The preliminary injunction has long served as an important check on unlawful executive action, especially during the first months of the second Trump administration. A plaintiff who can show that a policy is likely unlawful and would cause irreparable harm can obtain interim relief preserving the status quo while the lawsuit proceeds. In recent years, courts frequently granted universal preliminary injunctions—court orders barring the government from enforcing a particular action against anyone, not just particular plaintiffs. In its recent Trump v. CASA decision, however, the Supreme Court held that federal courts generally lack the authority to issue such sweeping equitable relief.
Still, litigants seeking to quickly press pause on unlawful federal policies have options. One of these is found in the Administrative Procedure Act (“APA”), 5 U.S.C. § 705, which authorizes courts to “postpone the effective date of an agency action” while litigation is ongoing. The government is now arguing that, in light of CASA, Section 705 permits only party-specific relief. But CASA does not control the scope of relief under the APA. Section 705 is best read to allow courts to stay agency action across the board. For litigants seeking to move quickly against unlawful executive action, it should be a powerful tool.
Interim and Final Relief Under the APA
In CASA, the Supreme Court held that principles of equity do not permit federal courts to grant injunctions that do more than provide “complete relief” to the plaintiffs in a given case. But in a footnote, the Court made clear that it was not addressing a separate question: whether the APA, which applies in challenges to “final agency action,” authorizes courts to vacate unlawful policies.
The APA, at 5 U.S.C. § 706, instructs courts to “set aside” actions they find to be unlawful. That has long been understood to mean that courts may “vacate” illegal actions taken by federal agencies—that is, to “nullify and revoke” them. Vacatur is, in effect, a universal remedy. Once a policy has been vacated, an agency cannot implement it or enforce it against anyone. Even though CASA did away with the universal injunction, there may well be five votes on the Court to preserve APA vacatur. Certainly, its use in lower courts has been both widespread and longstanding.
Vacatur comes at the end of a case, once the legal merits have been adjudicated. But the APA also provides for preliminary relief. Section 705—which was entitled “[i]nterim relief” when originally enacted and is now codified under the heading, “Relief pending review”—provides:
When an agency finds that justice so requires, it may postpone the effective date of action taken by it, pending judicial review. On such conditions as may be required and to the extent necessary to prevent irreparable injury, the reviewing court, including the court to which a case may be taken on appeal from or on application for certiorari or other writ to a reviewing court, may issue all necessary and appropriate process to postpone the effective date of an agency action or to preserve status or rights pending conclusion of the review proceedings.
Section 705 authorizes courts (and, in certain circumstances, agencies themselves) to stay agency actions across the board, stripping them of legal force while during litigation. The provision’s place in the APA’s structure makes that clear. Today, Sections 705 and 706 are statutory neighbors, but when the APA was enacted in 1946, the two provisions appeared side-by-side in Section 10 of the statute, as Sections 10(d) and (e), respectively.
That structure suggests that interim relief under Section 705 should match the universal scope of Section 706 vacatur. As the U.S. Court of Appeals for the Fifth Circuit reasoned in staying a regulation promulgated by the Biden administration, “the scope of preliminary relief under Section 705 aligns with the scope of ultimate relief under Section 706.” That means, as Professors Ronald M. Levin and Mila Sohoni have noted, “the well-entrenched practice of vacating rules under Section 706, a form of relief that by definition operates ‘universally,’ thus amply supports the conclusion that the APA likewise authorizes universal preliminary remedies.”
Justice Kavanaugh, concurring in CASA, likewise observed that courts may “preliminarily ‘set aside’ a new agency rule,” a move he characterized as “the functional equivalent of a universal injunction.” The Supreme Court has done so before. Nearly a decade ago, it stayed the EPA’s Clean Power Plan before invalidating it years later under the major questions doctrine. And during the pandemic, the Court likewise stayed OSHA’s mandate that millions of American workers receive a COVID-19 vaccine.
Postponement of Agency Action
The scope of interim relief under the APA is also apparent from Section 705’s text. It empowers courts to “postpone the effective date of an agency action[.]” As a judge of the D.C. district court recently recognized, that language “permits courts to act directly on agency action” rather than merely issue “party-specific” injunctions. Postponement only makes sense as an indivisible, across-the-board remedy. It runs against “the” effective date of agency action. If an agency can apply an action against anyone, the action’s effective date has not been postponed.
The first sentence of Section 705 reinforces that postponement operates universally. It authorizes an agency “to postpone the effective date of an action taken by it.” There is little question that this language allows agencies to stay their rules across the board. Postponement, which presumptively means the same thing in Section 705’s adjoining sentences, should have the same universal scope when ordered by a court.
