The Volokh Conspiracy

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

In 2018, Mario Rosales was driving in Roswell, New Mexico, when he legally passed off-duty sheriff's deputy David Bradshaw's personal pickup truck. In a fit of road rage, Bradshaw followed Mario home, blocked him in the driveway, screamed at him, and ultimately pointed a gun at him. Bradshaw was fired and convicted of aggravated assault—but when Rosales sued him for violating his constitutional rights, a federal court granted Bradshaw qualified immunity. This week, IJ Attorney Marie Miller argued his case before the Tenth Circuit, and boy are we glad we weren't the former deputy's lawyers. 

• Procedural persnickets, beware thine own petard! Two environmental groups complaining that the Nuclear Regulatory Commission didn't prepare an environmental-impact statement before issuing a permit themselves failed to raise their objection properly. Which means, per the D.C. Circuit, that American Centrifuge is authorized to produce uranium enriched up to 20 percent. Politics aside, that's just very cool as a matter of physics. 
• Your editors don't exactly hesitate to nerd out about the Constitution. We know "fire in a crowded theater" is claptrap, we worry about that loophole in the Vicinage Clause, and, heck, we even think the Fourteenth Amendment should better reflect the 1615 Ipswich Tailors' Case. But even we had never seen a case about the Bankruptcy Clause's "uniformity" requirement. (Relatedly, the Second Circuit holds that debtors who paid bankruptcy fees that were mandatory in their district but permissive in others are getting a partial refund.) 
• Does the Second Amendment prevent disarmament of a person for an old nonviolent conviction? Third Circuit, conducting much historical analysis in the mode of Bruen: Not if it was the equivalent of a felony. So no hunting rifle for a man who was convicted of about $2,500 in welfare fraud in 1995. 
• You've got to feel for the defendant LLC in this Fourth Circuit ruling. It was sued, counterclaimed, won, and was awarded damages and attorney's fees only to have the whole thing vacated on appeal because one of 39 partners in the LP that owns the LP that owns the LLC that owns the defendant LLC lives in the same state as the plaintiff, destroying diversity of citizenship. But "[w]hether mutual contentment with the federal forum or genuine obliviousness brought the parties to this unfortunate juncture, this Court will not condone the exercise of jurisdiction where it did not truly exist." 
• After a pair of meth dealers entered into a federal cooperation agreement, they made quite a confession: They previously dumped the dead body of one of their customers into a bayou. The customer had skipped out of town after they bonded him out of jail—putting the bond money at risk—and they offered free drugs to anyone who could get him back. The incentive worked all too well, and the customer was killed in the ensuing retrieval effort. Fifth Circuit: While the cooperation agreement made promises of immunity, it did not apply to "crimes of violence." Murder being a "crime of violence," the district court appropriately considered this conduct at sentencing.   
• Challengers to a Texas law criminalizing out-of-state abortions sought to subpoena testimony from Texas AG Ken Paxton, arguing it was necessary to reconcile his public statements threatening to enforce the law with his argument (in a pending motion to dismiss) that he lacked authority to take such enforcement action. The district court obliged, reasoning that "Paxton alone is capable of explaining his thoughts and statements." Fifth Circuit: The district court had to decide the pending motion to dismiss before it could haul anyone in to testify, and, in any event, Paxton can't be made to testify because the challengers could subpoena his subordinates instead. Mandamus granted.   
• Voter-registration activists sue Tennessee over a law imposing a raft of new requirements. The trial court grants them a preliminary injunction, and they're able to register new voters ahead of the 2020 election. Seven months later, the state repeals the enjoined provisions. State: So the victory was just temporary and we don't have to pay plaintiffs' attorneys' fees. Sixth Circuit: The decision was final enough; pay up. Dissent: Plaintiffs won the battle but not the war—and only the war would entitle them to attorneys' fees.  
• Ohio man pleads guilty to illegally possessing a gun. But there's no plea deal and nothing specifying the sentencing range—so the court isn't bound by the parties' calculations of the sentencing guidelines (21–27 months' imprisonment per gov't vs. the man's attorney's 12–18 months). Surprise! The court imposes a sentence of 57 months based on the Probation Office's calculation of the guidelines. Sixth Circuit: The district court should've warned the man that it would decide his sentence irrespective of the parties' calculations. Back down to the district court, which may resentence him to a max of 27 months or allow him to plead anew.  
