NCLA to Supreme Court: Uphold Courts’ Supervisory Duty to ‘Set Aside’ Unlawful Agency Rules

Department of Homeland Security, et al. v. D.V.D., et al.

Washington, DC, Oct. 30, 2026 (GLOBE NEWSWIRE) -- The New Civil Liberties Alliance filed an amici curiae brief today in Department of Homeland Security v. D.V.D. urging the U.S. Supreme Court to reaffirm that federal courts can and must “set aside” unlawful rules that government agencies issue under the Administrative Procedure Act.

Conservative legal voices in the judiciary and the academy have offered competing opinions on this issue. Some wrongly argue that the APA does not allow lower courts to set aside unlawful agency action for anyone except a particular lawsuit’s plaintiffs. Referencing the Supreme Court’s June 2025 Trump v. CASA, Inc. decision, which prohibits district courts from issuing universal injunctions to stop congressional statutes (aside from class-action lawsuits), they claim setting agency rules aside for all Americans suffers from similar defects as enjoining statutes.

But NCLA and its founder Philip Hamburger strongly disagree. They point out that the statutory APA language instructing courts to “set aside” unlawful agency actions is adopted from and refers to how courts review their own judgments and the judgments of lower courts, including the ability to completely overturn those judgments. This means judges have a supervisory duty over agency rulemaking to “set aside” unlawful agency actions that violate the Constitution or the will of Congress as expressed in statutes. That is what judicial review entails.

When a court sets aside an unlawful rule, it is acting on the rule itself, not on the parties to the dispute. That does mean that the rule is set aside for everyone. But the agency is not a “party” in such suits in a traditional sense. After all, would a court ever remand a matter to one of the parties to resolve, as courts often do with challenges to rules? Whenever courts do that, they are treating the agency like a lower court that issued an errant decision.

Changing this status quo would require everyone to bring separate lawsuits to stop an unlawful rule’s application to them, and they would continue to be harmed until they persuade a court on every point necessary to lift the rule in their case. Unlawful rules would not stop violating the civil liberties of Americans who could not afford to sue. The Court should instead maintain the status quo, which allows organizations like NCLA to bring public-interest lawsuits that stop agency actions from violating the civil liberties of all Americans, not just plaintiffs who sue.

NCLA released the following statements:
“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.”
— Philip Hamburger, Founder and CEO, NCLA

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

For more information visit the amicus page here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Joe Martyak
New Civil Liberties Alliance
703-403-1111
joe.martyak@ncla.legal