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05/16/2020

Mila Sohoni: The Power to Vacate a Rule
Michael Ramsey

Mila Sohoni (University of San Diego School of Law) has posted The Power to Vacate a Rule (George Washington Law Review, Vol. 88, 2020) (70 pages) on SSRN.  Here is 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.

The original meaning of the APA is getting to be an important area of inquiry. (See also: Evan Bernick's Envisioning Administrative Procedure Act Originalism.)

Via Larry Solum at Legal Theory Blog, who says: "Highly Recommended."