University of Notre Dame

Vacatur, Nationwide Injunctions, and the Evolving APA

July 6, 2023

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Ronald M. Levin*

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.


The permissibility and proper role of so-called universal or nationwide injunctions1 in constitutional and administrative law is a prominent source of controversy these days.  There is already a considerable literature on the policy issues raised by such decrees.  To simplify the question greatly, injunctions that apply nationwide can provide a particularly powerful judicial response to statutes and rules that are found to be unlawful,2 but they can also give rise to concerns about the enormous power that such decrees afford to individual judges, sometimes to the detriment of the opportunity of other courts to weigh in on the same issue.  The potential availability of such injunctions can also distort the litigation process by augmenting plaintiffs’ incentives to file their actions in a forum that is likely to favor their positions.3

Some of the disputants in this ongoing debate have used the perceived ills of the universal injunction as a jumping-off point for raising far-reaching questions about the fundamental structure of the judicial review regime established by the Administrative Procedure Act.4  Those questions will be the initial focus of this Article.  I have written on this subject before, both individually5 and in collaboration with Mila Sohoni.6  Here I will review and elaborate on that work as it pertains to current controversies.  I will then use this analysis as a foundation for exploring broader policy issues and reform proposals regarding universal relief.

This inquiry will require an examination of two types of remedies that courts frequently invoke when they have determined that an administrative rule is unlawful.7  The injunction—whether or not nationwide in scope—is one of these.  The other is vacatur—a judicial order declaring that the rule shall no longer have legal effect.  These two remedies are technically distinct, because an injunction binds the defendant and is enforceable through contempt, whereas a vacatur binds only the agency to which it is directed.  In functional terms, however, a vacatur can have roughly the same effects as a nationwide injunction.

The capacity of the universal relief debate to generate controversy over fundamental APA issues became glaringly apparent during an oral argument in the Supreme Court in November 2022.  In United States v. Texas,8 the Court is currently reviewing the legality of guidelines issued by the Department of Homeland Security to set priorities for detention and removal enforcement under the immigration laws.9  The district court in this case had found that the guidelines violated the APA and had ordered that the guidelines be vacated throughout the country.10  At argument, Solicitor General Elizabeth Prelogar (SG) took the position that a judicial decree under the APA may not vacate or enjoin an agency rule on a universal basis; normally, she suggested, it should only provide relief for the benefit of the prevailing challenger.11  Chief Justice Roberts responded with considerable consternation, as did other members of the Court who, like the Chief Justice, had previously served as judges on the D.C. Circuit.  “[Y]our position on vacatur,” Chief Justice Roberts said,

sounded to me to be fairly radical and inconsistent with, for example, you know, with those of us who were on the D.C. Circuit, you know, five times before breakfast, that’s what you do in an APA case.  And all of a sudden you’re telling us that, no, you can’t vacate it, you do something different.  Are you overturning that whole established practice under the APA?12

When the SG confirmed that she thought that “the lower courts, including the D.C. Circuit, have . . . been getting this one wrong,”13 Roberts replied with a “[w]ow.”14  The SG went on to assert that the lower courts had not been paying attention to the text, context, and history of the APA.15  Justice Kavanaugh, another D.C. Circuit veteran, met her assertion directly.  He noted that he had served on that court with very eminent judges who paid a lot of attention to those factors.16  He added that the SG’s claim was “a pretty radical rewrite, as the Chief Justice says, of what’s been standard administrative law practice.”17  Justice Jackson joined in their criticism.18

In the wake of these unsympathetic, if not hostile, reactions from what Justice Kagan jokingly called the “D.C. Circuit cartel,”19 it seemed clear that the Court was not likely to accept the SG’s view in this case.  Indeed, as some of their colleagues observed, the Court did not really have to reach this issue at all.20  Nevertheless, the Court did not appear close to agreeing on an explanation as to why the SG’s arguments were unfounded.  Nor did these colloquies shed light on the issue of how, if at all, the Court would be able to reconcile longstanding vacatur practice with the objections to nationwide injunctions that some of the other Justices have expressed in past cases.21  The Court will have to address these issues before long.  Hence the need for scholarship to analyze these and related issues.

