Does the Administrative Procedure Act Provide for Universal Vacatur?

Section 706 of the Administrative Procedure Act instructs courts to "set aside" agency action that is unlawful. These two words—"set aside"—have sparked much debate among lawyers, jurists, and scholars. In particular, administrative law enthusiasts disagree about whether the "set aside" language means that courts must enter universal injunctions against unlawful regulations. Some suggest that "set aside" contemplates wholesale invalidation of regulations. Others take the position that the scope of the "set aside" remedy is more limited. In United States v. Texas, which is before the Supreme Court this term, the Court is set to decide whether the "set aside" language requires universal vacatur of regulations. In advance of the Court's ruling, this teleforum panel discussed discuss this difficult question.Featuring:--Hon. Beth A. Williams, Member, United States Privacy & Civil Liberties Oversight Board, Professorial Lecturer in Law at the George Washington University Law School, and former Assistant Attorney General for the Office of Legal Policy, United States Department of Justice--Prof. John Harrison, James Madison Distinguished Professor of Law and Thomas F. Bergin Teaching Professor at the University of Virginia School of Law--Prof. Ron Levin, William R. Orthwein Distinguished Professor of Law at the Washington University in St. Louis School of Law--[Moderator] Judge Steven J. Menashi, U.S. Court of Appeals for the Second Circuit