This is the second in a series of posts summarizing an article titled Remand Without Vacatur and the Ab Initio Invalidity of Unlawful Regulations in Administrative Law, which is forthcoming in the BYU Law Review. The current draft is available on SSRN.
As the previous post explained, most of the federal courts of appeals adopt an administrative law doctrine called remand without vacatur. These posts and the article on which they are based are concerned mainly with the doctrine's application to agency regulations that impose duties on private people. Under the doctrine, a court that finds that a regulation is unlawful has the option whether to eliminate the regulation's binding legal effect – to vacate the regulation – or to leave that binding effect in place, while directing the agency to conduct further proceedings – to remand without vacating.
That line of reasoning rests on the assumption that unlawful regulations are binding when issued, despite being unlawful, until a court displaces them. That assumption is incorrect.
