Introduction

This past June, in a decision already heralded as marking a “landmark shift in administrative law,” 1Open this footnote Close this footnote 1 Christopher J. Walker, What Trump v. CASA Means for the Future of Universal Relief in Administrative Law, Yale J. on Regul.: Notice & Comment (June 29, 2025), https://perma.cc/‌K2Q8-82ZJ …Open this footnote Close the Supreme Court in Trump v. CASA, Inc. held that federal courts “likely” lacked the power to issue universal injunctions. 2Open this footnote Close this footnote 2 Trump v. CASA, Inc., 145 S. Ct. 2540, 2548-49 (2025). …Open this footnote Close Universal injunctions, the 6-3 majority concluded, likely exceeded the equitable authority that Congress had bestowed on the federal courts under the Judiciary Act of 1789. 3Open this footnote Close this footnote 3 Id. at 2554-56. …Open this footnote Close Federal courts can do no more than grant complete relief to parties before them. 4Open this footnote Close this footnote 4 Id. at 2556-58. …Open this footnote Close

But while the universal injunction may be dead, the debate surrounding other forms of universal relief has only intensified in the wake of CASA. 5Open this footnote Close this footnote 5 See generally David Marcus, The Class Action After Trump v. CASA, 73 UCLA L. Rev. Discourse 2 (2025) (discussing the impact on class actions); John Lewis & Jordan Ascher, Pathways to “Universal” Relief After Trump v. CASA, Just Sec. (July 3, 2025), https://perma.cc/‌CP5H-HRVM (discussing various remedies). …Open this footnote Close Without the Judiciary Act to fall back on, all eyes are now on the other principal statutory authority for universal relief: the Administrative Procedure Act (APA). 6Open this footnote Close this footnote 6 See, e.g., Walker, supra note 1; Jeffrey Lubbers, Universal Injunctions Are Severely Limited, But What About Universal Vacatur?, Yale J. on Regul.: Notice & Comment (July 5, 2025), https://perma.cc/‌GFJ7-MFG2; Mila Sohoni, Trump v. CASA and the Future of the Universal Injunction, SCOTUSblog (July 2, 2025), https://perma.cc/‌QV82-VFQQ; Harold Hongju Koh, Alan Charles Raul & Fred Halbhuber, A Path Forward After Trump v. CASA, Just Sec. (June 30, 2025), https://perma.cc/‌2QTG-TC6X. …Open this footnote Close Section 706 of the APA, the charter statute of modern administrative law, instructs courts to “set aside” agency action that is not in accordance with law. 7Open this footnote Close this footnote 7 5 U.S.C. § 706(2). …Open this footnote Close For decades, this phrase was understood to authorize “universal vacatur”—that is, the total nullification of the unlawful agency action. That reading of § 706 has recently come under attack from members of the academy 8Open this footnote Close this footnote 8 John Harrison, Section 706 of the Administrative Procedure Act Does Not Call for Universal Injunctions or Other Universal Remedies, 37 Yale J. on Regul. Bull. 37, 37 (2020); John Harrison, Vacatur of Rules Under the Administrative Procedure Act, 40 Yale J. on Regul. Bull. 119, 119-21 (2023); Aditya Bamzai, The Path of Administrative Law Remedies, 98 Notre Dame L. Rev. 2037, 2046 (2023). …Open this footnote Close and the bench, 9Open this footnote Close this footnote 9 Texas v. United States, 143 S. Ct. 1964, 1980-83 (2023) (Gorsuch, J., concurring in the judgment); Nuziard v. Minority Bus. Dev. Agency, 721 F. Supp. 3d 431, 500 (N.D. Tex. 2024). …Open this footnote Close with critics arguing that the APA instructs reviewing courts to “set aside” the challenged administrative action only as to the individual plaintiffs before the court.

The CASA majority, in laying universal injunctions to rest, was careful to steer clear of the important debate over universal vacatur under the APA. 10Open this footnote Close this footnote 10 .Trump v. CASA, Inc., 145 S. Ct. 2540, 2554 n.10 (2025) (“Nothing we say today resolves the distinct question whether the Administrative Procedure Act authorizes federal courts to vacate federal agency action.”); see id. at 2567 (Kavanaugh, J., concurring) (noting that “in cases under the Administrative Procedure Act, plaintiffs may ask a court to preliminarily ‘set aside’ a new agency rule”). …Open this footnote Close But with three Justices signaling their support for the view that the APA’s “set aside” instruction does not authorize vacatur, 11Open this footnote Close this footnote 11 Texas, 143 S. Ct. at 1978-86 (Gorsuch, J., concurring in the judgment). Gorsuch’s concurrence was joined by Justices Thomas and Barrett. …Open this footnote Close and the government renewing efforts to challenge universal vacatur in the lower courts, 12Open this footnote Close this footnote 12 Katie Buehler, Courts Face Early Push to Expand Justices’ Injunction Ruling, Law360 (July 11, 2025, 8:33 PM EDT), https://perma.cc/‌43JX-4B84. …Open this footnote Close it seems just a matter of time before the issue is brought squarely before the Court.

This Essay brings a neglected chapter of history to bear on the debate over universal vacatur. It shows that Congress did not coin the “set aside” formulation in 1946 when it enacted the APA, or even in the early federal statutes of the twentieth century. Rather, the language was consciously borrowed from nineteenth-century state codes, which empowered courts to “set aside” administrative orders in a manner directly modeled on appellate review of lower court judgments. In those state codes, to “set aside” meant to vacate universally: The challenged order was treated as null for all, not merely disregarded as to the parties before the court. By recovering this lost state-law lineage, this Essay demonstrates that the APA’s “set aside” instruction inherits a remedial tradition that authorizes universal vacatur. 13Open this footnote Close this footnote 13 The argument in this Essay was previewed earlier this year in a short blog post. See Fred Halbhuber, The State-Law Origins of the APA’s “Set Aside” Power, Yale J. on Regul.: Notice & Comment (June 11, 2025), https://perma.cc/‌AL7E-ASJQ. …Open this footnote Close

The rest of this Essay proceeds in three parts. Part I briefly recounts the use of the “set aside” language in federal statutes providing for judicial review—from the term’s debut appearance in the Hepburn Act of 1906 to its adoption in the APA in 1946. In the four decades spanning these two statutes, the meaning of “set aside” remained the same.

Part II shows that state legislatures began empowering their courts to “set aside” administrative action long before the same term found its way into federal law. These state statutes reflected the prevailing state-law approach to judicial review of agency action: an appellate model of judicial review. State statutes contemplated that, upon a successful petition to “set aside” an agency order, the challenged order would be treated like a vacated lower court judgment: as though written on “waste paper,” 14Open this footnote Close this footnote 14 A. C. Freeman, A Treatise on the Law of Judgments: Including all Final Determinations of the Rights of Parties in Actions or Proceedings at Law or in Equity § 116 (S.F., A.L. Bancroft & Co. 1873). …Open this footnote Close and vacated as to all.

