Birthright Citizenship Ruling Could Affect Challenges to Agency Rules

Currently, under a concept based on the Administrative Procedure Act called universal vacatur, when a court vacates an agency rule, it doesn’t just mean it can’t be enforced against the parties in court -- it means it's removed from the books entirely, Ward and Smith attorneys Chris Edwards and Mark Wigley said in a blog post Monday. If that changed, every business seeking to dispute an agency regulation would have to bring challenges individually, they said. SCOTUS Justice Brett Kavanaugh said in a 2023 opinion that ending vacatur would lead to “radical consequences for administrative law and individual liberty.”

Edwards and Wigley wrote that “if nationwide vacatur is declared unconstitutional, the impact on businesses would be immediate and far-reaching.” Its removal could lead to industries dealing with rules that are invalid in some jurisdictions but enforceable in others and leave businesses with fewer ways to challenge agency regulations, they said.

In the FCC context, a litigant might argue that a ruling vacating an FCC order -- such as net neutrality or digital discrimination -- for one company leaves the rule in place for others, a telecom attorney told us. American University administrative law professor Jeffrey Lubbers said in an interview that “it would be a tremendous sea change for the court to say that courts cannot overturn agency rules in a way that would create uniformity across the country.”

In Trump v. CASA, the majority ruled that federal courts lack authority under the Judiciary Act of 1789 to issue nationwide injunctions, but in a footnote, Justice Amy Coney Barrett said the decision doesn’t apply to universal vacatur. “Nothing we say today resolves the distinct question whether the Administrative Procedure Act authorizes federal courts to vacate federal agency action.” That means the Trump v. CASA opinion doesn’t damage universal vacatur but also doesn’t resolve the matter of whether it's constitutional, Lubbers said.

The ruling knocked down nationwide injunctions in part because, according to the majority, there wasn’t a historical basis for them. That same logic could be applied to universal vacatur, wrote Edwards and Wigley.

Universal vacatur's constitutionality remains “an open question,” said Sidley attorneys David Carpenter and Christopher Healy in a blog post. Before the court’s ruling in Trump v. CASA, the U.S. Chamber of Commerce filed an amicus brief that included a footnote separating vacatur from nationwide injunctions. "Vacatur of agency rules under the Administrative Procedure Act (APA) is analytically distinct from a universal injunction,” it said.

Universal vacatur has been targeted in the past by members of the high court. In a 2023 concurrence in U.S. v. Texas that was joined by Barrett and Justice Clarence Thomas, Justice Neil Gorsuch suggested that universal vacatur violates Article III of the U.S. Constitution and compared it to universal injunctions. “As with universal injunctions, vacatur can stymie the orderly review of important questions, lead to forum shopping” and “facilitate efforts to evade the APA’s normal rulemaking processes,” he wrote. Gorsuch was responding to arguments against the constitutionality of vacatur raised in the case by former President Joe Biden’s solicitor general, Lubbers said.

Conversely, Chief Justice John Roberts and Kavanaugh have seemed skeptical of the idea that universal vacatur conflicts with the Constitution. Kavanaugh highlighted the continued legality of vacatur in his concurrence in Trump v. CASA and vigorously defended it in 2023 in a concurrence in Corner Post v. Board of Governors. “I agree with the longstanding consensus -- a consensus based on text, history, precedent, and common sense -- that vacatur is an appropriate remedy when a federal court holds that an agency rule is unlawful.” Between Roberts, Kavanaugh and likely the court’s three liberal justices, there appear to be five votes on SCOTUS for protecting universal vacatur, Lubbers said. But, he added, that doesn’t mean attempts to challenge it are unlikely.

Public Knowledge Senior Vice President Harold Feld said the prospects for universal vacatur and agency matters involving litigation are nearly impossible to predict due to numerous recent SCOTUS decisions shifting administrative law. “There are no clear rules anymore.” Lubbers agreed, pointing out that it's still largely unsettled how the high court’s rulings establishing the major questions doctrine, canceling Chevron deference and limiting agency monetary forfeitures will play out. “It’s hard to put all these pieces together.”