Dispatch: Move Fast and Break Things and Nobody Has Standing

The walls of Courtroom 31 of the U.S. Court of Appeals for the D.C. Circuit are lined with the portraits of 24 past judges; flanking the bench is a relief bronze bust of an even more impartial arbiter, Lady Justice herself. The environment feels fitting for a case that is about not only history and historic places, but also how the courts shape both.

It’s June 5, so summer interns stuff the gallery. They have a less lofty take on the portraits: “They look really old,” a young man behind me remarks.

Those of us sitting under former Chief Justice Warren E. Burger’s steely gaze are about to hear oral argument on President Trump’s ongoing attempt to build a ballroom on the site of White House’s erstwhile East Wing.

The case started in the U.S. District Court for the District of Columbia, where Judge Richard Leon initially rejected the National Trust for Historic Preservation’s request for a preliminary injunction barring construction on the grounds that the government’s actions were not reviewable under the Administrative Procedure Act, because the White House residence isn’t an executive agency. The National Trust revised its complaint to add ultra vires claims asserting that no statute allows the government to overcome a prohibition in 40 U.S.C. § 8106 on construction on federal property in D.C. without “express authority” from Congress. The Justice Department countered that such authority could be found in two places: 3 U.S.C. § 105(d), a provision related to upkeep of the White House, and the National Park Service Organic Act of 1916.

Judge Leon then granted the preliminary injunction—while allowing any construction “strictly necessary to ensure the safety and security of the White House and its grounds” to continue pending appeal. The same D.C. Circuit panel considering the case today remanded it to Judge Leon to clarify the scope of his injunction, who rejected the government’s view that his ruling actually allowed it to “proceed with construction of the East Wing project as scheduled because the entire project advances critical national-security objectives as an integrated whole”---and reemphasized that above-ground construction must cease until Congress has approved it.

Now, the case is back with the D.C. Circuit, where the government is requesting that the court stay or reverse Judge Leon’s order. The proceedings that follow are simultaneously more like and more unlike your typical litigation than those following the matter might have expected.

More like, because the lawyer presenting for the government sounds like a lawyer and not the president on a Truth Social spree, though the signature rhetorical flourishes of the latter appeared in the Justice Department’s most recent filings. Less like, because what this lawyer is saying is that neither these judges nor any can stop the administration from building what it wants to build once that it has started building them. Not now, not ever.

Bulldozing the Statue of Liberty

The government’s case for Judges Patricia Millet, Neomi Rao, and Bradley Garcia begins with standing (or “STANDING!”, as President Trump’s tweets and those recent filings prefer to put it).

An attorney for the government, Yaakov Roth, begins by characterizing the injury the plaintiff is relying on as a “classic generalized grievance”: The history and historic preservation professor and National Trust member Alison Hoagland has indicated that she intends to continue strolling through Lafayette Square for her personal and professional enjoyment, and she “thinks she will not like how it looks” with the planned ballroom erected. (Trump previously called Hoagland “a woman walking her dog.”)

This, says Roth, isn’t a sufficiently particularized injury to satisfy Article III’s standards. If the National Trust gets their way, Roth argues, anyone who doesn’t like a government message that has a physical manifestation can go ahead and file a lawsuit simply because they’re upset. He claims that the historian’s research or other work isn’t impeded by the existence of the massive event space. She’s not, he explains, an insect specialist whose beetle of interest will be eliminated from a particular environment should a project be allowed to go forward. Her interaction with the ballroom is merely incidental—even self-inflicted. Whatever happens, she can still look at the White House; she simply might not enjoy it as much. She can even choose to view the building from a different vantage point to avoid seeing the ballroom at all.

Judge Millett takes issue with this last point: “She wants to see the White House complex in a way that perpetuates its architectural design of modesty and simplicity.” Is the government basically saying, “Hold your hand like this while you look at it, and you’ll be good?” Is it suggesting visitors should seek out odd, obscure, narrow angles from which a 90,000-square-foot structure becomes invisible by optical illusion?

And what if the White House were gone, Judge Millett wants to know? Say an administration decides that safety and security demand an entirely new edifice: a skyscraper constructed of high-grade glass to protect the president and his family. Would a descendant of a slave whose ancestor helped construct the original White House—who wanted to walk by to contemplate his personal connection to that sacrifice—be able to sue?

