In Trump v. CASA, Inc., the Supreme Court held, 6 to 3, that federal courts lack the authority to issue universal injunctions if an injunction limited to the plaintiffs in that case will give those plaintiffs all the relief to which they’re entitled. The decision was based on two main conclusions: (1) “A universal injunction can be justified only as an exercise of equitable authority,” and (2) the Judiciary Act of 1789 is the fount of federal courts’ equity jurisdiction and is properly read through the lens of equitable relief available to the English High Court of Chancery at that time, when “[n]either the universal injunction nor any analogous form of relief” was available.[1] Importantly, though, in footnote 4, the Court provided this disclaimer: “Our decision rests solely on the statutory authority that federal courts possess under the Judiciary Act of 1789. We express no view on the Government’s argument that Article III forecloses universal relief.”

The case arose from a Trump Administration application for partial stays of several district court orders (allowed to remain in place by courts of appeals) that granted universal injunctions barring enforcement of the President’s controversial executive order limiting the Fourteenth Amendment’s (Section 1) grant of birthright citizenship. The application did not challenge the lower courts’ rulings on the executive order’s provisions on the merits, just the reach of the injunctions. In its grant of the application, the Court left some other questions open.

First, in another important footnote 10,^[2] the Court said: “Nothing we say today resolves the distinct question whether the Administrative Procedure Act authorizes federal courts to vacate federal agency action. See 5 U. S. C. §706(2) (authorizing courts to ‘hold unlawful and set aside agency action’).” Second, the Court recognized that “[t]he complete-relief inquiry is more complicated for the state respondents” since, as the states argued, “[g]iven the cross-border flow, . . . a ‘patchwork injunction’ would prove unworkable, because it would require them to track and verify the immigration status of the parents of every child, along with the birth State of every child for whom they provide certain federally funded benefits.” The Court left it to the lower courts to “consider these and any related arguments.” And, third, one of the Court’s criticisms of universal injunctions is that they have become “a shortcut to relief that benefits parties and nonparties alike,” and they “circumvent Rule 23’s procedural protections” for class actions. This, by inference, could allow challengers to seek class certification under Rule 23 in situations like this case. Justice Alito, joined by Justice Thomas, warned that this could undermine the majority’s decision.^[3]

Justice Kavanaugh, for his part, wrote a lengthy concurrence explaining that this decision simply delineates the “preliminary relief that district courts can award (and courts of appeals can approve) for the generally weeks-long interim before this Court can assess and settle the matter for the often years-long interim before a final decision on the merits.” Putting it another way, he said these issues often involve questions like “[s]hould there be a nationally uniform answer on the question of whether a major^[4] new federal statute or executive action can be legally enforced in the often years-long interim period until this Court reaches a final decision on the merits? If so, who decides what the nationally uniform interim answer is?”

He answered his own questions by saying that “there often (perhaps not always, but often) should be a nationally uniform answer” and that it is the Supreme Court that “typically” should be providing that answer “as has been the case both traditionally and recently.” He concluded that “[t]he decision today will not alter this Court’s traditional role in those matters.” Justice Sotomayor’s dissent suggests that assurance rings hollow: “The Executive Branch can now enforce policies that flout settled law and violate countless individuals’ constitutional rights, and the federal courts will be hamstrung to stop its actions fully. Until the day that every affected person manages to become party to a lawsuit and secures for himself injunctive relief, the Government may act lawlessly indefinitely.”

Others will no doubt weigh in on the merits of the CASA decision itself, but what does it portend for the widely accepted practice of universal vacatur, other than the disclaimer in footnote 10? Courts have been employing universal (or “nationwide”) vacatur for decades, especially after the Abbott Labs case ushered in the era of pre-enforcement review of agency rules in 1967. 

Surprisingly it was Biden’s Solicitor General Elizabeth Prelogar who raised the issue of whether (nationwide) vacatur of rules was lawful. The issue came to a head during the oral argument before the Supreme Court in United States v. Texas (2023), a case in which the federal district court in Texas had issued a “wholesale vacatur” of Department of Homeland Security guidelines that set priorities for detention and removal enforcement under the immigration laws. The district court had specifically rejected “the contention that vacatur should be limited to the States of Texas and Louisiana [as] in conflict with the overwhelming weight of authority.” At the Supreme Court, SG Prelogar renewed the government’s contention that the district court should have only provided relief to the two challenging states, but was met by considerable skepticism by Chief Justice Roberts:

[Y]our position on vacatur, that sounded to me to be fairly radical and inconsistent with, for example, you know, with those of us who were on the D.C. Circuit, you know, five times before breakfast, that’s what you do in an APA case. And all of a sudden you’re telling us that, no, you can’t vacate it, you do something different. Are you overturning that whole established practice under the APA? (Oral Argument transcript at 35.) (Nov. 29, 2022).

