After CASA: The Administrative Procedure Act Option for Challenging the Birthright Citizenship and Other Illegal Executive Actions
Summary
Academic commentators such as Mila Sohoni and Ronald Levin have explained why, in cases challenging executive action (in Levin’s words), “the courts’ ability to order the nullification of rules on an across-the-board basis is, in many instances, a practical necessity.” In a recent working paper focused on the state-law influence on federal administrative law remedies, one of us has offered historical evidence on the original meaning of the “set aside” language in state law. Before being introduced into federal law at the start of the twentieth century, the term “set aside” had been used for decades in state legislation to describe judicial review and vacatur of unlawful executive action. Just as “setting aside” a lower court judgment rendered that judgment “entirely destroyed,” “setting aside” an administrative determination nullified the action as a whole. When Congress lifted the “set aside” term into federal law with the Hepburn Act in 1906, it was explicitly drawing on this state-law understanding of “set aside.” Once “set aside” entered the legislative vocabulary, it spread quickly: first to the Urgent Deficiencies Act of 1913, and then from there to other federal statutes, and ultimately into § 706(2) of the APA.
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