APA Remedies and the Mischief Rule: Two Thoughts on CIC Services

Yesterday the Court decided CIC Services, LLC v. IRS, a case about the scope of the Anti-Injunction Act. Two brief thoughts on the majority opinion by Justice Kagan (which is written with verve and clarity):

1. The plaintiffs asked for three kinds of "relief." They wanted the court to "set[] aside IRS Notice 2016-66," "enjoin the enforcement of Notice 2016-66 as an unlawful IRS rule," and to "declar[e] that Notice 2016-66 is unlawful" (pp. 4-5 of the slip opinion). The Supreme Court carefully decided the case without saying anything about what the relationship of "set aside" under the Administrative Procedure Act is to the remedies of injunction and declaratory judgment. That's good, and it's notable because of John Harrison's recent arguments that "set aside" isn't even a remedy at all. The Court's silence on how "set aside" is related to the injunction and declaratory judgment remedies doesn't indicate what the Court will eventually say. But the silence--when it would have been very easy, in a case about the Anti-Injunction Act, to say something off-hand equating "set aside" with an injunction--might indicate that some justices are taking notice of Harrison's arguments.
2. The statutory analysis in Part I begins with a paragraph about "the problem" of post-Civil War injunctions against tax collection. The next paragraph says that "Congress responded by enacting the Anti-Injunction Act." This sequence doesn't seem to have been controversial, and neither of the concurring opinions made an issue out of it. It's a reminder of how obvious and natural it is to think about the "mischief"--the motivating problem for a statute. The mischief is not just something you appeal to when a statute is ambiguous, but rather it is part of the context in which you read the statute in the first place. If you want to read more about the "mischief," you're in luck, because you can read "The Mischief Rule" here.