An order to act and an order setting aside a policy are different remedies with different requirements. The 2025–2026 holds and pauses showed which one fits a policy-driven delay.
The Administrative Procedure Act gives a reviewing court two distinct powers in 5 U.S.C. § 706. Under § 706(1), it can "compel agency action unlawfully withheld or unreasonably delayed". Under § 706(2), it can "hold unlawful and set aside" agency action that is arbitrary, contrary to law or in excess of statutory authority. Mandamus under 28 U.S.C. § 1361 overlaps with the first power. When a file stops because of an agency-wide policy, choosing between them is the most important decision in the case.
What each provision requires
| § 706(1) and mandamus | § 706(2) | |
|---|---|---|
| Target | The failure to take a discrete action the agency is required to take | Final agency action, such as a policy, memorandum or decision |
| Threshold | A discrete, required action (Norton v. SUWA, 2004) | Final agency action under Bennett v. Spear (1997): the end of the decision-making process and legal consequences |
| Merits test | Unreasonable delay under the TRAC factors | Arbitrary and capricious, contrary to law, or beyond statutory authority |
| Typical relief | An order to decide, often by a date | Vacatur of the action, with remand to the agency |
| Who benefits | The plaintiffs | Everyone governed by the vacated action, unless the court limits the remedy |
Why a delay claim fits a policy poorly
A delay claim measures one file's wait against what is reasonable. If the reason for the wait is a categorical instruction not to decide, the court is being asked to measure the effect of the policy rather than to review the policy. Several features of the doctrine then work against the plaintiff: the TRAC rule-of-reason factor, the reluctance to let one applicant jump a line that everyone affected is standing in, and, in consular cases, the argument that a refusal has already been issued; see Karimova v. Abate.
What happened in 2025–2026
The policy-driven delays of the period were undone mainly under § 706(2). The USCIS hold memoranda were vacated in June 2026 and enjoined for a certified class in August 2026; see USCIS Adjudication Holds. The State Department's 75-country immigrant visa pause was vacated in August 2026; see Categorical Visa Pauses. In both, the courts treated the policy as reviewable agency action and set it aside, which reached people who were not parties. Many individual delay suits filed during the same period, by contrast, were dismissed on the TRAC factors.
The remedy question after CASA
Trump v. CASA limited universal injunctions but expressly did not decide whether the APA authorizes vacatur. Courts have continued to vacate unlawful policies, and a vacatur operates on the policy rather than on particular parties. That makes § 706(2) the more consequential tool against a categorical policy, and it makes the scope of vacatur one of the issues most likely to be litigated next.
Pleading both
A complaint can plead both theories: a § 706(2) count against the policy and a § 706(1) or mandamus count for the individual application, so that if the policy falls the individual delay can be measured without it. Courts often treat a mandamus count as adding nothing where the APA supplies a remedy, a point developed in Mandamus vs. an APA Unreasonable-Delay Claim and APA Delay vs. Mandamus. How plaintiffs frame the discrete-action requirement is discussed in Norton v. SUWA.
Key points
- § 706(1) and mandamus compel a discrete required action; § 706(2) sets aside final agency action.
- A delay claim measures the effect of a categorical policy instead of reviewing it, and the TRAC factors often defeat it.
- The 2025–2026 USCIS holds and the 75-country visa pause were undone through § 706(2) vacatur and a class injunction.
- Vacatur reaches everyone governed by the vacated action; Trump v. CASA left its availability undecided.
- Pleading both counts lets the individual delay be measured once the policy is removed.
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