• Detainee at Cook County, Ill. jail files putative class action challenging lack of grab bars and other fixtures for disabled people. District court (September 2019): No class certification for you. Seventh Circuit (March 2020): This case seems like a pretty easy candidate for class certification. District court: Okay, class certified. But now decertified (September 2022) because some of the class members might not really be disabled. Seventh Circuit (November 2022) (and without requesting a response brief from the defendants): Seriously? Hasn't the district court even heard of issue certification under Rule 23(c)(4)? We feel like we're taking crazy pills! Reversed. Again. Let the class action proceed.  
• In which the Eighth Circuit preliminarily enjoins the U.S. Sec'y of Education's student-loan-forgiveness plan because (a) it is likely that the State of Missouri (one of the plaintiffs challenging the plan) has standing; (b) the legality of the plan "involve[s] substantial questions of law which remain to be resolved"; and (c) letting the plan go into effect would be a big deal while pausing it would not be. Also the preliminary injunction should be a nationwide one. 
• Detachable pockets! DETACHABLE. POCKETS. They're breathtaking. But are they entitled to trade-dress protection under the Lanham Act? Eighth Circuit: They are not. To be protectable, trade dress must be "nonfunctional." And Pocket Plus's pocket pouch's trade dress—for example, its shape and the ability to open it—is all functional. 
• After Arkansas woman's home burns down, she asks her insurer for money. Insurer: But when you applied for the policy, you said you hadn't had a foreclosure in the past five years, and in fact you'd received a "Notice of Default and Intention to Sell" from your mortgagee six days before. We're rescinding your policy for that misrepresentation and paying you ::slides abacus beads:: precisely zero dollars and zero cents. Eighth Circuit: The policy application's question about whether she "had a foreclosure" was ambiguous. Did it mean has any foreclosure proceeding ever been commenced? Or has any foreclosure sale taken place? If the former, then yeah, the woman made a misrepresentation. If the latter, she didn't. So she gets a pass for giving a bad answer to your bad question. 
• Just the Ninth Circuit breezily noting that, though the U.S. Constitution protects some fundamental rights, "the right to use and occupy [your] own property" isn't among them.  
• Philosophers may spend their days pondering precisely when several grains of sand become a "heap," but this Ninth Circuit opinion reminds us that lawyers, as punishment for their sins, must spend their days pondering precisely when a device that automatically dials phone numbers becomes an "autodialer." 
• Pro tip from the Tenth Circuit: If you're appealing from an order granting summary judgment, your appellate brief should, somewhere in there, use the phrase "summary judgment." As it is, "Plaintiffs-Appellants' appellate briefing is so woefully inadequate—especially in light of the complicated constitutional issues at issue here and the district court's extensive analysis of them—that they have waived appellate review." 
• This Tenth Circuit opinion may try to distract you with its lurid facts, which include a vast conspiracy to frame an innocent man for murder, a shocking effort to suppress evidence about the actual confessed killer, and, at one point, a man's attempts to have sex with a dog, but the really exciting part is the question of whether Parratt abstention applies to substantive due process claims.  
• From the Eleventh Circuit comes the tale of a man who's pulled over with a blood-alcohol level of .314 and whose day proceeds to get much, much worse. 
• And in en banc news, the Fifth Circuit will not reconsider its decision affirming a 70-month sentence for a felon convicted of possessing two shotgun shells that he claimed both to have found and to believe were signal-gun flares. He may not have paid for them, but "the government introduced enough evidence that [the] shotgun shells traveled in interstate commerce, and that is all our caselaw requires to satisfy the interstate commerce element."  
• And in more en banc news, the Eighth Circuit will not reconsider its decision preliminarily enjoining an Arkansas law that prohibits healthcare professionals from providing "gender transition procedures" to any individual under 18. Five judges dissent, arguing that the panel opinion "draws a major piece of Arkansas legislation into doubt and recognizes what amounts to a new suspect class." 
• And in additional en banc news, the Tenth Circuit will not reconsider its decision that a religious school may not immediately appeal an interlocutory ruling denying summary judgment on the school's "ministerial exception" defense after it fired a chaplain who gave a presentation on race and faith. Three judges dissent, arguing that the ministerial exception provides immunity from suit—not just immunity from liability—and therefore its denial must be immediately appealable. 
• But in further en banc news, the Ninth Circuit will reconsider its decision affirming a land-exchange agreement between the Secretary of the Interior and an Alaska Native village corporation, which would allow the corporation to build a road through the Izembek National Wildlife Refuge to facilitate medical evacuations. 
• And in extra, bonus en banc news, the Ninth Circuit will also reconsider its decision that a taxpayer may "file" a return—thus triggering the IRS's three-year period for adjusting the taxpayer's liability—by providing a copy of the return to an IRS official who asks for it, even if the return has not also been mailed to an IRS service center. 

