As Justice Jackson’s and Sotomayor’s dissents vividly chronicled, Trump v. CASA, the Supreme Court’s 2025 Term-ending decision that limited nationwide or “universal” injunctions, gives ample ground for despair. As others have documented, it unjustifiably amplifies presidential power and diminishes the judiciary. But the decision also offers a ray of hope: the availability of review and vacatur under the Administrative Procedure Act (APA) of agency action arising out of President Trump’s executive order.
Justice Kavanaugh Invites APA Review
In a 6-3 decision, Justice Amy Coney Barrett, writing for the majority, ruled that under the Judiciary Act of 1789, federal courts lack the authority to issue universal injunctions unless necessary to grant “complete relief to the plaintiffs before the court.” Accordingly, the Court granted a partial stay of three nationwide preliminary injunctions prohibiting enforcement of President Trump’s egregiously unconstitutional Executive Order No. 14160, which purports to abrogate birthright citizenship. At first blush, that decision would appear to exempt from protection individuals and entities who are subject to the lawless federal action if they are not plaintiffs in the relevant litigation.
Justice Sotomayor’s dissent argues that
The majority holds that, absent cumbersome class-action litigation, courts cannot completely enjoin even such plainly unlawful policies unless doing so is necessary to afford the formal parties complete relief. That holding renders constitutional guarantees meaningful in name only for any individuals who are not parties to a lawsuit.
In response, Justice Brett Kavanaugh’s concurrence asserts that claim is overbroad and argues that plaintiffs broadly affected by unconstitutional executive action may
under Federal Rule of Civil Procedure 23(b)(2) . . . ask a court to award preliminary classwide relief that may, for example, be statewide, regionwide, or even nationwide.
But also buried in his concurrence is a more direct—and less costly and time-consuming—alternative to seeking class action certification. Justice Kavanaugh essentially now guides every plaintiff currently suing to challenge unconstitutional executive action as follows: “in cases under the Administrative Procedure Act, plaintiffs may ask a court to preliminarily ‘set aside’ a new agency rule. 5 U. S. C. §706(2); see, e.g., West Virginia v. EPA, 577 U. S. 1126 (2016).” Footnote 10 of the majority’s opinion cites the same provision, but does not challenge Justice Kavanaugh’s view, instead noting that “[n]othing we say today resolves the distinct question whether the Administrative Procedure Act authorizes federal courts to vacate federal agency action.” Thus, for plaintiffs challenging this administration’s executive actions, CASA suggests that the APA may provide the way forward.
The APA Requires Universal Vacaturs of Unlawful Agency Action
Section 706(2) of the Administrative Procedure Act (APA) provides that a “reviewing court shall . . . hold unlawful and set aside agency action, findings, and conclusions . . . not in accordance with law.” Simply put, once a federal court holds an agency action unconstitutional, even if only as applied against a particular plaintiff, that agency action may be set aside—i.e. universally vacated—and would have no legal force or effect, even against nonparties to the suit and without the need for class certification. In the Supreme Court’s DACA decision, “affected individuals and third parties” challenged the Acting Secretary of Homeland Security’s rescission of the Deferred Action for Childhood Arrivals (DACA) program as a violation of the APA. In a decision by Chief Justice Roberts, the Court majority concluded that the executive actions violated the APA and so “must be vacated.”
As Justice Kavanaugh put it in his earlier concurring opinion in Corner Post Inc. v. Board of Governors of the Federal Reserve System, “[w]hen a federal court concludes that an agency … order is unlawful, the court must vacate that order. . . . Vacatur is therefore essential to fulfill the ‘basic presumption of judicial review’ for parties who have been ‘adversely affected or aggrieved’ by federal agency action.” (emphasis added). Justices Ginsburg and Sotomayor similarly endorsed the notion that the Administrative Procedure Act contemplates nationwide relief from invalid agency action in Little Sisters of the Poor v. Pennsylvania. The effect of APA set-aside is that the target executive action is deprived of conclusive effect for all, not just the immediate parties.
Academic commentators such as Mila Sohoni and Ronald Levin have explained why, in cases challenging executive action (in Levin’s words), “the courts’ ability to order the nullification of rules on an across-the-board basis is, in many instances, a practical necessity.” In a recent working paper focused on the state-law influence on federal administrative law remedies, one of us has offered historical evidence on the original meaning of the “set aside” language in state law. Before being introduced into federal law at the start of the twentieth century, the term “set aside” had been used for decades in state legislation to describe judicial review and vacatur of unlawful executive action. Just as “setting aside” a lower court judgment rendered that judgment “entirely destroyed,” “setting aside” an administrative determination nullified the action as a whole. When Congress lifted the “set aside” term into federal law with the Hepburn Act in 1906, it was explicitly drawing on this state-law understanding of “set aside.” Once “set aside” entered the legislative vocabulary, it spread quickly: first to the Urgent Deficiencies Act of 1913, and then from there to other federal statutes, and ultimately into § 706(2) of the APA.
