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What is the Plaintiffs' Cause of Action in the Wall Litigation?

Like in the Emoluments Clauses cases, plaintiff’s mere allegation that the government is acting ultra vires is not enough to establish an equitable cause of action


[This post is co-authored with Seth Barrett Tillman, Lecturer, Maynooth University Department of Law. It is based on an amicus brief which we co-filed with the Judicial Education Project.]

On Friday, the Supreme Court stayed the District Court's decision in Trump v. Sierra Club, which had halted the administration's plan to construct a border fence. The Court's short entry on the "shadow docket" offered only a single explanatory sentence:

Among the reasons is that the Government has made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review of the Acting Secretary's compliance with Section 8005.

What is the Plaintiffs' cause of action in Sierra Club v. Trump? The Ninth Circuit observed

Throughout this litigation, Plaintiffs' claim has been framed in various ways. The lack of compliance with section 8005 has sometimes been labeled ultra vires as outside statutory authority or as outside the President's Article II powers, and spending without an appropriation has been described as a violation of the Appropriations Clause. However their claim is labeled, Plaintiffs' theory is ultimately the same.

Ultimately, the Ninth Circuit found there were two possible causes of action: 

Plaintiffs may bring their challenge through an equitable action to enjoin unconstitutional official conduct, or under the judicial review provisions of the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq., as a challenge to a final agency decision that is alleged to violate the Constitution, or both.

Slip op. at 4 (bold added). The Sierra Club argued that "Plaintiffs have an ultra vires cause of action." The brief adds, "For two centuries, this Court has permitted judicial review of ultra vires executive action without invoking a zone-of-interests test."

This argument closely resembles the briefing in the Emoluments Clauses cases. In District of Columbia & Maryland v. Trump, for example, the two plaintiffs framed their constitutional causes of action in a very similar fashion. They contended that "[t]he ability to sue to enjoin unconstitutional actions by state and federal officers is the creation of courts of equity, and reflects a long history of judicial review of illegal executive action, tracing back to England." Both of these cases invoke "equity" in some fashion. However, it is unclear if plaintiffs are referring to the type of remedy sought (i.e., injunctive relief) or the jurisdiction of the court to hear a class of cases (i.e., equitable jurisdiction). The two concepts are related, but they are not the same.

Without question, the federal courts have the equitable jurisdiction to enjoin unconstitutional, or ultra vires actions of governmental officials. There is a long tradition of such cases. Plaintiffs argue that the zone-of-interests test–a relatively recent introduction in federal law–does not apply to constitutional claims. The case law developing this zone-of-interests doctrine largely relates to statutory law, not constitutional law. We take no view whether the zone of interests test also applies to constitutional claims, or if its reach is limited to the claims based on statutory causes of action, or claims based on the Administrative Procedure Act.

However, we do disagree with Plaintiffs' understanding of the federal courts' "equitable jurisdiction." The constitutional claims in the Wall litigation, as well as in the Emoluments Clauses cases, cannot invoke the equitable jurisdiction of the federal courts. Why? In order to invoke a federal court's equitable jurisdiction, Plaintiffs cannot simply assert in a conclusory fashion that the conduct of federal officers is ultra vires, and, on that basis, seek equitable relief. "Equity" cannot be used as a magic talisman to transform the plaintiffs into private attorneys general who can sue the government merely for acting illegally. Rather, in order to invoke the equitable jurisdiction of the federal courts, plaintiffs must put forward a prima facie equitable cause of action

We think the absence of such an equitable cause of action was precisely the defect the Supreme Court highlighted in Sierra Club. Recall the order stated, "Among the reasons is that the Government has made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review of the Acting Secretary's compliance with Section 8005." We also think that similar concerns animated the recent remand order in the DC Circuit's Emoluments Clause case: Blumenthal v. Trump. In its remand order, the court noted: "The question of whether the Foreign Emoluments Clause, U.S. Const. Art. I, § 9, cl. 8, or other authority gives rise to a cause of action against the President is unsettled …." Neither of these orders referenced the zone-of-interests test. Both orders did reference whether the plaintiffs had an equitable cause of action. 