Friends, with Thanksgiving fast approaching, we at Short Circuit are particularly thankful that, on Thursday, the West Virginia Supreme Court of Appeals affirmed the constitutionality of the state's Hope Scholarship Program. This paves the way for families to use scholarships for private school tuition, therapies, and a wide variety of other education expenses. The 4-1 decision overturns a lower court injunction that halted the program in July. Following a constitutional challenge to the program in January, the Institute for Justice (IJ) intervened on behalf of Morgantown, West Virginia parent Katie Switzer and Albright, West Virginia parent Jennifer Compton to defend the program's constitutionality under the West Virginia Constitution. Learn more about the case here. 

Two days ago I wrote about the brewing battle between (1) one district court's national injunction against the lifting of Title 42 and (2) another district court's purported vacatur of Title 42. Later that day there was another development. Judge Sullivan of the United States District Court for the District of Columbia issued this minute order in the docket:

MINUTE ORDER granting 166 Unopposed Emergency Motion for Temporary Stay of the Court's November 15, 2022 Order ("Emergency Mot."). The government states that "[t]he requested temporary stay… is not for the pendency of appeal but rather for only a temporary period." Emergency Mot., ECF No. 166 at 3. The government further states that "DHS requires a short period of time to prepare for the transition from Title 42 to Title 8 processing, given the need to resolve resource and logistical issues that it was unable to address in advance without knowing precisely when currently operative August 2021 Title 42 order would end. Cf. 87 Fed. Reg. at 19,95456 (setting effective date of Termination Order for 52 days from date of issuance to, among other things, provide DHS with additional time to ready operational plans). During this period of time, DHS will need to move additional resources to the border and coordinate with stakeholders, including non-governmental organizations and state and local governments, to help prepare for the transition to Title 8 processing. This transition period is critical to ensuring that DHS can continue to carry out its mission to secure the Nation's borders and to conduct its border operations in an orderly fashion. See, e.g., AARP v. EEOC, 292 F. Supp. 3d 238, 241 (D.D.C. 2017) (staying effective date of vacatur order for about one year to avoid the potential for disruption); NAACP v. Trump, 298 F. Supp. 3d 209, 24445 (D.D.C. 2018) (staying vacatur order for 90 days to avoid disruption)." Id. Plaintiffs do not oppose the motion. Pursuant to Federal Rules of Civil Procedure 59 and 60, the Court's inherent authority, and in view of the lack of opposition by Plaintiffs, the government's representation that the request for a temporary stay is not for the pendency of appeal, but rather to enable the government to make preparations to implement the Court's Order, the Court, WITH GREAT RELUCTANCE, grants the request. The Court's November 15, 2022 Order is stayed for five weeks, from November 15, 2022 to December 20, 2022. The Order will take effect at midnight on December 21, 2022. Signed by Judge Emmet G. Sullivan on 11/16/2022. (lcegs1)

A number of things about this are interesting, but let me highlight three:

1. There is growing tension between the injunction of the United States District Court for the Western District of Louisiana and the orders from the United States District Court for the District of Columbia. One prohibits the administration from lifting Title 42; the other gives the administration time to make "operational plans" and "coordinate with stakeholders" for what is in effect . . . the lifting of Title 42. Perhaps the Department of Homeland Security can thread the needle here and avoid contempt, but in ordinary injunction practice the actions contemplated in the minute order would be an evasion or circumvention of the injunction.
2. It's a familiar observation that the government sometimes uses consent decrees to achieve policy ends it otherwise cannot. "The courts made me do it," in effect. For example, Professor Michael McConnell wrote about this in a 1987 article called Why Hold Elections? – Using Consent Decrees to Insulate Policies from Political Change. The subtext here seems hard to miss, especially since the government's motion for the five-week stay of the vacatur is unopposed by the plaintiffs.
3. The questions this minute order poses about vacatur underscore what a dubious remedy it is. The modification and dissolution of injunctions is well-known. If vacatur were an equitable remedy like an injunction, then it could be modified, dissolved, phased in, phased out, made conditional upon certain actions or non-actions by the defendant, etc. All that makes sense because the injunction is not operating on a rule but is instead operating on the relationship of the plaintiffs and defendants. It is in personam. But vacatur is not like that. There is no equitable remedy of vacatur. Perhaps it would be better understood as a statutorily created remedy that is in effect a declaratory judgment (which Sir John Baker compares to the prerogative writs). But if that's so, then there's no such thing as a judge declaring that at future date X, but not until then, it will be case that statute or rule Y is and has always been unlawful. The mental contortions for this are just impossible. If vacatur is a remedy, it is either a court action like an injunction, in which case it is impossible to square it with the principle that judicial remedies don't act directly on legal rules; or it is more akin to a declaration of invalidity, in which case it is impossible to square it with the idea of a five-week delay, a kind of springing declaratory judgment. And even declaratory judgments are only binding as between the parties to the case: a declaratory judgment does not operate on a statute or rule itself. (If you want to read more about the differences between injunctions and declaratory judgments, I explore them in The Myth of the Mild Declaratory Judgment.)

Two final caveats.

First, I appreciate the situation that Judge Sullivan is in. Under D.C. Circuit precedent, binding on the United States District Court for the District of Columbia, vacatur is entirely accepted. It follows in this case. And all parties recognize the logistical nightmare it inflicts in this case. That logical path is of course how we have wound up in a situation where there's a five-week delay for vacatur. So my critique is not of how Judge Sullivan got to this point, but of the compromised doctrinal structure that made that possible.

Second, it should be obvious but I will state this clearly so there's no misunderstanding: the problem here is not just vacatur, but also the national injunction. There should never have been a national injunction in this case (nor in any other). Moreover, the district court's standing analysis in the Western District of Louisiana case shows once again the direct relationship between the explosion of national injunctions since 2016 and a broad reading of Massachusetts v. EPA.

[Random clippings from my collection - see No. 1 for a brief explanation/No. 2]

This is the Court of Chancery, which has its decaying houses and its blighted lands in every shire, which has its worn-out lunatic in every madhouse and its dead in every churchyard, which has its ruined suitor with his slipshod heels and threadbare dress borrowing and begging through the round of every man's acquaintance, which gives to monied might the means abundantly of wearying out the right, which so exhausts finances, patience, courage, hope, so overthrows the brain and breaks the heart, that there is not an honourable man among its practitioners who would not give—who does not often give—the warning, "Suffer any wrong that can be done you rather than come here!"

This tidy 115-word sentence - and I had to read it over to convince myself that it is indeed just one sentence - comes, as I'm sure many of you suspected, from Charles Dickens' Bleak House.  If you have not read it, I highly recommend it; if you are a lawyer or law professor and have not read it, I am afraid I have to insist that you do so. Shakespeare may have written "The first thing we do, let's kill all the lawyers," but it's not at all clear, in context, that he really meant it, even figuratively. Dickens meant it.  Bleak House's description of a legal system gone amok is truly chilling - instead of just declaring that we should kill all the lawyers, he makes the reader want to kill all the lawyers. [Figuratively speaking, of course] And his descriptions of life in London in the mid-1800s are extraordinary, positively … Dickensian.

