Notice & Comment

Sohoni on What It Means to “Set Aside” a Final Agency Rule under the APA

Two summers ago I shared some quick reactions to Sam Bray’s argument that the Administrative Procedure Act (APA) does not support nationwide injunctions to set aside an agency’s final rule. In that post, I expressed preliminary skepticism, based on the text and structure of the APA: “a final rule is an ‘agency action’ under the APA, so it seems it can be ‘set aside.’ The effect of that is the invalidation of the final rule—in essence, a nationwide injunction (though courts have approved of a narrower remedy of remand without vacatur in some circumstances).”

The debate has continued since the summer of 2018—in the courts, in the literature, and on this blog. Especially for those following the debate, I wanted to make sure that you were aware of Mila Sohoni’s new article, The Power to Vacate a Rule. This article, which is forthcoming in the George Washington Law Review, strikes me as the most comprehensive and compelling defense on the conventional view that courts can set aside final agency rules in their entirety (as opposed to just their particular applications in the litigation itself).

Here’s the abstract:

A vigorous debate has emerged concerning the legality and desirability of the “universal” or “nationwide” injunction. A key part of this debate implicates the meaning of the landmark statute that governs judicial review of agency action, the Administrative Procedure Act (“APA”). Many recent suits seeking nationwide injunctions have levied challenges to federal agency action, and in particular to federal rules. If the APA authorizes a federal court deciding such a case to “set aside” a rule universally—not just to “set it aside as to the plaintiffs”—then the APA authorizes courts to provide exactly the kind of relief that opponents of universal injunctions say that courts should not be able to give: relief that reaches beyond the plaintiffs to everyone. Moreover, if the reviewing court can vacate a rule universally at the merits stage, then the APA plainly authorizes the court to issue a preliminary nationwide injunction that halts the enforcement of the rule universally pending the court’s merits decision on whether to vacate the rule.

In various lawsuits, including in a case that the Supreme Court will decide this Term, the DOJ has argued that the APA does not authorize a federal court to vacate or enjoin a rule universally. Some scholars have voiced the same claim. This Article rebuts that reading of the APA. Drawing upon the APA’s text and structure, the landscape against it was enacted, its legislative history, and evidence of how courts, Congress and commentators have understood the APA in subsequent decades, this Article concludes that the APA authorizes the “universal vacatur” of federal rules, as well as universal preliminary injunctions against their enforcement. The Article then briefly addresses broader considerations of political legitimacy and institutional competence connected with this dispute over the APA’s remedial scheme.

Definitely go give the article a download and read here. I doubt this will be the last word on the subject.

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