The Supreme Court's Next Battleground: Striking Down Unlawful Rules

WASHINGTON, D.C. – October 30, 2026 — For decades, the mechanics of American business and civil liberties have operated under a fundamental assumption: if a federal agency oversteps its authority and issues an unlawful regulation, a federal judge can strike it down for everyone. Today, that foundational check on the administrative state is hanging by a thread.

The New Civil Liberties Alliance (NCLA), a nonpartisan civil rights group, filed an amicus curiae brief today in the highly anticipated Supreme Court case Department of Homeland Security v. D.V.D. The organization is urging the justices to reaffirm that federal courts possess the statutory authority—and the supervisory duty—to "set aside" unlawful agency rules nationwide under the Administrative Procedure Act (APA).

The case, scheduled for oral argument on December 9, 2026, technically centers on the legality of third-country deportations. But beneath the surface lies a high-stakes constitutional showdown over the scope of judicial review. If the Supreme Court restricts the ability of lower courts to vacate regulations universally, the operational landscape for American businesses, advocacy groups, and everyday citizens will undergo a seismic, fragmented shift.

A Fracture on the Right: Originalists Divided

To understand the gravity of DHS v. D.V.D., one must look at the intellectual fracture currently dividing conservative legal circles. For years, the right has been unified in its skepticism of the administrative state. However, a sharp schism has emerged regarding the proper judicial mechanisms to check that power.

On one side, certain conservative jurists and scholars—often aligning with the Solicitor General's office—argue that nationwide relief is a form of judicial overreach. They point to the Supreme Court’s June 2025 decision in Trump v. CASA, Inc., a 6-3 ruling that severely restricted the ability of district courts to issue universal injunctions against congressional statutes. Opponents of universal vacatur argue that striking down an agency rule for all Americans suffers from the same historical defects as enjoining a statute, claiming it encourages forum shopping and allows a single rogue judge to dictate national policy.

On the other side are originalists like Philip Hamburger, the constitutional scholar who founded the NCLA. They argue that applying the logic of CASA to the APA fundamentally misunderstands the nature of administrative law.

"Courts have a power, and indeed a duty, to set aside unlawful agency action, and this is essential for preserving the supremacy of law over the administrative state," Hamburger stated.

The NCLA points out that the language in Section 706 of the APA, which instructs courts to "hold unlawful and set aside" invalid agency actions, is adopted directly from how courts review the judgments of lower courts. When an appellate court overturns a lower court's ruling, it does not merely enjoin the ruling for specific parties; it vacates the decision entirely.

"The power of federal judges to vacate rules is supervisory, not equitable, power," added Mark Chenoweth, President and Chief Legal Officer of the NCLA. "The Solicitor General is wrong to treat vacatur like nationwide injunctions, and the Court should not be misled into adopting the SG’s view."

The Mechanics of "Setting Aside"

The debate hinges on the distinction between equitable injunctions and statutory vacatur. An equitable injunction traditionally acts upon the parties in a dispute, preventing a defendant from taking a specific action against a plaintiff. Vacatur, however, acts upon the rule itself.

When a court sets aside an unlawful rule under the APA, it is essentially treating the federal agency like a lower tribunal that has issued an errant decision. A court would never remand a flawed legal matter back to one of the litigating parties to resolve; it remands it to the agency.

As one appellate litigator specializing in administrative law noted, "If you strip away universal vacatur, you aren't just protecting agencies from judicial overreach; you are building a paywall around the rule of law. You are transforming a fundamental check on government power into a bespoke remedy available only to those who can afford federal litigation."

This supervisory framework has been the bedrock of regulatory stability. It ensures that when a regulation is found to violate the Constitution or exceed the authority granted by Congress, it is nullified. The rule is rendered inoperative, not just for the plaintiffs, but for the entire regulated public.

The Regulatory Ripple Effect on Everyday Americans

If the Supreme Court adopts the Solicitor General's view and ends nationwide vacatur, the practical consequences for everyday Americans and the broader economy would be staggering.

Currently, organizations like the NCLA can bring public-interest lawsuits that halt unlawful agency actions, thereby protecting the civil liberties and economic interests of everyone affected by the rule. Changing this status quo would force millions of individuals and small businesses into a fragmented, multi-jurisdictional nightmare. Every affected party would be required to bring separate, duplicate lawsuits to stop an unlawful rule’s application to them.

"It creates a fractured reality where a federal rule is simultaneously legal and illegal, depending entirely on your geographic location or whether you have the funds to file a lawsuit," observed a progressive legal scholar who studies regulatory impacts. "Unlawful rules would continue to violate the rights of marginalized groups and under-resourced citizens who simply cannot afford the exorbitant costs of federal litigation."

Furthermore, eliminating universal vacatur would not necessarily solve the problem of forum shopping. Instead of seeking a single nationwide injunction, well-funded plaintiffs would simply file hundreds of identical lawsuits in sympathetic jurisdictions, overwhelming the federal docket and straining judicial resources. The Administrative Conference of the United States has repeatedly analyzed these risks, noting that a lack of universal relief could lead to an uneven playing field where direct competitors are subject to entirely different regulatory regimes based on their litigation budgets.

The Stakes in DHS v. D.V.D.

While the abstract debate over Section 706 of the APA is highly technical, the human stakes in DHS v. D.V.D. are immediate and severe. The underlying dispute involves the Department of Homeland Security's policy of deporting noncitizens to third countries without providing them meaningful notice or an opportunity to challenge the removal—even if they fear persecution or torture in that destination.

The First Circuit Court of Appeals previously affirmed that this border policy was unlawful and vacated it. However, the Supreme Court granted a stay in September 2026, allowing the deportations to resume pending the final merits decision.

If the Supreme Court rules that the lower courts lacked the authority to vacate the third-country removal policy universally, relief will be confined strictly to the named respondents in the lawsuit. Countless other noncitizens facing identical, unlawful deportations would be denied due process simply because they were not parties to the specific litigation.

As the justices prepare to hear oral arguments this December, the decision will echo far beyond immigration policy. It will determine whether the American judicial system retains the tools to effectively supervise the sprawling administrative state, or whether the burden of checking unlawful government action will be shifted entirely onto the shoulders of individual citizens.