Intentionally or not, the Supreme Court’s recent decision in Bondi v. VanDerStok has the potential to dent the arc of administrative law. As Justice Alito observed in his dissent, the case could end up being a “huge boon for the administrative state.” Below, we explain why.  

At issue in VanDerStok was a 2022 rule by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), which expanded the agency’s regulatory reach to include homemade firearm kits. Because the operative statute does not provide for review, the plaintiffs relied on the APA’s cause of action and waiver of sovereign immunity to bring their lawsuit. In their complaints, the various challengers argued that the ATF rule should be “set aside” under APA § 706(2)(A) (“not in accordance with law”) and § 706(2)(C) (“in excess of statutory … authority”). In capsule form, the plaintiffs argued that the statute did not support the ATF’s assertion of authority.

Of course, this sort of APA suit is routine. It’s what most pre-enforcement challenges look like.

In this very common scenario, the parties typically employ the traditional tools of statutory interpretation to persuade judges on the “plain” or “best” meaning of the controverted text. And that’s exactly how VanDerStok played out in the lower courts.

The district court, for example, concluded that “[b]asic principles of statutory interpretation decide this case” in favor of the challengers on their APA claims. In affirming the district court, the Fifth Circuit relied on the text and context to discern the “plain language of the statute.”

On certiorari, however, the Supreme Court adopted a radically different approach. Rather than interpreting APA § 706(2) as usual, the VanDerStok majority employed “facial review.”

Facial review operates in categorical terms. As set forth by the majority, a rule is “facially invalid” if no application of the rule “can ever satisfy” the statute. If, on the other hand, “at least some” applications of the rule are not unlawful, then it “is not facially invalid.” Under prevailing precedent, which the VanDerStok majority mirrored, a facial attack “is … the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the [government action] would be valid.”

The majority’s turn to “facial review” seemingly came out of nowhere. Among the complaints filed in the district court, one of the plaintiffs made fleeting reference to the ATF rule being “facially unlawful.” Starting on page 27 of her brief, the Solicitor General made a one paragraph argument for facial review. Seizing these threads, the VanDerStok majority weaved a preposterous narrative about how the respondents had (for some reason) voluntarily limited their claim to facial review, and that the lower courts had applied the same type of review as did the high court.

In dissenting opinions, Justices Thomas and Alito expressed skepticism at the majority’s characterization of the proceedings below. Each opined that categorical facial review is inappropriate in the regulatory context.

The Path of Facial Review to APA § 706(2)

It’s worth tracing the history of how “facial review” became a viable interpretation of APA § 706(2) in VanDerStok.

The “no set of circumstances” test originated in a 1987 case, United States v. Salerno, involving a constitutional challenge to legislation passed by Congress.

Eight years later, in Reno v. Flores, the Supreme Court apparently extended Salerno to review an agency’s statutory interpretation. We say “apparently” because although the Reno Court announced that the “no set of circumstances” test reached statutory interpretations, the Court applied this extreme form of review only to that portion of the challengers’ case mounting a constitutional attack on an administrative action. In reviewing the challengers’ statutory claims against the agency, the Reno Court instead applied a more standard, albeit deferential, reasonableness review.

Perhaps due to this confusion, Reno v. Flores failed to attract much scholarly scrutiny. Even so, the lack of attention is surprising. The Salerno test, for all intents and purposes, is insurmountable. If Salerno became the prevailing standard for pre-enforcement review of an agency’s statutory interpretation, then judicial review of administrative action would become an exercise in futility. By its very nature, an unlawfully overbroad regulation will always sweep in some lawfully regulated activity and thus would be validly applied in some circumstances.