Because Section 705 relief is authorized by the APA, and not the product of equitable principles, CASA’s holding is not controlling. As Justice Kavanaugh has repeatedly and recently explained, the APA, by “empowering the judiciary to act directly against the challenged agency action,” deviated from the equitable principles that CASA expounded. Whereas equity authorizes courts to “enter judgments and decrees only against litigants,” the APA “directs federal courts to vacate agency actions in the same way that appellate courts vacate the judgment of trial courts.”
Former Texas Solicitor General Jonathan Mitchell summed up the point well:
“Preliminary relief under Section 705 differs from a preliminary injunction, which blocks the executive from enforcing a law but does not postpone the effective date of the law itself. Section 705, by contrast, empowers courts to delay the effective date of the challenged agency action.”
And as a group of authors, including the recently appointed Assistant Attorney General leading the Office of Legal Counsel, explained, “[t]he operative text makes sense only in terms of a universal interim pause.”
To be sure, Section 705 also authorizes courts to “preserve status or rights pending conclusion of the review proceedings,” which might be read to authorize injunctive relief of the sort limited by CASA. But the “status and rights” clause is linked disjunctively to the postponement remedy: a court may act to postpone an action’s effective date or to preserve status or rights by other means. In one author’s view, “the text of § 705 seems to create a choice between a stay and an injunction.” Indeed, since CASA, even as some courts have issued party-specific relief under Section 705, they have not disclaimed their authority to stay agency action.
The remainder of Section 705 does nothing to limit the universal scope of postponement. To be sure, it empowers courts to act “[o]n such conditions as may be required and to the extent necessary to prevent irreparable injury,” a phrase that might connote equitable considerations—including the risk of harm to particular plaintiffs. But that language is best read to govern when Section 705 relief may be granted, not the scope of the relief. As one district court recently concluded, the argument that this language limits the permissible extent of interim relief “cannot overcome the weight of the statutory text and the caselaw” to the contrary. The statute also permits courts to issue “necessary and appropriate process,” but multiple courts have read that language to mean only that courts may not enter relief as to portions of an agency action not “actually challenge[d].” Neither of these phrases specifies the permissible scope and effect of relief. And since CASA, district courts have overwhelmingly reaffirmed that Section 705 authorizes the universal postponement of agency action pending judicial review.
The Government’s Emerging Arguments
As litigants have turned to Section 705 since CASA, the government has argued, largely unsuccessfully, that the statute authorizes only party-specific relief. In addition to asserting that “the text’s reference to ‘all necessary and appropriate process’ is best understood to reference the traditional equitable principles” narrowed in CASA, the government has principally relied on three cases—all of which either do not apply or support the conclusion that Section 705 operates universally.
One of those cases, Starbucks Corp. v. McKinney, is off-point and should not guide a court’s analysis of Section 705. There, the Supreme Court held that the National Labor Relations Act, in authorizing a court to “grant . . . such temporary relief . . . as it deems just and proper” had conferred the authority “to grant equitable relief.” Notably, however, the NLRA does not have Section 705’s distinct language permitting courts to postpone the effective date of agency action. Whereas nothing in the NLRA “displaces the presumption that . . . traditional [equitable] principles govern,” the APA, per Justice Kavanaugh, “empower[s] the judiciary to act directly against the challenged agency action,” which is a direct “depart[ure]” from equitable principles.
Two other cases—Scripps-Howard Radio v. FCC and Sampson v. Murray—affirmatively refute the government’s position. The government cites Scripps-Howard, which was decided before the APA’s enactment, for the proposition that stays are “part of a federal court’s ‘traditional equipment for the administration of justice,’” apparently to suggest that relief under Section 705 is equitable in nature and, in light of CASA, party specific. But Scripps-Howard does not support that conclusion. It instead analogizes the “power in a reviewing court to stay the enforcement of an administrative order” to a federal court’s authority to “stay the enforcement of a judgment pending the outcome of an appeal.” That parallel supports the universality of Section 705 stays: just as an appellate court’s stay means the “lower-court decision no longer has force,” an APA stay pauses agency action across the board. Indeed, one post-CASA district court decision relied on Scripps-Howard for the proposition “that an interim form of vacatur was understood by both courts and Congress to be the ordinary preliminary remedy in a challenge to an unlawful agency action,” and the government appears to have stopped citing it.
For its part, Sampson v. Murray observed that Section 705 “was primarily intended to reflect existing law under the Scripps-Howard doctrine.” That reinforces what the statute’s text and context show: Section 705 authorizes universal stays of agency action.
Conclusion
The question of the scope of relief under Section 705 is newly important after CASA, but across-the-board stays of agency action are not themselves new. Courts—including the Supreme Court—issued them before CASA, and they remain available now. Section 705 continues to provide a critical tool to preserve the status quo while courts resolve the legality of agency action.
