In 2019, President Donald Trump used an executive proclamation to divert appropriated funds, under the pretense of a national emergency, for the purpose of constructing a wall on the United States–Mexico border.
Perceived as a usurpation of congressional authority, this triggered several lawsuits.
Plaintiffs asserted statutory and constitutional claims, as well as claims in equity that the President acted “ultra vires,” or beyond the scope of his authority.
The first two types of claims involved familiar analytic frameworks, but the ultra vires claims elicited imprecise references to judicial precedent and equitable powers.
Though courts did not rely on this mode of review alone,
two Ninth Circuit judges responded in dissent that an implied equitable claim was not merely unsuccessful but unavailable.
The existence of an Administrative Procedure Act (APA) action, they suggested, precludes nonstatutory review.
Prior to the APA, plaintiffs sought relief for ultra vires administrative action via traditional property and tort actions, common law writs, specific statutory provisions in the violated statute, or “nonstatutory” actions implied in equity—that is, actions understood as inherent in the courts’ “broad equitable power.”
When the APA codified a right of action for this purpose in 1946, the implied equitable claim largely fell out of use.
Nonetheless, the implied action persisted at the margins.
The APA’s right of action is not comprehensive, and many have read the Act to presuppose the existence of a review doctrine for cases falling outside of its bounds.
The Supreme Court continued to recognize an implied equitable action after the APA’s enactment, suggesting that the statutory remedy is not exclusive.
More recently, however, the Court has retreated on the availability of implied rights of action in other contexts, reading statutes and the Constitution narrowly to constrain the powers of federal courts.
To what extent the APA’s statutory right of action displaced the preexisting nonstatutory one is a question that the Court has left open, and as illustrated by the disagreement in the Ninth Circuit, the answer is not clear.
A more preclusive approach to the APA would be consistent with the Court’s other implied rights doctrines but would constrain judicial review in a way not contemplated by the Court’s precedents nor the APA itself. By leaving a gap in the availability of judicial review, such an approach would undermine the coherence of administrative common law, potentially insulate some executive officials from judicial scrutiny, and leave some plaintiffs without a means of recovery.
This Note explores the tension between the Court’s modern implied rights jurisprudence and its long tradition of granting “nonstatutory” review in officer suits. It argues that, despite the Court’s retrenchment of implied rights, the APA does not preclude non-APA equitable review of acts alleged to be beyond officials’ statutory authority
—that is, ultra vires. Statutory restrictions applied to APA rights of action should only transfer to these implied equitable claims where they reflect requirements that previously existed at common law. Part I reviews the history and development of the implied equitable action for officer suits. Part II evaluates its status in the context of the Court’s implied rights of actions decisions, illustrating the tension in the ongoing recognition of nonstatutory review. Finally, Part III demonstrates how the broader debate about administrative common law bears on this question. It proposes continued recognition of an implied equitable review doctrine subject to only common law restraints, in order to vindicate the APA’s common law origins and uphold important rule of law values.