Not, says Roth, if the destruction of the original White House had already occurred. “So move fast and break things and nobody has standing?” asks Judge Millett. Roth wants to “push back a little bit” that the plaintiffs had plenty of opportunity to sue over the previous summer when the ballroom was initially announced (even though, as Judge Millett stresses, they were led to believe there would be a public input process before any demolition occurred). And after the demolition, no visual injury like the one allegedly suffered by Hoagland—the symmetry of the old structure is gone; the new structure would introduce greater imbalance—is cognizable.

Bulldoze the Statute of Liberty, the judge continues, and as long as the government does it fast enough, too bad, nothing to be done? “I think that’s right,” says Roth.

On this alarming note, the argument moves on to the merits.

Express Authority

The judges allotted each side 15 minutes of time. But already, the discussion of standing has consumed more than 20. The simplest version of the rather convoluted argument the Justice Department makes for the Office of the Executive Residence to construct an elaborate ballroom on the White House grounds using donations to the National Park Service (NPS) as funding is the following.

The statute 40 U.S.C. § 8106 requires “express authority of Congress” for any building or structure to “be erected on any reservation, park, or public grounds of the Federal Government in the District of Columbia.” The Justice Department tells the court that this authority exists, in two places—because the White House has two roles as the executive residence and as a national park.

The first place is 3 U.S.C. § 105(d), a statute that authorizes the appropriation to the president every fiscal year of funds necessary for, among other things, “the care, maintenance, repair, alteration, refurnishing, improvement, air-conditioning, heating, and lighting (including electric power and fixtures) of the Executive Residence at the White House.” The second is the National Park Service Organic Act of 1916, which provides that the NPS “shall promote and regulate the use of the Federal areas known as national parks.”

“Promote,” Roth says, is all the express authority NPS needs. Indeed, NPS puts up comfort stations for tourists roaming the National Mall without Congress blessing every restroom one by one. Judge Garcia notes that this is a practice-based argument, not a textual argument—and that the Organic Act may well provide implicit authority for this type of construction, but not express authority. Roth cites a man named Major Grant to show that the statute was understood as express authority at the time of its writing. But Judge Millett hardly seems to find dispositive the words of an individual, speaking ten or so years after the Organic Act was passed, who would have been constrained by the statute if not for his own generous reading.

Judge Rao makes the matter even more technical. She points out that NPS is actually exercising its authority under the Organic Act through the Economy Act—allowing it effectively to deputize the Office of the Executive Residence to carry out the project. She wants to know what enables NPS to do that: So long as there’s no prohibition on the Executive Residence doing that sort of work, is the practical ability to complete the job all that’s required? Or does the Executive Residence need affirmative authority of its own to take on this role?

Judge Millett has a few questions, too. Most notably, she wants to know why or how the Justice Department has conveniently transformed the Executive Residence into an agency for the purposes of the Economy Act despite insisting it wasn’t an agency for the purposes of the Administrative Procedure Act—a characterization on whose partial basis Judge Leon rejected the National Trust’s initial challenge.

Roth, citing the Red Book—what the GAO describes as a “multi-volume treatise concerning federal fiscal law”—argues that NPS can put the Executive Residence in charge as long as it arrives at a finding that doing so is efficient. To bolster his reading of the Organic Act more broadly, he cites the construction of the White House pool in the 1970s, and the concomitant Office of Legal Counsel opinion that the Organic Act unlocked the donation authority necessary to give Gerald Ford a place to swim. By the way, Roth says, the National Trust was only arguing that NPS couldn’t build “this particular thing” (a giant gilded ballroom at the White House)—not that NPS didn’t have construction authority generally. The District Court made that “mistake” on its own initiative.

The discussion moves on to the other authority the Justice Department cites for the ballroom initiative: 3 U.S.C. § 105(d). As Judge Millett puts it, “You need to have an authorization somewhere.” Authorization under the Organic Act would be sufficient to allow the government to build the ballroom. But if the court finds that the Organic Act doesn’t provide express authority, or that the Economy Act doesn’t permit the Executive Residence to take charge of the project without affirmative authority of its own, the government contends it can still point to 105(d) as authorization build the ballroom—and it can still use the NPS gift fund to do it.

The reasoning here is sufficiently complicated (or convoluted) to require an extended colloquy among the attorney and all three judges. The upshot: The government’s claim is that the authorization that § 105(d) provides for work on the White House (including “improvement”) can be separated from the appropriations Congress actually makes under that statute. That means it doesn’t matter that recent years’ appropriations were for even narrower purpose than the statute provides, not including “improvement” at all. And it also means an agency renovating the White House doesn’t have to rely on § 105(d) funding at all. It can draw on funding from any source—say, the NPS donation stream—and still point to § 105(d).

