The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Who Would Win?: APA Vacatur Versus National Injunction


If you have elementary school age children, you probably know about the "Who Would Win?" books. The conceit is straightforward: posit two animals, and ask which of them would prevail in a struggle. Lion versus tiger, whale versus giant squid, tyrannosaurus rex versus velociraptor. For those who have followed the debate over national injunctions, we now have a new entry in this genre: APA vacatur versus national injunction.

In May, a district court issued a national injunction prohibiting the Biden administration from lifting Title 42, a COVID-related public health order that allows the expulsion of migrants. Yesterday, another district court purported to vacate Title 42 and issued a permanent injunction prohibiting the government from applying Title 42 to members of the plaintiff class.

The injunctions themselves are not quite conflicting: "don't lift Title 42" and "don't apply Title 42 to this class" are not in conflict, because the government can obey both. The former goes to an action the administration might take with regard to the order itself, while the latter goes to actions regarding its enforcement against specified people. (It's standard equity practice to distinguish between the legal rule and its application.) And because the injunction protects the plaintiff class, it is not a "national injunction" or "nationwide injunction" as defined in Multiple Chancellors and other literature on the subject. So we don't yet have two conflicting national injunctions, though once again it's a close run thing.

But there is a stronger inconsistency between the purported vacatur and the injunction. The purported vacatur says that Title 42 for legal purposes does not exist, i.e., it is void and of no effect, annulled. If vacatur is a remedy, then that is exactly what it means. But the injunction says the administration is not allowed to terminate Title 42, which is gobbledygook unless there is such a thing as Title 42.

When I say "if vacatur is a remedy," that's because I don't think it is. Despite its flourishing in the DC Circuit in recent decades, there is no traditional remedy of "vacatur." Scour the legal and equitable remedies and you won't find it. Vacating is an action taken with respect to a judgment. It is not an action taken with respect to a legal norm like a statute or a rule. This is first principles stuff: see Mellon v. Massachusetts, or as Justice Breyer said in his opinion for the Court in California v. Texas, remedies "do not simply operate on legal rules in the abstract."

If you want to read more, the leading work on this is a series of recent pieces by John Harrison, including Vacatur of Rules Under the Administrative Procedure Act and Remand Without Vacatur and the Ab Initio Invalidity of Unlawful Regulations in Administrative Law. The leading source on the other side is Mila Sohoni's The Power to Vacate a Rule.

Saddle up!