For those of us over forty, the 1996 Defense of Marriage Act (DOMA), which preemptively barred federal recognition and benefits for married gay couples, seemed here to stay. It was adopted by nearly unanimous congressional majorities and signed by Bill Clinton in the heat of a presidential election year, even though there would be no such marriages for eight years.  But more importantly it reflected the views of at least two-thirds of all Americans at the time.  Even after the Supreme Court's decision in Obergefell, repealing DOMA was very low on the list of priorities for most LGBT-rights groups and at any rate surely could not get enough support to end a filibuster by Republicans in the Senate.

But today the Senate voted to close debate on the Respect for Marriage Act (RMA) (text here), repealing DOMA and requiring states to recognize same-sex marriages performed in other states.  I previously discussed the substantive provisions of the RMA here (my co-blogger Ilya recently discussed them here), and won't elaborate further. The Senate must still vote to approve the bill. The amended version will then have to pass in the House, where a large majority (including 47 Republicans) already backed it.

The last time I wrote about RMA, I noted that the bill did not exclude the protection of individual religious freedom under the 1993 Religious Freedom Restoration Act (RFRA). That was notable because the centerpiece LGBT-rights legislation pending in Congress, the Equality Act (which is comatose), specifically excludes RFRA's religious protections.

Since July, a bipartisan group of Senators (led by Tammy Baldwin (D-WI) and Susan Collins (R-ME)) not only preserved RFRA, but worked with others to craft additional language assuaging the concerns of churches and religious charitable organizations that the bill might require them to provide services and goods to married gay couples.  It also now provides that such groups won't lose their tax-exempt status as a result of the new law. It was always very unlikely that the bill would be interpreted to have such effects because its provisions apply only to "those acting under color of state law" (generally, government officials).

But as anyone who's worked on legislation can tell you, the other side doesn't always trust that courts will interpret language in the way it should be interpreted. (Sometimes, they're right about that.)  Their fears may seem exaggerated but you often learn they are genuine, and if you really don't have the intention of producing or risking the result the other side fears (e.g., losing tax exemptions, requiring goods and services), and if you can address them with minimal harm to the substance of the bill, then it's both right and maybe politically necessary to do so.  That's the spirit in which the Senators and their staffs negotiated the terms of a bill that will give a measure of reassurance in federal law to hundreds of thousands of married gay couples and to the millions of children gay people are raising.

This is an important step by many theologically conservative groups, which either supported the bill (like the LDS Church) or at least didn't object to it (like the Seventh-Day Adventists and the Orthodox Jewish Union).  Prominent religious-liberty scholars like Doug Laycock, Tom Berg, and Robin Wilson supported it. You can also add the Council for Christian Colleges and Universities and the National Association of Evangelicals (see here). Of course, some advocacy groups will continue to oppose any legal recognition of same-sex marriage, regardless of religious protections (see here and here).

Perhaps just as importantly, this is a potentially important step for Democrats--all of whom voted for the bill.  For the first time in the context of LGBT-rights legislation, progressive Democrats in Congress have voted: (1) to allow RFRA protections for people of faith (that's the effect of not explicitly carving out RFRA, as I explained in July); (2) to codify religious-liberty protections for social service organizations in providing goods and services; (3) to protect religious groups from losing their tax exemptions; and (4) to make the following finding, cribbing from Obergefell:

Can that same spirit of mutual respect and accomodation animate future discussions of LGBT policy issues?

It's going to be a lot tougher to pass comprehensive anti-discrimination legislation like the Equality Act or the Fairness for All Act. There are much more significant trade-offs involved for both Democrats and Republicans, and for both LGBT-rights supporters and religious conservatives, in bills that address housing, public accommodations, and federal funding.  But even if the RMA isn't an unshakeable precedent, it's at least an important first step.

