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Prof. John Harrison: Courts Are Not Agencies

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Samuel Bray | 8.6.2022 6:27 AM

This is the fifth and last in in a series of posts summarizing an article titled Remand Without Vacatur and the Ab Initio Invalidity of Unlawful Regulations in Administrative Law, which is forthcoming in the BYU Law Review. The current draft is available on SSRN.

These posts, and the article on which they are based, criticize the doctrine of remand without vacatur. This last post discusses some implications of those criticisms for the debate about universal relief against the government – remedies in suits against the government that provide relief to everyone affected by agency action, not just the parties.

First, the ab initio invalidity of unlawful regulations shows that one leading argument in favor of universal relief against regulations is unsound. According to that argument, universal relief against unlawful regulations comes within the generally accepted principle that benefits to non-parties are permissible when they are indivisible from relief to parties. Relief is indivisible when vindicating the rights of parties inevitably entails benefiting non-parties. For example, an injunction against making excessive noise may provide benefits to neighbors who are not plaintiffs that cannot be separated from relief to plaintiffs.

Vacatur of unlawful regulations, the argument goes, is necessary to relieve the parties from their obligations under the regulation, and vacatur provides benefits to non-parties that are indivisible from the benefits to parties. Vacating a regulation renders it wholly inoperative, the........

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