The Right Standard for Ultra Vires Claims

Editor’s Note: The author of this piece—alongside her colleagues at the American Civil Liberties Union (ACLU), the ACLU of the District of Columbia, and the Rutherford Institute—filed an amicus brief in support of neither party on the correct standard for ultra vires claims in a case discussed in this piece, Trump v. Cook.

Over the past year, “ultra vires” claims in lawsuits against the federal government have proliferated. Of the 150 decisions on Westlaw from the federal district and appellate courts in the District of Columbia over the past three years that contain the phrase “ultra vires,” more than half of them—94—are from after Jan. 20, 2025.

Ultra vires is a Latin phrase that translates to “beyond the powers.”  An ultra vires claim—that a party is acting in excess of its powers—rests on the premise that certain entities and actors are constrained under the law in what they can do. When they act beyond those limits, they are acting ultra vires. This principle applies, for example, to corporations: Some of the earliest ultra vires claims were brought against corporations alleging that they exceeded their powers under their corporate charters.

Ultra vires claims can be brought against government officials too. The Supreme Court has made clear that “the exercise of any governmental power” by federal officials, including the president’s, “must stem either from an act of Congress or from the Constitution itself.” An ultra vires claim against a government official therefore alleges that the official is acting in excess of his or her statutory or constitutional authority.

Ultra vires claims are popular in litigation against the current administration. According to one litigation tracker, as of Jan. 20, 2026, of the 577 cases filed against President Trump and his administration since the start of his second term, approximately one-fifth (118 cases) include ultra vires claims. The subjects of these cases raising ultra vires claims range from challenges to recissions of federal grants and federalization of the National Guard to terminations of federal employees and tariffs. In some of these cases, such as the National Guard cases, plaintiffs alternatively bring claims under the Administrative Procedure Act (APA), a statute that permits judicial review of agency action, to argue that the action violates a federal statute, giving courts more options for claims under which they can grant relief. In other cases, such as in California’s tariffs lawsuit, California raised only an ultra vires claim to argue that President Trump’s tariff orders are ultra vires his authority under the International Emergency Economic Powers Act (IEEPA), and did not alternatively raise an APA claim. Whether or not a plaintiff raises, in addition to an ultra vires claim, an APA claim or other claim based on a statutory cause of action often depends on whether such a claim is available given the nature of the challenged action in each case.  

There are two threshold questions that arise when a party raises an ultra vires claim: First, is ultra vires review available in that particular case?  Particularly in constitutional cases, review is usually available unless Congress or the Constitution has conferred complete discretion on the executive official in deciding how to act in the circumstance at issue. Second, assuming ultra vires review is available, what is the correct standard to determine whether the plaintiff will prevail on the ultra vires claim? The standard is settled as to constitutional ultra vires claims: Courts simply ask, as the Supreme Court did in the seminal 1952 case Youngstown Sheet & Tube Company v. Sawyer, whether the challenged action violates the Constitution. For ultra vires claims that an official has acted beyond his or her statutory authority, the standard is contested.

In recent months, the federal government has argued that the standard to prevail on a claim that a government official is acting ultra vires his or her statutory authority is highly demanding. In Trump v. Cook—Federal Reserve Board Governor Lisa Cook’s challenge to President Trump’s decision to remove her, which is set for argument before the Supreme Court on Jan. 21, 2026—the government contends that “[t]o prevail on her ultra vires claim, Cook would need to show that the President ‘has taken action entirely in excess of [his] delegated powers and contrary to a specific prohibition in a statute.’” The government described the standard as a “Hail Mary pass,” quoting the Supreme Court’s decision in Nuclear Regulatory Commission v. Texas (2025), and one that requires “extreme error.”

The government’s position in Cook is not anomalous; it has similarly urged the “Hail Mary” standard for ultra vires claims in other cases, including in a challenge to the president’s executive order excluding certain unions from coverage under the federal statute that protects federal employees’ collective bargaining rights and in its cross motion for summary judgment and opposition to plaintiffs’ motion for summary judgment in a challenge to the $100,000 payment requirement for each new H-1B visa petition employers file.

