NRC v. Texas and Nonstatutory Review of Executive Action

On June 18, the Supreme Court issued its decision in Nuclear Regulatory Commission v. Texas. The Court turned back a challenge to the Nuclear Regulatory Commission’s (NRC’s) decision to license a private business to store spent nuclear fuel at facilities “off the site of a nuclear power plant.” It did not, however, address the merits question of whether federal law authorizes such off-site storage. Instead, it decided the case on threshold grounds, holding that the petitioners—the state of Texas and a private business—could not “maintain this suit.”

The Court offered two bases for that conclusion. The first, which occupied most of the Court’s attention, was that under the Hobbs Act, 28 U.S.C. § 2344, only a “party aggrieved” may petition for review of NRC action. The Court held that the petitioners, which “are not license applicants” and “did not successfully intervene” in the NRC proceedings, were not “parties” eligible to obtain judicial review.

The Court then rejected the petitioners’ alternative argument, that they could obtain “nonstatutory ultra vires review” of the NRC’s action. What does this enigmatic phrase mean? It refers to the federal courts’ long-standing equitable authority to review executive action alleged to be unlawful (or ultra vires), even if no statute expressly authorizes judicial review (hence the term “nonstatutory”). Nonstatutory review has long been a useful means to challenge executive action—especially actions taken by the president himself. Indeed, it has been a basis for several successful challenges to some of President Trump’s most aggressive assertions of authority. Despite the Court’s rejection of the application of this doctrine in Nuclear Regulatory Commission, nonstatutory review is likely to remain a valuable tool in pending and future challenges to the administration.

The Nature of Nonstatutory Review

Congress frequently provides for judicial review of executive branch action. The most important judicial review statute is the Administrative Procedure Act (APA), which creates a cause of action to challenge “final agency action” in district court. Litigants over the past decade have frequently challenged actions of administrations of both parties using the APA. That strategy proved fruitful in many cases—among others, it contributed to the flowering of the “major questions doctrine” and the end of Chevron deference. Now, litigants are using the APA as an important check against the Trump administration’s alleged unlawful actions.

But not every executive action is subject to the APA. In 1992, the Supreme Court held that the president is not an “agency” with the meaning of the APA, meaning litigants cannot necessarily use the statute’s procedural or substantive provisions to challenge actions the president himself takes. This may be one reason why the Trump administration has done so much through direct presidential action. Among other actions the president has taken directly, he has imposed “reciprocal tariffs” on numerous countries, sharply restricted Harvard University’s ability to enroll foreign students, and invoked the 18th-century Alien Enemies Act as a means to summarily remove from the country individuals claimed to be associated with the Venezuelan gang Tren de Aragua. Other judicial review statutes have their own limitations. For example, as Nuclear Regulatory Commission explained, the Hobbs Act is only available to “part[ies] aggrieved.”

When no judicial review statute is available, litigants might yet obtain nonstatutory review. Nonstatutory review is a means to obtain judicial review of executive action separate and apart from any judicial review statute. In a seminal 1902 case, American School of Magnetic Healing v. McAnnulty, the Supreme Court explained that when “an official violates the law to the injury of an individual the courts generally have jurisdiction to grant relief.” Time and again, the Court has reinforced that principle. For example, in 2015’s Armstrong v. Exceptional Child Center, Inc., the Court again recognized that litigants possess an “ability to sue to enjoin unconstitutional actions by ... federal officials.” Federal courts’ power in this regard “is the creation of courts of equity, and reflects a long history of judicial review of illegal executive action, tracing back to England.” Landmark cases such as Youngstown Sheet & Tube Co. v. Sawyer, Zivotofsky v. Kerry, Free Enterprise Fund v. Public Company Accounting Oversight Board, and Trump v. Hawaii are all examples of the Supreme Court reviewing executive action pursuant to this authority.

