The Volokh Conspiracy

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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 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.