An injunction tells a party what to do. Vacatur does something different: it wipes out an agency’s action, a rule, a policy or a decision, as if it had not been issued. Since the Supreme Court curtailed universal injunctions in 2025, vacatur under the Administrative Procedure Act has become one of the main ways national immigration policies are tested.

Quick Facts

  • Statute: 5 U.S.C. § 706(2), “hold unlawful and set aside”
  • Requires: a final agency action (5 U.S.C. § 704)
  • Alternative: remand without vacatur
  • Interim tool: postponing effectiveness under 5 U.S.C. § 705

The text

The Administrative Procedure Act directs a reviewing court to “hold unlawful and set aside” agency action, findings and conclusions that are, among other things, arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law; contrary to constitutional right; in excess of statutory authority; or adopted without the procedure the law requires (5 U.S.C. § 706(2)). Setting agency action aside is what courts call vacatur.

The usual grounds

  • Arbitrary and capricious. The agency failed to examine the relevant data, to explain its choice with a rational connection to the facts, or to consider an important aspect of the problem (Motor Vehicle Manufacturers Ass’n v. State Farm, 463 U.S. 29, 43 (1983)). The rescission of DACA was set aside on this ground (DHS v. Regents of the University of California, 591 U.S. 1 (2020)).
  • Contrary to law or in excess of authority. The action conflicts with the statute. Since Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), courts decide the statute’s meaning themselves, without deferring to the agency.
  • Without required procedure. A binding rule was issued without notice and comment (5 U.S.C. § 553).

Vacatur, remand without vacatur, and stays

Vacatur is not automatic. Some courts, notably in the D.C. Circuit, leave a flawed action in place while the agency fixes it (“remand without vacatur”), weighing how serious the defect is and how disruptive vacatur would be (Allied-Signal, Inc. v. NRC, 988 F.2d 146, 150–51 (D.C. Cir. 1993)). Before a final decision, a court may also postpone the effective date of an agency action to preserve the status quo (5 U.S.C. § 705).

Whether vacatur of a rule operates for everyone, or only for the parties, is debated. Trump v. CASA, Inc., 606 U.S. 831 (2025), which ended universal injunctions, expressly did not resolve that question.

Two 2026 examples

Vacatur. In January 2026 the State Department instructed consular officers to refuse immigrant visas to nationals of 75 countries while it reassessed public-charge procedures. On August 21, 2026, the Southern District of New York held the policy unlawful and vacated it (CLINIC v. Rubio).

A finding of unlawfulness with party-specific relief. Four days later, in consolidated diversity-visa cases, the District of Columbia held that the USCIS and State Department diversity-visa pauses lacked a reasoned explanation, and that the 75-country pause unlawfully replaced individualized public-charge determinations with a nationality-based bar. It limited relief to the named plaintiffs and their derivative beneficiaries (Ivanov v. Trump, No. 26-cv-915 (D.D.C. Aug. 25, 2026)). The same court rejected the plaintiffs’ delay and mandamus claims, a reminder that § 706(1) and § 706(2) are separate tests. Both rulings sit alongside the summer 2026 District of Columbia rulings, including the diversity-visa decision.

Sources

Related Articles