This is the fourth in a series of posts summarizing an article titled Remand Without Vacatur and the Ab Initio Invalidity of Unlawful Regulations in Administrative Law, which is forthcoming in the BYU Law Review. The current draft is available on SSRN.
Earlier posts described the doctrine of remand without vacatur and argued that as applied to regulations imposing duties of conduct on private people the doctrine rests on a false premise. Courts that embrace the doctrine assume that unlawful regulations are binding on regulated parties until displaced by a court, the way lower-court decrees that rest on error are binding until displaced. In general, however, unlawful regulations are void ab initio.
This post broadens the inquiry in two directions. First, it extends the analysis concerning regulations that impose duties on private people to statutes that limit enforcement-stage judicial review. Second, this post discusses remand without vacatur and agency activities other than regulation of private conduct.
