Judge Kathryn Mizelle rules vacatur remedy likely unconstitutional

Judge Kathryn Mizelle of the Middle District of Florida has issued an opinion finding that the ‘set aside’ remedy under the Administrative Procedure Act (APA) is likely unconstitutional.

In her ruling, Mizelle argues that the practice of vacatur—which allows courts to erase agency rules from the Code of Federal Regulations—is inconsistent with the limited nature of judicial power and the principle that core legislative power cannot be delegated to the judiciary. She contends that even if Congress were to explicitly empower Article III courts to perform such actions, the practice would likely still violate constitutional separation-of-powers principles.

Mizelle’s opinion examines vacatur from several angles: as an equitable remedy lacking a Founding-era analogue, as a legal remedy that presents separation-of-powers issues, and as an analog to appellate review that fails to resolve those same constitutional concerns. The opinion suggests that the term ‘set aside’ in Section 706 of the APA should be interpreted as a rule of decision rather than a mechanism for total erasure of regulations.