[Part I is available here.]

In the first part of this post, we explored the history of section 706, and why it probably does not support universal remedies. But even so, several Justices have hinted at their hesitation to read vacatur out of the APA. This will force the Court to contend with the second hurdle that vacatur must leap before it fills the shoes of the nationwide injunction, and the one we deal with in our own article. Is vacatur constitutional?

Start with the basic definition of judicial power — “the power to render judgments in individual cases.” A corollary of this power, as well as a traditional principle of equity, is that the court’s power acts upon parties at suit, not upon the whole world and least of all upon the law itself.  This dictum was nicely summed up in Frothingham v. Mellon, where the court recognized that when it reviews a statute, it acts “not [upon] the execution of the statute, but the acts of the official, the statute notwithstanding.”

From this understanding, vacatur very quickly strains not only the limits of Article III, but the very concept of judicial review itself. Vacatur does not purport to arrest the operation of law against some parties, or even all parties; it acts upon the law itself. The power to modify law is not judicial at all — rather it is legislative (or sometimes executive, depending on how you look at it). Therefore, our article takes the position that vacatur raises a non-delegation problem.

Don’t just take our word for it: when judicial review of agency action was being crystallized in the 1940s, it was observed that proceedings to vacate agency orders were not really judicial. Instead, this power was “a part of the legislative process in determining the validity of the exercise of quasi-legislative power.” This view is only solidified by recent case law, which evinces far more suspicion about blending judicial and legislative functions than the New Deal Court did.

One might raise a few objections to our position. The least worrisome is to point out that, technically, agency rules are not a “delegation of legislative authority” at all, but rather a
“certain degree of discretion… [that] inheres in most executive… action.” But however one wants to cut it, executive or legislative, rules are not judicial in nature, so either way the court repeals them by non-judicial power. The formalist might then retort that, like a chameleon, the same function becomes executive or judicial depending on who wields it. The rulemaking was executive, the vacatur is judicial. But that lands us back in square one — vacatur does not “render judgments in individual cases,” which is what adjudication does.

Going further, one can point to edge cases where the court seems to exercise a repeal-like power. This is the line taken by scholars like Emily Bremer, Fred Halbhuber, and James Pfander. Professor Bremer and Halbhuber point to appellate review and certiorari respectively, where the court vitiates the judgment or order directly, which by our understanding is more like a legislative act. Professor Pfander points to other writs, like scire facias, where the court could void a patent in rem. But even assuming that vacatur stems from these sources, we would caution against drawing constitutional sanction out of them. Appellate review acts upon a judgment, the effect of which judgment binds only the parties to the proceeding (unless by some obvious exception where non-mutual estoppel attains). Thus, the court’s vacatur is ancillary to what is undeniably an exercise of the judicial power, and the only people really affected by this decision “against the whole world” are the original parties. This is not so for vacating an agency rule: the original power is not judicial, and so the vacatur is not ancillary to a judicial act. Unlike a court’s judgment, a rule is general and affects all regulatees. These are constitutionally relevant distinctions that push vacatur into the realm of legislating.

As for certiorari and other writs, limited inference can be made from their historical practice. As Samuel Bray has pointed out, proceedings to nullify, vacate, or enjoin municipal or state acts are more akin to a “bill of peace,” and thus are in the nature of a class action rather than a vacatur. Even in the case of scire facias, the proceeding was done qui tam, in the name of the Crown, and thus the executive was actually repealing its own enactment. The convoluted legal fiction suggests that judges could not repeal executive enactments by themselves.

Vacatur is a delegation of legislative power — but is it an impermissible delegation? There are two basic ways to look at the problem: whom the power is delegated to, and how the delegated power is to be exercised. Alexander Volokh has called these “recipient-based” and “application-based” nondelegation doctrines.

Whom Congress delegates a legislative power to is especially important, because there are some functions that can be done by one branch, but not the other. For example, would the Court uphold the ability of an executive agency to decide the rules of procedure used by courts? Unlikely. On the other hand, a district court doing rulemaking for clean-air regulation is more constitutionally suspect than vesting that power in the EPA. The branches were intentionally designed to serve different roles — one to act retroactively and specifically, one to act generally and prospectively – and delegation is not agnostic to that design. This is why there is a constitutional asymmetry between the initial rulemaking and the vacatur of a rule. The agency can be delegated the repeal power, but the court cannot, not because of what the power is but because of who the delegee is.

Because vacatur essentially delegates a veto power to a body outside Congress, we see a compelling analogy to INS v. Chadha. Just like the one-house veto attempted to “alter[] the legal rights, duties, and relations of persons” without presentment, so too does vacatur illicitly alter the character of law. In fact, the connection between vacatur and a legislative veto was immediately obvious to the ABA’s Subcommittee on Administrative Law, who analogized the Administrative Court Bill’s review provision to Britain’s practice of sending rules to Parliament for veto. Except unlike Congress or Parliament, who bear obvious connection to the legislative power, the courts are ill-designed to decide whether executive action should be repealed or not. That said, Chadha is an extremely opaque opinion, and its footnotes that attempt to distinguish legislating, adjudicating, and executing the law are riddles. Our article maintains that, however one reads the decision, vacatur by judicial fiat is at least as formally and functionally pernicious as the legislative veto.

The other question is how the power is wielded. The classic test for an application-based nondelegation challenge is the “intelligible principle” standard, which requires no more than that “Congress has made clear to the delegee the general policy he must pursue and the boundaries of his authority.” This requirement is famously lax, allowing such vagaries as “unduly complicated,” “inequitable,” and “public interest” to constitute an intelligible principle. Nonetheless, it has its bite — a delegation cannot consist of “plenary power,” where there is a “total absence of guidance.” And yet, vacatur authorizes just that.

This is the second reason why agencies can be delegated the authority to repeal their own rules, but courts cannot. When an agency repeals its own rule, it is subject to arbitrary and capricious review under the APA. There is thus an intelligible principle by which to review the exercise of executive authority. Not so for vacatur. Although section 706 states that courts shall “set aside” unlawful action, this language is usually read as permissive, rather than mandatory. Thus courts have understood their power to vacate as purely discretionary. And indeed, some courts like the D.C. Circuit have concocted self-imposed factors to govern whether to vacate, such as the “seriousness of an order’s deficiencies” and the “disruptive consequences” of a vacatur. But all the same, section 706 lacks an intelligible principle, and so it is unconstitutional.

Our article is hardly the final word on the question — rather it is a beginning. The intricacies of equity, early administrative law, and separation of powers have yet to be plumbed to their full depth. Perhaps vacatur’s constitutionality hinges on history, or perhaps originalism strains to find an analogy to a scheme so foreign to our founding. Perhaps it hinges on policy — whether aggressive judicial review promotes, or stifles, our constitutional values. Either way, we hope that our posts will invite discussion on this important issue that looms on the Court’s horizon.

Jameson Payne is a graduate student at Hillsdale College’s Van Andel School of Statesmanship. GianCarlo Canaparo was a senior legal fellow in the Edwin Meese III Center for Legal and Judicial Studies at the Heritage Foundation.