ULTRA-APA ULTRA VIRES REVIEW: IMPLIED EQUITABLE ACTIONS FOR STATUTORY VIOLATIONS BY FEDERAL OFFICIALS

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.