Gorsuch, J., concurring in judgment
scholar, the “salient” similarities between appellate review and judicial review of agency action concern the standards of review—in both types of proceedings, a reviewing court engages in a more rigorous review of legal questions and a more deferential review of factual findings. T. Merrill, Article III, Agency Adjudication, and the Origins of the Appellate Review Model of Administrative Law, 111 Colum. L. Rev. 939, 940–941 (2011). None of that has to do with remedies; once again, it concerns a court’s scope of review or decisional process.
The States next invoke §706(1) and §705. The former provides that courts shall “compel agency action unlawfully withheld or unreasonably delayed.” The latter says courts “may issue all necessary and appropriate process to postpone the effective date of an agency action or to preserve status or rights pending conclusion of the review proceedings.” The States insist that “[i]t would be illogical” for the APA to authorize these remedies but not vacatur. Brief for Respondents 40. Is it so clear, though, that §706(1) and §705 authorize remedies? Section 706(1) does seem to contemplate a remedy. But it’s one §703 mentions—mandatory injunctions. So §706(1) might not authorize a remedy as much as confirm the availability of a traditional remedy to address agency inaction. The same could be said about §705; it might just confirm courts’ authority to issue traditional equitable relief pending judicial review. Cf. Sampson v. Murray, 415 U. S. 61, 69, n. 15 (1974) (explaining that §705 was “primarily intended to reflect existing law”).
The States also direct us to scholarship that in turn purports to identify a few instances of federal courts “setting aside” agency action in the years leading up to the APA. See Brief for Respondents 41; see also Brief for State of Florida as Amicus Curiae 17. It is not obvious, however, that these few cases stand for so much. In two of them, this Court upheld the agency action in question and thus had no occasion to opine on appropriate relief. See Houston v.
