Publication Date

2025

Publication Title

Public Law & Legal Theory

Abstract

This Article examines the contested practice of bypassing agency adjudication to accelerate judicial review of non-final executive action. Parties typically challenge final action under the Administrative Procedure Act (APA). But parties may also seek an injunction or declaratory judgment with respect to a non-final action that violates a statute or the Constitution. Traditionally, such “ultra vires” review required a clearly unlawful action and an inadequate administrative remedy. But modern courts further limit it by applying three judicially developed timing doctrines—exhaustion, ripeness, and Thunder Basin.

This Article explains why the traditional ultra vires model— without the timing doctrines—should govern the bypassing of agency adjudication. Traditional ultra vires review ensures that consequential actions are not shielded from scrutiny and protects plaintiffs against irreparable harm. It simultaneously protects agency discretion by limiting the scope of review and requiring plaintiffs to show the inadequacy of administrative remedies. And the timing doctrines improperly flip the presumption against implied repeals, abdicate the policing of jurisdictional boundaries, and force plaintiffs to rely on inadequate remedies.

More broadly, this Article challenges the scholarly consensus that the APA-style appellate model of judicial review has replaced the older ultra vires model. Ultra vires review ensures review in an important set of cases. And that model of review rests on a different analogy for the relationship between courts and agency adjudicators. Rather than having only a trial-appellate relationship, courts and agency adjudicators also relate to each other as separate court systems in ultra vires cases.

Number

25-40

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