Monica Haymond (Northwestern University – Pritzker School of Law) has posted Repeal By Surrender (112 Va. L. Rev. __ (2026) (forthcoming)) on SSRN. Here is the abstract:
Federal courts are confronting growing skepticism towards their power to universally vacate rules under the Administrative Procedure Act. Amid those debates has emerged a critique about how the executive responds to judgments vacating federal rules. Courts and practitioners have denounced how newly elected presidents can decline to appeal district court decisions vacating the rules adopted by past administrations, effectively repealing those rules and circumventing the APA’s notice-and-comment requirements. This “repeal by surrender” strategy has prompted courts to consider sweeping reforms to government litigation—to strip courts of their power to vacate unlawful rules and to allow intervenors to step into the government’s shoes to defend rules on appeal.
This Article presents the first scholarly analysis of repeal by surrender and the solutions courts have proposed. Repeal by surrender raises normative concerns about transparency and the executive’s influence over judicial review. But despite critics leveling this charge across administrations, there is no evidence that repeal by surrender is a meaningful legal problem. Agencies are not exploiting judgments to circumvent the APA and no law requires the executive to pursue appellate relief.
By contrast, the solutions courts have proposed risk undermining the judiciary’s remedial role and intensifying separation-of-powers conflict. Eliminating vacatur would remove a core remedial tool for addressing unlawful executive action, and would do so in a manner that runs counter to equity’s traditional approach to curbing party opportunism. And expanding intervention in this context enables new forms of gamesmanship and puts courts in the role of selecting surrogate defenders of federal policy.
This Article concludes by suggesting a different path forward. Courts can use their existing equitable discretion to tailor when and how they vacate rules to respond to concerns about executive acquiescence. And injured parties can sue to challenge post-vacatur agency action under the APA. These alternative solutions provide a direct vehicle for judicial law declaration and reinforce the judiciary’s role as a check on executive power.
Highly recommended.