(Coauthored with Charles Yates)

Previously, we explained how the Supreme Court, in Bondi v. VanDerStok, appeared to endorse an impossibly deferential standard of review in cases involving claims that regulatory agencies have acted contrary to, or in excess, of their statutory authority. In that post, we observed that the Court’s turn to super-deference in VanDerStok cannot be reconciled with its abandonment of the Chevron doctrine only months before in Loper Bright. Regardless of whether the Court had fully thought through its decision, we predicted that the government would start pressing for VanDerStok deference.

In this post, we explain how our prediction fared. Long story short: we were right. Government lawyers indeed are trying to expand the applicability of the VanDerStok framework.

But first, the backstory. VanDerStok involved pre-enforcement review of a 2022 rule from the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), which expanded the agency’s regulatory reach to include homemade firearm kits. Because the operative statute does not provide for review, the plaintiffs brought their lawsuit in a federal district court, using the Administrative Procedure Act’s cause of action and waiver of sovereign immunity. The challengers argued the ATF rule should be “set aside” under APA § 706(2)(A) (“not in accordance with law”) and § 706(2)(C) (“in excess of statutory … authority”).

The VanDerStock case is indistinguishable from other pre-enforcement APA suits alleging that the agency exceeded its statutory authority. Yet rather than treating the case as a garden-variety APA suit—as had the lower courts—the VanDerStok Court applied so-called “facial” review.

Facial review operates in categorical terms. As set forth in VanDerStok, a rule is “facially invalid” if no application of the rule “can ever satisfy” the statute. If, on the other hand, “at least some” applications of the agency’s interpretation are not unlawful, then it “is not facially invalid.” A facial attack, according to the Court, “is … the most difficult challenge to mount successfully” because the challenger must establish there are “no set of circumstances” under which the agency’s interpretation would be valid.

It is uncertain what triggers this ultra deferential judicial posture. In VanDerStok, the government seized on fleeting uses of the modifier “facial” in the complaint, arguing that the plaintiffs thus requested the framework. The Court accepted the government’s characterization of the challenger’s case, despite its utter implausibility. After all, why would any plaintiff handicap themselves by seeking super-deference for the other party? Compounding the confusion, the VanDerStok Court was unclear on how or where its methodology fits within administrative law.

Amidst the jurisprudential haze left by the VanDerStok decision, government lawyers have every incentive to draw a distinction—facial versus as-applied review—where previously none was drawn. And that’s what they’re doing.

Recently, in Center for Biological Diversity v. U.S. Department of the Interior and Vanda Pharmaceuticals, Inc. v. Food & Drug Administration, the government filed briefs that describe the controversies as facial challenges requiring the court to apply the ultra-deferential “no set of circumstances” standard. See Defendants’ Motion to Remand or Stay, Cross-Motion for Summary Judgment, and Opposition to Plaintiffs’ Motion for Summary Judgment, Ctr. for Biological Diversity v. U.S. Dep’t of Interior, No. 4:24-cv-04651 (N.D. Cal. Jul. 18, 2025), 2025 WL 3134137; Reply in Support of Defendants’ Cross-Motion for Partial Summary Judgment, Vanda Pharm., Inc. v. U.S. Food & Drug Admin., No. 1:25-cv-00536 (D.D.C. May 16, 2025), 2025 WL 1766679. Neither brief identifies why, exactly, facial review is the appropriate framework. Both cases are pending while the district court considers cross motions for summary judgment.

In sum, the government is trying to extend the applicability of VanDerStok deference, as we predicted. It remains to be seen whether this strategy will work.