District Court Declares Vacatur (Likely) Unconstitutional

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Blackman, J. (2026, September 30). District Court Declares Vacatur (Likely) Unconstitutional. Reason. https://reason.com/volokh/2026/09/30/district-court-declares-vacatur-likely-unconstitutional/

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Reason · collected 2026-09-30 · by Josh Blackman

Quick Summary

Judge Kathryn Mizelle of the Middle District of Florida ruled that the "set aside" remedy under the Administrative Procedure Act (APA) is likely unconstitutional because it violates Article III's judicial power and the separation of powers principles. The decision argues that vacatur, or setting aside agency rules, lacks historical precedent and oversteps judicial boundaries by interfering with legislative functions. This case has garnered attention beyond ideological lines, with Supreme Court Justices divided on the issue, indicating a complex legal debate rather than a straightforward political one.
Written by AI on 2026-09-30, from this article's own text only (the story summary below draws on all the coverage).

AI analysis

Story summary

Judge Kathryn Mizelle from the Middle District of Florida ruled that the "set aside" remedy under the Administrative Procedure Act (APA) is likely unconstitutional. The ruling challenges the authority of Article III courts to vacate agency rules and regulations, which would cause their automatic removal from the Code of Federal Regulations. Judge Mizelle argues that such an action exceeds judicial power and improperly delegates legislative functions to the judiciary. She asserts that no amount of tradition or lower-court practice can make up for these constitutional issues, emphasizing that there is no precedent addressing the constitutional aspects of vacatur. The decision questions whether courts have the authority to directly alter regulatory texts through judicial actions, impacting how federal regulations are enforced and revised.

Written for “Vacatur Ruling Unconstitutionality” on 2026-11-03, grounded in this article and the 0 other(s) covering the same event.

Story

📰 Vacatur Ruling Unconstitutionality
Politics · 1 article(s) covering the same event.

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How this article was measured signals, leaning charts, publisher record, byline, topics and claims

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Claims extracted
13
sentences that state something as happening or true
Uncertain
0%
0 of 13 hedged ("reportedly", "may", "according to")
Leaning
Leans strongly right
of the writing, not the subject · beta estimate
Publisher signals
67/100
Reason's corrections and hedging, across everything collected from it. Not a measure of accuracy.
Outlets on this story
1
Politics
Same framing elsewhere
1
articles that frame the event the way this one does
Analyzed 2026-09-30 · how these are computed

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Publisher

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Who wrote this

Josh Blackman
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Topics

APA Article III courts Congress the Code of Federal Regulations the Middle District of Florida

Subjects

Kavanaugh PERSON · 2× Roberts PERSON · 2× Barrett PERSON · 1× Congress ORG · 1× Court ORG · 1× Gorsuch PERSON · 1× K. Mizelle PERSON · 1× Kathryn Mizelle PERSON · 1× the D.C. Circuit ORG · 1× the Middle District of Florida GPE · 1×

Narrative

Even if Congress were to enact a law clearly empowering Article III courts to vacate agency rules or regulations and automatically cause their erasure from the Code of Federal Regulations, vacatur would likely still be inconsistent with the limited nature of the judicial power and the non-delegability of core legislative power to the judiciary.
framing: assertive · carried by 1 article(s) · first seen 2026-09-30
🔮 Even if Congress were to enact a law clearly empowering Article III courts to vacate agency rules or regulations and automatically cause their erasure from the Code of Federal Regulations, vacatur would likely still be inconsistent with the limited nature of the judicial power and the non-delegability of core legislative power to the judiciary.
2026-09-30 · Reason
District Court Declares Vacatur (Likely) Unconstitutional · assertive framing

Claims (13 extracted, 0 hedged)

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent Judge Kathryn Mizelle of the Middle District of Florida issued an opinion finding that the "set aside" remedy under the APA is (likely) unconstitutional. asserted
remedy → issue → APA
Even if Congress were to enact a law clearly empowering Article III courts to vacate agency rules or regulations and automatically cause their erasure from the Code of Federal Regulations, vacatur would likely still be inconsistent with the limited nature of the judicial power and the non-delegability of core legislative power to the judiciary. asserted
vacatur → enact → judiciary
As a result, I doubt any amount of tradition, practice, or lower-court liquidation can correct the constitutional infirmities of vacatur as currently understood. asserted
amount → doubt → vacatur
Because I am not aware of any court to have addressed the constitutional dimensions of vacatur as opposed to its statutory basis, and I have only gestured at them in the past, see K. Mizelle, To Vacate or Not to Vacate, at 19–20, I explain my doubts in full. asserted
I → address → doubts
First, I address why vacatur, if considered an equitable remedy, likely transgresses Article III's grant of judicial power because it has no Founding-era analogue and does not comport with traditional principles of equity. asserted
it → address → equity
Second, I explain why vacatur, if considered a legal remedy, presents serious separation-of-powers problems. asserted
vacatur → explain → problems
Third, I address why vacatur, when analogized to appellate review, still fails to cure those significant separation-of-powers issues. asserted
vacatur → address → issues
Finally, I conclude that, consistent with the Constitution, "set aside" in Section 706 is best read as a rule of decision when applied to agency rules. asserted
set → conclude → rules
This is an issue that does not neatly divide the Court along right-left lines. asserted
that → divide → lines
Chief Justice Roberts and Justice Kavanaugh, both alumni of the D.C. Circuit, want nothing to do with this argument. asserted
Roberts → want → argument
Justice Gorsuch, who never met a regulation he liked, wants to eliminate vacatur. asserted
he → meet → vacatur
Justice Barrett tabled the issue in CASA, but I suspect she leans with Roberts and Kavanaugh. asserted
she → table → Roberts
This opinion will go up on appeal very soon. asserted
opinion → go → appeal
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