Notice & Comment

A Single Judge Shouldn’t Have This Kind of National Power

I’ve got a new article up at The Atlantic using the mifepristone case to tee off on both nationwide injunctions and their evil twin, “universal vacatur” under the Administrative Procedure Act. The arguments about nationwide injunctions are by this point familiar, though I still think it’s under-appreciated the extent to which they have always been exploited by partisans on both sides:

The ideological pattern of nationwide injunctions is as predictable as it is striking. During the Biden administration, nationwide injunctions have been issued against its mask mandate on public transportation, its vaccine mandate for health-care workers, its extension of stimulus relief to Black farmers, its effort to set a price on the social cost of carbon, and its termination of former President Donald Trump’s “remain in Mexico” policy. Every one of these injunctions came from a judge appointed by a Republican president.

Likewise, nationwide injunctions were issued against the Trump administration for its travel bans, its publiccharge rule, its exemptions from the contraception mandate, its changes to asylum policy, its abortion-related rules under Title X, and its elimination of the Deferred Action for Childhood Arrivals program. Every one of these injunctions came from a judge appointed by a Democratic president.

As nationwide injunctions start to acquire a bad odor, that’s pushed judges to start leaning harder on the argument that the “set aside” language in section 706 of the APA requires “universal” relief. That’s what a different federal judge in Texas said a few weeks ago when he enjoined the Department of Health and Human Services from enforcing a requirement that employers and insurers have to cover certain preventive services free of charge under the Affordable Care Act.

Is that really what the “set aside” language means? Turns out that’s a lively topic of debate. Some judges on the D.C. Circuit, the influential appeals court in Washington, D.C., have concluded, without much analysis, that nationwide injunctions should typically accompany orders to “set aside” an agency action. At oral argument in a case last month, Chief Justice John Roberts suggested that he agreed: “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.” (Jonathan Adler at Case Western Law School has a good explanation for why the D.C. Circuit came to think this way.)

A narrower interpretation is available, however, and it’s a sounder one. According to the 1947 Attorney General’s Manual on the APA, the law was just “a general restatement of the principles of judicial review embodied in many statutes and judicial decisions.” One of those principles is that injunctions should be as narrow as possible while still providing complete relief to the injured party. Against that backdrop, it’d be odd to read words (i.e., set aside) that don’t mention injunctions as authorizing injunctions that are broader than necessary.

Recent work by John Harrison, a University of Virginia law professor, reinforces the point. When the APA was adopted, Harrison argues, Congress commonly used the words set aside to tell courts to ignore an unlawful action—to treat it as a nullity—in the case at hand. But that’s it. The APA didn’t confer the power to go further and enjoin or annul the action.

This debate over “set aside” may be coming to a head. In the preventive services case, the federal government has asked the Texas judge for a stay pending appeal and it’s pushing hard on the argument that the APA does not justify universal remedies. The goal may be to use the case to get the Supreme Court to finally address the question.


Print Friendly, PDF & Email