Friday, June 24, 2022
Ronald M. Levin (Washington University in St. Louis), Mila Sohoni (University of San Diego), Universal Remedies, Section 706, and the APA, Yale J. Reg. Notice & Cmt. Blog (2020):
Section 706 of the Administrative Procedure Act provides that a reviewing court “shall . . . set aside” agency action that it has found to be unlawful. In a provocative essay, Professor John Harrison argues that “set aside” should be read to mean “disregard” rather than “nullify”; therefore, he maintains, this language offers no support for the courts’ common practice of vacating unlawful agency rules, sometimes on a uniform or nationwide basis. Indeed, Harrison argues, Section 706 has nothing to do with judicial remedies, which the APA addresses in Section 703 instead.
In this essay we explain that Harrison’s interpretation of Section 703 is unprecedented and erroneous. Nothing in the APA’s language, context, history, or prior case law indicates that Section 703 governs a reviewing court’s remedial choices. Moreover, pre-APA precedents did recognize judicial power to nullify agency rules under certain circumstances, and Section 706 of the APA has properly been read as incorporating that understanding. This background gives strong support to the current understanding that the APA likewise authorizes temporary injunctive relief under Section 705 or permanent injunctive relief under Section 706, including universal or nationwide relief in appropriate circumstances.