And it's the end of the road for a law that was preemptively cruel and reflects a view about "defending" marriage that 70% of Americans no longer support.

CORRECTION: I have been informed that my original post incorrectly stated the Seventh-Day Adventist Church supports the RMA.  In fact, the Seventh-Day Adventists support the religious liberty provisions in the RMA but neither support nor oppose the RMA as a whole.  I have edited the post to reflect the correction.)

Yale Law School is withdrawing from the rankings compiled by the U.S. News World Report. The rationale? The rankings are biased against the progressive institution!

"The U.S. News rankings are profoundly flawed," Yale Law School Dean Heather Gerken said. "Its approach not only fails to advance the legal profession, but stands squarely in the way of progress."

Specifically, she said, the rankings devalue programs that encourage low-paying public-interest jobs and reward schools that dangle scholarships for high LSAT scores, rather than for financial need.

I would add one other possible rationale. This decision was made in the shadow of Students for Fair Admission v. Harvard. The Supreme Court will very soon make it difficult for elite private universities to use racial preferences for admission. Post-SFFA, the law school could no longer justify wide gaps between admission rates for applicants of different races. They can no longer rely on "personal" scores and other subterfuges. As a result, if Yale wants to keep its racial diversity numbers high, the overall LSAT and GPA scores would have to drop. And that decrease would affect the law school's rankings.

Justice Thomas aptly described the dilemma facing Yale in Grutter.

One must also consider the Law School's refusal to entertain changes to its current admissions system that might produce the same educational benefits. The Law School adamantly disclaims any race-neutral alternative that would reduce "academic selectivity," which would in turn "require the Law School to become a very different institution, and to sacrifice a core part of its educational mission." Brief for Respondent Bollinger et al. 33–36. In other words, the Law School seeks to improve marginally the education it offers *356 without sacrificing too much of its exclusivity and elite status. [FN4]

[FN 4]: The Law School believes both that the educational benefits of a racially engineered student body are large and that adjusting its overall admissions standards to achieve the same racial mix would require it to sacrifice its elite status. If the Law School is correct that the educational benefits of "diversity" are so great, then achieving them by altering admissions standards should not compromise its elite status. The Law School's reluctance to do this suggests that the educational benefits it alleges are not significant or do not exist at all.

The proffered interest that the majority vindicates today, then, is not simply "diversity." Instead the Court upholds the use of racial discrimination as a tool to advance the Law School's interest in offering a marginally superior education while maintaining an elite institution. Unless each constituent part of this state interest is of pressing public necessity, the Law School's use of race is unconstitutional.

Yale can can maintain its racial diversity by sacrificing its elite status. But these elite universities do not want to sacrifice their elite status. Cam Norris made this point during arguments in SFFA:

Cameron T. Norris: I mean, I think that's our point, that -- that SAT scores would go from the 99th percentile to the 98th percentile. That's not sacrificing academic excellence. That's moving Harvard from Harvard to Dartmouth. Dartmouth is still a great school. They get 98th percentile SAT scores. We've got to make some sacrifices.

Sonia Sotomayor: I -- I -- I don't -- I -- I actually --

Elena Kagan: There are those who love it.

Sonia Sotomayor: Yeah. (Laughter.)

Harvard could become Dartmouth. Yale could become Virginia. And so on. Or Yale can remain Yale, in a bubble. Withdrawing from the U.S. News program now gets ahead of those shifts.

Let me add a point in closing. Yale is boycotting U.S. News because it is biased against progressive institutions. I would be remiss if I did not draw an analogy to Judge Ho. He is boycotting Yale because it is biased against conservative institutions. Boycotts work to change behavior!

Update: Harvard Law School is also boycotting the rankings. Stanford and the other Ivies will probably follow. U.S. News may soon implode like FTX.

Huge news for the legal world. Both Harvard and Yale have decided to withdraw from the US News and World Report Law School Rankings process due to flaws in their methodology that distort incentives. pic.twitter.com/deAa26BCoD

— Alejandra Caraballo (@Esqueer_) November 16, 2022

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!