APA Vacatur as a Primary Strategy Post-Trump v. CASA
The elimination of universal injunctions by Trump v. CASA, Inc. (2025) has compelled litigants challenging federal agency actions to refocus on administrative law's traditional remedies. Foremost among these is vacatur under the Administrative Procedure Act (APA). While CASA restricted the equity powers of federal courts based on historical analysis, it did not touch the statutory authority granted by Congress under the APA. This distinction makes APA vacatur the most potent tool currently available for achieving nationwide relief against unlawful agency action. The strategic importance of APA vacatur is evident in potential challenges to policies like Executive Order 14160, where the implementation plan's administrative framework may be vulnerable to traditional administrative law challenges.
The Legal Framework of APA Vacatur
Under 5 U.S.C. § 706(2), a reviewing court shall "hold unlawful and set aside agency action" found to be arbitrary, capricious, contrary to law, or in excess of statutory authority. When a court vacates a rule or agency action, it renders it null and void.
The nationwide effect of vacatur is not a function of equitable discretion, but a byproduct of the nature of federal rulemaking. Because a federal regulation is typically national in scope, setting it aside effectively terminates the rule nationwide. This is legally distinct from a universal injunction, which prohibits the enforcement of a policy against non-parties. Vacatur addresses the legal status of the action itself, not the scope of the enforcement. Whether the Supreme Court ultimately decides that this difference makes a difference remains to be seen. Still, because this remedy is statutory rather than inferred from long-ago grants of equity, the historical analysis that doomed universal injunctions in CASA may not extend here.
Strategic Advantages of APA Vacatur
In the post-CASA environment, focusing on APA vacatur offers distinct advantages over seeking traditional injunctive relief:
Scope of Relief: Vacatur provides nationwide relief by default, achieving the practical effect of a universal injunction without the associated legal hurdles.
Focus on the Record: APA challenges are typically decided on the administrative record, streamlining litigation by avoiding extensive discovery or lengthy evidentiary hearings regarding the plaintiff's injury or the balance of equities required for injunctions.
Clear Standards of Review: While the standards are evolving (as noted above), they are well-established frameworks focused on the legality and rationality of the agency's decision-making process.
Practical Steps and Litigation Strategy
Successfully obtaining APA vacatur requires a targeted litigation strategy.
Identifying Final Agency Action: The prerequisite for APA review is "final agency action" under the Bennett v. Spear (1997) test. The action must mark the consummation of the agency's decision-making process and have legal consequences. Practitioners should scrutinize not only formal regulations but also guidance documents, memoranda, and enforcement directives that have a binding practical effect. Presidential action standing on its own, such as the Executive Order issued in CASA itself, is apparently not considered agency action.
Developing the Record and Arguments (Plaintiffs): Plaintiffs must meticulously analyze the administrative record to identify failures in the agency's reasoning, procedural missteps (e.g., notice-and-comment violations), or arguments that the agency exceeded its statutory authority (leveraging Loper Bright and the Major Questions Doctrine). The goal is to demonstrate that the decision-making process was flawed or unlawful.
Defending the Agency Action (Defense Counsel): Government and defense counsel must ensure the administrative record is robust. The defense strategy hinges on demonstrating that the agency acted within its statutory authority, provided a reasoned explanation for its decision, and considered relevant factors. While Chevron is gone, agencies can still receive Skidmore deference based on the persuasiveness of their reasoning. Defense counsel should emphasize the agency's expertise and the rationality of its choices.
Limitations and the Vacatur Debate
While powerful, APA vacatur is not a universal solution, and its scope is increasingly debated.
The Debate over Universal Vacatur: Although the CASA majority reserved the question, some Justices (notably Justice Gorsuch) have questioned whether the APA truly authorizes universal vacatur, suggesting "set aside" might only mean setting aside the rule as applied to the plaintiff. Litigants must be prepared to defend the traditional understanding of vacatur.
Remand Without Vacatur: Courts retain the discretion to remand to the agency without vacating the rule, particularly if the error is procedural and likely correctable, or if vacatur would be excessively disruptive. Litigants seeking vacatur must argue that the agency's errors are fundamental.
Scope of the APA: The APA does not apply to all executive actions. Actions committed entirely to agency discretion by law, or actions taken directly by the President (as opposed to an agency), may be unreviewable under the APA. So too are actions that are not deemed "final."
Despite these limitations, in a post-CASA world, at least for now, APA vacatur is the centerpiece of federal litigation strategy for policy issues addressed in federal court. The combination of the elimination of universal injunctions and the judiciary's increasing skepticism of agency authority could make a well-constructed APA challenge the most viable path to broad relief against federal administrative action.