Judges presiding over challenges to President
Courts have long agreed the Administrative Procedure Act calls for vacating illegal agency actions, a remedy that has the same practical effect as the universal injunctions that the US Supreme Court restricted in Trump v. CASA, Inc.
Despite the general consensus among lower courts, a handful of conservative justices have questioned whether the APA’s instruction to “set aside” defective actions empowers courts to void them altogether. And CASA shows that the high court’s conservatives have concerns about individual district court judges wielding too much power to knock out federal government policy across the country.
“It’s the kind of question that seems to cry out for Supreme Court review,” said Nicholas Bagley, an administrative law professor at the University of Michigan who’s critical of APA vacatur.
The APA is one of several routes CASA left open for courts to issue sweeping orders to stop government policies. Other paths include class-wide injunctions, orders that apply to citizens of states or members of large groups, and nationwide injunctions if they’re deemed necessary to provide “complete relief.”
Lower courts have broadly halted Trump administration policies in the wake of CASA, including via rulings on APA claims.
Roughly half of the 152 active lawsuits against Trump’s executive actions tracked by Bloomberg Law alleged violations of the APA. That includes challenges to his administration dismantling USAID, freezing billions of dollars in grants to Harvard University, and sending the National Guard to immigration protests.
Government rules, policies, and initiatives can run afoul of the APA for a range of reasons, from being arbitrary and capricious to exceeding an agency’s legal power or constitutional limits. It also has a separate provision that courts have used to issue nationwide preliminary injunctions.
But the APA only applies to final agency actions—and the president is not an agency, so it can’t be used to challenge Trump’s executive orders.
Trump-Biden Opposition
The fallout from CASA is poised to elevate a debate over the APA’s vacatur remedy that’s been percolating in earnest since the first Trump administration.
Then-Attorney General Jeff Sessions issued a 2018 memo arguing for limitations on both nationwide injunctions and vacatur under the APA. The Justice Department took the litigation position that neither are allowed.
The Biden administration picked up where the Trump administration left off, most notably during a 2022 oral argument over an immigration dispute in US v. Texas.
According to Chief Justice John Roberts, then-Solicitor General Elizabeth Prelogar’s argument that the APA can only provide relief to the plaintiff in the case sounded “fairly radical” and “inconsistent” with common practice.
“And all of a sudden you’re telling us that, no, you can’t vacate it, you do something different,” Roberts said. “Are you overturning that whole established practice under the APA?”
‘Why Bother’
The Supreme Court didn’t rule on APA vacatur in US v. Texas, but Justice Neil Gorsuch filed a concurring opinion—joined by Justices Clarence Thomas and Amy Coney Barrett—that cast doubt on the validity of the remedy.
Gorsuch argued that the APA’s instruction to “set aside” means to disregard. If Congress intended to give courts the power to vacate, it would have expressly said so, he added.
The APA authorizing vacatur would also render class actions “essentially irrelevant” in administrative litigation, Gorsuch said.
“Why bother jumping through those hoops when a single plaintiff can secure a remedy that rules the world?” he asked.
No federal appeals court has considered arguments against vacatur under the APA and rejected that remedy, said John Harrison, a University of Virginia law professor and prominent APA vacatur critic who Gorsuch cited in his US v. Texas concurrence.
Still, some judges have written separate opinions calling it into question, Harrison said.
Supreme Court’s Concern
The Supreme Court specifically said CASA doesn’t resolve whether the APA allows judges to vacate agency action.
But the justices sidestepping the issue for now doesn’t guarantee that they’ll permit unfettered use of the APA to wipe out government initiatives, said Ronald Levin, a Washington University in St. Louis law professor who’s written extensively in support of APA vacatur.
Allowing lower courts to issue an analog to a universal injunction as long as plaintiffs plead their claims a little differently would undercut the justices’ concerns about the expanding and profligate use of those injunctions, Levin said.
“The Supreme Court is not going to tolerate that,” he said.
Signs of Support
But there are clues in CASA that a majority of the court would rule in favor of universal vacatur, said Adam Zimmerman, a law professor at the University of Southern California.
The justices rejected the Trump administration’s argument that the Constitution doesn’t allow courts to enjoin government policies to protect more than just the parties to litigation, Zimmerman said. The court has room to say Congress can grant courts the power to order broad relief under the APA, the Clean Air Act, and other laws defining judges’ remedial powers, he said.
Justice Brett Kavanaugh wrote a concurring opinion in CASA differentiating between APA relief and nationwide injunctions, citing his own concurrence in a 2024 decision that emphasized “the APA authorizes vacatur.”
Although it’s not certain which way the Supreme Court would rule, what is clear is that it would be hugely significant for the court to upend the APA’s remedial framework, which has been in place for nearly eight decades, said Mila Sohoni, a Stanford University law professor who’s backed universal vacatur in law review articles.
“Courts must have a flexible and robust system of remedial tools in order to serve as a meaningful check on the executive branch and other governmental actors,” she said.
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