Part III bridges the gap between state and federal law by demonstrating that, when the “set aside” language was first incorporated into federal law via the Hepburn Act, Congress was lifting the term from earlier state codes. This Part concludes by unpacking the takeaways of this history for the ongoing debate over universal vacatur under the APA.

I. Federal Statutes and the “Set Aside” Language

The federal statutory power to “set aside” agency action made its first appearance in the Hepburn Act of 1906. In the years following the founding of the Interstate Commerce Commission (ICC) in 1887, 15Open this footnote Close this footnote 15 Interstate Commerce Act of 1887, ch. 104, 24 Stat. 379 (codified as amended in scattered sections of 49 U.S.C.). …Open this footnote Close the Commission’s enforcement authority was weak. The ICC could compel compliance with its orders only by petitioning a circuit court to enforce them: The onus lay on the agency to initiate the litigation and to establish the validity of its order. 16Open this footnote Close this footnote 16 See Thomas W. Merrill, Article III, Agency Adjudication, and the Origins of the Appellate Review Model of Administrative Law, 111 Colum. L. Rev. 939, 955-56 (2011). …Open this footnote Close The Hepburn Act changed this by rendering the ICC’s orders presumptively enforceable and disobedience of its orders therefore immediately punishable. 17Open this footnote Close this footnote 17 2 F. Trowbridge vom Baur, Federal Administrative Law § 634 (1942). …Open this footnote Close Disgruntled railroad companies, unhappy with the ICC’s orders, could seek judicial review under the Hepburn Act. And on a successful petition for review, a court could, Congress recognized for the first time, “enjoin, set aside, annul, or suspend” the ICC’s order. 18Open this footnote Close this footnote 18 Hepburn Act, ch. 3591, § 5, 34 Stat. 584, 592 (1906) (codified as amended in scattered sections of 49 U.S.C.). …Open this footnote Close

The Hepburn Act’s “set aside” language had a lot of staying power. From the Hepburn Act, the term was transplanted into the Urgent Deficiencies Act of 1913, where Congress provided that three-judge district court panels had “venue of any suit . . . brought to enforce, suspend, or set aside, in whole or in part, any order of the [ICC].” 19Open this footnote Close this footnote 19 Act of Oct. 22, 1913, ch. 32, 38 Stat. 208, 219-20 (codified as amended in scattered sections of 29 U.S.C.). …Open this footnote Close From there, the language was carried over into no fewer than thirty-five other federal statutes providing for judicial review of agency action. 20Open this footnote Close this footnote 20 District of Columbia Appropriations Act, ch. 150, § 8, ¶ 64, 37 Stat. 938, 988 (1913) (“vacate, set aside, or modify”); Clayton Act, ch. 323, § 11, 38 Stat. 730, 735 (1914) (codified as amended at 15 U.S.C. § 21) (“modify or set aside”); Post Office Appropriations Act of 1916, ch. 261, § 2, 39 Stat. 412, 425 (“affirm, set aside or modify”); Shipping Act, ch. 451, § 31, 39 Stat. 728, 738 (1916) (“enforce, suspend, or set aside”); Food Control Act, ch. 80, § 108, 41 Stat. 297, 301 (1919) (“modified or set aside”); Packers and Stockyards Act, ch. 64, § 204(e), 42 Stat. 159, 162 (1921) (codified as amended at 7 U.S.C. § 194(h)) (“affirm, modify, or set aside”); Future Trading Act, ch. 86, § 6(a), 42 Stat. 187, 189 (1921) (“affirm or set aside”); Grain Futures Act, ch. 369, § 6(a), 42 Stat. 998, 1001 (1922) (codified as amended at 7 U.S.C. § 8) (“affirm or set aside”); Longshoremen’s and Harbor Workers’ Compensation Act, ch. 509, § 21(b), 44 Stat. 1424, 1436 (1927) (codified as amended at 33 U.S.C. § 921(c)) (“suspended or set aside”); Perishable Agricultural Commodities Act, ch. 436, § 10, 46 Stat. 531, 535 (1930) (codified at 7 U.S.C. § 499j) (“suspended, modified, or set aside”); Securities Act of 1933, ch. 38, § 9(a), 48 Stat. 74, 80 (1933) (codified as amended at 15 U.S.C. § 77i(a)) (“modified or set aside”); Emergency Railroad Transportation Act, ch. 91, § 16, 48 Stat. 211, 216 (1933) (“suspend or set aside”); Securities Exchange Act of 1934, ch. 404, § 25(a), 48 Stat. 881, 902 (1934) (codified as amended at 15 U.S.C. § 78y(a)) (“modified or set aside”); Foreign Trade Zones Act, ch. 590, § 18(c), 48 Stat. 998, 1002 (1934) (codified as amended at 19 U.S.C. § 81r(c)) (“set aside”); Communications Act of 1934, ch. 652, § 402(a), 48 Stat. 1064, 1093 (codified as amended at 47 U.S.C. § 402(a)) (“enforce, enjoin, set aside, annul, or suspend”); Act of June 21, 1934, ch. 691, sec. 3, § 3(p), 48 Stat. 1185, 1192 (codified at 45 U.S.C. § 153) (“set aside”) (amending the Railway Labor Act of 1926); Connally Hot Oil Act, ch. 18, § 5(c), 49 Stat. 30, 32 (1935) (codified at 15 U.S.C. § 715d(c)) (“modified or set aside”); National Labor Relations Act, ch. 372, § 10(f), 49 Stat. 449, 455 (1935) (codified as amended at 29 U.S.C. § 160(f)) (“modified or set aside”); Public Utility Holding Company Act of 1935, ch. 687, § 24(a), 49 Stat. 803, 834 (“modified or set aside”); Act of Aug. 26, 1935, ch. 689, § 4, 49 Stat. 864, 865 (1935) (codified as amended at 19 U.S.C. § 1641(e)) (“affirm, modify, or set aside”) (amending the Tariff Act of 1930); Federal Alcohol Administration Act, ch. 814, § 4(h), 49 Stat. 977, 980 (1935) (codified as amended at 27 U.S.C. § 204(h)) (“modified or set aside”); Bituminous Coal Conservation Act, ch. 824, § 6(b), 49 Stat. 991, 1003 (1935) (“affirm, modify, and enforce or set aside”); Bituminous Coal Act, ch. 127, § 6(b), 50 Stat. 72, 85 (1937) (“affirm, modify, and enforce or set aside”); Railroad Retirement Act of 1937, ch. 868, sec. 1, § 11, 50 Stat. 307, 315 (“set aside”); Natural Gas Act, ch. 556, § 19(b), 52 Stat. 821, 831 (1938) (codified as amended at 15 U.S.C. § 717r(b)) (“modified or set aside”); Act of June 23, 1938, ch. 600, § 30, 52 Stat. 953, 961 (“affirm or set aside”) (amending the Merchant Marine Act); Civil Aeronautics Act of 1938, ch. 601, § 1006(d), 52 Stat. 973, 1024 (“affirm, modify, or set aside”); Fair Labor Standards Act of 1938, ch. 676, § 10(a), 52 Stat. 1060, 1065 (codified as amended at 29 U.S.C. § 210(a)) (“affirm, modify, or set aside”); Federal Food, Drug, and Cosmetic Act, ch. 675, § 505(h), 52 Stat. 1040, 1053 (1938) (codified as amended at 21 U.S.C. § 355(h)) (“affirm or set aside”); Federal Seed Act, ch. 615, § 410, 53 Stat. 1275, 1287 (1939) (codified as amended at 7 U.S.C. § 1600) (“set aside or modified”); Investment Company Act of 1940, ch. 686, § 43(a), 54 Stat. 789, 844 (codified as amended at 15 U.S.C. § 80a-42(a)) (“modified or set aside”); Transportation Act of 1940, ch. 722, sec. 12, § 17(9) 54 Stat. 898, 916 (codified as amended at 49 U.S.C. § 10327(i)) (“enforce, enjoin, suspend, or set aside”); District of Columbia Emergency Rent Act, ch. 553, § 9(a), 55 Stat. 788, 793 (1940) (“affirm or set aside”); Emergency Price Control Act of 1942, ch. 26, § 204(a), 56 Stat. 23, 31 (“enjoined or set aside”); Veterans’ Emergency Housing Act of 1946, ch. 268, § 6, 60 Stat. 207, 211 (“enjoin or set aside”). …Open this footnote Close When, finally, the term was inserted into § 706(2) of the APA in 1946, 21Open this footnote Close this footnote 21 5 U.S.C. § 706(2). …Open this footnote Close the “set aside” power already had quite an impressive pedigree.