Grupo Mexicano de Desarrollo S.A. v. Alliance Bond Fund, Inc. (1999) recognized that "the equity jurisdiction of the federal courts is the jurisdiction in equity exercised by the High Court of Chancery in England at the time of the adoption of the Constitution and the enactment of the original Judiciary Act, 1789 (1 Stat. 73)." In order to invoke the equitable jurisdiction of the federal courts, a plaintiff must put forward a cause of action within (or analogous to) the jurisdiction of the High Court of Chancery in England as it stood in 1789. 

At that time, as a general matter, litigants could invoke the court's equitable jurisdiction to stop ultra vires actions by government officers, but only if plaintiff's rights or duties regarding its own property (i.e., as the legal or beneficial owner) were at issue. Alternatively, the court's equitable jurisdiction could be invoked if a cause of action were otherwise supplied by the common law (such as contractual rights or obligations) or by statute.

A plaintiff's mere request for equitable or injunctive relief does not invoke a federal court's equitable jurisdiction. Likewise, even if the plaintiff has an Article III injury-in-fact, his bare assertion of illegal or ultra vires conduct by federal officers is insufficient to invoke the federal court's equitable jurisdiction. As a general matter, such a claim could only go forward if there is an invasion (or imminent invasion) of the plaintiff's property rights, or if the case presents an analogous concrete dispute involving the plaintiff's rights or duties regarding his own property. For example, the plaintiff relies on a cause of action within (or analogous to) the jurisdiction of the High Court of Chancery in England as it stood in 1789.

In other words, in both the Wall litigation and Emoluments Clauses cases, the plaintiffs must identify a cause of action (or an analogous cause of action) that would have been available under the equitable jurisdiction of the High Court of Chancery in England at it stood in 1789. Plaintiffs have not even attempted to make such a showing. Indeed, the United States attempted and failed to make such a showing in Grupo Mexicano. As a result, the government's request for relief was rejected. Plaintiffs' purported equitable cause of action, based only on an ultra vires claim, would have been unknown to William Blackstone, Chancellor Kent, or Justice Story.

Moreover, their rule offers no limiting principle: it would open the courthouse door to every plaintiff with Article III standing, who asserts that a federal official engaged in illegal conduct. It is not enough for an injured person to merely assert a violation of the Constitution. To open the federal courthouse door, a proper plaintiff in a federal lawsuit needs both a court with jurisdiction and a cause of action. See, e.g., Bell v. Hood, 327 U.S. 678 (1946) (distinguishing jurisdiction from cause of action, where both are necessary to maintain suit in federal court). For example, in Armstrong v. Exceptional Child Center (2015), the Supreme Court rejected the proposition that "the Supremacy Clause creates a cause of action for its violation" in the federal court's equitable jurisdiction. (Plaintiffs in the Emoluments Clauses cases repeatedly cite Armstrong, but fail to note that this case cuts against their free-floating claim to an equitable cause of action based on a purported constitutional violation.)

Finally, plaintiffs' approach would allow any plaintiff who invokes "equity" to evade the Administrative Procedure Act's requirements for seeking a judicial remedy. Such a "wrenching departure from past practice," as Grupo Mexicano put it, must be carefully scrutinized. Equity jurisdiction is not a tabula rasa or constitutional free-for-all in which litigants may prosecute claims that would otherwise fail under the APA and in law. The Plaintiffs in the Wall litigation do not have an independent cause of action, other than their claim that the government is acting illegally. Neither do the plaintiffs in the Emoluments Clauses cases.

But what about the Supreme Court's leading separation of powers decisions that arose in equity? Was there an independent cause of action–separate from the allegation of ultra vires governmental action–in cases like Ex Parte Young (1908), Larson v. Domestic & Foreign Commerce (1949), Youngstown Sheet & Tube Co. v. Sawyer (1952), Dames & Moore v. Regan (1981), Clinton v. City of New York (1998), and Free Enterprise Fund v. PCAOB (2010)? The answer is yes.

