Vacatur of Rules Under the Administrative Procedure Act

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 rules 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 was recently argued before the Supreme Court . This Essay argues that the remedy of vacatur of rules as now understood, and the reading according to which 5 U.S.C. § 706(2) calls for vacatur, were not well known 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.