Section 706 of the Administrative Procedure Act Does Not Call for Universal Injunctions or Other Universal Remedies
38 Yale Journal on Regulation Bulletin 1, 2020
10 Pages Posted: 15 May 2020
Date Written: April 12, 2020
Section 706 of title 5 instructs courts reviewing agency action to "hold unlawful and set aside" actions that fail the tests it sets out. Trump v. Pennsylvania, currently before the Supreme Court, raises the question whether Section 706 directs the courts to give so-called universal remedies: remedies that apply to all persons subject to a challenged agency action, not just the plaintiff. Section 706 does not call for universal remedies, including the universal injunction the Third Circuit approved in Trump v. Pennsylvania, because it does not address remedies at all. Section 706 instructs courts to set unlawful agency action aside in the sense of not deciding according to it. Whether the reviewing court should issue an order that vacates the agency's decision, the way an appellate court can vacate a lower court's judgment, depends on the form of proceeding for judicial review being used in the case. In many forms of proceeding for judicial review, such as enforcement proceedings with the private party as the defendant, the court has no occasion to issue any such order. This conclusion about section 706 emerges from the text and structure of the APA. Section 706 applies in all the proceedings for judicial review contemplated by section 703. It therefore must be capable of application in all those proceedings. Section 703 contemplates several kinds of lawsuit in which the reviewing court is not in the position of an appellate tribunal that can vacate the decision below. To be general enough to apply in all those proceedings, section 706 must mean that the reviewing court is to set unlawful agency action aside by not following it. In an injunctive proceeding like Trump v. Pennsylvania, not following the agency's regulation entails giving an injunction against its enforcement. It does not entail vacating the agency action in any other sense. Because section 706 does not call for any remedy, it does not call for a universal remedy.
Keywords: Administrative Procedure Act, Judicial Review of Agency Action
JEL Classification: Administrative Law
Suggested Citation: Suggested Citation