At Volokh Conspiracy, Josh Blackman has a series of posts on the recent Supreme Court oral argument in United States v. Texas, a case that hasn't gotten as much attention as it deserves:
Article I, Article II, and Article III in United States v. Texas
Let's Not Set Aside The Scholarly Debate About Vacatur
Predicting a Fragmented Vote in United States v. Texas
From the first:
I have now had a chance to review the transcript in United States v. Texas. On its face, this case concerns fairly technical debates about how to interpret the word "shall" in federal immigration law, and whether the APA permits the remedy of a national vacatur. But lurking under the surface are profound issues that implicate Congress's Article I powers, the President's Article II powers, and the Article III jurisdiction of the federal judiciary. I will take these topics in reverse order. …
From the second:
I'll admit it. I long ago simply assumed that courts could issue nationwide injunctions. Likewise, I took for granted that the APA gave courts the power to "vacate" agency actions. Sure, I questioned whether those injunctions and vacaturs could be "national" in scope–that is, extend to non-parties. And I often pondered whether it was possible to remand-without-vacatur. (If the D.C. Circuit does it, it must be right, right?!) But I never considered whether the vacatur itself was permissible. That was, of course, until Sam Bray and John Harrison came along.
Sam's scholarship on the nationwide injunction was perfectly timed. The Trump Administration was under a constant barrage of nationwide injunctions. Sam demonstrated that this sort of non-party relief would have been unknown in the courts of equity. The Trump DOJ would routinely cite Bray for this proposition. Somehow–it still boggles the mind–the Supreme Court went Trump's entire term without answering the nationwide injunction question. (And we still don't have an answer!)
Come 2021, the Biden Administration was under a constant barrage of nationwide injunctions. And some conservative judges, perhaps sympathetic to Bray's arguments about the nationwide injunction, turned to a more familiar remedy: vacatur under the APA. These judges were not relying on some unenumerated equitable power, but instead were invoking an express delegation from Congress to "set aside" rules. Indeed, D.C. Circuit judges would vacate five rules before breakfast. But John Harrison argued forcefully that the APA could not be understood to support such a remedy.
Now, this precise issue is before the Supreme Court. …
And from the last:
I wrote two posts on the latest incarnation of United States v. Texas. Based on my read of the oral argument, I think the ultimate vote may be very fragmented. The Court's six conservatives are not on the same page. And the Court's three progressives will–as they always do when it counts–hang together. The bottom line is the lower-court ruling would be vacated, without a single five-member majority opinion. Here is my crude prediction, that should not be taken very seriously. …
Posted at 6:31 AM