Vacatur, Nationwide Injunctions, and the Evolving APA

Abstract

The courts’ growing use of universal or nationwide injunctions to invalidate agency rules that they find to be unlawful has given rise to concern that such injunctions circumvent dialogue among the circuits, promote forum-shopping, and leave too much power in the hands of individual judges. Some scholars, joined by the Department of Justice, have argued that such judicial decisions should be limited through restrictive interpretations of the Administrative Procedure Act (APA).

This article takes issue with these authorities. It argues that the courts’ use of the APA to vacate a rule as a whole—as opposed to merely enjoining application of the rule to an individual plaintiff—serves vital functions in maintaining judicial control over agency discretion. The article goes on to argue that such relief is consistent with the language and legislative background of the APA. However, courts have discretion as to whether they will make use of this remedy in individual cases.

Starting from these premises, the article surveys factors that can militate for or against universal relief in particular circumstances. It also suggests possible doctrinal adaptations and structural reforms that could contribute to preventing overuse of universal injunctions.

Keywords: administrative law, Administrative Procedure Act, judicial review of rules, vacatur, nationwide injunction, universal injunctions