Solicitor General Prelogar replied, “Yes, I acknowledge, Mr. Chief Justice, that the lower courts, including the D.C. Circuit, have in our view been getting this one wrong. They have reflexively assumed that vacatur is authorized under Section 706 of the APA.” Id. at 36. The Chief Justice responded with a “Wow.” Id. A similar colloquy between the SG and several of the justices occurred again in the oral argument in the second student loan case, Department of Education v. Brown (Oral Argument transcript at 15–20, 47–49) (Feb. 28, 2023).

Justice Kavanaugh later strongly defended vacatur as a remedy, going way out of his way to write a lengthy concurrence on the subject in Corner Post: “I agree with the longstanding consensus—a consensus based on text, history, precedent, and common sense—that vacatur is an appropriate remedy when a federal court holds that an agency rule is unlawful.” The majority in that case “assume[d] without deciding that vacatur is available under the APA.” 603 U.S. at 809 n.2.

Of course, it has been observed that many of the justices defending universal vacatur previously served on the D.C. Circuit, which has exclusive jurisdiction over some agency rules and at least alternate jurisdiction over most of them. As Jonathan Adler pointed out on this blog, that means that it, unlike district courts or other circuit courts, does not have to enter nationwide relief because “in most cases party-specific relief against a federal agency in the D.C. Circuit has the practical effect of nationwide relief whether or not the court says that is what it is doing.”

These D.C. Circuit alumni include the Chief Justice and Justices Thomas, Kavanaugh, and Jackson. Justice Kavanaugh clearly supports vacatur—his CASA concurrence cited his Corner Post concurrence, and he continues to differentiate vacatur from injunctions. If the Chief Justice goes along—as his oral argument incredulity would seem to indicate—there would likely be at least five members of the Court on that side. Justice Gorsuch has been equivocal about vacatur. In U.S. v. Texas, the case in which SG Prelogar raised the issue, the majority found the states lacked standing, but his concurring opinion indicated he had doubts that the APA’s use of “set aside” in its scope of judicial review provision, 5 U.S.C. § 706(2), was really intended to authorize a court to “‘vacate’ agency action in the sense of rendering it null and void,” suggesting that section 703’s listing of various types of remedies without mentioning vacatur was telling. In the end, however, despite his qualms, he concluded:

In raising questions about the district court’s claim that § 706(2) authorizes vacatur of agency action, I do not pretend that the matter is open and shut. Thoughtful arguments and scholarship exist on both sides of the debate. Nor do I mean to equate vacatur of agency action with universal injunctions. Despite some similarities, courts can at least arguably trace their authority to order vacatur to language in a statute and practice in some lower courts. But the questions here are serious ones. And given the volume of litigation under the APA, this Court will have to address them sooner or later. Until then, we would greatly benefit from the considered views of our lower court colleagues.

So, clearly, the key difference is that the Court would be construing the APA, not the Judiciary Act of 1789. And although some scholars like Samuel Bray and John Harrison present historical arguments that vacatur was not well understood to be the same as “set aside” in 1946, there are others like Ron Levin, Mila Sohoni, and Emily Bremer who argue the drafters of the APA would have been familiar with it as a pre-enforcement remedy. See also Alisa Klein’s post arguing that other decisions of the Court (e.g., Corner Post and the Major Questions Doctrine cases) signal a return to party-specific relief—even under the APA. It may be that as the percolation that Justice Gorsuch is looking for begins to happen in the lower courts, the key questions will be how to differentiate vacatur from injunctive relief, and whether “set aside” necessarily implies a broad version of vacatur when it happens in a pre-enforcement context, and conversely, a narrower version when it happens in an enforcement action—akin to the difference between an as-applied and facial constitutional challenge to a law. And as in CASA, the historians will be facing off with each other.

Two closing points:  Vacatur may also have more deep-pocket support, with one article reacting to CASA by declaring that “[f]or regulated businesses, APA vacatur is a vital tool to eliminate unlawful rules without each business having to bring separate individual challenges.”

Finally, wouldn’t it be rather strange for vacatur itself to be found to be unauthorized when the other long-running issue surrounding it is whether the common practice of courts remanding rules in some situations without vacating them is permissible?

Jeffrey Lubbers is a Professor of Practice in Administrative Law at American University, Washington College of Law.

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[1] The Court felt bound to base its review on this English judicial history by Grupo Mexicano de Desarrollo, S. A. v. Alliance Bond Fund, Inc., 527 U.S. 308, 319 (1999).

[2] Harkening back to footnote 10 of the majority opinion in Free Enterprise Fund v. Public Company Accounting Oversight Board, 561 U.S. 477, 507 n.10 (2010) (disclaiming that the holding in that case applied to administrative law judges).

[3] He warned that “district courts should not view today’s decision as an invitation to certify nationwide classes without scrupulous adherence to the rigors of Rule 23. Otherwise, the universal injunction will return from the grave under the guise of ‘nationwide class relief,’ and today’s decision will be of little more than minor academic interest.”

[4] He italicized “major” in his answer, though he left it undefined for these purposes.