Vacatur of Rules Under the Administrative Procedure Act

Yale Journal on Regulation Bulletin, forthcoming

Virginia Public Law and Legal Theory Research Paper No. 2022-70

21 Pages Posted: 13 Oct 2022

See all articles by John C. Harrison

John C. Harrison

University of Virginia School of Law

Date Written: October 13, 2022

Abstract

Many lower federal courts hold that section 706(2) of the Administrative Procedure Act, 5 U.S.C. § 706(2), instructs courts reviewing agency regulations to vacate regulations that are unlawful as defined by that provision. Vacatur as the courts understand it is distinct from injunctions against enforcement proceedings and declaratory judgments. Unlike remedies that operate with respect to parties and parties' rights, vacatur operates on regulations as such, depriving them of legal force. That feature makes vacatur an inherently universal or nationwide remedy.

Lower courts issued orders purporting to vacate regulations in two prominent recent cases, Health Freedom Defense Fund v. Biden, the mask mandate case, and United States v. Texas, an immigration enforcement policy case that will be argued before the Supreme Court in the 2022 October Term. This article shows that the remedy of vacatur of rules, and the reading according to which 5 U.S.C. § 706(2) calls for vacatur, were unknown when the APA was adopted and at the time of the case in which the Supreme Court approved pre-enforcement review of regulations, Abbott Laboratories, Inc. v. Gardner. The drafters of the APA, leading scholars in the 1950s and 1960s, and counsel and the Justices in Abbott Laboratories, were not familiar with a pre-enforcement remedy of vacatur distinct from injunctions and declaratory judgments.

Suggested Citation

Harrison, John C., Vacatur of Rules Under the Administrative Procedure Act (October 13, 2022). Yale Journal on Regulation Bulletin, forthcoming, Virginia Public Law and Legal Theory Research Paper No. 2022-70, Available at SSRN: https://ssrn.com/abstract=4247173

John C. Harrison (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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