The government’s argument misses an important distinction. The heightened standard of review the government urges for statutory ultra vires claims applies only where there is a statutory limitation on judicial review and the plaintiff is seeking equitable relief outside of that congressionally-prescribed process. In other words, the heightened standard applies only where there is evidence that Congress intended to limit judicial review of a specific claim. Where there is no statutory limitation on judicial review, the ordinary, default standard that applies to ultra vires claims is simply whether the challenged conduct is authorized by law.

Whether or not the heightened standard applies can determine an ultra vires claim’s fate. The standard matters most where a party is challenging executive action and there is no method for judicial review (“cause of action”) provided in a statute. In such cases, the plaintiff is relying exclusively on an ultra vires claim. The stakes are therefore highest in a case such as Trump v. Cook, where there is no statutory cause of action for Gov. Cook’s claims that President Trump’s decision to remove her violated the Federal Reserve Act. In Cook and other ultra vires cases, it accordingly is imperative to get the standard right.

When the Ordinary Standard Applies

The ordinary, default standard for ultra vires claims—whether the challenged action is authorized by law—applies where there is no statutory limitation on judicial review. This standard is grounded in part in the foundational principle that, as Justice Antonin Scalia wrote for the Supreme Court 10 years ago, federal courts have inherent equitable power to enjoin state and federal officials from violating federal law. This equitable authority, Justice Scalia explained, “reflects a long history of judicial review of illegal executive action, tracing back to England” and “is a judge-made remedy.”  As a result, and as argued by Samuel Bray and Paul Miller, a plaintiff does not need to rely on a cause of action in a statute to ask a court to order a government official to stop violating, or to follow, federal law.

Early cases demonstrate that even without a statutory cause of action, federal courts can, and have, enjoined public officials from acting ultra vires. Early examples involving state officials include Carroll v. Safford (1845), where the Supreme Court held that “in a proper case, relief may be given in a court of equity” to, among other things, “prevent an injurious act by a public officer, for which the law might give no adequate redress,” and Ex Parte Young, a 1908 decision famous primarily for its ruling on state officials’ sovereign immunity but also notable for its reaffirmation of federal courts’ inherent power to enjoin state officials from violating federal law.

The same principle applies with respect to ultra vires acts by federal officials. Perhaps the most-cited example of a federal court enjoining a federal official’s ultra vires conduct, even where there was no statutory cause of action, is American School of Magnetic Healing v. McAnnulty (1902). In McAnnulty, the Supreme Court considered whether the postmaster general’s refusal to provide mail service to a business he deemed fraudulent was “justified by the statutes,” and “if not, whether the complainants have any remedy in the courts.” After determining that the postmaster general’s decision was “not authorized by those statutes,” the Supreme Court instructed the lower courts to grant the plaintiffs’ motion for a temporary injunction to prohibit further withholding of their mail.

The Supreme Court in McAnnulty applied the ordinary, default standard to assess the merits of the plaintiffs’ claim that the postmaster general was acting ultra vires. After affirming that “[t]he acts of all [government] officers must be justified by some law, and in case an official violates the law to the injury of an individual the courts generally have jurisdiction to grant relief,” the question the Court asked was simply whether the statutes authorized the postmaster general to withhold the plaintiffs’ mail in the circumstances in which he did. The Court did not require any showing of “extreme” error.

The Supreme Court continued to apply the ordinary McAnnulty standard in cases such as Philadelphia Co. v. Stimson (1912), where the standard the Court applied to determine whether the secretary of war was acting within the scope of his authority was whether he “exceed[ed] the power which had been conferred.”  Similarly, in Stark v. Wickard (1944), the Court held that “[t]he responsibility of determining the limits of statutory grants of authority . . . is a judicial function entrusted to the courts by Congress by the statutes establishing courts and marking their jurisdiction,” and that on remand, “[t]he trial court is free to consider whether the statutory authority given the Secretary is a valid answer to the petitioners’ contention.”

The same standard applies to ultra vires claims against the president. Take  Dames & Moore v. Regan (1981) as an example. In this case, which was featured prominently during oral argument before the Supreme Court in the pending tariff cases against President Trump, the Supreme Court considered whether—in response to the Iran hostage crisis—President Reagan had authority under IEEPA to nullify attachments and liens on Iranian assets in the United States and direct transfer of those assets to Iran. Once again, the standard the Supreme Court applied to assess petitioners’ claim that the president acted beyond his statutory authority was whether the president’s actions were authorized under IEEPA. Based on the text and history of the statute, the Court concluded they were.

