The Sierra Club Asked The Supreme Court To Lift The Stay in The Border Wall Case. But There Is No "Equitable Ultra Vires Cause Of Action"

The Sierra Club conflates illegal conduct with the ability to challenge illegal conduct in court.

|The Volokh Conspiracy |

The Sierra Club has asked the Supreme Court to lift its stay in the border wall case. The plaintiffs assert that they have an equitable cause of action to challenge ultra vires action.

The court of appeals correctly found that Plaintiffs can proceed in equity to seek relief from ultra vires and unconstitutional actions by executive officers. "Where, as here, Congress could not more clearly and emphatically have withheld the authority exercised by DoD, with full consciousness of what it was doing and in the light of much recent history, and Sierra Club satisfies the rigors of Article III standing, our obligation to hear and decide this case is virtually unflagging." App. 26a (quoting Youngstown, 343 U.S. at 602 (Frankfurter, J. concurring) and Sprint Commc'ns, Inc. v. Jacobs, 571 U.S. 69, 77 (2013) (citations, quotations, and alteration marks omitted)).

The Ninth Circuit erred. This argument conflates illegal conduct with the ability to challenge illegal conduct in court.

Last month, I criticized the Ninth Circuit's decision reading of Youngstown. Here is a snippet:

Youngstown did not involve a free-floating equitable claim. In this seminal separation-of-powers case, the federal government seized control of private steel mills. The action was brought by the mills' owners. Youngstown's brief explained its cause of action:

A simple cloud on title has always moved equity to grant relief because no other remedy is complete or adequate. Wickliffe v. Owings, 17 How. 47, 50 (1854); Southern Pacific v. United States, 200 U. S. 341, 352 (1906); Ohio Tax Cases, 232 U. S. 576, 587 (1914); Shaffer v. Carter, 252 U. S. 37, 48 (1920). The seizure of the properties and business of the plaintiffs, with its host of uncertainties and legal and practical problems arising from the ambiguous position in which the owners are left, should appeal to equity at least as strongly as a cloud on title. In these circumstances, any remedy at law would necessarily be inadequate.

The cause of action was based on the government's regulation of real property–the steel mills. We explained:

The steel mill owners had a concrete, property interest that was impaired by the government's actions. The plaintiffs did not rely on a generalized allegation of ultra vires action by the Secretary of Commerce; instead, they relied on an analogous cause of action to quiet title–their title to their property. Here too, we are in the heartland of historical equity jurisdiction involving disputed property rights.

Youngstown does not support the Sierra Club's claim.

Seth Barrett Tillman and I wrote a lengthy post on this case in July 2019.

The Court should not lift the stay. This case should be dismissed outright.

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  1. I couldn’t tell you why the Sierra Club has standing, but whatever it is, isn’t it by definition a constitutionally protected right that they can sue to defend against unlawful interference by the government?

    1. Unlawful interference in what exactly in this case?

      The Sierra Club isn’t suing over illegal land seizures, but because the administration is spending money allocated for X on Y. There is no harm to any protectable interest that the Sierra Club might have.

      1. That was my point. If there is no protectable interest, how can they have standing? And if, apparently, it is generally agreed that they do have standing, that must be based on some protectable interest that the judiciary has the power to protect. Either way, I’m puzzled how there is a separate inquiry here past standing.

    2. Right; my immediate thought on reading this Blackman post was that he seems to be conflating or confusing standing and the existence of a cause of action.

      If no interest of theirs is being harmed, then the problem is that they lack standing. If they do have standing, then they are in the same position as the steel mill owners regardless of how their harm allegedly manifests.

      1. Aren’t standing and cause of action at least a little inter-related.

        How can you have standing without a valid cause of action?

        1. No, they’re separate. Let’s say that a government official slanders you, and you sue for violation of the 14th amendment. You were most certainly harmed by the slander, and your harm can be redressed by the court, but one just can’t sue for that.

    3. Scalia intoned on this subject in Lexmark v. Static Control. The gist of it is that Article III standing requires only injury in fact, traceability, and redressability (note the absence of a “constitutionally protected right”). That combination is enough that a case can be heard and decided by a federal court. However, under the rubric of “prudential standing” the criteria have expanded to include other factors, including

      the requirement that a plaintiff’s complaint fall within the zone of interests protected by the law invoked

      , but Scalia argues that this expansion doesn’t encompass the traditional cause of action question, and that

      As Judge Silberman of the D.C. Circuit recently observed, “`prudential standing’ is a misnomer” as applied to the zone-of-interests analysis, which asks whether “this particular class of persons ha[s] a right to sue under this substantive statute.”

      1. Yes, redressability. If (by assumption, given that the case is still here) the Sierra Club have suffered a redressable harm, what are we talking about here?

        1. Redressable means only that relief would be effective, it doesn’t necessarily imply that the plaintiff is entitled to that relief. For that they need a valid cause of action, i.e. a legal theory under which the facts alleged lead to a valid claim, and then they need to adequately demonstrate those facts.
          Bivens held that a federal cause of action is available by implication when a constitutionally protected right is violated by federal officials, and §1983 creates an even broader cause of action against state officials. Blackman is saying here that there is no such broad grant of a right to sue, whether created by the Constitution, statue, or precedent, that applies whenever officials act ultra vires.

          1. “statue”? You know what I meant.

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