SUING THE PRESIDENT - NONSTATUTORY REVIEW REVISITED

The Supreme Court recently determined that the President of the United States is not an ''agency'' within the meaning of the Administrative Procedure Act and that his actions are not subject to review under tha t statute. The Court has, moreover, traditionally held that a federal court may not entertain a suit seeking an injunction directed at the P resident. The Court's cases raise the question of whether courts can p rovide any relief for persons injured when the President acts unlawful ly. Professor Siegel answers this question by considering a venerable, but now little-known; method of judicial control over executive actio n, called ''nonstatutory review.'' Courts used this form of suit to re view executive branch behavior long before the APA existed. The nonsta tutory review action avoids the sovereign immunity of the United State s by making the fictional assumption that a suit against a government officer, alleging unlawful official behavior, is not a suit against th e government. Professor Siegel's examination of the history of nonstat utory review reveals that the President, like other federal officials, should be subject to suits concerning his official conduct. It demons trates that the courts have traditionally taken a leading role in the creation, of remedies against unlawful government action; courts need not wait for Congress to create statutory remedies. Finally, the histo ry of nonstatutory review provides an instructive look at the use of f ictions as a method of legal development.