Page:United States v. Texas (2023).pdf/27

10 course, the district court cited §706(2) of the APA. That provision does not say anything about “vacating” agency action (“wholesale” or otherwise). Instead, it authorizes a reviewing court to “set aside” agency action. Still, from those two words alone, the district court thought the power to nullify the Guidelines with respect to anyone anywhere surely follows. See 606 F. Supp. 3d, at 498–500.

Color me skeptical. If the Congress that unanimously passed the APA in 1946 meant to overthrow the “bedrock practice of case-by-case judgments with respect to the parties in each case” and vest courts with a “new and far-reaching” remedial power, it surely chose an obscure way to do it. Arizona v. Biden, 40 F. 4th 375, 396 (CA6 2022) (Sutton, C. J., concurring). At the very least, it is worth a closer look.

Begin with the words “set aside” in isolation. If they might suggest to some a power to “vacate” agency action in the sense of rendering it null and void, just as naturally they might mean something else altogether. They might simply describe what a court usually does when it finds a federal or state statute unconstitutional, or a state law preempted by a federal one. Routinely, a court will disregard offensive provisions like these and proceed to decide the parties’ dispute without respect to them. In Dennis v. United States, 341 U. S. 494 (1951), for example, Justice Frankfurter observed that “[w]e are to set aside the judgment of those whose duty it is to legislate only if” the Constitution requires it. Id., at 525 (concurring opinion). Justice Frankfurter hardly meant to suggest the Court had the power to erase statutes from the books. See id., at 525–526. Instead, he used the phrase to mean that a court should disregard—refuse to apply—an unconstitutional law. It is a usage that was common at the time of the APA’s adoption and that remains so today. See Webster’s New International Dictionary 2291 (2d ed. 1954) (defining “set aside” as