The Mask-Mandate Remedy
Whether someone praises or disdains today’s decision vacating the mask mandate is likely to be driven by what the person thinks of the merits of mask mandates. But remedies matter too, and we should be able to think about them without merits-driven analysis. This decision from the U.S. District Court for the Middle District of Florida is one more in a series of highly consequential district decisions that are, or at could be considered, national injunctions. That “could be considered” caveat matters here, for reasons that will become clear.
A few thoughts on the remedy:
First, the opinion works through different arguments but places central reliance on circuit precedent in favor of vacatur of rules under the Administrative Procedure Act. I think the position reflected in those precedents is wrong. But for a district court, that’s the safest ground to locate this remedies decision.
Second, the current stage we’re in is one where district courts routinely give national injunctions, but usually with some hand-wringing about their existence. Here we have the conventional concern: “the Court recognizes the criticism about nationwide injunctive relief and admittedly shares some of the skepticism about it” (p. 55).
Third, the current stage is also one where the courts are wrestling with whether to draw a sharp distinction between APA and non-APA remedies, and specifically with how to handle “vacatur” and “injunction.” With the possible exception of footnote 4 on p. 56, this opinion strongly separates the two and says this is vacatur not an injunction, and it also emphasizes that it’s not a preliminary injunction but rather a remedy after a judgment on the merits. Even so, the court addresses arguments and cites authorities related to national injunctions, so the two remedies get somewhat intertwined.
(How this question gets resolved is going to be very consequential, because “vacatur” is not a traditional equitable remedy, and so if a wedge is driven between it and the injunction then it isn’t clear that the various equitable considerations that govern the latter have relevance for the former, as well as the flexibility courts have to phase in or phase out injunctions or to condition them on other actions. But that’s another discussion . . . .)
Given the attempt to put this remedy just in the “vacatur” box, it’s understandable that the court would rely on the circuit court precedent in favor of vacatur of a rule as to all people and not just the parties. But the court never addresses the question of whether this is actually right. John Harrison’s powerful arguments that there is no “set aside” remedy under the APA–the “set aside” language is not even in the APA section on remedies–need to be considered. The leading analysis on the other side is Mila Sohoni’s recent APA article.
Judge Sutton made an important point about this question in his concurrence last week in Arizona v. Biden:
The Administrative Procedure Act, it is true, says that a reviewing court may “hold unlawful and set aside” agency acti
Article from Reason.com