A federal district judge in Florida has issued an opinion concluding that the standard remedy of vacatur under the Administrative Procedure Act is likely unconstitutional. Judge Kathryn Mizelle of the Middle District of Florida wrote that even if Congress explicitly empowered Article III courts to erase agency rules from the Code of Federal Regulations, doing so would still conflict with the limited nature of judicial power and the separation of powers. The opinion is notable because it reaches beyond statutory interpretation to challenge the constitutional foundations of a remedy courts have used for decades.
Mizelle's reasoning proceeds in stages. She first argues that vacatur, if treated as an equitable remedy, lacks any Founding-era analogue and does not fit traditional equity principles. She then contends that if vacatur is instead a legal remedy, it raises serious separation-of-powers problems. Ultimately, she concludes that the phrase "set aside" in Section 706 is best read as a rule of decision for courts, rather than a grant of power to nullify agency rules wholesale.
The opinion also highlights a divide among conservative jurists. According to the source, Chief Justice Roberts and Justice Kavanaugh want nothing to do with the argument, while Justice Gorsuch supports eliminating vacatur. Justice Barrett has not taken a firm position. Because the decision is expected to be appealed, the question may soon reach the Supreme Court, though the source notes that no prior court has squarely addressed the constitutional dimensions of vacatur.