Jameson Payne (Hillsdale College) & GianCarlo Canaparo (Heritage Foundation) have posted Is Vacatur Unconstitutional? (46 pages) on SSRN. Here is the abstract:
The modern practice of setting aside agency rules—a power (apparently) authorized by section 706 of the Administrative Procedure Act—is a strange beast of law. Rather than settling rights between parties like normal Article III relief, vacatur purports to act upon the rule itself, striking it from existence. Many have debated whether this practice is warranted by history, but few have asked if it is constitutional. This Article answers no. Properly understood, changing the law itself is a legislative power. Vacatur is, therefore, a delegation of legislative power to the judiciary, and an improper one at that.
This Article will offer a recapitulation of the debates surrounding the history of vacatur, touching upon early judicial practice and the APA's predecessor, the Walter-Logan Bill. Then, we will defend our understanding of vacatur as a legislative power, and show why alternative conceptions are less persuasive. Last, we will analyze its propriety under the caselaw governing delegations to the judiciary, and offer a few solutions to vacatur's constitutional defects.
Posted at 6:08 AM