In an era of deep political polarization, the Biden and Trump administrations found rare common ground — not on immigration, climate change, or health care but on something far more procedural: a shared frustration with courts that enjoin federal policies nationwide.[1] Even Supreme Court justices have voiced frustration. To quote Justice Kagan: “It just can’t be right that one district judge can stop a nationwide policy in its tracks ... for the years that it takes to go through the normal [appellate] process.”[2] Thus, nationwide injunctions are likely in the court’s crosshairs.

           This is not a surprise with recent headlines of federal judges blocking a myriad of Trump administration policies, from birthright citizenship to the mass firing of federal employees.[3] The Biden administration also battled this problem on several occasions.[4] For example, Biden’s student debt forgiveness plan was enjoined nationwide by a federal judge in Missouri.[5] It seems nationwide injunctions frustrate all presidents, regardless of their party.[6] Now, bipartisan forces have begun to pressure Congress and the Supreme Court to reign in these sweeping remedies.[7]

           But what if Congress already has a statute that allows federal courts to impose a certain subspecies of nationwide injunctions? That question describes the debate over whether “vacatur” — the act of vacating an agency’s rule and thereby erasing it from the Code of Federal Regulations — is a valid remedy under the Administrative Procedure Act (APA). On a few occasions, the Supreme Court considered the issue without ruling on it.[8] The questioning at oral argument in those cases revealed division along unexpected lines. Instead of the usual ideological breakdown, the Chief Justice along with Justices Kavanaugh and Jackson (the "D.C. Circuit Cartel," as Kagan put it)[9] opposed a more expected duo: Justices Gorsuch and Thomas.[10] Of course, Kagan’s comment that a nationwide injunction “just can’t be” a remedy seems to make it an even three-to-three split crossing the usual ideological divide.[11] 

           On the one hand, Gorsuch, Thomas and Kagan have indicated a federal judge can only prevent the rule at issue from applying to the parties in front of the court.[12] On the other hand, some members of the court, like Kavanaugh, find that idea offensive because of the decades of reliance on vacatur’s validity and the limited reach of the other APA remedies.[13] The issue seemed poised for a resolution in Corner Post v. Board of Governors of the Federal Reserve System,[14] but Justice Barrett avoided the vacatur question in her majority opinion.[15] Nevertheless, Kavanaugh wrote a thorough concurrence defending the decades-old practice.[16]

           Corner Post was not the court’s first time discussing vacatur’s status as an APA remedy. After the nationwide injunction trend started picking up, vacatur became a hot topic during oral argument for United States v. Texas.[17] In that case, the three D.C. circuit alums called the government’s argument against vacatur a “radical” reshaping of APA challenges to agency rules.[18] The implications of this percolating debate are nothing short of imperative for administrative law. Although the resolution has massive consequences for the future of judicial review of agency actions, the outcome ironically relies on the interpretation of just two words: “set aside.”

          The conclusion that best reflects the text of the APA is for the Supreme Court to formally recognize vacatur as a remedy in section 706. To understand this point, it is necessary to describe vacatur and its implications as separate from the idea of nationwide injunctions.[19] Then, using the modern paradigm of statutory interpretation, the analysis must unpack the APA’s directive for courts to “set aside” unlawful agency action.[20] Though seemingly straightforward, this phrase has given rise to competing interpretations. One reading treats “set aside” as authorizing courts to vacate all kinds of agency actions. The opposing view construes “set aside” more narrowly, requiring courts to only disregard the unlawful action in resolving the case before them. Settling this debate requires careful attention to the statutory text, including how “set aside” was understood at the time APA was enacted and how the phrase functions within the statute’s broader structure.  

To read Sterne's award-winning paper in its entirety, click here.