Legal scholars argue that even if Congress passed legislation explicitly allowing federal courts to strike down and automatically remove agency rules from official records, such a power would still face constitutional hurdles. The concern centers on whether judicial authority over rulemaking would improperly expand beyond its intended limits, potentially encroaching on legislative functions reserved to Congress. Critics warn that granting courts this level of control could undermine the separation of powers by delegating core lawmaking responsibilities to the judiciary. The debate highlights ongoing tensions between judicial oversight and the boundaries of executive and legislative authority.
"Even if Congress were to enact a law clearly empowering Article III courts to vacate agency rules or regulations and automatically cause their erasure from the Code of Federal Regulations, vacatur would likely still be inconsistent with the limited nature of the judicial power and the non-delegability of core legislative power to the judiciary."
