Ilan Wurman (University of Minnesota Law School) has posted “Set Aside” on SSRN. Here is the abstract:
The Supreme Court has reined in universal injunctions, but a debate remains over whether the Administrative Procedure Act (APA) authorizes judges to vacate administrative regulations universally through its “set aside” language. This Article traces the first authorizations for a regulatory “set aside” to two statutes enacted on the same day in 1938: the Federal Food, Drug, and Cosmetic Act and the Fair Labor Standards Act. In both statutes, the regulatory set-aside was sharply limited in ways inapplicable to the modern APA. This Article centers the importance of these two statutes to the current interpretive debate. The legislative debates over the first law constituted the only time prior to the APA that something like a universal vacatur power in individual judges was debated. The final language was altered to avoid the result. And the text of the latter law expressly authorized courts to set aside a regulation only “in so far as it is applicable to the petitioner.” The Article then investigates the importance of APA § 704, which makes judicial review available only for final agency action “for which there is no other adequate remedy in a court.” Historical practice both before and after 1938 suggests that, at the time of the APA’s enactment nearly a decade later, a party had an adequate remedy against unlawful regulations in an enforcement proceeding, and so direct review of regulations would usually have been unauthorized by the APA and the judicial set-aside power would not have reached such regulations. Modern doctrinal developments, however, have rendered this old regime effectively unintelligible. Whether and to what extent vacatur should apply to informal agency regulations may be more a matter of policy than law.
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