In each of these cases, the underlying substantive law—e.g., common law or statutory—provided the necessary cause of action. As a result, once the federal courts' equitable jurisdiction had been properly invoked, and the plaintiffs alleged both Article III injury and an independent cause of action, the courts had the power to issue an equitable remedy (i.e., injunctive relief). Equitable jurisdiction is not properly invoked merely be requesting equitable relief. It works the other way around: once equitable jurisdiction is properly invoked, then the court has the power to grant equitable relief

Let's consider each case.


Ex Parte Young

In this old chestnut, the Supreme Court held that the federal courts could issue injunctive relief to prevent state officials from prospectively violating the Constitution. From this well-known holding, plaintiffs in the Emoluments Clauses cases have asserted that the district court had equitable jurisdiction. Here, plaintiffs only discussed the remedial aspect of Young–i.e., equitable relief. However, Plaintiffs neglected to mention that the underlying cause of action in Young concerned a run-of-the-mill dispute: a governmental regulation of Plaintiffs' private property. The Court observed that "the question really to be determined under this objection is whether the acts of the legislature and the orders of the railroad commission, if enforced, would take property without due process of law." Such disputes about contested rights and duties involving property (e.g., interpleader) lie at the very core of historical equitable jurisdiction. Specifically, the Young plaintiffs sought to prevent the state from regulating their property. To accomplish this goal, they invoked the court's equitable jurisdiction to sue state officers before those state officers could regulate the plaintiffs' property through an imminent coercive lawsuit. 

Not so in the Emoluments Clauses cases. The plaintiffs' suit concerns property belonging to private conduct of commercial entities affiliated with Donald Trump. Even if we were willing to counterfactually recharacterize such property as Trump's property, these cases do not involve the government's efforts to regulate the plaintiffs' property. Nor do these cases involve a threatened coercive suit brought by the government to take or regulate plaintiffs' property. Plaintiffs make no such claim. As a result, plaintiffs' claim is beyond the orbit of what is permissible under Young or under the federal courts' equitable jurisdiction. Again in the Emoluments Clauses cases, Donald Trump's purported constitutional tort—that is, accepting or receiving purported emoluments in private commercial transactions—does not involve taking plaintiffs' property. Nor is the President regulating Plaintiffs' property. What Plaintiffs need to establish, but do not and cannot, is equitable jurisdiction or an equitable cause of action.


Larson v. Domestic & Foreign Commerce

Plaintiffs have cited Larson for the proposition that a plaintiff with standing can sue for prospective injunctive relief against ultra vires government conduct. Plaintiffs have misread this relatively straightforward case. Larson involved a simple common-law cause of action: breach of contract. The Court explained, "The basis of the action . . . was that a contract had been entered into with the United States"–a contract claim. Again, causes of action for specific performance based on a breach of contract have long-standing roots in the law of equity. There is no analogous historical equitable cause of action for claims under the Emoluments Clauses or the Appropriations Clause, even when brought in conjunction with allegations involving ultra vires conduct by government officers. 


Youngstown Sheet & Tube Co. v. Sawyer

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 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. 


Dames & Moore v. Regan

Justice Rehnquist's opinion in Dames & Moore, which was drafted very quickly, did not consider the Court's equitable jurisdiction. (Fun fact: A young John G. Roberts clerked for Justice Rehnquist when Dames & Moore was decided.) However, Rehnquist observed that the plaintiffs sought to "prevent enforcement of the Executive Orders and Treasury Department regulations implementing the Agreement with Iran." Without question, the plaintiffs asserted that the government acted ultra vires: "In its complaint, petitioner alleged that the actions of the President and the Secretary of the Treasury implementing the Agreement with Iran were beyond their statutory and constitutional powers." 

But the plaintiffs pleaded an important, additional fact: that the government's actions "were unconstitutional to the extent they adversely affect petitioner's final judgment against the Government of Iran and the Atomic Energy Organization, its execution of that judgment in the State of Washington, its prejudgment attachments, and its ability to continue to litigate against the Iranian banks." The suit was not a generalized grievance about the President's foreign policy decisions. Rather, jurisdiction was premised on a final judgment involving vested property rights that the government sought to extinguish. The executive order that nullified Dames & Moore's judgments operated in a similar fashion to the executive order which gave rise to the Steel Seizure Case. The federal courts had jurisdiction to resolve both cases. In both cases, plaintiffs were seeking to protect concrete property rights–the vindication of these interests lies at the core of historical equity jurisdiction. 