The meaning of “set aside” did not change from the term’s initial inclusion in the Hepburn Act to its adoption in the APA. This fact seems to have been accepted by scholars on both sides of the “set aside” debate, 22Open this footnote Close this footnote 22 See Bamzai, supra note 8, at 2069 (“[T]he fundamental interpretation of this terminology remained the same . . . .”); Mila Sohoni, The Past and Future of Universal Vacatur, 133 Yale L.J. 2305, 2377 (2024) (“[T]he APA’s ‘set aside’ language itself traces back to pre-APA special statutory review statutes . . . .”). …Open this footnote Close and is amply supported by the historical record. For one, commentators at the time of the APA’s enactment clearly understood “set aside” to carry the same meaning as it did in the Hepburn and Urgent Deficiencies Acts. Commenting on the APA’s “set aside” provision in 1947, C.A. Miller, general counsel for the country’s largest railroad association, noted that “nothing in the Administrative Procedure Act . . . limits or expands judicial review of the orders of the [ICC].” 23Open this footnote Close this footnote 23 C.A. Miller, Impact of the Federal Administrative Procedure Act on the Procedures of the Interstate Commerce Commission, in The Federal Administrative Procedure Act and the Administrative Agencies 305, 338 (George Warren ed., 1947). …Open this footnote Close In drafting the APA, Congress made a deliberate effort to “follow[] very closely the procedure as it applies to the Interstate Commerce Commission.” 24Open this footnote Close this footnote 24 79 Cong. Rec. 94 (1944) (statement of Rep. Francis Walter). …Open this footnote Close But perhaps the best evidence of the “set aside” term’s consistent use is its sheer ubiquity. Throughout the early twentieth century, Congress time and again turned to the “set aside” language to describe judicial review of agency action. 25Open this footnote Close this footnote 25 See supra notes 19-20 and accompanying text. …Open this footnote Close And it regularly did so by cross-referencing the earliest “set aside” provisions pertaining to the ICC. 26Open this footnote Close this footnote 26 See, e.g., Shipping Act § 31; Packers and Stockyards Act § 316; Perishable Agricultural Commodities Act § 11; Emergency Railroad Transportation Act § 16; Communications Act of 1934 § 402(a). As the Attorney General’s Committee on Administrative Procedure noted in 1941, the “method of review which has found considerable favor in recent legislation is that first enacted in the Federal Trade Commission Act in 1914.” Final Report of the Attorney General’s Committee on Administrative Procedure 83 (1941). …Open this footnote Close Not once did Congress suggest that it was changing the meaning of this staple term.

II. The State-Law Origins of the “Set Aside” Language

The federal genealogy of the “set aside” language tells only part of the story. By the time the “set aside” terminology was being introduced into federal law to describe judicial review of the ICC in 1906, state legislation had been using the same language for decades. A closer look at how state codes used the “set aside” language confirms that the term authorized universal relief.

A. State Railroad Commissions and Judicial Review

States were pioneers in railroad regulation. Long before the ICC emerged on the scene to regulate interstate railroads, states were setting up their own railroad commissions. Many state commissions, particularly in the midwestern states, were endowed by their legislators with sweeping ratemaking powers. 27Open this footnote Close this footnote 27 Needham C. Collier, A Treatise on the Law of Public Service Companies § 166 (1918). …Open this footnote Close With such sweeping power came the risk of abuse. States therefore allowed railroad companies adversely affected by the actions of state commissions to seek judicial review of the commissions’ orders. In 1891, Texas provided that the rates set by its railroad commissioners would be “conclusive until set aside” by direct action. 28Open this footnote Close this footnote 28 Act of Apr. 3, 1891, ch. 51, 1891 Tex. Gen. Laws 55, 55. …Open this footnote Close Kansas, in a 1901 statute, empowered its courts to “set aside, vacate or annul” regulations and orders adopted by the Kansas Board of Railway Commissioners. 29Open this footnote Close this footnote 29 Act of Feb. 26, 1901, ch. 286, 1901 Kan. Sess. Laws 517, 536. …Open this footnote Close A 1905 Wisconsin statute establishing the Wisconsin Railway Commission used similar language, empowering reviewing courts to “vacate and set aside” any regulations of the Commission. 30Open this footnote Close this footnote 30 Act of June 13, 1905, ch. 362, 1905 Wis. Sess. Laws 543, 560. …Open this footnote Close In April of 1906, two months before the federal Hepburn Act was signed into law, 31Open this footnote Close this footnote 31 The Hepburn Act was signed into law on June 29, 1906. Hepburn Act, ch. 3591, 34 Stat. 584 (1906) (codified as amended in scattered sections of 49 U.S.C.). …Open this footnote Close the General Assembly of Ohio likewise authorized its courts to “vacate and set aside” orders of the Ohio Railway Commission. 32Open this footnote Close this footnote 32 Act of Apr. 2, 1906, § 16, 1906 Ohio Laws 342, 351. …Open this footnote Close By 1913, when the federal Urgent Deficiencies Act was signed into law, twelve more states had enacted codes that used the term “set aside” to describe judicial review of state railroad commissions’ orders. 33Open this footnote Close this footnote 33 Act of May 28, 1912, ch. 90, 1912 Ariz. Sess. Laws 495, 550 (“vacate and set aside”); Act of Nov. 16, 1910, ch. 5, 1910 Colo. Sess. Laws 45, 57 (“set aside, suspend, or annul”); Act of June 10, 1911, § 35, 1911 Ill. Laws 471, 482 (“vacated and set aside”); Act of July 3, 1908, No. 171, 1908 La. Acts 230, 231 (“changed, altered, modified, or set aside”); Act of Apr. 5, 1910, ch. 180, 1910 Md. Laws 338, 388 (“vacate and set aside“); Act of June 28, 1907, No. 312, 1907 Mich. Pub. Acts 417, 433 (“vacate and set aside”); Act of Apr. 12, 1907, ch. 167, 1907 Minn. Laws 184, 185 (“vacated and set aside”); Act of Mar. 23, 1911, ch. 162, 1911 Nev. Stat. 322, 329 (“vacate and set aside”); Act of May 19, 1913, ch. 145, 1913 N.H. Laws 662, 679 (“set aside, enjoin the enforcement of, or otherwise review or impeach”; “vacating”); Act of Apr. 21, 1911, ch. 195, 1911 N.J. Laws 374, 388 (“set aside”); Act of Feb. 18, 1907, ch. 53, 1907 Or. Laws 67, 87 (“vacate and set aside”); Act of Mar. 18, 1911, ch. 117, 1911 Wash. Sess. Laws 538, 608 (“set aside or annulled”). …Open this footnote Close

