Congress wrote the sentence now doing more work than most of the Constitution in the fight over federal immigration policy, and it wrote that sentence in 1946, thinking about grain quotas and radio licenses, not presidential power.
Section 706 of the Administrative Procedure Act instructs a reviewing court to “hold unlawful and set aside” agency action found to be arbitrary and capricious. On June 23, Judge P. Casey Pitts of the Northern District of California leaned on those five words to vacate three ICE courthouse arrest policies nationwide in Pablo Sequen v. Albarran, days after the Supreme Court told district judges they can’t issue nationwide injunctions anymore.
I wrote about the Pitts ruling in another outlet this week, and the facts of that specific case aren’t what should worry a reader who cares about how power actually moves through this country. What should worry you is the statute sitting underneath it. Section 706 has become the workaround every administration reaches for now that Trump v. CASA closed the front door on universal injunctions, and the Congress that wrote it in 1946 never intended it to carry this kind of weight.
Here’s why. When Congress drafted the APA, “vacatur” wasn’t yet a term of art describing the wholesale nullification of a federal rule. Courts hadn’t even developed pre-enforcement review of agency regulations; that arrived two decades later in Abbott Laboratories v. Gardner, the case that let manufacturers sue over a rule before anyone had violated it, shifting agency litigation away from case-by-case enforcement disputes. Scholars who have traced Section 706’s drafting history have found no evidence its authors anticipated a single judge nullifying a national policy on a summary judgment motion, a procedural device that barely existed in its modern form when the APA was written. The practice grew up around the text. Congress never wrote it into the text.
That gap has split the administrative law bar down the middle. Some scholars read “set aside” as a command: erase the rule, for everyone, permanently. Others, including federal appellate judges like Sixth Circuit Chief Judge Jeffrey Sutton, read it as nothing more than an instruction to disregard the rule in the case at hand, no broader than that. Trump v. CASA didn’t settle the argument. Justice Neil Gorsuch has signaled skepticism that “set aside” describes a remedy at all, while Justice Brett Kavanaugh has defended the broader reading. The CASA majority explicitly left APA vacatur alone when it closed the door on universal injunctions, meaning the door Judge Pitts walked through was left open on purpose, or at least left unlocked.
The statute does not check party registration before it fires. In July 2021, Judge Andrew Hanen relied on the identical provision to vacate DACA nationwide, a program a Democratic administration very much wanted to keep. Conservatives cheered that ruling for the same reason progressives are condemning Judge Pitts’s now. Whoever controls the White House discovers, on a predictable schedule, that one sympathetic district somewhere in the country can undo an entire policy with a single signature. Then the finding flips next term, and the other side rediscovers the same trick.
I have spent thirty years advising clients through arbitration and litigation where a single decision maker’s ruling binds an entire fund and every limited partner in it. I understand the appeal of a clean, decisive outcome. I also understand what happens when a party gets to pick the forum in advance, because I have watched sophisticated counsel do exactly that with venue selection clauses. A statute that lets any one of ninety-four district courts nullify federal policy for 330 million people is not decisive. It is an invitation to shop.
AMERICA’S DEADLY DELUSION: CITIZENSHIP WITHOUT ASSIMILATION
Fixing this does not require a constitutional amendment. It requires Congress to do the less glamorous work of clarifying what “set aside” means in Section 706, either by limiting vacatur to the parties before the court, absent a certified class, or by routing nationwide APA challenges through three-judge panels with direct appeal to the Supreme Court, a structure Congress already uses for certain election and antitrust cases. Bills doing exactly that have sat in the Senate Judiciary Committee since last spring, ignored by both parties for the same reason: today’s majority likes the workaround too much to close it.
That is the trouble with amendments nobody writes. The gap sits there, unclaimed, until whoever is currently out of power needs it, and by the time everyone agrees it is a problem, it is someone else’s turn to benefit from it.
Jay Rogers is a financial professional with more than 30 years of experience in private equity, private credit, hedge funds, and wealth management. He has a BS from Northeastern University and has completed postgraduate studies at UCLA, UPENN, and Harvard. He writes about issues in finance, constitutional law, national security, human nature, and public policy.