The past and future of universal vacatur

Universal vacatur, the judicial power to void a regulation, is a remedy rooted in the foundations of modern administrative law, not an artifact of judicial overreach or creative reinterpretation of the Administrative Procedure Act (APA). This Feature adds to the literature on the historical underpinnings and legal propriety of universal vacatur by mapping the development of universal vacatur from the pre-APA period through the Abbott Labs trilogy. Canvassing the work of courts, Congress, and scholars, this account underscores that universal vacatur is a legitimate part of the remedial scheme of administrative law, grounded in history and sustained by subsequent recognition. After establishing these points, the Feature connects the debate over universal vacatur to another topic of vigorous discussion in contemporary administrative law: the Roberts Court's recent fortification of the major questions doctrine. The case against universal vacatur leverages the intuition that an individual district court judge should not be able to decide issues of vast economic and political significance by vacating a rule universally absent a clear statement in the APA that the judge possesses that authority. That form of argument resembles the mechanics of the new major questions doctrine. As to their consequences, the two also align: both serve to centralize power in the Supreme Court by weakening actors of our government other than the Supreme Court. Though accepting the case against universal vacatur will certainly place curbs on lower court judges, it would also indulge, and thereby strengthen, the perilous proposition that the Supreme Court should intervene to redistribute congressional allocations of power in ways that centralize its own importance and preferences.