After President Trump declared a national emergency and diverted funds to build a wall on the southern border, several litigants challenged his action as ultra vires, or beyond his constitutional and statutory authority. The litigants asserted abstract equitable rights of action, implied in federal courts’ equitable powers. The Supreme Court has left unclear, however, whether or not such an implied equitable action for statutory violations by federal officials exists. Many judges and scholars recognize it as part of the Court’s longstanding equitable tradition and the common law heritage of the Administrative Procedure Act (APA). Others maintain that the APA is exclusive and forecloses an implied action that does not adhere to its statutory strictures. This Note explores the tension between the Court’s modern implied right of action jurisprudence and the long tradition of recognizing “nonstatutory” review in officer suits. It argues that despite the Court’s retreat from implied rights, non-APA equitable review is not precluded by the APA. Rather, statutory restrictions applied to APA rights of action should only apply to implied equitable claims where they reflect requirements that previously existed at common law. Such an understanding vindicates the APA’s common law origins and upholds important rule of law values.

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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. 1 See Sierra Club v. Trump, 963 F.3d 874, 880–82 (9th Cir. 2020), vacated and remanded sub. nom. Biden v. Sierra Club, No. 20-138, 2021 WL 2742775 (U.S. July 2, 2021) (mem.). Perceived as a usurpation of congressional authority, this triggered several lawsuits. 2 See, e.g., Ctr. for Biological Diversity v. Trump, 453 F. Supp. 3d 11, 23–24 (D.D.C. 2020); California v. Trump, 379 F. Supp. 3d 928, 935–36 (N.D. Cal. 2019), aff’d, 963 F.3d 926 (9th Cir. 2020); Sierra Club v. Trump, 379 F. Supp. 3d 883, 891 (N.D. Cal. 2019), vacated and remanded sub nom. Biden, 2021 WL 27422775. 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. 3 See, e.g., First Amended Complaint for Declaratory and Injunctive Relief at 30–38, Sierra Club, 379 F. Supp. 3d 883 (No. 4:19-cv-00892-HSG), 2019 WL 8755199 (asserting vio­lations of several statutes, the Appropriations Clause, the Presentment Clause, and an implied equitable claim for statutory violations).

The first two types of claims involved familiar analytic frameworks, but the ultra vires claims elicited imprecise references to judicial precedent and equitable powers. 4 See California, 379 F. Supp. 3d at 942 (“[I]n most instances [a] court may grant injunctive relief against executive officers to enjoin . . . ultra vires acts . . . . The Supreme Court recently reaffirmed this broad equitable power . . . .”); Sierra Club, 379 F. Supp. 3d at 909. Though courts did not rely on this mode of review alone, 5 See California, 963 F.3d at 941 (holding that the plaintiffs had a viable APA action); Sierra Club v. Trump, 929 F.3d 670, 699 (9th Cir. 2019) (holding that the plaintiffs could succeed either on an Administrative Procedure Act (APA) or nonstatutory claim). two Ninth Circuit judges responded in dissent that an implied equitable claim was not merely unsuccessful but unavailable. 6 See Sierra Club, 929 F.3d at 715–17 (Smith, J., dissenting) (contending that non­statutory review does not exist where APA review is the proper vehicle); cf. California, 963 F.3d at 967 (Collins, J., dissenting) (assuming arguendo, with skepticism, that nonstatutory review exists outside of the APA but subjecting it to a zone of interests requirement, so as to render it nearly coextensive with APA review). For discussion of the zone of interests requirement, see infra note 55 and accompanying text. The exist­ence of an Administrative Procedure Act (APA) action, they suggested, precludes nonstatutory review. 7 See Sierra Club, 929 F.3d at 715 (Smith, J., dissenting) (“Where courts can review an agency action under the APA . . . we have no business devising additional ‘equitable’ causes of action.”).

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.” 8 California, 379 F. Supp. 3d at 942; see also infra section I.A. For the seminal discus­sion of nonstatutory review, see generally Clark Byse, Proposed Reforms in Federal “Nonstatutory” Judicial Review: Sovereign Immunity, Indispensable Parties, Mandamus, 75 Harv. L. Rev. 1479 (1962). When the APA codified a right of action for this purpose in 1946, the implied equitable claim largely fell out of use. 9 See infra section I.B. None­theless, the implied action persisted at the margins. 10 See infra sections I.B.2–.C. 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. 11 See infra section I.B.2.

The Supreme Court continued to recognize an implied equitable action after the APA’s enactment, suggesting that the statutory remedy is not exclusive. 12 See infra section I.C. 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. 13 See infra Part II. 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. 14 See infra section II.B. 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 15 This Note refers to this as an implied equitable action for statutory violations. In citing other works, it at times uses the term “nonstatutory review.” See infra note 17. —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.