Plaintiffs Should Seek APA Review and Vacatur of Agency Action Under This and Other Unconstitutional Executive Orders
This APA remedy provides a roadmap that current and future plaintiffs challenging Trump’s unconstitutional executive actions could and should take, even while also filing motions for class action certification before their trial courts. If individual plaintiffs add to their complaints prayers for relief to set aside unconstitutional executive action, those prayers, if granted, can and should provide the practical equivalent of the universal injunctions that the CASA Court refused to authorize.
The CASA Court’s ruling left thirty days before its partial stays would take effect. While those thirty days are transpiring, Trump Administration officials will need to take a series of steps to implement Section 3 of the birthright citizenship executive order, which authorizes and directs a series of agency actions. Once those agency heads take the necessary final actions to implement the executive order, the current plaintiffs can file APA actions under § 706(2) in federal district court to set those actions aside on a nationwide basis as “not in accordance with law.”
Trump’s lawyers will presumably offer three responses, all of which lack merit. First, they will likely argue that the President’s executive order is not subject to judicial review under the APA per the Supreme Court’s decision in Franklin v. Massachusetts. But this reads Franklin too broadly. As the Ninth Circuit explained in Nebraska v. Su, Franklin notwithstanding, agency action implementing an executive order is reviewable under the APA: “extend[ing] Franklin to cover final agency actions that adopt policy decisions issued by the President in executive orders . . . contradicts the text of the APA.” The D.C. Circuit endorsed the same approach in Chamber of Commerce v. Reich when considering regulations promulgated by the Secretary of Labor: “that [an agency] regulations are based on the President’s Executive Order hardly seems to insulate them from judicial review under the APA, even if the validity of the Order were thereby drawn into question.”
Prior cases involving citizenship confirm this point. In Department of Commerce v. NY, the Court invoked the APA to strike down the addition of a citizenship question to the 2020 Census questionnaire. The Court vacated the Secretary of Commerce’s action carrying out a presidential directive, relying on the federal birthright citizenship statute, 8 U. S. C. §1401(a), which provides that “a person born in the United States, and subject to the jurisdiction thereof,” shall be a “national[] and citizen[] of the United States at birth. The Court recognized that while a statute may confer broad authority on agency officials, that does not give the official unbounded discretion to take actions clearly inconsistent with the statute’s text and purpose. As in Department of Commerce, once the agency acts to implement the executive order, an APA challenge can be brought. This is particularly warranted here, where the Trump executive order’s rejection of birthright citizenship marks a total reversal of executive interpretation from the one long taken by the Justice Department’s Office of Legal Counsel.
Second, Trump’s lawyers may assert that agency action implementing the President’s executive order is unreviewable under the APA because it does not constitute final agency action. As the Supreme Court explained in Army Corps of Engineers v. Hawkes, agency action is “final” where it represents a consummation of the agency’s decision-making process, determines rights and obligations with legal consequences, and there exists no other adequate remedy. When, under section 3 of the Executive Order, agency heads take steps to ensure that their regulations comply with the Order and issue public “guidance” on the Order’s implementation, agency action will undeniably be “final” under the Hawkes rationale. But at a minimum, once this guidance is enforced, the Court’s decision in Bennett v. Spear dictates that the agency action will be sufficiently final, as “one by which ‘rights or obligations have been determined,’ or from which ‘legal consequences will flow.’”
Third, Trump officials may claim that the issue is not yet “ripe” for APA review. But as the Court explained in Abbott Labs, ripeness analysis considers the fitness of the issues for review and the hardship to the parties from withholding judicial consideration. Again, at the latest, once agencies begin to enforce the guidance they issue under section 3 of the Order, under any fair application of the Abbott test, the ripeness hurdle will certainly be met.
Seizing the APA Alternative Now, in This and Other Cases
In the Birthright Citizenship cases and others challenging unlawful executive actions, CASA’s message to plaintiffs should be clear: pursue the path that the APA opens. Plaintiffs challenging unconstitutional executive actions should not rely solely on seeking class certification. When the administration takes executive action that appears to be unconstitutional or ultra vires, plaintiffs should add APA § 706(2) and ultra vires counts to their complaint, requesting that the challenged action be set aside as “not in accordance with law.” Second, when executive officials publish conforming enforcement documents and take other actions to implement the illegal Order, plaintiffs should file new APA set-aside cases in district court to vacate those actions. They should argue in all pleadings that history and precedent require that those prayers for relief, if granted, require the universal vacatur of the agency actions ordering compliance with the unconstitutional executive order, whether or not a plaintiff class has been certified.
In sum, adding and securing prayers for APA relief to set aside unconstitutional executive action can constitute a universal, well-grounded alternative to the kind of universal injunction whose issuance has now been gravely restricted by the Supreme Court’s unfortunate CASA decision.