Clinton v. City of New York

In Clinton v. City of New York, the Court observed "Plaintiffs suffered an immediate, concrete injury the moment that the President used the Line Item Veto to cancel section 4722(c) and deprived them of the benefits of that law." The Supreme Court did not address whether the plaintiffs had an equitable cause of action. However, Justice Stevens drew an analogy between the cancellation of funds and a familiar cause of action in the courts:

His action was comparable to the judgment of an appellate court setting aside a verdict for the defendant and remanding for a new trial of a multibillion dollar damages claim. Even if the outcome of the second trial is speculative, the reversal, like the President's cancellation, causes a significant immediate injury by depriving the defendant of the benefit of a favorable final judgment. The revival of a substantial contingent liability immediately and directly affects the borrowing power, financial strength, and fiscal planning of the potential obligor.

The City of New York could invoke the federal court's equitable jurisdiction in either set of circumstances: if the executive branch, or the court cancelled a financial windfall. Equitable jurisdiction was proper in this case.


Free Enterprise Fund v. PCAOB

We address one final case that has often been cited by plaintiffs in the Emoluments Clauses cases as a basis for equitable jurisdiction: Free Enterprise Fund v. PCAOB (2010). This citation is perplexing, because that case does not discuss the federal court's equitable jurisdiction. Rather, a footnote in that decision cited Correctional Services Corp. v. Malesko (2001) for the proposition that "equitable relief 'has long been recognized as the proper means for preventing entities from acting unconstitutionally.'" Once again, plaintiffs' argument conflates equitable remedies with equitable jurisdiction. Moreover, Malesko involved an unsuccessful cause of action under Bivens for damages—not equitable jurisdiction as a basis for equitable relief. 

Plaintiffs in the Emoluments Clauses cases have characterized Free Enterprise Fund as standing for the proposition that a plaintiff with an Article III injury can obtain prospective injunctive relief if he simply alleges government officers acts illegally. Plaintiffs err. Free Enterprise Fund involved a cause of action based on a statute: the Sarbanes-Oxley Act. Plaintiffs sued based on a threat of a future coercive action by the SEC under that statute.

The Supreme Court has never recognized an amorphous, open-ended equitable jurisdiction permitting plaintiffs to act as private attorneys general to control purported illegal government conduct merely predicated on the low threshold associated with Article III injury. At bottom, the federal court's "flexible" equitable jurisdiction must be "confined within the broad boundaries of traditional equitable relief." Grupo Mexicano (emphasis added). Only "in a proper case [may] relief . . . be given in a court of equity . . . to prevent an injurious act by a public officer." Armstrong.

The Emoluments Clauses cases plaintiffs are not proper: unlike the Free Enterprise Fund plaintiffs, the Emoluments Clauses cases plaintiffs are not threatened by the Government with a future coercive lawsuit, much less a threatened future coercive lawsuit that involves taking or regulating their property. Indeed, the Emoluments Clauses cases do not involve any allegation that plaintiffs' property is being taken or regulated by any government conduct: legal or illegal. Rather, the gravamen of plaintiffs' allegations in the Emoluments Clauses cases involves private commercial conduct of commercial entities affiliated with President Trump. On these alleged facts, we are well beyond the realm of "traditional equitable relief." Grupo Mexicano.



We suspect a similar argument prevailed upon the Supreme Court in Trump v. Sierra Club. The Court could have cited the zone-of-interests test. But it didn't. Instead, the brief order likely used the term "cause of action" in the same sense the Grupo Mexicano Court used the term "equity jurisdiction." This conclusion is basic: equitable jurisdiction is merely the set of causes of action that the High Court of Chancery could hear. Could the High Court of Chancery in England in 1789 have exercised jurisdiction over an analogous case to that of the Sierra Club, based solely on plaintiffs' claim of ultra vires conduct by government officials, absent any claim that Sierra Club's property was being taken or regulated? The answer is no