State railroad statutes were not alone in employing the “set aside” language to describe judicial review of state agency action. In the late nineteenth century, states empowered a variety of boards and commissions to issue orders, rates, rules, and regulations. From orders handed down by public inspectors 34Open this footnote Close this footnote 34 See, e.g., Act of Apr. 17, 1900, ch. 239, 1900 Mass. Acts 170, 171 (“set aside”); Act of Dec. 8, 1904, No. 77, 1904 Vt. Acts & Resolves 92, 95 (“set aside or modified”); Act of Feb. 22, 1905, ch. 222, 1905 Or. Laws 383, 384 (“set aside”). …Open this footnote Close and land commissioners 35Open this footnote Close this footnote 35 See, e.g., Act of June 8, 1899, No. 107, 1899 Mich. Pub. Acts 150, 152 (“vacate, set aside or annul”). …Open this footnote Close to the assessments and awards made by state boards, 36Open this footnote Close this footnote 36 See, e.g., Act of Apr. 9, 1875, ch. 414, 1875 N.J. Laws 612, 618 (“set aside on certiorari”); Act of Mar. 12, 1878, ch. 59, 1878 N.J. Laws 70, 77 (“set aside or vacated”). …Open this footnote Close state codes regularly granted or recognized a judicial power to “set aside” and “vacate” administrative action. 37Open this footnote Close this footnote 37 For other examples, see Act of Mar. 20, 1875, No. 181, 1874 Va. Acts 177, 186 (“set aside and annul” the actions of the board of supervisors); Act of Mar. 27, 1890, ch. 12, 1889 Wash. Sess. Laws 348, 360 (“set aside” decisions of the Superintendent of Public Instruction); Act of Apr. 19, 1893, ch. 56, 1893 Conn. Pub. Acts 230 (“set aside” the “doings of selectmen in laying out a highway”); Act of May 2, 1901, ch. 276, 1901 Wis. Sess. Laws 373, 374 (“set aside, annul, vacate, or in any manner to attack” the validity of local public works actions); and Act of Apr. 14, 1903, ch. 194, 1903 Minn. Laws 290, 298 (“set aside” awards of park commissioners). …Open this footnote Close

B. The Meaning of “Set Aside” in State Codes

Before the Hepburn Act introduced the term to federal law, states were frequently granting challengers a statutory right to “set aside” agency action. But as the above survey illustrates, the term “set aside” was rarely used in isolation in these state codes. More often than not, the term was used alongside and interchangeably with other terms like “vacate” and “annul.” 38Open this footnote Close this footnote 38 The 1901 Kansas railroad statute that empowered courts to “set aside, vacate or annul one or more or any part of any of the regulations” describes this kind of action later in the same section as “an action . . . to vacate” regulations. Act of Feb. 26, 1901, § 39, 1901 Kan. Sess. Laws 517, 536-37. …Open this footnote Close State courts applying these statutes were equally clear: To “set aside” meant to “vacate.” 39Open this footnote Close this footnote 39 Bd. of R.R. Comm’rs of Kan. v. Mo. Pac. Ry. Co., 80 P. 53, 53 (Kan. 1905) (noting that the “set aside” provision of Kansas’s railroad code empowered “the district court to vacate the order of the board”); State v. Mo. Pac. Ry. Co., 92 P. 606, 607 (Kan. 1907) (noting that a railroad company could “bring an action against the board in any court of competent jurisdiction to have the same vacated”); Minneapolis, St. Paul & Sault Ste. Marie Ry. Co. v. R.R. Comm’n of Wis., 116 N.W. 905, 912 (Wis. 1908) (describing the judicial review power under the Wisconsin railroad code as one “to vacate the order”). …Open this footnote Close The result was that, on a successful petition to “set aside” or “vacate” an agency order, the challenged order would be “reversed,” 40Open this footnote Close this footnote 40 Act of Mar. 18, 1911, ch. 117, 1911 Wash. Sess. Laws 538, 603. …Open this footnote Close “null,” 41Open this footnote Close this footnote 41 State v. Skagit River Tel. & Tel. Co., 147 P. 885, 888 (Wash. 1915). …Open this footnote Close “void,” 42Open this footnote Close this footnote 42 Duluth St. Ry. Co. v. R.R. Comm’n of Wis., 152 N.W. 887, 890 (Wis. 1915); Portland Ry., Light & Power Co. v. R.R. Comm’n of Or., 105 P. 709, 712 (Or. 1909); Home Tel. Co. of Grass Lake v. Mich. R.R. Comm’n, 140 N.W. 496, 498 (Mich. 1913); Grand Trunk Ry. Co. of Canada v. Mich. R.R. Comm’n, 198 F. 1009, 1022 (E.D. Mich. 1912); Union Lime Co. v. R.R. Comm’n of Wis., 129 N.W. 605, 614 (Wis. 1911). …Open this footnote Close “held for naught,” 43Open this footnote Close this footnote 43 E.g., R.R. Comm’n of Tex. v. St. Louis Sw. Ry. Co. of Tex., 80 S.W. 102, 103 (Tex. Civ. App. 1904). …Open this footnote Close and cease to be a “lawful, existing rate.” 44Open this footnote Close this footnote 44 Big 4 Coal Co. v. Hocking Valley Ry. Co., 11 Ohio App. 88, 90 (Ohio Ct. App. 1919). …Open this footnote Close

