The Power to Vacate a Rule

70 Pages Posted: 13 May 2020 Last revised: 14 May 2020

See all articles by Mila Sohoni

Mila Sohoni

University of San Diego School of Law

Date Written: May 13, 2020


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.

A Note to the Reader—This Article is still a draft. It is subject to revision. It has been “subcited,” but it has not been fully “Bluebooked.” Comments are welcome.

Keywords: administrative law, vacatur, universal injunction, nationwide injunction, set aside

Suggested Citation

Sohoni, Mila, The Power to Vacate a Rule (May 13, 2020). George Washington Law Review, Vol. 88, 2020, San Diego Legal Studies Paper No. 20-450, Available at SSRN:

Mila Sohoni (Contact Author)

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States

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