Published in the Symposium issue of the Arizona State Law Journal, We've Only Just Begun: The Impact of Remand Order on American Jurisprudence, Summer 2004


Administrative law has been shaped over the years by fundamentally practical considerations. Displacement of agency decisions by courts was rare; yet, the omnipresent threat of substantial judicial intrusion surely affected agency decisions. While the Administrative Procedure Act, adopted nearly 60 years ago, provides a comprehensive template for federal agency decisionmaking, what is striking about the APA is how much is left out and how much is left to the discretion of both agencies in implementing regulatory decisions and to the courts in superintending agency action. Given this history, it is hardly surprising that many doctrinal techniques represent the pragmatic effort of courts to shape agency decisionmaking through deliberate use of doctrine. One excellent example of this effort is the device of remand without vacatur. Remand without vacatur is a mechanism by which courts remand back to an agency a decision in circumstances in which the court believes the agency rationale is flawed, yet declines to vacate the agency decision. Thus, the agency decision stands during the period in which the agency scrambles to develop a rationale for the rule that will survive judicial scrutiny. The court retains all the power it has to vacate the rule eventually; however, it holds its fire while the agency goes back to the drawing board. Leading administrative law scholars have embraced this device as an eminently practical compromise arguing that the remand without vacatur devices strike the right balance between aggressive review and administrative discretion. My claim in this essay, however, is that this view misconstrues the complex relationship between courts and agencies. While the remand without vacatur device appears to limit the scope of judicial scrutiny, the conclusion that it results in an optimal state of the world in which judicial review is neither too hot, nor too cold, but just right, is naïve. Remand without vacatur does not exist in an administrative law vacuum. Courts carry out their role as judicial police officers in the shadow of the remedial strategies that are available to them as they conduct their activities. The judicially created strategy of remand without vacatur should be disfavored precisely because it facilitates the use of more aggressive judicial scrutiny of agencies' reasoning process. The rationale offered by leading commentators for the device is that it promotes agency flexibility--this is the heart of the argument, that it reduces agency ossification. My argument, however, is that it may do quite the opposite. By adding to the flexibility of judicial review, it promotes judicial activism. It does so, more specifically, by empowering the courts to intervene, rather than hold back, in the agency decisionmaking process. While it is fair to suggest that agencies may prefer remand without vacatur to the more apocalyptic step of simple vacatur, the choice between the two is truly an illusive one. What we want to know is how this practical strategy interacts with the central issue of judicial intervention.


Administrative Law | Agency | Conflict of Laws | Courts | Judges | Jurisdiction | Jurisprudence | Law | Public Law and Legal Theory

Date of this Version

July 2004