More specifically, this inquiry will revolve around the interrelationship between two APA provisions.  Section 703 provides in relevant part that

[t]he form of proceeding for judicial review is the special statutory review proceeding relevant to the subject matter in a court specified by statute or, in the absence or inadequacy thereof, any applicable form of legal action, including actions for declaratory judgments or writs of prohibitory or mandatory injunction or habeas corpus, in a court of competent jurisdiction.22

The most immediately relevant language in § 706 provides that “[t]he reviewing court shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be” in violation of six listed standards of review.23

In the United States v. Texas case, the SG’s line of argument was largely inspired by scholarship by Professor John Harrison, who has written voluminously on the subject during the past few years.24  Harrison’s ideas also find support in the work of Professor Samuel Bray, which has also exerted influence at the Supreme Court level25 and has contributed historical dimensions to the revisionist turn in legal scholarship on this issue.  In this Article I will undertake to provide a counterpoint to the theories expounded by Harrison and Bray.  The general thrust of my argument is to agree with the “D.C. Cartel” that the body of caselaw on rulemaking review under the APA is not in need of drastic overhaul.  At the same time, I will suggest that some of those Justices’ ideas are in need of clarification and refinement.

Part I of this Article offers a brief introduction to some basic features of the APA system of judicial review of agency rules, emphasizing how interpretation of that Act has evolved over time to accommodate emerging realities.  Part II explains why reviewing courts need the option of vacating or enjoining rules on a universal basis.  Part III provides a critique of several theories that Harrison and Bray have deployed in order to cast doubt on central premises of that system.  Part IV provides what I consider a more balanced and realistic framework for understanding the relationship between §§ 703 and 706.  In the course of this discussion, I will try to clear up some contested points, including the apparently mandatory import of the “shall . . . set aside” language of § 706, the permissibility of vacatur, and the interrelationship between § 706 of the APA and general injunctions practice as reflected in § 703.

In Part V I will take up specific applications of my framework, including the manner in which courts can apply it to both vacatur and nationwide injunctions.  Finally, Part VI offers some suggestions for reforms that could serve to discourage unnecessary universal relief and ameliorate some of the detrimental effects that such relief can bring about.

Continue reading in the print edition . . .

©2023 Ronald M. Levin.  Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*William R. Orthwein Distinguished Professor of Law, Washington University in St. Louis.  I am grateful for comments on an earlier draft of this Article by Mila Sohoni, Alan Morrison, Samuel Bray, colleagues who attended a faculty workshop at Washington University School of Law, and participants in the Symposium that gave rise to the articles published in this Issue of the Notre Dame Law Review.

1Some authorities prefer the term “universal injunctions” because, in their view, the emphasis should not be on geographical reach, but instead on the court’s effort to resolve the issues raised in the case for all situations in which they might arise.  E.g., Howard M. Wasserman, “Nationwide” Injunctions Are Really “Universal” Injunctions and They Are Never Appropriate, 22 Lewis & Clark L. Rev. 335, 349–53 (2018).  On the other hand, the term “nationwide injunction” is relatively concrete and easily grasped and corresponds more closely with general usage.  In this Article, I use the two terms interchangeably and do not intend any distinction between them.

2For commentaries supportive of universal relief against rules under at least some circumstances, see, for example, Amanda Frost, In Defense of Nationwide Injunctions, 93 N.Y.U. L. Rev. 1065 (2018); Doug Rendleman, Preserving the Nationwide National Government Injunction to Stop Illegal Executive Branch Activity, 91 U. Colo. L. Rev. 887 (2020).

3For commentaries critical of universal relief, see, for example, Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417 (2017); Ronald A. Cass, Nationwide Injunctions’ Governance Problems: Forum Shopping, Politicizing Courts, and Eroding Constitutional Structure, 27 Geo. Mason L. Rev. 29 (2019).

