"The Truth of Erasure"—A Defense of Universal Remedies

The Ohio Solicitor General’s office is a frequent litigant challenging federal agency action. Thus it may be no surprise the the Solicitor General supports universal remedies, such as universal vacatur under the Administrative Procedure Act.

The Ohio Solicitor General is not limiting this argument to its legal briefs. Ohio SG Elliot Gaiser and two attorneys in his office, Mathura Sridharan and Nicholas Cordova, have posted an article on SSRN, “The Truth of Erasure: Universal Remedies for Universal Agency Actions,” defending this position.

Here’s the abstract:

Courts, litigants, and scholars should not be confused by the ongoing debate about nationwide or so-called “universal” injunctions: the proper scope of remedies under the Administrative Procedure Act and other statutes providing for judicial review of agency action is erasure. The long-established judicial practice of vacating unlawful agency rules should continue because the Administrative Procedure Act instructs courts to review and remedy unlawful agency action itself, just as appellate courts review and vacate the erroneous judgment of a lower court. This appellate review model also permits courts to grant universal preliminary relief in the form of a stay that prevents an agency rule from taking effect until courts finally resolve its legality.

The U.S. Constitution not only permits but requires courts to have this authority to grant universal relief against unlawful agency action. When executive Branch agencies exercise delegated legislative power to make rules with universal effect, separation of powers requires that courts be vested with commensurate power to issue universal relief. Agency rules evade the front-end checks that restrain legislation, so the back-end check of stronger judicial remedies is appropriate. Article III does not prevent courts from maintaining this balance. Vacatur of an unlawful rule resolves a true case or controversy and is a statutorily authorized remedy rather than a unilateral extension of the judiciary’s traditional equitable powers. Indeed, the constitutional discomfort that arises from APA cases stems from the extraordinary nature of agency rulemaking, not judicial review of it.

These features of universal APA remedies meaningfully distinguish them from nationwide or so-called “universal” injunctions against federal or state laws and direct presidential action. If courts, lawyers, and scholars want to debate the legality of both universal remedies against agency action and universal injunctions, they must have two separate debates. The APA debate, however, is largely and rightly settled.

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