

In any case, in light of all this I was especially interested and please to see a new and excellent opinion on these issues. The opinion is by Judge Stephanos Bibas, who sat by designation on a district court, in a case called Franklin v. Navient. From the beginning:

“[J]udicial decisionmaking” after the fact “necessarily involves some peril to individual expectations.” Rivers v. Roadway Express, Inc., 511 U.S. 298, 312 (1994). Navient may have to learn that the hard way. It robocalled Ricky Franklin for years to collect on his government-backed student loans. Although many types of robocalls are illegal, a federal law said that Navient’s were exempt. Yet after Navient made the calls, the Supreme Court struck down the government-debt exception. And now Franklin is suing. Navient responds that it should not be liable for calls that were legal at the time.

But the calls were not legal at the time. When a court finds a law unconstitutional, it finds that the law was void since the day it was passed. So the robocalling ban never had a valid exception for government debt. Navient cannot rely on one. And while it reasonably thought it was covered by the exception, that is no defense to paying compensation.

Yet Franklin wants more than compensation; he wants punitive damages. And due process bans punishing parties without fair notice. By (mistakenly) saying that Navient’s calls were allowed, Congress deprived it of fair notice. So if Franklin wins at trial, he may recover damages—but only to compensate him for the injuries he can prove.

And the middle:

Courts cannot change the law; they can only declare what the law has always been. When the Supreme Court severed the government-debt exception from the Act, it ruled that the law never had the exception—despite the law’s text.

So Navient cannot get summary judgment based on the exception’s coverage.
Still, Navient seeks summary judgment for a different reason: even though the exception was void, it was on the books. So the company lacked fair notice that its speech was illegal. Enforcing the Act, it argues, would violate due process and the First Amendment.

Navient is mistaken. In civil cases, courts may apply surprising rulings to past acts. There is no exception for free speech (at least not yet).

So Navient may have to compensate Franklin for its calls, whether before or after 2015.

A. The government-debt exception never took effect

A severance ruling, like any other ruling, says only what the law is and has always been. Thus, the Supreme Court’s decision severing the government-debt exception applies retroactively. That exception was never the law.

1. Judicial decisions apply retroactively.

The Supreme Court has the power to declare law, not make it. The Constitution vests “[a]ll legislative Powers” in Congress. U.S. Const. art. I, § 1. Courts are limited to judging “Cases” and “Controversies.” Art. III, § 2. As Blackstone explained, they are “not delegated to pronounce a new law, but to maintain and expound the old one.” 1 William Blackstone, Commentaries *69. Their only power is “to say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (emphasis added). So federal courts cannot ” ‘change[ ]’ the law”; they can only, in deciding cases, say what a law “has meant continuously since the date when it became law.” Rivers, 511 U.S. at 313 n.12.

Because Supreme Court decisions clarify what the law “ha[s] always meant,” their rulings apply to all open cases, even those whose facts predate the ruling. Id.; Harper v. Va. Dep’t of Tax’n, 509 U.S. 86, 97 (1993). Otherwise, they would be “not … adjudication but in effect … legislation.” Griffith v. Kentucky, 479 U.S. 314, 323 (1987) (quoting Mackey v. United States, 401 U.S. 667, 679 (1971) (Harlan, J., concurring in the judgment)). In short, judicial decisions apply retroactively. Harper, 509 U.S. at 94, 97.

2. Severance rulings apply retroactively.

That rule is equally true of severance decisions. Severance is just ordinary statutory interpretation. See Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 330 (2006). When a court finds a law unconstitutional, it finds that it is “void, and is as no law” from the day it is passed. Ex parte Siebold, 100 U.S. 371, 376 (1879). It never took effect as written. Often, the court must then decide what did take effect. Maybe no law did. But maybe Congress passed the law with a fallback rule. That is a question of statutory interpretation. The severance analysis answers it, telling us what the law has meant from the start.

3. AAPC’s rule applies retroactively.

When Congress amended the Act in 2015, it wanted to allow robocalls to collect government debt but ban other robocalls. In AAPC, the Court held that this combination of aims violates the First Amendment. If it violated the First Amendment in 2020, then it has violated the First Amendment since 2015. So Congress’s ideal version of the Act was void from the start. It never became law.

Instead, some fallback rule kicked in right away. To cure the content discrimination, either the exception was void (so the Act covered all robocalls) or the exception became the rule (so it covered none). The Act has a severability clause. Thus, the AAPC plurality reasoned, Congress had picked the first rule. 140 S. Ct. at 2352.
AAPC addressed only what the Act means going forward. But if the exception was void the day it was passed, and Congress’s fallback rule was to nix it, then it never took effect. As Justice Kavanaugh put it, the exception was ” ‘not law’ at all.” 140 S. Ct. at 2351 n.8 (quoting Marbury, 5 U.S. at 177). If Navient relied on the government-debt exception, it made a mistake. Because the Constitution trumps the Act, the Act never had a valid exception. This Court erred in granting partial summary judgment.

