Fred Halbhuber (Yale University, Law School; University of Cambridge) has posted A Remedy Inherited: State Law and Universal Vacatur (79 Stan. L. Rev. Online ___ (forthcoming 2026)) on SSRN. Here is the abstract:
This past June, in a decision already heralded as marking a “landmark shift in administrative law,” the Supreme Court in Trump v. CASA, Inc. held that federal courts lacked the power to issue universal injunctions. But while the universal injunction may be dead, the debate surrounding other forms of universal relief has only intensified in the wake of CASA. The Administrative Procedure Act (APA) directs courts to “set aside” unlawful agency action. For decades, this phrase was understood to authorize “universal vacatur”—that is, the total nullification of the unlawful rule. That reading has recently come under attack from members of the academy and the bench, with critics arguing that the APA instructs reviewing courts to “set aside” the challenged administrative action only as to the individual plaintiffs before the court. Whether the APA empowers courts to “set aside” agency action universally has emerged as one of the most pressing questions in modern administrative law.
This Essay brings a neglected chapter of history to bear on this question. It shows that Congress did not coin the “set aside” formulation in 1946, or even in the early federal statutes of the twentieth century. Rather, the language was consciously borrowed from nineteenth-century state codes, which empowered courts to “set aside” administrative orders in a manner directly modeled on appellate review of lower-court judgments. In those state codes, to “set aside” meant to vacate universally: the challenged order was treated as null for all, not merely disregarded as to the parties before the court. By recovering this lost state-law lineage, the Essay demonstrates that the APA’s “set aside” instruction inherits a remedial tradition that authorizes universal vacatur.
Highly recommended!