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07/23/2020

Ronald Levin & Mila Sohoni on John Harrison on APA Remedies
Michael Ramsey

 At the Yale Journal on Regulation's Notice and Comment blog, Ronald M. Levin (Wash. U.) & Mila Sohoni (San Diego): Universal Remedies, Section 706, and the APA.  From the introduction:

The debate over the propriety of the nationwide or “universal” injunction continues to unfold. Just this month, in a dissenting opinion in Little Sisters of the Poor v. Pennsylvania, Justices Ginsburg and Sotomayor took a stand in favor of the permissibility of such injunctions, balancing off comments to the contrary in earlier opinions by Justices Gorsuch and Thomas.

The debate among commentators also remains in flux. In particular, in a recent JREG post and accompanying bulletin, Professor John Harrison has set forth a fresh argument about the judicial review provisions of the Administrative Procedure Act (APA) and their relationship to the universal injunction. Hailed by one observer as “explosive,” Harrison’s work swiftly received a prominent citation at the Supreme Court in the Solicitor General’s reply brief in Trump v. Pennsylvania, the companion case to Little Sisters. Accordingly, we felt it worthwhile to write this response to his contentions. ....

We have each written separately about the APA and universal injunctions, including in an amicus brief and a recently posted draft article by one of us (Sohoni, The Power to Vacate a Rule). (That article contains portions of the analysis below.) But Harrison adds a new twist to the debate. His chief claim is that “section 706 . . . does not address remedies at all. … The APA addresses remedies not in section 706, but in section 703.” The implications of this broad assertion extend well beyond the context of universal injunctions; they raise questions about the fundamental structure of the APA. ...

Like the famous Robert Rauschenberg artwork “Erased de Kooning Drawing,” the impact of Harrison’s argument flows from what it erases. In the 70-plus years since the APA was enacted, administrative lawyers have never construed Section 703 as addressing remedies. Even if the tabula were actually rasa, moreover, we would still urge against Harrison’s reading of the APA. That law’s text, structure, legislative history, and purposes all support the view correctly held by courts and commentators: the APA deals with remedies—including universal remedies—in Sections 705 and 706, not in Section 703. ...