In this way, state statutes providing for judicial review of administrative action closely paralleled, in procedure and in relief, state statutes describing appellate review. To seek review of an order, a challenger would proceed just as they would when seeking review of a lower court judgment. They would take an appeal to the reviewing court, 45Open this footnote Close this footnote 45 See, e.g., Act of May 28, 1912, ch. 90, 1912 Ariz. Sess. Laws 495, 550; Act of Nov. 16, 1910, ch. 5, 1910 Colo. Sess. Laws 45, 57; Act of June 3, 1899, ch. 4700, 1899 Fla. Laws 76, 92; Act of June 10, 1911, § 35, 1911 Ill. Laws 471, 482; Act of Apr. 16, 1909, ch. 129, 1909 Iowa Acts 120, 120; Act of July 3, 1908, No. 171, 1908 La. Acts 230, 231; Act of Apr. 5, 1910, ch. 180, 1910 Md. Laws 338, 388; Act of Apr. 12, 1907, ch. 167, 1907 Minn. Laws 184, 184; Act of Mar. 17, 1908, ch. 86, 1908 Miss. Laws 71; Act of May 19, 1913, ch. 145, 1913 N.H. Laws 662, 679; Okla. Const. of 1909, art. IX, § 20; Act of Apr. 3, 1891, ch. 51, 1891 Tex. Gen. Laws 55, 58; Act of Dec. 7, 1906, No. 122, 1906 Vt. Acts & Resolves 129, 130. …Open this footnote Close with the burden of proof on the party seeking to “set aside” and “vacate” the commission’s order. 46Open this footnote Close this footnote 46 See, e.g., 1912 Ariz. Sess. Laws at 550; 1910 Colo. Sess. Laws at 57; 1911 Ill. Laws at 482; 1910 Md. Laws at 388; Act of Apr. 2, 1906, § 16, 1906 Ohio Laws 342, 351; Act of Feb. 18, 1907, ch. 53, 1907 Or. Laws 67, 87; Act of June 13, 1905, ch. 362, 1905 Wis. Sess. Laws 543, 560. …Open this footnote Close The reviewing court would then render its decision based principally on the record created by the commission, 47Open this footnote Close this footnote 47 See, e.g., Va. Const. of 1902, art. XII § 156(f); 1910 Colo. Sess. Laws at 57; Act of Apr. 8, 1911, ch. 94, 1911 Neb. Laws 357, 358; § 16, 1906 Ohio Laws at 351. …Open this footnote Close and would defer to the commission’s finding of fact 48Open this footnote Close this footnote 48 See, e.g., Va. Const. of 1902, art. XII, § 156(f); 1907 Minn. Laws at 185; § 16, 1906 Ohio Laws at 351; Act of Mar. 18, 1911, ch. 117, 1911 Wash. Sess. Laws 538, 608. …Open this footnote Close —just as in an ordinary appeal from a lower court. Several state codes made the obvious analogy explicit, providing that “the procedure to obtain [the] reversal, modification or vacation of any . . . order or regulation made and adopted” by a railway commission was to be “governed by the same provisions now in force with reference to appeals and error proceedings from the [trial] courts to the [state] Supreme Court.” 49Open this footnote Close this footnote 49 1911 Neb. Laws at 357-358; see also Va. Const. of 1902, art. XII, § 156(d) (“[S]uch appeal shall be taken in the manner in which appeals may be taken to the Supreme Court of Appeals from the inferior courts.”); 1906 Vt. Acts & Resolves at 130 (“Such appeal shall be taken and the cause entered in the supreme court in the county where the cause arises or is heard in the manner and under the law and rules of procedure which govern such appeals from the court of chancery. The supreme court shall have the same power therein as it now has over appeals from [the] court of chancery. It may reverse or affirm such orders of the board and may remand the cause to the board.”); Okla. Const. of 1909 art. IX, § 20 (“[S]uch appeal shall be taken in the manner in which appeals may be taken to the Supreme Court from the District Courts.”); cf. 1899 Fla. Laws at 92 (noting that appeals would lie “to the same extent that appeals lie in similar suits and cases brought under any other law in this State”). …Open this footnote Close State appellate procedure was quite literally incorporated by reference into provisions for judicial review.

Just as judicial review procedure paralleled appellate review, so too did relief. In Wisconsin, for example, courts “vacate[d] and set aside . . . judgment[s]” 50Open this footnote Close this footnote 50 Act of Mar. 22, 1877, ch. 268, 1877 Wis. Sess. Laws 580, 581. …Open this footnote Close handed down by courts and “vacate[d] and set aside . . . order[s]” handed down by the railroad commission. 51Open this footnote Close this footnote 51 Act of June 13, 1905, ch. 362, 1905 Wis. Sess. Laws 543, 560. …Open this footnote Close Ohio courts “set aside, modif[ied] or vacate[d] judgments” of lower courts 52Open this footnote Close this footnote 52 Act of May 2, 1877, sec. 1, § 70, 1877 Ohio Laws 140, 151. …Open this footnote Close and “vacate[d] and set aside . . . order[s]” of Ohio railroad commissioners. 53Open this footnote Close this footnote 53 Act of Apr. 2, 1906, § 16, 1906 Ohio Laws 342, 351. …Open this footnote Close As the Supreme Court of Washington explained, applying the “set aside” provision in Washington’s railway code, if the commission acted without power, the result was the same as when a “court of record . . . enters a void judgment”: The order “does not bind the parties thereto, or any one else.” 54Open this footnote Close this footnote 54 State v. Skagit River Tel. & Tel. Co., 147 P. 885, 889 (Wash. 1915) (emphasis added); see also Willapa Power Co. v. Pub. Serv. Comm’n, 188 P. 464, 465 (Wash. 1920) (“[I]f an order of the commission is void . . . it does not bind the parties, nor any one else.”). …Open this footnote Close The terminology used to describe judicial review, another court noted, was explicitly “borrowed from the statute, which provided for petitions in error to this court in ordinary civil suits.” 55Open this footnote Close this footnote 55 Hooper Tel. Co. v. Neb. Tel. Co., 147 N.W. 674, 679 (Neb. 1914) (interpreting the state judicial review provision empowering Nebraska courts to “reverse, vacate, or modify” orders of the Nebraska Railway Commission); see Byington v. Chi., Rock Island & Pac. R.R. Co., 148 N.W. 520, 523 (Neb. 1914) (same). …Open this footnote Close A state court’s power to “reverse or affirm . . . orders of [the railway] board” was the “same power” it “ha[d] over appeals from [the] court of chancery.” 56Open this footnote Close this footnote 56 Act of Dec. 7, 1906, No. 122, 1906 Vt. Acts & Resolves 129, 130. …Open this footnote Close

