Prof. John Harrison: Courts are not agencies

It is the fifth and last in a series from posts summarizing an article with a title Detention without vacatur and the initial invalidity of unlawful provisions in administrative lawwhich is due in BYU Law Review. The current draft is available at SSRN.

These publications, and the article on which they are based, criticize the no-vacatur doctrine of remand. This latest post discusses some implications of these criticisms for the debate over universal anti-government relief—remedies in suits against the government that provide relief to all affected by agency actions, not just the parties.

First, the ab initio invalidity of illegal regulations renders one of the leading arguments in favor of universal protection against regulations untenable. According to this argument, a universal remedy against unlawful provisions falls within the generally accepted principle that benefits to non-parties are permissible when they are indivisible from the remedy to the parties. Relief is indivisible when the protection of the parties’ rights inevitably results in the benefit of non-parties. For example, a ban on excessive noise may provide benefits to non-plaintiff neighbors that cannot be separated from relief for plaintiffs.

The argument is that vacatur of illegal regulations is necessary to relieve the parties of their obligations under the regulation, and vacatur provides benefits to non-parties that are inseparable from benefits to the parties. Vacating a regulation renders it completely inoperable, as agency repeal would. An ordinance that has become completely inoperative is no longer binding on anyone, party or not. Providing relief to the parties by eliminating the binding force of the rule inevitably and permissibly benefits all subject to the rule.

Because illegal provisions are void ab initio, however, the reviewing court need not find invalidity to give the plaintiff a remedy. Rather, country-specific relief, such as injunctions against enforcement against the claimant or a declaration that the claimant has no duty to comply, is sufficient. These country-specific remedies reflect the conclusion that the regulation was void when it was enacted, a situation that courts recognize but do not challenge. Vacatur is not necessary to relieve the parties from a provision which is already void. Injunctions against executory and declaratory judgments, unlike vacatur per rule per se, are divisible reliefs. The court may order proceedings against A without ordering proceedings against B. The court may also declare A’s relationship with the government without declaring B’s.

Second, the recognition of invalidity ab initio raises serious questions about the purported remedy of vacatur, which operates on the provisions as such, not just on the parties. Invalidity ab initio may appear to preclude vacation. How can a court invalidate an already invalid regulation? Despite this difficulty, the invalidation of an invalid regulation is in some sense possible. However, whether this effect can be achieved by the court is not clear.

Strange as it may seem, an invalid ordinance can be voided. This strange possibility arises because regulations, like laws, have more than one necessary condition for validity. To be binding, the law must have been passed in accordance with the constitutional law-making process, its content must be in accordance with the Constitution and it must not have been repealed. Repeal deprives a law of a necessary condition of validity that is independent of substantive constitutionality. For this reason, when Congress repeals a statutory provision that is completely unconstitutional, a significant legal event occurs. Similarly, a duly promulgated regulation that is wholly invalid because it is not authorized by law, for example, can meaningfully be set aside. Congress can pass new legislation that addresses the regulation and repeals it, and the agency can repeal it. A provision, like a law, may be deprived of one necessary condition of validity even if another is already lacking.

Both the legislature and the executive can act on the basis of rules as such, while the main work of the judiciary is on litigants. It is not clear that the judiciary can work with regulations in the way that the legislature and the executive branch can. Courts can’t overturn laws, so maybe they can’t overturn rules. A court can order an agency to rescind a rule, but a rescission order is an order to a party, not a legislative act. Whether Congress authorized federal courts to strike down regulations is also unclear. In describing the proceedings in which judicial review is conducted, section 703 of the APA mentions claims for injunctive and declaratory judgments that operate against the parties. Section 703 does not list procedures for a vacancy. This provision does mention special statutory review procedures; whether any of them thought that the reviewing court would directly change the substance of the law depends on the meaning of those provisions.

The analogy between court-court and judicial-agency review blurs the question of whether courts can change the content of a regulatory law and the question of whether Congress has authorized them to do so. Agencies and courts exercise different types of power, while appellate courts exercise judicial power just like lower courts. An appellate court can override the legal effects of a lower court’s order by overturning it because lower courts and appellate courts work together in deciding cases through the exercise of judicial power.

Agencies are not courts. Agency regulations are more like statutes than lower court decisions because illegal agency regulations are generally invalid, just as unconstitutional statutory rules are invalid. Courts should not tell regulated parties that they must comply with illegal regulations while agencies seek to correct the deficiencies of the regulations. The analogy between the agencies and the lower courts on which detention without leave is based is no more than an analogy and often misleading.

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