Judge Bibas then went on to explain why the Due Process Clause didn’t forbid liability, and also why the Court’s decisions about retroactive criminal liability had not yet been extended to civil cases. And as to the AAPC plurality opinion:

C. To follow the AAPC plurality, I would need to overhaul the law

The AAPC plurality thought that government-debt collectors would avoid all liability. But I do not see how. In a footnote, Justice Kavanaugh wrote that “no one should be penalized or held liable for making robocalls to collect government debt after the effective date of the 2015 government-debt exception and before … th[at] case.” AAPC, 140 S. Ct. at 2355 n.12 (emphasis added). To follow the second half of this dictum, I would need to either treat AAPC like legislation or extend Bouie to free-speech cases. Either would be a stretch. Plus, “a holding that shields only government-debt collection callers from past liability … would wind up endorsing the very same kind of content discrimination [that AAPC] s[ought] to eliminate.” Id. at 2366 (Gorsuch, J.). The Supreme Court could reasonably extend Bouie to shield speakers, but I will not.

Finally, Judge Bibas then went on to make an interesting distinction, concluding that punitive damages would be unavailable, because retroactive punishment—as distinct from retroactive liability—raised a different set of issues.

Now Judge Bibas’s opinion is limited to applying current Supreme Court precedent (not including the plurality opinion, which Judge Bibas rightly seems to assume is not binding). But this analysis is sufficiently thoughtful and persuasive that I wouldn’t be surprised to see it having some influence even when the Justices next have to return to considering these issues.

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At least it was interesting (and highly enjoyable) for me; hope it will be for you as well.

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Police in Perth Amboy, New Jersey, arrested one teen and seized bicycles from a group of friends in a scuffle over traffic violations and a failure to register their bikes with the state, according to a viral video. It’s yet another example of the effects of overcriminalization, which increases interactions between civilians and police with little benefit to actual public safety.

We can’t even ride bikes now… I’m not surprised. I’m just angry. pic.twitter.com/xcAR8zmnuP

— ⁶Kid (@deep_dab) April 19, 2021

“I told you guys you’re supposed to have licenses,” one officer says in the clip as the cops attempt to get the boys to surrender their bikes. “The sergeant warned you about your bikes, so you guys are warned. I gave you a warning.”

One teen gives in. “Drop the bike or you’re gonna get arrested too,” says another cop in the background, addressing the other boys who are slower to dismount.

In a longer video posted to YouTube, the boys are repeatedly promised that they won’t lose their bikes. The teen who first complied is then arrested, and all of their bicycles are taken by the cops.

“You know that we told you guys to stay on the sidewalk,” the cop says in a video exchange with one of the teens who filmed their conversation when he returned to get his bike. “You guys knew that you were going against traffic. It is for your safety. You think I want to be here taking bikes away? Like, this is so asinine. Like, we have so much better stuff to do with our time.”

She is correct on most counts. It is asinine, and the Perth Amboy Police Department definitely has better stuff to do with their time.

But she didn’t stop there: “Is your bike registered with us? I don’t have to give it back to you,” she notes, harking back to the licensing scuffle referenced during the first confrontation. “You have the receipt to prove that that bike is your bike? I don’t have to give it back to you.”

They did, in fact, give the bikes back. But not before taking the opportunity to flex some state power over trivial matters like minor traffic infractions and bike registrations.

New Jersey does not require residents to register their bikes. Perth Amboy does, however. According to local law, a bicycle must be registered for any purpose, whether you’re renting it out or it’s your personal vehicle.

“No person shall ride, operate or propel a bicycle upon any street or other public highway in the city without first obtaining and having secured and attached to such bicycle a proper license tag as hereinafter provided,” the statute reads.

“We live way in Edison, cuz,” says the arrested teen as he is handcuffed and placed in a police cruiser. “We live way in Edison.”

In theory, such a rule exists to help you if your bike is stolen. In this case, though, it became yet another tool in the police department’s arsenal to wield power over a group of teens.

Such interactions further degrade trust in law enforcement, who, as the cop in the video admits, should be off doing more important things. (In this case, at least six officers are called to the scene to address the traffic infractions and bike licenses.) These types of interactions can—and do—sometimes turn deadly. A woman called the police after observing that Ramon Lopez, a Phoenix man, was loitering, “jumping around,” and wearing “ripped pants” in a parking lot. He was chased by police, pinned on searing hot asphalt, and later died.

