Trump v. Cook – Protecting the Rule of Law and Separation of Powers by Urging the Supreme Court to Apply the Correct Standard for Claims that the Government is Acting Without Legal Authority

In August 2025, President Trump removed Governor Lisa Cook from the Federal Reserve’s Board of Governors based on his determination that he had cause to do so. Governor Cook sued, arguing that the President’s decision to remove her violated her due process rights and was ultra vires (in excess of) the authority Congress granted the President because it was not “for cause” as required by the Federal Reserve Act. After the lower courts granted Governor Cook’s request for an injunction to prevent her removal, the government filed an application in the Supreme Court to stay (pause) the injunction. The government made two arguments in its stay application in response to Governor Cook’s ultra vires claim: first, that President Trump’s decision to remove Governor Cook is unreviewable in court because the determination of cause is committed to the President’s unreviewable discretion, and second, that even if a court could review President Trump’s decision, Governor Cook would face a demanding standard—a “Hail Mary pass”—to win on her claim. Specifically, the government argued that to prevail on her ultra vires claim, Governor Cook would need to show that that the President’s action was contrary to a specific prohibition in a statute, rather than simply that the President’s action was unauthorized by the statute.

Together with the National ACLU and The Rutherford Institute, we filed an amicus brief in support of neither party to refute the government’s argument that such a demanding standard applies. We argue that the standard that the government proposes is a narrow exception to the default standard for ultra vires claims. Under the default standard, a plaintiff bringing an ultra vires claim is not required to show that a government official’s action was contrary to a specific prohibition in a statute. Instead, the plaintiff only needs to show that the official’s action was unauthorized by law. This default standard is over a century old and well-established in the Supreme Court’s precedents. By contrast, the demanding standard the government proposes for ultra vires claims should apply only where Congress has limited judicial review.

The standard courts apply to ultra vires claims is important because it can determine whether the party challenging unlawful executive action will win or lose its claim. Under the government’s position, any time a party alleges that a government official is acting without legal authority and there is no private right of action in a statute, the party would need to satisfy the heightened “Hail Mary” standard, making it highly unlikely it will win. Such a rule would undermine rule of law and separation of powers principles and improperly hamper courts’ ability to review executive action for compliance with federal law. We therefore urged the Supreme Court in our amicus brief to apply the heightened standard the government proposes to Governor Cook’s ultra vires claim only if the Federal Reserve Act limits judicial review.

The Supreme Court heard oral argument in this case on January 21, 2026.

On June 29, 2026, the Supreme Court denied the government’s application in a 5-4 decision. The Court did not accept the government’s argument that the heightened standard applies to Governor Cook’s ultra vires claim. It instead applied the ordinary, default standard described above and in our amicus brief—whether the challenged action was authorized by law—to hold that President Trump failed to provide Governor Cook the procedural protections required by statute. Two Justices wrote concurring opinions, and four Justices dissented. Justice Thomas in his dissent listed the requirements of the heightened standard for ultra vires claims and noted that “[t]he Court also waives these requirements for Cook,” confirming that the majority did not apply the demanding standard for which the government advocated. The majority also rejected Justice Thomas’s objection to the lack of a statutory cause of action, noting that “[w]e have often held that plaintiffs may sue ‘in equity’ without a congressionally-provided cause of action ‘to prevent an injurious act by a public officer.’” Op. n.2 (quoting Armstrong v. Exceptional Child Center, Inc., 575 U. S. 320, 327 (2015)).