That states would borrow appellate vocabulary to describe judicial review is instructive, but not surprising. Through the early twentieth century, the “chief means” of reviewing administrative action in the states was via the common law writ of certiorari. 57Open this footnote Close this footnote 57 Frank J. Goodnow, The Writ of Certiorari, 6 Pol. Sci. Q. 493, 493 (1891). …Open this footnote Close The scope of review on certiorari—and the scope of its associated relief—closely paralleled appellate review of lower court decisions. 58Open this footnote Close this footnote 58 See generally Fred Halbhuber, Note, The State-Law Origins of the Appellate Review Model, 135 Yale L.J. (forthcoming 2026) (discussing universal relief under the writ of certiorari). …Open this footnote Close Indeed, the writ originated as a means of reviewing the decisions of lower courts. 59Open this footnote Close this footnote 59 Paul Craig, English Administrative Law from 1550: Continuity and Change 583 (2024) (noting that certiorari was “originally only available against courts of record”). …Open this footnote Close Just as on an appeal from a lower court judgment, a successful petition for certiorari resulted in the challenged administrative action being “set aside,” 60Open this footnote Close this footnote 60 State ex rel. Enderlin State Bank v. Rose, 58 N.W. 514, 519 (N.D. 1894); see, e.g., In re Mt. Morris Square, 2 Hill 14, 20 (N.Y. Sup. Ct. 1841); Wood v. Peake, 8 Johns. 69, 71 (N.Y. Sup. Ct. 1811); Lorbeer v. Hutchinson, 43 P. 896, 896 (Cal. 1896). …Open this footnote Close “annulled,” 61Open this footnote Close this footnote 61 Schroeder v. Superior Ct., 11 P. 651, 652 (Cal. 1886); Lorbeer v. Hutchinson, 43 P. 896, 896 (Cal. 1896); Woodworth v. Gibbs, 16 N.W. 287, 288 (Iowa 1883). …Open this footnote Close and “vacated.” 62Open this footnote Close this footnote 62 Vreeland v. Town of Bergen, 34 N.J.L. 438, 441 (N.J. 1871); State ex rel. Robinson v. City of Neosho, 57 Mo. App. 192, 194 (Mo. Ct. App. 1894); Stewart v. Ct. of Cnty. Comm’rs, 2 So. 270, 270 (Ala. 1887); Ex parte Howard-Harrison Iron Co., 30 So. 400, 401 (Ala. 1901). …Open this footnote Close The writ of certiorari, like an appellate court’s reversal of a lower court’s judgment, operated on the action, not on the person. When a state court “set aside” administrative action on a writ of certiorari, the administrative action was stripped of legal force for all—whether or not they were parties to the suit. 63Open this footnote Close this footnote 63 See, e.g., Copeland v. Vill. of Passaic, 36 N.J.L. 382, 388 (N.J. 1873) (“If this increased assessment is set aside, as to one of the persons assessed for a proportional amount of the damages, it is equitable and just that it should be set aside as to all . . . .”); Floyd v. Gilbreath, 27 Ark. 675, 694 (Ark. 1872) (“[I]f these appellees had presented a petition for either of the law writs mentioned [certiorari or prohibition], not only their own relief could have been secured, but also that of all the other tax-payers.”); People v. Allegany Cnty. Supervisors, 15 Wend. 198, 204 (N.Y. Sup. Ct. 1836) (noting that a tax assessment could not be “annulled, so far as they affect the relator, without also declaring them void in relation to all the other taxable inhabitants of the county”). …Open this footnote Close “Setting aside” or “vacating” agency action on a writ of certiorari thus operated just like “setting aside” or “vacating” a judgment: The decision of the lower tribunal was “regarded as waste paper” and “neither b[ound] nor bar[red] anyone.” 64Open this footnote Close this footnote 64 Freeman, supra note 14, § 116 (emphasis added). …Open this footnote Close

In short, state courts were accustomed to reviewing administrative action on an appellate model, and they were accustomed to treating administrative orders like lower court decisions. The certiorari approach to judicial review of agency action so predominated that, whenever “an administrative determination [was] made after a hearing prescribed by statute”—as all railroad rate determinations were—state courts presumed that it would be “reviewable by a proceeding in the nature of certiorari.” 65Open this footnote Close this footnote 65 Robert M. Benjamin, Administrative Adjudication in the State of New York: Report to Honorable Herbert Lehman 91 (1942). …Open this footnote Close State codes that authorized courts to “set aside” and “vacate” agency orders were thus codifying the same kind of appellate-style review, and appellate-style relief, that state courts had been exercising for decades. 66Open this footnote Close this footnote 66 The New Jersey, California, and Washington state codes provided explicitly that judicial review of the state railroad commissions would be by writ of certiorari. See Act of Apr. 21, 1911, ch. 195, 1911 N.J. Laws 374, 388; Act of Dec. 23, 1911, ch. 14, 1911 Cal. Stat. 18, 55; Act of Mar. 18, 1911, ch. 117, 1911 Wash. Sess. Laws 538, 596, 603 (providing for judicial review by “writ of review,” the term that Washington used to refer to the writ of certiorari). …Open this footnote Close When state courts “set aside” agency action, the agency action was vacated universally.

III. From State to Federal Law

State statutes were using the “set aside” language to connote total nullification of agency action long before the term first appeared in an Act of Congress. This Part goes further by demonstrating that Congress intentionally lifted the “set aside” language from state law.

