Jurisprudence

Why Roberts and Kavanaugh Got So Furious at Biden’s Solicitor General

Elizabeth Prelogar dared to challenge federal courts’ power while arguing before the justices. They were not pleased.

A woman with dark bangs speaks into a microphone.
Elizabeth Prelogar at her nomination hearing to be Solicitor General of the United States, in Sept. 2021. Rod Lamkey / CNP/Sipa USANo Use Germany.

During oral arguments on Tuesday in United States v. Texas, an important immigration case, the Supreme Court got sidetracked over a question that has major implications for the executive branch and its ability to function: Can a plaintiff walk into court, challenge a federal regulation, and win a victory that halts the entire government’s ability to enforce that regulation anywhere, against anyone—even parties that played no role in the litigation?

The answer to this question is important, because this tactic has rapidly become an obstacle to governance.

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Under President Barack Obama, conservative judges began using a specific power to “set aside” policies, granted to them by a provision of a 1946 law, to halt executive policies nationwide, claiming that Congress intended to award them this sweeping power. Left-leaning judges used the tool to limit President Donald Trump’s efforts to rewrite federal statutes, particularly asylum law, and prompted a huge backlash among Republicans. Today, with President Joe Biden in office, conservative judges have transformed the power to “set aside” policies into an unprecedented weapon of obstruction, voiding agency rules and executive policies so frequently that they have turned the federal judiciary into a kind of shadow president with a permanent veto over the actual, elected president.

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It is not actually clear, though, that judges even have the legal authority to wipe federal policy off the books. A strictly textualist interpretation of federal law strongly suggests that they do not.  To the contrary, the fact that federal courts have unlawfully expanded their power to interfere with duties of the executive branch seems like a direct attack on the separation of powers.

Solicitor General Elizabeth Prelogar had the courage to point out this problem to the Supreme Court on Tuesday. By doing so, she incurred the wrath of Chief Justice John Roberts and Justice Brett Kavanaugh, who sounded shocked and offended—furious, really—that the solicitor general would dare accuse them of misreading a statute.

To understand the barfight that ensued, we have to rewind to 1946, when Congress passed the Administrative Procedure Act (APA). The statute was a response to a huge expansion of the administrative state in the 20th century. A slew of federal agencies had sprung up to interpret and enforce federal law, and many of these agencies wielded substantial independent authority. Congress intended the APA to serve as a “bill of rights” for Americans “whose affairs are controlled or regulated” by these agencies. Among many other features, the law allowed courts to review the legality of agency rules and regulations. One provision directed courts to “hold unlawful and set aside action, findings, and conclusions found to be” illegal.

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Initially, federal courts interpreted the APA to allow the usual remedy when somebody sues the government: an injunction that tells the government it can’t enforce a policy against that plaintiff. For instance, if the SEC enforced a financial rule against a business, that business could challenge the rule as unlawful. If a court agreed, it could issue an injunction telling the SEC it couldn’t enforce the rule against that business. It could not nullify the regulation with regard to every single business in the country. That power of universal nullification just isn’t one that courts traditionally hold.

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Yet over the last several decades, the judiciary has adopted a new interpretation of the APA, insisting that the law does allow courts to nullify, or “vacate,” federal rules and regulations. Under this reading, the power to “set aside” a policy includes the power to void its application to anyone, anywhere—not just the parties before the court. The U.S. Court of Appeals for the District of Columbia Circuit, in particular, “sets aside”  rules all the time because, by law, it has direct review of various agency actions. More recently, however, district courts have used vacatur to function as nationwide injunctions against the executive branch. (To be clear, their decisions largely treat vacatur as a form of nationwide injunction—halting the enforcement of a regulation anywhere, by anyone, against any party—so it’s fair to use the two terms interchangeably, though they’re technically distinct.)

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These rulings departed from the longstanding principle that a court’s judgments bind only the parties before it. Conservative judges are consistently claiming to “set aside” a rule by nullifying it, instead of providing the traditional relief: an injunction preventing the government from enforcing the rule against the plaintiff. The decision abolishing Biden’s mask mandate on public transportation was styled as vacatur. So was the decision eradicating Biden’s student debt relief program. And so was the decision invalidating Biden’s efforts to prioritize the deportation of certain immigrants over others.

It’s this last ruling that the Supreme Court considered on Tuesday. Solicitor General Prelogar asserted that the judge who voided Biden’s immigration priorities had no authority to do so, because the APA does not allow vacatur. Her argument built on the work of University of Virginia School of Law professor John Harrison and Notre Dame Law School professor Samuel Bray. In short, Harrison and Bray have persuasively demonstrated that by directing courts to “set aside” an unlawful rule, Congress simply meant that courts could reverse the judgment of the agency, and issue relief to the parties before it—rather than to the whole world. That would explain why courts did not use vacatur for decades after the APA’s passage; why Congress did not even hint at the option of a nationwide injunction–type remedy when debating the APA; and why the “set aside” language is in a separate section of the law that has nothing to do with injunctions or other remedies.

