Friday, December 2, 2022
Can a plaintiff walk into court, challenge a federal regulation, and win a victory that halts the entire government’s ability to enforce that regulation anywhere, against anyone—even parties that played no role in the litigation?
The answer to this question is important, because this tactic has rapidly become an obstacle to governance.
Under President Barack Obama, conservative judges began using a specific power to “set aside” policies, granted to them by a provision of a 1946 law, to halt executive policies nationwide, claiming that Congress intended to award them this sweeping power. Left-leaning judges used the tool to limit President Donald Trump’s efforts to rewrite federal statutes, particularly asylum law, and prompted a huge backlash among Republicans. Today, with President Joe Biden in office, conservative judges have transformed the power to “set aside” policies into an unprecedented weapon of obstruction, voiding agency rules and executive policies so frequently that they have turned the federal judiciary into a kind of shadow president with a permanent veto over the actual, elected president.
It is not actually clear, though, that judges even have the legal authority to wipe federal policy off the books. A strictly textualist interpretation of federal law strongly suggests that they do not. To the contrary, the fact that federal courts have unlawfully expanded their power to interfere with duties of the executive branch seems like a direct attack on the separation of powers.
He goes on to praise the Solicitor General's courage for pointing out the problem to a bench filled with former D.C. Circuit appellate justices -- Roberts, Kavanaugh, Thomas, Jackson -- who, as Roberts says, considered vacatur a staple of practice and used it "five times before breakfast." Her argument is based on a reading of the Administrative Procedure Act that favors a person being able to "set aside" government action against that particular plaintiff under a court's power to bind the parties before it. That practice contrasts with a raft of nationwide injunctions that set aside a policy against everyone. The new interpretation has become increasingly common. Stern calls this the "power of universal nullification" and says courts traditionally have not had this power.
In US v. Texas, Solicitor General Prelogar asserted that the judge who voided Biden’s immigration priorities had no authority to do so, because the APA does not allow vacatur. Her argument built on the work of University of Virginia School of Law Prof. John Harrison and Notre Dame Law School Prof. Samuel Bray, who have shown that by directing courts to “set aside” an unlawful rule, Congress simply meant that courts could reverse the judgment of the agency, and issue relief to the parties before it—rather than to the whole world.
Roberts was incredulous about her argument: “Your position on vacatur,” he told her, “that sounded to me to be fairly radical and inconsistent with, for example, those of us who were on the D.C. Circuit—you know, five times before breakfast, that’s what you do in an APA case. And all of a sudden you’re telling us that, no, you can’t vacate it, you do something different. Are you overturning that whole established practice under the APA?”
Following this blast of indignation, Prelogar backtracked a bit. But she then pointed out that the Justice Department has, in fact, raised versions of this argument during the administrations of George W. Bush, Barack Obama, Donald Trump, and now Joe Biden.
She also explained that the DOJ’s theory would end the bizarre process that has arisen over the last decade: Plaintiffs spread out across the country, filing lawsuits with multiple district courts, in the hopes of convincing just one judge to “set aside” a policy nationwide. Once a judge takes the bait, the government is handcuffed unless (or until) that judge is reversed by a higher court, which can take years of litigation. Even if judges in other states and circuits disagree, they have no power to overrule a different district court."
Immprof Amanda Frost writes about the use of national injunctions generally here and in US v. Texas here. Their importance would continue so long as the Supreme Court permits federal judges to keep setting aside policies from presidents they don't like. Prelogar’s mistake may have been assuming that the court would be willing to curb the power of conservative judges under a Democratic president when it may be unwilling to do so in any circumstance.