A. Congress Borrows from State Law

When setting up the ICC in 1887, Congress drew heavily on state law. 67Open this footnote Close this footnote 67 The Cullom Bill that was to become the Interstate Commerce Act was modeled on Illinois’s 1873 Granger Law, which had likewise set up an independent regulatory commission. Robert L. Rabin, Federal Regulation in Historical Perspective, 38 Stan. L. Rev. 1189, 1207 (1986). …Open this footnote Close It is perhaps unsurprising that Congress would turn back to state law for guidance when, less than twenty years later, it looked into strengthening the Commission. 68Open this footnote Close this footnote 68 Indeed, in the years between the ICC’s enactment in 1887 and the enactment of the Hepburn Act in 1906, there was a movement across the states towards setting up “strong” railroad commissions with broad ratemaking powers—just as Congress was looking to do for the ICC. Emory R. Johnson, The Trend of Governmental Regulation of Railroads, 32 Annals Am. Acad. Pol. & Soc. Sci. 120, 121 (1908). …Open this footnote Close Congress paid particularly close attention to those provisions of state law authorizing judicial review of agency action. The specific “set aside” provisions of the Kansas 69Open this footnote Close this footnote 69 Act of Feb. 26, 1901, ch. 286, 1901 Kan. Sess. Laws 517, 536. …Open this footnote Close and Wisconsin 70Open this footnote Close this footnote 70 Act of June 13, 1905, ch. 362, 1905 Wis. Sess. Laws 543, 560. …Open this footnote Close state railroad statutes were quoted in full in the Senate hearings 71Open this footnote Close this footnote 71 59 Cong. Rec. 6687-88 (1906) (statement of Sen. Chester I. Long). …Open this footnote Close and introduced as part of a sixteen-state report on state-law judicial review provisions that Congress could look to for inspiration. 72Open this footnote Close this footnote 72 Id. at 4381 (statement of Sen. Philander C. Knox). …Open this footnote Close As Senator Philander Knox of Pennsylvania, the author of the report, noted: It was “instructive to observe the manner in which some of the States have dealt with the question of court review, as applied to the acts of their own State railroad commissions exercising similar powers.” 73Open this footnote Close this footnote 73 Id. (statement of Sen. Philander C. Knox). …Open this footnote Close Other representatives agreed, and Knox’s report and the statutes of the sixteen states providing for judicial review were referenced throughout the floor debates. 74Open this footnote Close this footnote 74 Id. at 1978 (statement of Rep. Gordon Russell); id. at 4843 (statement of Sen. Stephen B. Elkins); id. at 6773 (statement of Sen. Chester I. Long); id. at 6687 (statement of Sen. Chester I. Long); id. at 7084 (statement of Sen. John T. Morgan). …Open this footnote Close Senator Joseph Foraker of Ohio went one step further and floated the “set aside” provision of the Ohio state railroad statute, verbatim, as a template for the federal law. 75Open this footnote Close this footnote 75 Id. at 6687 (offering as a proposed amendment the “exact copy” of the “Ohio railway law”). …Open this footnote Close

These references to the state “set aside” provisions in state codes occurred against the backdrop of extensive engagement with state law as the federal government confronted railroad regulation. Dozens of representatives, in the House 76Open this footnote Close this footnote 76 See, e.g., 59 Cong. Rec. 1767 (statement of Rep. Edward W. Townsend); id. at 1779 (statement of Rep. Carl Hinshaw); id. at 1783 (statement of Rep. William Richardson); id. at 1957 (statement of Rep. Charles R. Thomas); id. at 1994 (statement of Rep. Henry D. Clayton); id. at 2006 (statement of Rep. John J. Esch); id. at 2020 (statement of Rep. John A. Sterling); id. at 2028 (statement of Rep. Herschel M. Hogg); id. at 2034-35 (statement of Rep. John W. Gaines); id. at 2102 (statement of Rep. James H. Davidson); id. at 2151 (statement of Rep. John L. Burnett); id. at 2175 (statement of Rep. David E. Finley). …Open this footnote Close and Senate, 77Open this footnote Close this footnote 77 See, e.g., 59 Cong. Rec. 3445 (1906) (statement of Sen. Moses E. Clapp); id. at 3728 (statement of Sen. Furnifold M. Simmons); id. at 3951 (statement of Sen. James B. McCreary); id. at 4083 (statement of Sen. Weldon B. Heyburn); id. at 4381 (statement of Sen. Philander C. Knox); id. at 4440 (statement of Sen. Alexander S. Clay); id. at 4557 (statement of Sen. Charles W. Fulton); id. at 4849 (statement of Sen. Robert J. Gamble). …Open this footnote Close turned to earlier state laws for inspiration, guidance, and support in crafting the federal legislation. Representative Marion Rhodes of Missouri spoke for many when he recognized that states were “pioneer[s] in railway-rate regulation” and that, long before the federal government broke onto the scene, “the States [led the] effort.” 78Open this footnote Close this footnote 78 Id. at 2106 (statement of Rep. Marion E. Rhodes). …Open this footnote Close The federal government, Senator Robert J. Gamble of South Dakota urged, should follow in the footsteps of “[m]ost of the States of the Union” in providing for rate regulation, with adequate judicial safeguards. Congress was “not the only legislative body dealing with this subject.” 79Open this footnote Close this footnote 79 Id. at 5954 (statement of Sen. Joseph B. Foraker). …Open this footnote Close State codes were, in short, the single most important source of inspiration for the Hepburn Act as a whole, and for the Act’s “set aside” provision in particular. Drawing on the language in state statutes, Congress transplanted the “set aside” language from state into federal law in 1906.

Congress did not intend to depart from the meaning that the “set aside” term carried in state law. Nothing in the Hepburn Act’s legislative history points to an intention to distance the federal statutory language from that in state codes. Quite the opposite: Congress embraced the state judicial review provisions as examples to be emulated. 80Open this footnote Close this footnote 80 See supra notes 68-79 and accompanying text. …Open this footnote Close During the congressional debates, legislators repeatedly spoke in terms of appellate relief—using the term “vacate” interchangeably with the term “set aside” when describing the effect of a decision adverse to the ICC. 81Open this footnote Close this footnote 81 59 Cong. Rec. 3778 (1906) (statement of Sen. Jonathan P. Dolliver); id. at 4381 (statement of Sen. Philander C. Knox) (pointing to earlier state statutes as inspiration for the federal bill and noting that the “Wisconsin law” allows “dissatisfied parties [to] begin an action in the circuit court of the State to vacate the order of the commission”); id. at 4571 (statement of Sen. Jonathan P. Dolliver); id. at 4563 (statement of Sen. Albert J. Hopkins); id. at 4563 (statement of Sen. Nelson W. Aldrich). A proposed amendment would have recognized that courts had the power to “set aside and vacate” an order of the ICC. Id. at 2265 (statement of Rep. Charles E. Littlefield). …Open this footnote Close Not once, across the more than 1,300 pages of legislative history, does any Congressman suggest that the word “vacate” would not be apt to describe judicial review of the ICC’s orders. Not once does any Congressman suggest that the remedy granted in judicial review of the ICC’s orders differs from the remedy granted in judicial review of the orders of state railroad commissions. All the available evidence points to continuity, not change, in the meaning of “set aside.”

B. The Takeaways

The state-law origins of the APA’s “set aside” provision carry several implications for the ongoing debate over universal vacatur. First, the state-law origins undercut the “strongest objection” 82Open this footnote Close this footnote 82 Nuziard v. Minority Bus. Dev. Agency, 721 F. Supp. 3d 431, 500 (N.D. Tex. 2024) (framing the “strongest objection” as follows: “[I]f the APA’s drafters wanted ‘set aside’ to mean ‘vacate,’ why didn’t they just say so?”). …Open this footnote Close to universal vacatur under the APA: that “the term ‘set aside’ never meant vacate.” 83Open this footnote Close this footnote 83 Kathryn Kimball Mizelle, To Vacate or Not to Vacate: Some (Still) Unanswered Questions in the APA Vacatur Debate, 38 Harv. J.L. & Pub. Pol’y Per Curiam 1, 17 (2023) (describing the primary textual argument against universal vacatur); see also John Harrison, Agency Action, Agency Failure to Act, and Universal Relief in Corner Post v. Board of Governors of the Federal Reserve System, Yale J. on Regul.: Notice & Comment (Mar. 25, 2024), https://perma.cc/‌57DA-UB7N (challenging the view that “set aside” in APA § 706 means “to vacate”). …Open this footnote Close As state codes make clear, “set aside” very much did mean “vacate.” 84Open this footnote Close this footnote 84 See supra notes 50-64 and accompanying text. …Open this footnote Close Just as courts “fold[] together vacatur, reversal, and set-asides” when describing appellate review of lower court decisions, 85Open this footnote Close this footnote 85 Judith Resnik, Whose Judgment? Vacating Judgments, Preferences for Settlement, and the Role of Adjudication at the Close of the Twentieth Century, 41 UCLA L. Rev. 1471, 1507 (1994). …Open this footnote Close so too did statutes describing judicial review of administrative action. 86Open this footnote Close this footnote 86 Supra notes 50-56 and accompanying text. …Open this footnote Close We should be skeptical of any interpretation that attaches significance to the fact that it was “set aside,” rather than “vacate,” that ultimately found its way into the APA.