As a rule, victimless crimes should be of little interest to the state. For whatever the government chooses to zero in on, they must feel comfortable using deadly force. Is a minor traffic violation or a bike registration really worth it?

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Arizona’s Republican Gov. Doug Ducey has ordered local governments to back off of any plans that would force citizens to carry around “vaccination passports,” instead leaving it to local businesses to determine their own best practices.

On Monday, Ducey released an executive order stating that “no state agency, county, city, town or other political subdivision of this state” shall adopt any regulations or pass any ordinances that require an individual to provide proof of COVID-19 vaccination in order to enter a business or facility or as a condition of receiving service.

The order only forbids governments within the state from demanding vaccine passports and does not forbid private businesses from setting their own guidelines. It specifically makes it clear that health care institutions and schools can still demand vaccination records in compliance with existing state law. This is by design. In explaining the order, Ducey made it clear he wants private businesses to decide for themselves.

“The residents of our state should not be required by the government to share their private medical information,” Ducey said in a prepared statement. “While we strongly recommend all Arizonans get the COVID-19 vaccine, it’s not mandated in our state—and it never will be. Vaccination is up to each individual, not the government.”

This is the exact right needle to thread. Governments shouldn’t be forcing businesses to intrude on a customer’s privacy in order to provide goods and services. At the same time, each business should be empowered to decide the level of risk and exposure it wants to take on. And then, ultimately, customers will make their own decisions about whether they’ll visit certain shops on the basis of whichever policies have been put into place. To twist around a comparison, bakers shouldn’t be forced to bake wedding cakes for people who refuse to be vaccinated. Bakers also shouldn’t be forced to deny wedding cakes to these people.

Ducey’s order does raise a question about his executive authority: Does the governor have the power to tell local cities which ordinances they’re allowed to pass? Wouldn’t that fall under the power of state lawmakers?

In his executive order, Ducey is claiming this authority under the emergency powers granted to him due to the pandemic. It gives his office wide latitude and, while cities and counties may establish their own emergency rules and regulations, they “shall not be inconsistent with orders, rules and regulations promulgated by the governor.”

But we’re increasingly seeing state lawmakers worry about the amount of power governors seize for themselves by declaring emergencies, and Arizona is no different. Some lawmakers in Arizona are attempting to terminate Ducey’s emergency orders and pass a law that would give them the power to overrule his mandates with a majority vote.

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As recently as 2018, cannabidiol, the non-psychoactive cannabis-derived compound commonly known as CBD, was being hailed as the new “‘it’ ingredient in cocktails” by the likes of High Times magazine. 

“Trailblazing bartenders up and down the state of California are rushing to embrace CBD as a way of making their cocktails unique, healthy, and hangover-free,” the magazine reported. “CBD cocktails may not be on every bar menu—but according to some of the bartenders working with this cannabis oil, it could be in the future.”

In Los Angeles, in particular, CBD cocktails seemed practically ubiquitous. There were drinks like Bluebird Brasserie’s Gentle Monk, with gin, bergamot, Cocchi Rosa Americano, citrus, and absinthe; the Pirate’s Gold, with cachaça, yellow chartreuse, avocado pit orgeat, germanium, thyme, lime juice, and Gold Flora CBD oil, at the Freehand Hotel; and the Stoney Negroni and the Rolled Fashioned—both pot-infused riffs on classics—at Gracias Madre. 

The birth of CBD as a cocktail ingredient played to two different trends: the legalization of recreational pot in California and other states, and the revitalization of craft cocktails that began in the early 2000s, which emphasized, among other things, innovative uses of once-obscure ingredients. Cocktails including the ingredient were ubiquitous in trendy L.A. bars; CBD was set to be the new mezcal.

Within a year, however, the next big thing became yesterday’s news. In September 2018, just months before leaving office, Democratic Gov. Jerry Brown approved Assembly Bill 2914, which forbid bars and restaurants from mixing CBD with alcohol. Despite the legality of both substances, they couldn’t be mixed and sold together—or even on the same site. 

Any business with a license to sell alcohol was strictly forbidden from “selling, offering, or providing cannabis or cannabis products.” Businesses that failed to comply risked losing their alcohol license, or worse. 

When the law when into effect in 2019, Vice reported, CBD drinks quickly disappeared from bar and restaurant menus. The state’s government had killed a burgeoning cocktail trend. 

The state’s prohibition on recreational pot consumption had ended, but another one had sprung up behind it. And the new one had about as much justification as the old one—which is to say, not much. 

