Washington, D.C., June 11, 2024—The Administrative Conference of the United States (ACUS) released a new report analyzing how nationwide injunctions and universal vacaturs have impacted the administration of federal regulatory programs.

The report—by Zachary Clopton (Northwestern University Pritzker School of Law), Mila Sohoni (Stanford Law School), and Jed Stiglitz (Cornell Law School)—examines how frequently courts issue nationwide injunctions and universal vacaturs and how agency officials understand, implement, and respond to them.

“ACUS is pleased to release this timely report on a subject of great importance,” said Andrew Fois, ACUS’s Chair. “ACUS thanks the researchers for their hard work and the agency officials who participated in the study. Thanks also to the consultative group of 13 leading experts who lent their time and expertise to this project.”

Nationwide injunctions and universal vacaturs prohibit the federal government from enforcing statutes, executive orders, and regulations against anyone, not just the particular plaintiffs who have challenged them in federal court. Their increasing use in high-profile cases has raised questions as to when, if ever, federal courts should use them to remedy governmental action that is found to be unlawful.

In 2020, ACUS brought together leading commentators, judges, and public officials to address arguments for and against nationwide injunctions and universal vacaturs, special issues that arise in challenges to federal regulations, and possible judicial and statutory reforms.

While public debate has tended to evaluate nationwide injunctions and universal vacaturs based on their effects on the federal judicial system, ACUS found that less is known about how these remedies affect federal agencies’ ability to administer regulatory programs.

Based on engagement with officials at more than a dozen agencies, Professors Clopton, Sohoni, and Stiglitz found that “[a]gency officials reported few administrative difficulties in complying with nationwide injunctions or universal vacaturs.” While “[u]niversal relief may be problematic for other reasons,” they concluded that “the difficulty of compliance is not a major reason to consider reform.”

The researchers did find, however, that agency officials “voice[d] frustration . . . with vaguely written orders that were challenging to comply with because they were hard to understand.”

The picture that emerged from this study was “one of agency officials pursuing their statutory objectives within the bounds of what they see to be the best interpretation of adverse court orders.” Based on the interviews they conducted, the researchers found that agencies have responded to the increased prevalence of universal relief by focusing on crafting their rules to survive legal challenge.

About ACUS

The Administrative Conference of the United States is an independent, non-partisan federal agency within the executive branch dedicated to improving administrative law and federal regulatory processes. It conducts applied research, and provides expert recommendations and other advice, to improve federal agency procedures. Its membership is composed of senior federal officials, academics, and other experts from the private sector. Since 1968, ACUS has issued hundreds of recommendations, published reports and reference guides, and organized forums to improve the efficiency, adequacy, and fairness of administrative processes such as rulemaking and adjudication. Many have resulted in reforms by federal agencies, the President, Congress, and the Judicial Conference of the United States. Learn more at www.acus.gov.

# # #

Share on FacebookShare on TwitterShare on Linkedin