45 U.S.C. §§ 701–706 (2018).

5Ronald M. Levin, The National Injunction and the Administrative Procedure ActRegul. Rev. (Sept. 18, 2018) [hereinafter Levin, National Injunction], https://‌‌/2018‌/09‌/18‌/levin-national-injunction-administrative-procedure-act‌/ [https://‌‌/2L6A-4ED6].

6Ronald M. Levin & Mila Sohoni, Universal Remedies, Section 706, and the APA, Yale J. on Regul.: Notice & Comment (July 19, 2020), https://‌‌/nc‌/universal-remedies-section-706-and-the-apa-by-ronald-m-levin-mila-sohoni [https://‌‌/NT7D-XCGQ].

7This Article focuses on judicial review of agency rules that have been adopted through notice-and-comment rulemaking, but the universal relief debate has also extended to judicial review of other pronouncements that technically are rules.  See, e.g., Trump v. Hawaii, 138 S. Ct. 2392, 2429 (2018) (Thomas, J., concurring) (presidential proclamation); Texas v. United States, 809 F.3d 134, 187–88 (5th Cir. 2015) (agency memorandum), aff’d by an equally divided Court, 136 S. Ct. 2271 (2016).  Most of the analysis in this Article applies equally to these pronouncements.

8United States v. Texas, No. 22-58 (U.S. argued Nov. 29, 2022).

9See Application for a Stay of the Judgment Entered by the United States District Court for the Southern District of Texas at 1–2, United States v. Texas, 143 S. Ct. 51 (2022) (mem.) (No. 22A17 (22-58)).

10See Texas v. United States, 40 F.4th 205, 213 (5th Cir. 2022) (per curiam), cert. granted, 143 S. Ct. 51 (2022) (mem.).

11Transcript of Oral Argument at 49–50, United States v. Texas, No. 22-58 (U.S. Nov. 29, 2022) [hereinafter Transcript] (Prelogar).

12Id. at 35 (Roberts, C.J.).

13Id. at 36 (Prelogar).

14Id. (Roberts, C.J.).

15Id. (Prelogar).

16Id. at 54–55 (Kavanaugh, J.).


18See id. at 66 (Jackson, J.) (suggesting that the SG’s view would create a “disconnect” between “the claim that is being made in a case and the remedy that is provided to a successful plaintiff”).

19Id. (Kagan, J.); see Mark Joseph Stern, Why Roberts and Kavanaugh Got So Furious at Biden’s Solicitor General, Slate (Dec. 2, 2022, 4:27 PM), https://‌‌/news-and-politics‌/2022‌/12‌/supreme-court-biden-immigration-masks-debt-relief-elizabeth-prelogar.html [https://‌‌/DQ3S-7QJ7] (describing Roberts as “audibly angry” and Kavanaugh as “aggrieved and exasperated”).

20See Transcript, supra note 11, at 120 (Sotomayor, J.); id. at 139 (Barrett, J.).

21See Dep’t of Homeland Sec. v. New York, 140 S. Ct. 599, 599–601 (2020) (Gorsuch, J., joined by Thomas, J., concurring in the grant of stay); Trump v. Hawaii, 138 S. Ct. 2392, 2424–29 (2018) (Thomas, J., concurring).

225 U.S.C. § 703 (2018).

23Id. § 706.

24Transcript, supra note 11, at 55 (Kavanaugh, J.); id. at 119 (Alito, J.); see John Harrison, Section 706 of the Administrative Procedure Act Does Not Call for Universal Injunctions or Other Universal Remedies, 37 Yale J. on Regul. Bull. 37 (2020) [hereinafter Harrison, Section 706].  In addition to that article, which was cited in the government’s brief, Brief for the Petitioners at 40–42, United States v. Texas, No. 22-58 (U.S. Sept. 12, 2022), see, for example, John Harrison, Vacatur of Rules Under the Administrative Procedure Act, 40 Yale J. on Regul. Bull. 119 (2023).

25Bray, supra note 3, cited in Dep’t of Homeland Sec., 140 S. Ct. at 600 (Gorsuch, J., concurring in the grant of stay); Trump, 138 S. Ct. at 2427–29 (Thomas, J., concurring).