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Prelogar’s argument was based on the plain words of the APA, and it drove several justices mad. Roberts and Kavanaugh served on the D.C. Circuit before joining the court, as did Justices Clarence Thomas and Ketanji Brown Jackson. On Tuesday, Roberts came out swinging against Prelogar’s theory. “Your position on vacatur,” he told her, “that sounded to me to be fairly radical and inconsistent with, for example, those of us who were on the D.C. Circuit—you know, five times before breakfast, that’s what you do in an APA case. And all of a sudden you’re telling us that, no, you can’t vacate it, you do something different. Are you overturning that whole established practice under the APA?”

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When Prelogar responded that “the lower courts, including the D.C. Circuit, have in our view been getting this one wrong,” Roberts interjected. “Wow,” he said, audibly angry. “That’s what the D.C. Circuit and other courts of appeals have been doing all the time as a staple of their decision output.” Prelogar responded that “they haven’t been doing it with any attention to the text, context, and history of the provision”—a gutsy refusal to retreat from the wrath of the chief justice of the United States.

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Roberts’ moment of fury was only a prelude to Kavanaugh’s lecture about this “pretty extreme argument.” Kavanaugh, who served on the D.C. Circuit for 12 years, scolded Prelogar that he sat alongside the lions of that court, on the left and right. If vacatur was a made-up remedy, he suggested, they would have noticed:

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You said the judges on the D.C. Circuit haven’t paid attention to text, context, and history. I guess I would respectfully push back pretty strongly on that. I sat with judges like Silberman and Garland and Tatel and Edwards and Williams. They paid a lot of attention to that. And the government never has made this argument in all the years of the APA, at least not that I remember sitting there for 12 years. I haven’t seen it made. It’s a pretty radical rewrite, as the chief justice says, of what’s been standard administrative law practice.

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And that wasn’t all! Kavanaugh, sounding ever more aggrieved and exasperated, went on:

And you say they’re not paying attention to the text. Yeah, we did. “Set aside” means “set aside.” That’s always been understood to mean the rule’s no longer in place. No one’s really had this—no case has ever said what you’re saying anywhere. You know, it’s a recent law review proposal, good for that, but, you know, that’s not been the law. And so I find it pretty astonishing that you come up here and—I realize it’s not the main part of your submission—but I’m just going to push back pretty strongly on the three pages for—just toss out decades of this court’s law, of circuit law.

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Following this blast of indignation, Prelogar backtracked a bit. “I didn’t mean that the D.C. Circuit isn’t generally paying attention to text, context, and history, and I should have been more precise that I don’t think that the court has ever had the opportunity to actually engage with the arguments that we’re making here in this case.”

Prelogar pointed out that the Justice Department has, in fact, raised versions of this argument from 2008 on, through the administrations of George W. Bush, Barack Obama, Donald Trump, and now Biden. She also explained that the DOJ’s theory would end the bizarre process that has arisen over the last decade: Plaintiffs spread out across the country, filing lawsuits with multiple district courts, in the hopes of convincing just one judge to “set aside” a policy nationwide. Once a judge takes the bait, the government is handcuffed unless (or until) that judge is reversed by a higher court, which can take years of litigation. Even if judges in other states and circuits disagree, they have no power to overrule a different district court.

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Jackson, too, pushed back against the solicitor general, albeit much more gently. She referred to her stint on the D.C. Circuit—which led Justice Elena Kagan to quip that there “seems to be a kind of D.C. Circuit cartel.” Justice Amy Coney Barrett resisted Prelogar’s argument as well, suggesting that the meaning of the APA could “evolve over time.” (Quite a claim from a self-identified textualist!) Only Justice Neil Gorsuch appeared open to the theory, a version of which he has endorsed in the past.

Harrison, the law professor who kicked off this debate, told me he thinks the court may “find a way to avoid the vacatur issue in this case,” then return to it later with “more extensive briefing” and “maybe a decision below that airs the question thoroughly.” It certainly isn’t going away. Federal judges are going to keep issuing nationwide blocks every time the executive branch sneezes until the Supreme Court puts a stop to it—under both Democratic and Republican presidents.

Prelogar’s mistake, if she made one, was assuming that this SCOTUS would be receptive to a textualist argument that would curb the power of conservative judges under a Democratic president. But when the White House falls back into Republican hands, the right-wing justices may suddenly become much more amenable to the idea that lower courts don’t have a floating veto over the president’s every move.

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