Importantly, in each of these cases, the Supreme Court did not require the plaintiffs to show, as the government is arguing they must in Trump v. Cook and other cases, that the official’s action was “contrary to a specific prohibition in a statute.”  Nor did the Court describe the standard applied in those cases as “highly deferential” to the government or as requiring the plaintiffs to show that the official engaged in “extreme error.” Instead, the inquiry is simple: Was the official’s act justified by law? 

When the Heightened Standard Applies

The heightened standard that the government is currently urging as the default one in fact applies only when Congress has limited judicial review. This heightened standard requires the party bringing the ultra vires claim to show that the challenged action is contrary to a specific prohibition in the statute that is clear and mandatory. It stems from the Supreme Court’s decision in Leedom v. Kyne (1958).

Leedom involved a labor union’s challenge to a decision by the National Labor Relations Board (NLRB) to include both professional and nonprofessional employees in a bargaining unit without holding a vote by the professional employees. The union argued that the NLRB’s action directly conflicted with a requirement in the National Labor Relations Act (NLRA). The NLRA permitted judicial review of a “final order,” but the Supreme Court held previously that the NLRB’s action at issue was not a final order subject to judicial review. The government in Leedom did not dispute that the NLRB’s action violated the NLRA’s requirement, but argued that its judicial review provisions foreclosed the union’s lawsuit.

The Supreme Court in Leedom decided two related but separate issues. First, it held that even though the union plaintiff was proceeding outside the judicial review scheme in the NLRA, the district court could still exercise its equitable powers to review the plaintiff’s claim that the NLRB had exceeded its authority under the NLRA. Second, the Court established a heightened standard for the union plaintiff to succeed on the merits of its ultra vires claim: It could prevail only if the NLRB acted “in excess of its delegated powers and contrary to a specific prohibition in the Act” that was “clear and mandatory.”  This standard was directly tied to the circumstances of this case, in which the union plaintiff sought judicial review separate and apart from the judicial review provisions provided in the statute.

Leedom did not displace the ordinary, default standard used in McAnnulty and its progeny. Instead, it established a narrow exception to the default standard:  The heightened standard in Leedom applies to ultra vires claims only where Congress has confined judicial review to a particular statutory scheme that the plaintiff is not using—like one that the union plaintiff in Leedom could not use because it did not authorize judicial review of the plaintiff’s specific claim. The heightened standard does not apply in the ordinary case where Congress has not limited judicial review.

This principle is illustrated in cases decided around the same time as and after Leedom. For example, in Harmon v. Brucker (1958), decided the same year as Leedom, the Supreme Court reaffirmed that “[g]enerally, judicial relief is available to one who has been injured by an act of a government official which is in excess of his express or implied powers.” In assessing whether the secretary of the army acted ultra vires by issuing other-than-honorable discharge certificates to servicemembers based on their conduct prior to induction, the Court applied the default McAnnulty standard and simply asked whether the statute authorized the secretary to do so. In Harmon, unlike in Leedom, there was no statutory limitation on judicial review. The same is true in other post-Leedom cases where the Supreme Court applied the ordinary McAnnulty standard rather than the heightened Leedom standard, including Train v. City of New York (1975), Federal Energy Administration v. Algonquin SNG, Inc. (1976), and, as discussed above, Dames & Moore v. Regan (1981).  

Meanwhile, the Supreme Court has applied the heightened Leedom standard to ultra vires claims that were similar to the one raised in Leedom, where there was a statutory limitation on judicial review. For instance, in another union challenge to an NLRB decision, Boire v. Greyhound Corporation (1964), the parties agreed that the decision at issue was normally not directly reviewable in court, and so the Supreme Court assessed whether it fell within “the painstakingly delineated procedural boundaries of [Leedom v.] Kyne.”