The prior state use of “set aside” also reinforces the positive case for reading the same language in the APA to contemplate universal vacatur. The critique of universal vacatur is premised on the notion that when the APA instructs courts to “set aside” agency action, it uses the term differently than a court does when it “sets aside” a lower court judgment. 87Open this footnote Close this footnote 87 John Harrison, The Meaning of “Set Aside” in 5 U.S.C. § 706(2), Yale J. on Regul.: Notice & Comment (Sept. 22, 2022), https://perma.cc/‌9Y3X-KYZY; Harrison, Section 706, supra note 8, at 42. …Open this footnote Close But the historical record proves the opposite: When state legislatures began using the term “set aside” to describe judicial review, they had the “appellate court-lower court” relationship in mind. 88Open this footnote Close this footnote 88 See supra notes 45-56 and accompanying text. …Open this footnote Close It was this understanding of the term that Congress then lifted from state into federal law, and which ultimately found its way into the APA. The best lens through which to understand “set aside” is therefore in terms analogous to the judicial treatment of a lower tribunal’s judgment. And indeed, commentators at the time of the APA’s enactment continued to analogize review of agency action with review of lower court decisions based on the term “set aside.” 89Open this footnote Close this footnote 89 See Robert L. Stern, Review of Findings of Administrators, Judges and Juries: A Comparative Analysis, 58 Harv. L. Rev. 70, 70-71 (1944) (“This unitary approach to the administrative field makes it now feasible to compare the rules which govern the judicial review of administrative determinations with those applicable to what has only rarely been treated as a related subject—the function of an appellate court in reviewing decisions of subordinate judicial tribunals. . . . In each field a court is determining whether a decision made by another tribunal, judicial or administrative, shall stand or be set aside.”). …Open this footnote Close The effect of a court “setting aside” administrative action under the APA is therefore the same as a court “setting aside” a lower court judgment: The target action is “entirely destroyed” 90Open this footnote Close this footnote 90 See, e.g., Lawlor v. Merritt, 72 A. 143, 145 (Conn. 1909). …Open this footnote Close and “deprived of all conclusive effect.” 91Open this footnote Close this footnote 91 1B Moore’s Federal Practice ¶ 0.416[2] (2d ed. 1996). …Open this footnote Close

Finally, and relatedly, the state-law roots of the APA’s “set aside” instruction help to explain the term’s placement in § 706. Critics of universal vacatur have argued that § 706, titled “Scope of review,” is an unusual place for Congress to hide a remedy—particularly one as sweeping as universal vacatur. 92Open this footnote Close this footnote 92 Harrison, Section 706, supra note 8, at 42-46; United States v. Texas, 143 S. Ct. 1964, 1981-1983 (2023) (Gorsuch, J., concurring in the judgment). …Open this footnote Close “Scope of review,” Justice Gorsuch has noted, refers much more naturally to a court’s decisional process than it does to a court’s grant of relief. 93Open this footnote Close this footnote 93 Texas, 143 S. Ct. at 1982 (2023) (Gorsuch, J., concurring in the judgment). …Open this footnote Close Section 706, the argument goes, should therefore not be understood to refer to remedies at all; instead, the section is better read as setting out a rule of decision. 94Open this footnote Close this footnote 94 Harrison, Section 706, supra note 8, at 42-46; Harrison, The Meaning of “Set Aside,” supra note 87. …Open this footnote Close What this argument ignores is that, as our modern administrative law came of age in the early twentieth century, decisional process and remedies were intimately intertwined. Judicial review in the states, first at common law and then codified, consciously coupled appellate procedure with appellate remedies. Courts reviewing agency action adopted the appellate decisional process familiar to the review of lower court judgments. 95Open this footnote Close this footnote 95 See supra notes 45-49 and accompanying text. …Open this footnote Close The relief that courts would grant—”vacating” or “setting aside” the agency action—was the relief associated with that same process. 96Open this footnote Close this footnote 96 See supra notes 50-56 and accompanying text. …Open this footnote Close The APA, as the evolution of these state codes, is best understood through the same appellate lens. Section 706 of the APA codifies an appellate decisional process, instructing courts to review the record and decide questions of law, but defer to agency determinations of fact. 97Open this footnote Close this footnote 97 Merrill, supra note 16, at 942-43; Nicholas Bagley, Remedial Restraint in Administrative Law, 117 Colum. L. Rev. 253, 258 (2017). …Open this footnote Close When the same section instructs courts to “set aside” agency action, the section is merely describing the natural culmination of that decisional process. 98Open this footnote Close this footnote 98 See Emily Bremer, We Have Been Looking in the Wrong Place for the Meaning of “Set Aside” Under the APA, Yale J. on Regul.: Notice & Comment (Apr. 1, 2024), https://perma.cc/‌H7S3-NSYF. …Open this footnote Close The instruction to universally “set aside” agency action was included in § 706 because that instruction follows from the appellate scope of review that the rest of the Section codifies.

Conclusion

In the wake of Trump v. CASA, Inc., the debate over universal vacatur under the APA § 706(2) has never been more important. Resolution of this debate, as is so often the case, turns on the niceties of statutory text. To properly understand the scope of relief authorized by the APA, it is essential to situate the Act’s “set aside” instruction in its broader statutory and historical context. Congress did not invent a new remedial device in 1946. Instead, it borrowed language with an established legal pedigree. Tracing the lineage of the “set aside” terminology to its state-law roots demonstrates that the APA’s “set aside” language is best understood to authorize universal vacatur.

*Law Clerk; J.D. 2025, Yale Law School; B.A. (Hons) 2022, University of Cambridge. I am grateful to Nicholas Parrillo for his guidance, advice, and support throughout the writing of this piece, and to James Pfander, Inbar Pe’er, Connor Brashear, Seumas Macneil, and the editors of the Stanford Law Review Online for their insightful comments and feedback. All errors are my own.