Nonstatutory review has not always fit easily into the constellation of threshold doctrines relevant to lawsuits against the federal government. As one court of appeals put it, “the precise scope and contours of the court[s’] equitable powers of this nature are ill-defined.” For instance, depending on whom you ask, nonstatutory review is either a cause of action or simply a way of describing the federal courts’ equitable authority. The answer to that academic question, though, is not particularly relevant for litigators because, either way, nonstatutory review reflects an “ability to sue.” At the same time, while nonstatutory review has at times been characterized as a doctrine of jurisdiction, it is not. Instead, in nonstatutory cases, the general federal question jurisdiction statute, 28 U.S.C. § 1331, furnishes subject matter jurisdiction. Similarly, sovereign immunity should never bar nonstatutory review. Under the so-called Larson-Dugan doctrine, sovereign immunity “never attache[s] in the first place” to claims for injunctive relief against federal officials alleged to have acted unlawfully. My organization, Governing for Impact, has, as part of a library of issue briefs on current issues in administrative law litigation, outlined these and other doctrinal considerations relevant to nonstatutory review.

Using Nonstatutory Review to Challenge Executive Action

Importantly, nonstatutory review, which long predates the APA’s 1946 enactment, remains available as a means to challenge actions the president takes, even where Congress has not specifically authorized such suits (think Youngstown and Zivotofsky). Courts have also allowed nonstatutory claims that agency action has violated the Constitution (as in Free Enterprise Fund). Just in recent weeks, litigants have powerfully used nonstatutory review as a tool to obtain relief against some of President Trump’s most aggressive and far-reaching claims of authority.

The ongoing tariff litigation is one example. A group of businesses and several states challenged President Trump’s invocation of the International Emergency Economic Powers Act (IEEPA) to impose tariffs on numerous countries. In May, the Court of International Trade sustained that challenge, holding that IEEPA does not “confer such unbounded authority.” Congress had instructed the court to “review the matter as provided in section 706 of Title 5”—that is, the APA. But it had not “address[ed] what happens when an action ... challenges actions by the President, which unlike agency actions are not subject to the APA’s requirements.” The court nevertheless observed that “non-APA review remains available for constitutional issues, questions about the scope of statutory authority, and compliance with procedural requirements.” The court thus proceeded to the merits. Notably, while the government has obtained a stay pending appeal, it has not questioned the Court of International Trade’s authority to review the president’s actions.

Those challenging the Trump administration’s retaliatory actions have also relied on nonstatutory review. For example, also in May, the Department of Homeland Security revoked Harvard’s certification to participate in the Student and Exchange Visitor Program, a move that would bar Harvard from sponsoring or hosting international students. Harvard brought numerous constitutional and statutory claims against the department and other agencies, using both the APA’s cause of action and what Harvard termed an “equitable cause of action” (read: nonstatutory review), and obtained a temporary restraining order. Then, on June 4, in a change of tactics, President Trump himself moved to block international Harvard students from entering the country. In response, Harvard challenged that proclamation directly, both alleging in its amended complaint and arguing in a motion for a temporary restraining order that the district court had the authority under the Supreme Court’s Armstrong decision to review Trump’s action itself. Exercising that power, the district court granted a preliminary injunction barring the executive branch from “giving effect to the Proclamation.”

Nonstatutory review has also come into play in litigation challenging President Trump’s invocation of the Alien Enemies Act. The nationwide sagas set off by the president’s Alien Enemies Act proclamation—and the doctrinal difficulties posed by the ensuing litigation—have been documented elsewhere. Recently, the federal district court in Washington, in J.G.G. v. Trump, granted a preliminary injunction to a class of individuals sent to the CECOT prison in El Salvador on the grounds that “their summary removal violated their due-process rights.” Although the court preliminarily held that the plaintiffs could not seek habeas relief because they were not “in custody” under the authority of the United States, it allowed the class to proceed with a standalone due process claim. “Such a suit,” the court held, “may be brought in equity.” Quoting Armstrong, the court explained that “[p]laintiffs with constitutional grievances can ... seek ‘the equitable relief that is traditionally available to enforce federal law’ absent a specific [statutory] cause of action, as long as Congress has not displaced the equitable power of the federal courts.” (The D.C. Circuit has administratively stayed the district court’s order as it considers the government’s motion for a stay pending appeal.)

