The Volokh Conspiracy

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Let's Not Set Aside The Scholarly Debate About Vacatur

Sam Bray and John Harrison have moved an argument about equity from "off-the-wall" to "on-the-wall"


I'll admit it. I long ago simply assumed that courts could issue nationwide injunctions. Likewise, I took for granted that the APA gave courts the power to "vacate" agency actions. Sure, I questioned whether those injunctions and vacaturs could be "national" in scope–that is, extend to non-parties. And I often pondered whether it was possible to remand-without-vacatur. (If the D.C. Circuit does it, it must be right, right?!) But I never considered whether the vacatur itself was permissible. That was, of course, until Sam Bray and John Harrison came along.

Sam's scholarship on the nationwide injunction was perfectly timed. The Trump Administration was under a constant barrage of nationwide injunctions. Sam demonstrated that this sort of non-party relief would have been unknown in the courts of equity. The Trump DOJ would routinely cite Bray for this proposition. Somehow–it still boggles the mind–the Supreme Court went Trump's entire term without answering the nationwide injunction question. (And we still don't have an answer!)

Come 2021, the Biden Administration was under a constant barrage of nationwide injunctions. And some conservative judges, perhaps sympathetic to Bray's arguments about the nationwide injunction, turned to a more familiar remedy: vacatur under the APA. These judges were not relying on some unenumerated equitable power, but instead were invoking an express delegation from Congress to "set aside" rules. Indeed, D.C. Circuit judges would vacate five rules before breakfast. But John Harrison argued forcefully that the APA could not be understood to support such a remedy.

Now, this precise issue is before the Supreme Court. The United States embraced Bray and Harrison's work, and asked the Court to wipe away decades of lower-court precedents. Well, sort of. Texas Solicitor General Judd Stone said the meaning of "set aside" is not "clearly presented" and is "fairly eclipsed within the questions presented." He said the "Court can essentially choose to charitably ignore it on that ground." But if Justice Barrett is right, and the remedial question is jurisdictional, then the Court would have to decide whether the lower court had jurisdiction to issue the remedy the parties sought.

Needless to say, the scholarship of Bray and Harrison did not go over so well with the D.C. Circuit "cartel," as Justice Kagan joked. (Of course, Justice Kagan was nominated to that cartel, but like with most cartels, the barriers to entry were too high.)

Chief Justice Roberts said that Solicitor General Elizabeth Prelogar's position was "fairly radical." Roberts was troubled by how "sudden" this argument was. Indeed, this issue has only been percolating for a few years, in light of Bray and Harrison's scholarship. Roberts, no fan of legal scholarship, referred to Harrison's article by name in a colloquy with Texas Solicitor General Jud Stone.

How did Prelogar handle these questions? She bit the bullet, and said the D.C. Circuit has been "getting this one wrong" for decades. "They have reflexively assumed that vacatur is authorized under Section 706 of the APA." I am fascinated by the word "reflexively." Think of a gag-reflex–it is something you do unconsciously and without thinking. I use this word from time-to-time to make the point very sharply that judges simply are not doing their job. (For example, in several spots I wrote that the lower courts reflexively followed Chief Justice Roberts's South Bay concurrence.)

Roberts responded to Prelogar, "Wow." The D.C. Circuit judges were issuing these remedies "all the time as a staple of their decision output." Prelogar shot back that, again, the courts did not think this issue through sufficiently. And she repeated the word "reflexively." No doubt this was a word prepared in moots.

GENERAL PRELOGAR: But they haven't been doing it with any attention to the text, context, and history of the provision. So it's not as though there are decisions out there that have really engaged with these arguments and come out the other way. Instead, it seems like this happened and came about because courts just reflexively transposed remedies that were available under special statutory review provisions, which do sometimes authorize vacatur, to the APA context writ large.

Prelogar likely knew that she would be assailed for this argument, but she firmly stood her ground.

Now the Chief Justice spent about two years on the D.C. Circuit. Judge Kavanaugh served on that court for twelve years. If we do some back-of-the envelope calculations–five vacaturs before breakfast, assume three meals a day, five days a week–Kavanaugh must have set aside nearly 10,000 actions! Kavanaugh was incensed at the notion that he, and several other judges he name-dropped–he likes to name-drop–could have gotten it all wrong.

Set aside, you said the judges on the D.C. Circuit haven't paid attention to text, context, and history. I guess I would respectfully push back pretty strongly on that. I sat with judges like Silberman and Garland and Tatel and Edwards and Williams. They paid a lot of attention to that.

Justice Barrett clerked for the late Judge Silberman, and Prelogar clerked for Judge Garland, and now works for Attorney General Garland. Like Roberts, Kavanaugh also remarked how novel this argument was.

And the government never has made this argument in all the years of the APA, at least not that I remember sitting there for 12 years. I haven't seen it made. It's a pretty radical rewrite, as the Chief Justice says, of what's been standard administrative law practice. And you devote three pages in your brief to this complete change that all these judges have been doing for all these years, and the government comes up and acknowledges that in case after case after case with labor, energy, environmental. And I think it's a big step.

Indeed, Kavanaugh faults a "recent law review article."

No one's really had this –no case has ever said what you're saying anywhere. No one –you know, it's a recent law review proposal, good for that, but, you know, that's not been the law.

"Good for that!" If you listen closely at 46:30, you can hear a female voice chuckling. I think it was Barrett–who was Bray's colleague at Notre Dame–but I am not certain. It may have been Kagan. Later, Justice Alito referred to Harrison's piece as an "innovative law review article that appeared in 2020." A bit more gracious.

This colloquy seemed personal for Kavanaugh. See how he pivots from "they" to "we."

And you say they're not paying attention to the text. Yeah, we did.

Kavanaugh's jab at Bray and Harrison felt like an episode of Scooby Doo: the D.C. Circuit Cartel would have gotten away with it too, if it wasn't for those meddling law professors. We really should stick to "the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria."

Listen to the recording. Kavanaugh seemed ticked off. After talking for two-full pages in the transcript, Kavanaugh admits "that's not really a question, but that is a comment." (Never have I ever heard a more academic line.) Kavanaugh's colloquy stretched 2.5 pages (starting on p. 54 through page p. 56), and lasts for nearly 2.5 minutes (44:55-47:28). To my memory, this is our first Kavanaugh Page.

Later in the argument, Justice Barrett returned to this issue. She said she was surprised by the briefing on Section 706. But all those D.C. Circuit cases may not be entitled to much weight. With regard to jurisdiction, she said, the Court "gives little weight to drive-by jurisdictional rulings." In other words, if those 10,000 orders that Judge Kavanaugh issued failed to address whether the court had Article III jurisdiction, then those decisions do not settle the question. Then, Barrett asked what has become her signature question. Assume "X," do you lose?

If I think you're wrong about the original meaning of the APA or what people expected "set aside" meant at that time and these are all drive-by remedial rulings, do you lose? 

I've noticed this framing in several other cases. Pro tip: when Barrett says "if I think you're wrong," then she thinks you're wrong.


Here, I commend Sam Bray and John Harrison. They successfully moved a legal argument from "off-the-wall" to "on-the-wall." They fought against decades of precedent, and received wisdom, with a commitment to clear scholarship and careful advocacy. They garnered the attention of Republican and Democratic administrations. And several Justices are now expressly considering whether they are correct. Whatever the Court does in United States v. Texas, Bray and Harrison deserve a world of credit.