The most recent example is the Supreme Court’s June 2025 decision in Nuclear Regulatory Commission v. Texas, where a Texas government agency and a private business (the petitioners) challenged the Nuclear Regulatory Commission’s decision to grant a license to an entity to store spent nuclear fuel in a Texas facility. The Hobbs Act, however, limited judicial review of such decisions only to applicants for licenses or those who intervened in the licensing proceeding. Because the petitioners were neither, they could not obtain review under the act. The petitioners accordingly brought ultra vires claims in the alternative, and the Supreme Court applied the heightened Leedom standard to those claims. It did so because the circumstances of the petitioners’ ultra vires claim were similar to those of the claim in Leedom: like the NLRA in Leedom, the Hobbs Act specifically circumscribed judicial review of the decisions at issue and the petitioners were seeking judicial review outside of that statutorily defined process. In his decision for the Court, Justice Brett Kavanaugh reiterated that “a Leedom v. Kyne claim is essentially a Hail Mary pass,” an analogy he first made when he was a judge on the D.C. Circuit, and explained that such a heightened standard is necessary because otherwise “ultra vires review could become an easy end-run around the limitations of the Hobbs Act and other judicial-review statutes.” Where there is no statute circumscribing judicial review, and therefore no possible end-run, this reasoning has no purchase.

The throughline of these Supreme Court precedents is clear: An ultra vires claim does not automatically require the plaintiff to clear a high burden and show that the government official’s action was contrary to a clear and mandatory statutory prohibition. Instead, the default rule is that courts ask simply whether the challenged conduct is authorized by law. The heightened Leedom standard of review for ultra vires claims applies if and only if there is a statutory limitation on judicial review; otherwise, the ordinary McAnnulty standard of review applies.

Looking Ahead: Applying the Right Standard in Current Executive Action Challenges

Federal courts across the country and the Supreme Court have been grappling with ultra vires claims brought by plaintiffs challenging President Trump’s and his administration’s actions. If courts apply the distinction between the McAnnulty standard and the Leedom standard for ultra vires claims and when each one should apply, the next question that arises is:  When is there a statutory limitation on judicial review?

This is a complex question, and one that the justices may ask about during oral argument on Jan. 21 in Trump v. Cook. As my colleagues and I noted in our amicus brief, in order for the heightened Leedom standard to apply to Governor Cook’s ultra vires claim, the Supreme Court would need to hold that the Federal Reserve Act limits judicial review of Governor Cook’s removal. Assuming it does not, the ordinary, default standard under McAnnulty should apply to Gov. Cook’s claim.  

In response to our amicus brief, the government argued that, assuming the heightened Leedom standard applies only if there is a statutory limitation on judicial review, Gov. Cook faces such a statutory limitation—not in the Federal Reserve Act, but in the APA. Specifically, the government argued that “Congress limited judicial review under the APA to agency action, not presidential action.” The APA, however, “do[es] not limit or repeal additional requirements imposed by statute or otherwise recognized by law.” As Jonathan Siegel has explained, “[n]othing in the APA purports to be exclusive or suggests that the creation of APA review was intended to preclude any other applicable form of review.”

Moreover, there is no evidence that Congress’s adoption of the APA to codify and ensure the availability of judicial review for agency action in any way meant to limit courts’ ability to review claims for equitable relief against the president for his actions. Indeed, the Supreme Court’s decision in Youngstown Sheet & Tube Company v. Sawyer (1952) suggests the opposite. In that case, the plaintiff could have, but did not, bring an APA claim against the secretary of commerce’s orders to seize steel mills pursuant to President Harry S. Truman’s Executive Order. The Supreme Court nonetheless reviewed the ultra vires claim against the president and the secretary, and did not apply any heightened standard of review.

The stakes go beyond the likelihood an ultra vires claim will succeed on the merits in any individual case. They concern bedrock principles of the justice system such as the rule of law and separation of powers. The federal judiciary’s role in enforcing limits on the executive branch’s authority dates back to the time of Marbury v. Madison (1803), in which Supreme Court Chief Justice John Marshall exalted the “right of every individual to claim the protection of the laws, whenever he receives an injury” as integral to “the very essence of civil liberty.” 

In this current political moment defined by an unprecedented expansion of executive power, whether and how people can challenge and obtain relief against unlawful executive actions in court is more important than ever.