Insights

Last week, we wrote that concerns about excessive, unchecked executive branch power resulting from the Supreme Court’s decision in Trump v. CASA—which declared universal/nationwide injunctions likely exceeded district courts’ equitable authority under FRCP 65—felt premature, because there were a number of other levers district courts could pull to deliver the equivalent of nationwide injunctive relief. We discussed how Section 705 of the Administrative Procedure Act (APA) is one such lever. That section authorizes courts to “postpone the effective date” of a challenged agency action pending judicial review utilizing the same four-factor test applicable to requests for injunctive relief.