To be clear, though, in many cases nonstatutory review will not be the only way to challenge presidential action. When a presidential directive is implemented by an agency, as will often be the case, litigants might bring APA claims against the agency too. For instance, in the international student litigation, Harvard has brought APA claims against the Departments of Homeland Security, Justice, and State, in addition to nonstatutory claims against the president and the agencies. And in the travel ban litigation from President Trump’s first term, the U.S. Court of Appeals for the Ninth Circuit explained that the challengers had an APA claim “against the entities charged with carrying out” the president’s directive, as well as an “equitable cause of action” for review of “actions by the President that go beyond the scope of the President’s statutory authority.” For APA claims, the agency’s implementing action is the subject of the court’s scrutiny. In nonstatutory cases, the focus is on the president’s act itself. In both types of cases, though, any resulting injunction must likely run against the lower-level officials charged with implementing the challenged action, as the Supreme Court has strongly indicated that federal courts may not directly enjoin the president.

Nuclear Regulatory Commission and the Primary Limitation of Nonstatutory Review

Nonstatutory review, though a versatile doctrine, has limits. J.G.G. identified an important one: Congress may override the courts’ equitable authority. Nonstatutory review, the Supreme Court has said, “is subject to express or implied statutory limitations.” For instance, where Congress has excepted particular agency actions from the APA’s judicial review provisions, courts are generally reluctant to entertain equitable claims that such actions exceed agencies’ statutory authority. In that context, nonstatutory review is available only where an agency’s error is “blatant,” not merely “routine.” A challenger must identify something more than the type of “error in statutory interpretation or challenged findings of fact that would” suffice “if Congress had allowed APA review.”

It is this limited strain of nonstatutory review that was at issue in Nuclear Regulatory Commission. With the Hobbs Act unavailable to them, the petitioners brought an equitable claim as a fallback. The Court rejected that move: “Because ultra vires review could become an easy end-run around the limitations of the Hobbs Act and other judicial-review statutes,” “it applies only when an agency has taken action entirely in excess of its delegated powers and contrary to a specific prohibition in a statute.”

The Court gave two reasons why the petitioners’ nonstatutory claim “f[e]ll far short” of that demanding standard. First, they merely “dress[ed] up a typical statutory-authority argument as an ultra vires claim.” Although “that is a fairly typical maneuver” for litigants seeking to bring a nonstatutory claim against agency action, the petitioners failed to identify an error of the magnitude that would justify the Court’s intervention in equity. Second, they “had an alternative path to judicial review”: moving to intervene in the NRC’s proceedings and then going to court, either to challenge the agency’s merits decision or its denial of intervention.

The Department of Justice may seize on this language in hopes of blocking nonstatutory challenges to President Trump’s actions, but such an effort would be unlikely to succeed. Nuclear Regulatory Commission does not appear to have broken any new ground: Nonstatutory review of claims that an agency exceeded its statutory authority has long been of “extremely limited scope.” Indeed, the Court’s articulation of the standard—that such claims lie “only when an agency has taken action entirely in excess of its delegated powers and contrary to a specific prohibition in a statute”—dates back many decades.

But for just as long, federal courts have not been quite as stingy when it comes to nonstatutory review of presidential action and constitutional claims against executive action generally. Apparently seeing no hint in those contexts that Congress has precluded litigants’ ability to sue in equity, courts have taken a far more permissive approach—one that they continue to reinforce. Indeed, the examples discussed above represent only a few of the cases in which litigants have challenged Trump administration action using nonstatutory review. Harvard and a class of Berkeley researchers, like many other recipients of federal funding, have used it to challenge the administration’s impoundment efforts. It has been a vehicle to challenge President Trump’s punitive executive orders targeting law firms, his direction that the Department of Education be dismantled, the lawfulness of the U.S. Department of Government Efficiency (DOGE) Service’s operations, and the federalization of the California National Guard in response to protests in Los Angeles. Nothing in Nuclear Regulatory Commission is likely to affect litigants’ “ability to sue” over Trump’s unlawful actions.