District Court Declares Vacatur (Likely) Unconstitutional

Reason ^ | September 30, 2026 | Josh Blackman

[Red Badger]

"Even if Congress were to enact a law clearly empowering Article III courts to vacate agency rules or regulations and automatically cause their erasure from the Code of Federal Regulations, vacatur would likely still be inconsistent with the limited nature of the judicial power and the non-delegability of core legislative power to the judiciary."

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Judge Kathryn Mizelle of the Middle District of Florida issued an opinion finding that the "set aside" remedy under the APA is (likely) unconstitutional. Here is an excerpt from the opinion:

Even if Congress were to enact a law clearly empowering Article III courts to vacate agency rules or regulations and automatically cause their erasure from the Code of Federal Regulations, vacatur would likely still be inconsistent with the limited nature of the judicial power and the non-delegability of core legislative power to the judiciary. As a result, I doubt any amount of tradition, practice, or lower-court liquidation can correct the constitutional infirmities of vacatur as currently understood. Because I am not aware of any court to have addressed the constitutional dimensions of vacatur as opposed to its statutory basis, and I have only gestured at them in the past, see K. Mizelle, To Vacate or Not to Vacate, at 19–20, I explain my doubts in full. First, I address why vacatur, if considered an equitable remedy, likely transgresses Article III's grant of judicial power because it has no Founding-era analogue and does not comport with traditional principles of equity. Second, I explain why vacatur, if considered a legal remedy, presents serious separation-of-powers problems. Third, I address why vacatur, when analogized to appellate review, still fails to cure those significant separation-of-powers issues. Finally, I conclude that, consistent with the Constitution, "set aside" in Section 706 is best read as a rule of decision when applied to agency rules.

This is an issue that does not neatly divide the Court along right-left lines. Chief Justice Roberts and Justice Kavanaugh, both alumni of the D.C. Circuit, want nothing to do with this argument. Justice Gorsuch, who never met a regulation he liked, wants to eliminate vacatur. Justice Barrett tabled the issue in CASA, but I suspect she leans with Roberts and Kavanaugh. This opinion will go up on appeal very soon.

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Josh Blackman is a constitutional law professor at the South Texas College of Law Houston and the President of the Harlan Institute. Follow him @JoshMBlackman.

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[hinckley buzzard]

I learned a new word today-vacatur- first time in a long while.

[Red Badger]

We went on a Vacay Tour. They tried to sell us a Timeshare.............

[House Atreides]

“ I learned a new word today-vacatur- first time in a long while.”
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I really wish they would not allow these ancient Romans to practice law. Or at least make them learn and use English words. /sarc

[Blueflag]

OK, I’ll ask. what is the APA?

[Mr. Lucky]

I thought that was a city in Georgia.

[alancarp]

The Administrative Procedure Act (APA) is a federal act that governs the procedures of administrative law. The APA is codified in 5 U.S.C. §§ 551–559.

Also: A vacatur is a legal order or process that sets aside, cancels, or nullifies a previous court judgment, order, or administrative action so that it is treated as having never occurred.

[Red Badger]

Administrative Procedure Act (APA)

https://reason.com/wp-content/uploads/2026/09/25cv2042-Lifelink-Foundation-Inc.-et-al.-v.-Kennedy-et-al-Order-on-MSJ.pdf

[Blueflag]

As conservatives and lower case L libertarians, do we like or dislike the APA?

[Dr. Franklin]

if considered an equitable remedy, likely transgresses Article III's grant of judicial power because it has no Founding-era analogue and does not comport with traditional principles of equity.

She's wrong because her ABA law school never taught how the common law writ of scire facias was used to annul matters of record. In 1684, the royal charter of the Massachusetts Bay Colony was rescinded by a writ of scire facias by the Privy Council which served as the court of last resort before the American Revolution like our Supreme Court. The writ was and is more commonly used to execute on judgements, but that was not its only use traditionally. Some scholars have also opined that it could be used for a superior court to remove a misbehaving federal judge for violations of the oath of office. There is nothing constitutional about the creation of an Administrative State, the decisions of which are above judicial review.

[griswold3]

📌

[Deaf Smith]

In July 2024, SCOTUS knocked down (vacated) the Chevron Deference that had allowed US federal agencies to make law by way of ‘rules’.

Why is this SCOTUS ruling not enforceable by lower courts when a federal agency’s ‘rule’ (law) is challenged?

[pierrem15]

I would agree with you, because otherwise when Congress has laws that setup administrative courts, one could argue Congress removed any right of review. But then agency actions that violate individual rights could not be reviewed, nor could delegation of legislative powers be reviewed.

But here the opinion is very narrow regarding whether the courts have the power to annul an administrative regulation outright due to a procedural irregularity, which doesn't require instructing the agency about how to correct the legal deficiency and which subjects the procedures to the court's, and not the Executive's or Congress' interpretation.

I doubt vacatur will be struck down, but I would expect the power to be narrowed by clarifying and limiting the legal tests used to justify it.

[DPMD]

I’m pretty sure law schools have a longest sentence with the most twists and turns mandatory course in the curriculum.