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.