Since Reno v. Flores, the Justice Department periodically advanced the Salerno test, usually as a complement or alternative to Chevron deference. The Tenth Circuit has been most receptive to this extension of the “no set of circumstances” standard. See Colorado Wild v. Forest Service, 435 F. 3d 1204 (2006); Public Lands Council v. Babbitt, 167 F.3d 1287 (1999). The D.C. Circuit has wrestled with the question without addressing it conclusively. See, e.g., Amfac Resorts v. U.S. Dept. of Interior, 282 F.3d 818, 828 (D.C. Cir. 2002). The Ninth Circuit expressed skepticism of Salerno in administrative settings, Sierra Club v. Bosworth, 510 F. 3d 1016 (2007), while the Seventh Circuit has condoned its use, Home Builders, Chicago v. Army Corps, Engineers, 335 F. 3d 607 (2003).

Thus, Salerno simmered as a standard for statutory review . . . until last year.  

Following Loper Bright, the Justice Department started probing the viability of alternatives to the Chevron doctrine. For example, since Loper Bright, the government has reframed questions of statutory interpretation as policy decisions subject to deferential “arbitrary and capricious” review.

The Salerno standard is another Chevron replacement that has been shopped by the government in the wake of Loper Bright. For example, last year in a challenge brought by Pacific Legal Foundation (where we work) to a 2023 Environmental Protection Agency and Department of the Army Clean Water Act regulation, the Justice Department invoked the “no set of circumstances”standard as a reason for that challenge to fail. Of course, the Salerno approach is unique among these Chevron substitutes, in that the “no set of circumstances” framework is far more favorable to the government than even Chevron ever was.

The AdLaw Fallout

For practitioners and scholars of administrative law, the crucial concrete result from VanDerStok is that the Court linked APA § 706(C) with facial review. Already, the Justice Department is on the hunt for alternatives to Chevron in a post-Loper world. After VanDerStok, we can expect government lawyers to more freely argue for facial review of an agency’s statutory interpretations under the “no set of circumstances” test.

To be clear, the VanDerStok majority emphasized that its holding was particular to this case. Due to the plaintiffs’ supposed intention of limiting themselves to a facial challenge, the majority assumed the relevant legal standard without deciding it. In its second footnote, the majority saved “for another day” the question of whether APA § 706(2)(C) demands facial review.

Let’s assume, arguendo, a future scenario where the Supreme Court conclusively interprets APA § 706(2)(A) or (C) to require facial review, Salerno-style, for all pre-enforcement challenges. Because this “no set of circumstances” test is nearly impossible to pass, judicial review would be unavailable as an effective matter.  To put it another way, such a reading of § 706 would obviate Abbott Laboratories v. Gardner, the seminal 1967 decision on ripeness that unlocked the door to pre-enforcement review under the APA. This is not so far-fetched a scenario: it is, after all, what happened in VanDerStok, and at least a couple of circuit courts already seem open to the idea.

There is more. Justice Alito explained that the majority’s reasoning, if it takes hold, “would also all but settle the debate about whether § 706(2) of the APA authorizes a court to render a rule unenforceable across the board.” In effect, this would effectively deny district courts the discretion to order vacatur—short circuiting the budding academic and judicial debate on this subject.

Looking Ahead

Given the case’s potential fallout, we doubt the VanDerStok majority thought through its holding, despite the sobering dissents. It makes little sense, as Professor Josh Blackman put it at the Volokh Conspiracy, for the Court to “create[] a far more powerful deference doctrine” after just ditching the Chevron doctrine.

Thankfully, there are many ways to distinguish the case. The ATF rule, for example, is enforced primarily through criminal punishment, whereas most agency regimes rely on civil enforcement. Moreover, the ATF rule pertained to agency definitions, so VanDerStok could be limited to such interpretive measures. Perhaps most obviously, VanDerStok can be circumscribed by taking the majority at its word and limiting the application of facial review to when the plaintiffs (supposedly) ask for it. On a related note, plaintiffs would be wise to avoid using the talismanic phrase “facially invalid” in their complaints.

Time will tell what VanDerStok entails. Although the majority attempted to confine the effects of its approach to the facts of the case, the Justice Department is likely to embrace this argument, and it’s anyone’s guess how the circuit courts will respond.