The Biden administration does not believe that a single federal judge should be able to halt its policies nationwide.
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.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.
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.
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.
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