Washington, DC, Nov. 13, 2026 (GLOBE NEWSWIRE) -- Today, the New Civil Liberties Alliance filed an amicus curiae brief supporting neither party in Department of Health and Human Services v. Texas Medical Association at the U.S. Supreme Court. NCLA urges the Justices to deny certiorari in this case challenging the requirement that courts “set aside” or vacate unlawful rules issued by government agencies under the Administrative Procedure Act. The Supreme Court should preserve the vacatur requirement, which no federal circuit court of appeals opposes.
NCLA does not address the medical billing controversy at the center of the lawsuit. There is no circuit split on the issue of APA vacatur for the Supreme Court to resolve. Congress has pursued APA vacatur to eliminate agency rules that violate statutes legislators passed. Otherwise, an agency could override Congress, which the Supreme Court is “both unwilling and unable” to allow.
Conservative legal voices in the judiciary and the academy have offered competing opinions on APA vacatur. Some wrongly argue that the APA does not allow lower courts to set aside unlawful agency action for anyone except a 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.
NCLA and its founder Philip Hamburger strongly disagree. 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 means 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 treat the agency like a lower court that issued an incorrect decision.
Changing the 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 status quo allows organizations like NCLA to bring public-interest lawsuits that stop agency actions from violating the civil liberties of all Americans. The government complains that it must convince courts to stay orders setting aside regulations until the Supreme Court can decide whether the regulations are valid, but it has vast resources and routinely wins stays of this kind, violating civil liberties while unlawful regulations remain in place.
NCLA released the following statements:
“It’s unusual to file a brief of this kind, but there is no reason for the Court to take this case, and it was important to explain why as the Solicitor General’s request gets special consideration at the Court.”
— John Vecchione, Senior Litigation Counsel, NCLA
“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, so the Court does not need to hear this case.”
— 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
