Gorsuch, J., concurring in judgment
“to put to one side; discard; dismiss” and “to reject from consideration; overrule”); Webster’s New World College Dictionary 1329 (5th ed. 2016) (defining “set aside” as “to set apart” and “to discard; dismiss; reject”).
There are many reasons to think §706(2) uses “set aside” to mean “disregard” rather than “vacate.” For one thing, at the time of the APA’s adoption, conventional wisdom regarded agency rules as “quasi-legislative” in nature. See Humphrey’s Executor v. United States, 295 U. S. 602, 624, 628 (1935); see also D. Currie & F. Goodman, Judicial Review of Federal Administrative Action: Quest for the Optimum Forum, 75 Colum. L. Rev. 1, 40 (1975). And federal courts have never enjoyed the power to “vacate” legislation. Instead, they possess “little more than the negative power to disregard an unconstitutional enactment.” Massachusetts v. Mellon, 262 U. S. 447, 488 (1923). Reading “set aside” to mean “disregard” ensures parallel judicial treatment of statutes and rules.
For another thing, the term “set aside” appears in §706 of the APA. That section is titled “Scope of review,” a title it has borne since the law’s enactment in 1946. 60 Stat. 243. And ordinarily, when we think about the scope of a court’s review, we do not think about the remedies the court may authorize after reaching its judgment on the merits. Instead, we think about the court’s decisional process leading up to that judgment. Understanding “set aside” as a command to disregard an unlawful rule in the decisional process fits perfectly within this design. Understanding the phrase as authorizing a remedy does not.
What follows in §706 appears to confirm the point. The statute begins by providing that, “[t]o the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning and applicability of the terms of an agency action.” Exactly as
