Today’s Ad Law Reading Room entry is “Vacatur Within the Appellate Model of Judicial Review,” by Emily Bremer, which is forthcoming in the Yale Law Journal. Here is the abstract:

This Article situates vacatur within a holistic account of the appellate model of judicial review that Congress codified in the Administrative Procedure Act (APA). Revisionist objections to judicial vacatur of agency rules neglect this broader structure and impose upon the APA a modern idea of remedies that crystallized decades after the statute’s 1946 enactment. Understood on its own terms, the APA uses pre-APA principles governing appellate jurisdiction to provide a constitutionally calibrated remedy for unlawful agency action. This Article uncovers those principles, and it argues that vacatur is not an equitable remedy but an appellate determination. It is statutorily authorized when an agency action is properly before a court on judicial review and is found to be unlawful under the applicable standard of review. But the approach has implications beyond vacatur, offering a revelatory blueprint for the APA’s judicial review section. This blueprint can help to address some of the most intractable problems in the judicial review of agency action, including the timing of judicial review of rules, the relationship between APA review and other remedies, and the role of the scope of review in keeping courts within Article III’s boundaries.

Following the Supreme Court’s disapproval of universally binding injunctions in Trump v. CASA, those of us keenly interested in administrative law naturally asked, “what about the Administrative Procedure Act?” CASA considered a non-APA suit, and the APA directs courts to “set aside” agency action found to transgress the bounds of section 706. In CASA, the Supreme Court expressly left open whether that language authorizes a kind of universal relief.

One of Bremer’s longstanding specialties is unearthing old ways of thinking that allow us to reason freshly about important questions, and “Vacatur Within the Appellate Model of Judicial Review” fits seamlessly into that vein. Bremer argues that the APA’s framers regarded the “set aside” language not as authorizing a form of remedy similar to an injunction but rather as reflecting the APA’s broader embrace of the “appellate model” of agency review. The APA’s version of vacatur would thus have been thought to mirror the disposition that flows from a higher court’s finding that a lower court was in error, a way of thinking that brings with it a variety of interesting implications for the universal relief debate and beyond. The article is a timely intervention that remains deeply rooted in Bremer’s extensive knowledge of the original APA.

The Ad Law Reading Room is a recurring feature that highlights recent scholarship in administrative law and related fields. You can find all posts in the series here.