In theory, the ban was intended to protect public health. “Mixing alcohol and cannabis can lead to dangerous interactions, including a compounding impairment effect,” the state assembly said in analysis intended to support the bill. “This is why states that have legalized adult-use or medical-use cannabis strongly warn against the consumption of alcohol and cannabis at the same time.”

The problem was that there was little evidence to support the notion that CBD was particularly dangerous when mixed with alcohol. CBD is not psychoactive, but it is often described as producing a calming effect or “body high”––a sense of relaxation or chill. And while some experts suggest that the main effect of combining CBD with alcohol is to enhance the effects of both, several studies have found that CBD reduces some of the effects of alcohol, showing lower levels of blood alcohol, for example. Studies on rodents have found combining CBD and alcohol produced less neurodegeneration and less liver damage than alcohol alone. As a separate Vice report noted, CBD even “can counteract alcohol’s effects.”

This, in turn, suggests another reason to be skeptical of prohibitions on CBD mixed with alcohol. Because of its perceived body-high effects, CBD is often used by people suffering from minor persistent pain or sleeping troubles. For some people, then, it can serve as an alternative to sleeping pills or traditional pain medications—both of which are more likely to have dangerous interactions when mixed with alcohol. So for regular drinkers who have minor aches or trouble sleeping, CBD is often preferable to conventional pain medications or sleeping pills. 

Apart from the medical specifics, there’s another reason to bring back CBD cocktails in California: They can be delicious drinks that also help some people feel good. That’s reason enough to both consume them, and to oppose laws that make doing so illegal.

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Derek Chauvin’s legal team moved for a mistrial on Tuesday following questionable behavior by Rep. Maxine Waters (D–Calif.), who urged protesters to “stay in the street” and become “more confrontational” if the former Minneapolis police officer is acquitted for the killing of George Floyd.

Waters had attended a protest over the weekend in Brooklyn Center, Minnesota, where 20-year-old Daunte Wright was killed by police. It was not far from the location of Chauvin’s trial, which led Chauvin’s attorney, Eric Nelson, to argue that Waters was prejudicing the jury in favor of conviction, given that an acquittal might lead to rioting.

Judge Peter Cahill denied the motion but granted that Waters “may have given you something on appeal that may result in this whole trial being overturned,” according to CNN.

House Republicans are attempting to censure Waters over the matter, but it is very unlikely that the Democratic-controlled legislative body will take such an action.

Closing arguments in the trial wrapped up on Tuesday, and the jury began deliberations afterward. In his summary of the trial, Reason‘s Jacob Sullum persuasively argued that at the very least, Chauvin should be convicted of second-degree manslaughter, which carries with it a presumptive sentence of four years in prison.

Regardless, jurors should hold Chauvin accountable for his role in Floyd’s death, to the extent they believe the evidence supports a conviction. They should not feel obligated to convict because far-left rioters are holding the city hostage. Mob justice isn’t justice.

FREE MINDS

RealClearEducation has released a new survey of the landscape for free speech within the college Greek system. Some findings:

A plurality of all survey respondents feel pressure for their Greek organizations to be
kicked off campus. Forty-nine percent (49%) disagreed with the statement, “There is
no pressure on my campus for fraternities and sororities to be kicked off campus,” while 45% agreed. A majority of fraternity respondents disagreed with the statement
(58% vs. 39%), while a minority of sorority respondents disagreed (43% vs. 51%).

Half of all respondents have felt the need to self-censor. Fifty percent (50%) answered
“Yes” to the question: “Have you personally ever felt you could not express your opinion on a subject because of how students, a professor, or the administration would
respond?”

Among all respondents, 38% say their college’s administration would be more likely to
“Punish the speaker for making the statement” than “Defend the speaker’s right to
express their views” (23%) if a controversy over offensive speech were to occur on
their campus. A plurality of respondents (39%) were “not sure” how the administration would respond.

More here.

FREE MARKETS

All U.S. adults are now eligible for the COVID-19 vaccine, according to President Joe Biden.

“For months I’ve been telling Americans to get vaccinated when it’s your turn,” said Biden. “Well, it’s your turn, now.”

Half of all eligible Americans have now received at least one dose of a vaccine, according to The New York Times.

QUICK HITS

• Former Vice President Walter Mondale has died. He was 93.
• One America News Network has fired a producer who admitted that he suspects many of the channel’s news stories were fake.
• The American Humanist Association has withdrawn an award they gave to Richard Dawkins in 1996.
• In case you missed it: Keith Olbermann (remember him?) called me a fascist and vaguely threatened me for daring to suggest that some government-mandated pandemic restrictions could possibly be relaxed.

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