Solicitor General D. John Sauer, who signed the government\'s petition asking the Supreme Court to limit universal vacatur of agency rules. Official U.S. Department of Justice portrait (public domain).
A Justice Department petition over surprise medical bills could decide whether judges can keep striking down immigration policies for everyone, not only for the people who sued.
The Justice Department has asked the Supreme Court to rule on whether federal courts can “vacate” an unlawful agency rule for the whole country under the Administrative Procedure Act. The petition, filed Oct. 14 in Department of Health and Human Services v. Texas Medical Association, No. 26-491, grows out of a dispute over No Surprises Act regulations, but it targets the remedy that now does much of the work in immigration litigation: a judgment that sets a policy aside for everyone it covers, including people who never sued.
Why this lands now. When the Court barred universal injunctions in Trump v. CASA in June 2025, it left two routes to broad relief open: class actions and set-aside under Section 706(2) of the APA, which tells courts to “hold unlawful and set aside” agency action. A CASA footnote reserved whether that allows vacatur for everyone. The petition, signed by Solicitor General D. John Sauer, asks the Court to settle it. Its question presented is “whether the Administrative Procedure Act, 5 U.S.C. 701 et seq., authorizes courts, in Section 706(2), to enter universal vacatur of agency rules that courts have held unlawful and, if so, in what circumstances.”
The government reads “set aside” as an instruction to disregard an unlawful rule in the case before the court, not to erase it. It argues that universal vacatur causes the problems CASA found with nationwide injunctions: it sidesteps class-action rules, rewards forum shopping and forces the government to win everywhere. The petition concedes there is no circuit split but says review is needed because the full Fifth Circuit, which vacated parts of the billing rules in a decision dated Aug. 11, kept treating vacatur as the default remedy after CASA.
An immigration question from the start. The best-known doubts about vacatur at the Court were voiced in an immigration case. In United States v. Texas (2023), the challenge to DHS’s 2021 guidelines on whom ICE should prioritize for arrest and removal, a Texas district judge had vacated the guidelines nationwide before the justices threw out the case for lack of standing. Justice Neil Gorsuch, joined by Justices Clarence Thomas and Amy Coney Barrett, wrote that the Court would “have to address” whether the APA permits that remedy.
Set-aside has since become routine in immigration cases. In recent weeks a federal judge in Oakland vacated the agency policies enforcing the $100,000 H-1B payment, a ruling the government has appealed to the Ninth Circuit, and a judge in Maryland vacated a 2025 USCIS policy that let only election officials register new citizens at naturalization ceremonies.
A remedy both sides have used. Universal vacatur is not a one-party tool. Republican-led states used it against Biden-era immigration policies, as the 2023 Texas case shows. The current administration has sought it too. This year, the Justice Department joined Texas in asking Chief U.S. District Judge Reed O’Connor to vacate a 2024 immigration court rule that lets judges pause some deportation cases, and to bar a similar rule in the future; he granted both requests, SCOTUSblog reported. Three cities and a legal aid group now have an emergency application pending at the Supreme Court in that case, City of Baltimore v. Texas, No. 26A500.
That history points to a less obvious consequence: a ruling against universal vacatur would make it harder to stop an immigration policy nationwide, and also harder for any administration to shed a predecessor’s regulation through a friendly lawsuit instead of notice-and-comment rulemaking.
What would change in practice. If the government wins, a judgment that a USCIS, State Department or Labor Department policy is unlawful would likely protect only the plaintiffs, members of plaintiff organizations and certified classes. Anyone outside those groups would have to sue, join a suing association or fit within a class, so class certification would carry far more weight. It already does: in August, U.S. District Judge Edward Davila certified subclasses of diversity visa applicants while ordering processing to resume, Courthouse News reported. Existing judgments would not disappear automatically, but the government could ask appeals courts to narrow them to the parties.
The timeline. The medical groups’ response is due Nov. 13 and may be extended. A grant by roughly mid-January usually leaves room for argument and a decision by the end of June 2027; a later grant would likely push the case into the next term. Until then, judges remain free to set immigration policies aside nationwide, and the government’s appeals of those rulings are likely to cite this petition.
This article is for general information and is not legal advice.
Sources
- Supreme Court docket, No. 26-491, Department of Health and Human Services v. Texas Medical Association
- Petition for a writ of certiorari, No. 26-491 (filed Oct. 14, 2026)
- SCOTUSblog: Trump administration asks justices to determine courts’ ability to vacate federal agency actions (Oct. 16, 2026)
- SCOTUSblog: Challengers ask court to pause agreement between Texas and the DOJ on deportation proceedings (Oct. 15, 2026)
- 5 U.S.C. 706, scope of judicial review under the Administrative Procedure Act
- Courthouse News Service: Judge orders feds to process visa applications in limbo (Aug. 28, 2026)
About the Author
Discover more from Immigration Analytics
Subscribe to get the latest posts sent to your email.