The merits conversation ends there, not because the judges are necessarily satisfied but because over an hour has elapsed, and the government had only 15 minutes to begin with.

Fait Accompli

Weighing the equities, Roth argues as Lady Justice and her scales look on, is easy.

The balance is “so lopsided” in the government’s favor that to grant relief would constitute an “abuse of discretion” by the court. There’s a single “person’s architectural preference” on the one hand (he has the grace not to mention “a woman walking her dog”), and on the other hand the safety and security of the president of the United States.

Roth says that the “compromise” the district court has mandated—permitting below-ground construction of “top-secret excavations, bunkers, bomb-shelters, protective partitioning, military installations, and hospital and medical facilities” while stalling above-ground construction apart from what is “strictly necessary to cover, secure, and protect” —is “unworkable.” Indeed, he doesn’t even know what it means to put something on top as long as it isn’t a ballroom, given the entire project—from the below-ground bunker to the above-ground roof equipped with drone ports—was designed with this protection in mind.

Judge Rao notes that the National Trust has made “a lot of hay” of what they allege has been the government’s constantly shifting position on this point, to which Roth eagerly answers that the Justice Department’s representations have been taken out of context. Judge Millett makes some hay of her own, quoting the government back at itself: They said in briefs to the District Court that the work underneath wouldn’t dictate the structure on top, and now it’s doing just that.

“You’ve got to own what your attorney said,” she insists—and Roth does admit to the possibility that the word dictate was used, after all, but claims it was clear what was and wasn’t alterable.

Judge Millett notes that it wasn’t clear to the district court.

Judges take attorneys’ word very seriously, she says, from the government most of all. They also take the district court very seriously, and they’re not going to question Judge Leon on supposedly misunderstanding what the Justice Department lawyers said.

A similar exchange follows on the subject of who was purportedly directing the project, NPS or the Office of the Executive Residence. The distinction was relevant because it bore on the availability of APA review. “I apologize if it was imprecise language,” Roth concedes.

Already, the conversation has shown the tenuous state of the relationship between the Trump administration and the courts. But the conclusion speaks even more loudly.

“Just imagine that you get the stay that you’ve requested, or even the PI is overturned on the arguments you have,” Judge Millett asks, “and then the government loses on the merits but it’s a year, year-and-a-half, from now. Would the government’s view be that, okay, we can take it down? Or would it, for the same safety and security reasons, be we can’t take it down?”

The latter.

“So your position is this can’t be stopped by a court?” she asks.

“We’re arguing that it would be an abuse of discretion for a court to stop it,” Roth answers.

“That court, this court, the Supreme Court, no court could stop the building of this?”

That is the government’s position.

“When did it become a fait accompli?” asks Judge Millett.

On Day One.

“If this were complete lawlessness by the government,” she wants to know, “it couldn’t be stopped?”

Yes. Even if the ballroom construction were complete lawlessness by the government, only Congress—not the courts—would have any independent role in stopping it.

New World, Same Constitution

The National Trust’s presentation invites less drama. However, its attorney, Tad Heuer, does begin with a bit of grandeur: Marbury v. Madison, he intones, tells us that it is “emphatically the province of the judicial department to say what the law is.”

The rest of his argument depends on the fundamental point that the Constitution gives Congress plenary authority over federal property. The Justice Department’s interpretations of § 105(d) and the National Park Service Organic Act aren’t persuasive—and if they had been, it wouldn’t have taken more than five times the allotted 15 minutes to parse them.

Judge Rao doesn’t find the reliance on fundamental points and foundational precedent so impressive. She characterizes Heuer’s arguments so far as generalities and pushes for specifics, particularly on standing and germaneness. Heuer explains that Hoagland’s injury is sufficiently particularized because she is using the President’s Park for precisely what the National Park Service said it was for in creating it: to engage in discourse about what it means to be American. This is the equivalent of traveling to Yellowstone to look at Old Faithful.

As far as germaneness—required for the Trust to show it has associational standing—Heuer suggests that the Supreme Court has determined the standard need not to be particularly demanding. But Judge Rao protests that, while this is true for private entities, the National Trust has a purpose and power set by statute. This invites a treatment of which statute precisely the court should be examining: 54 U.S. Code §§ 312101-106, according to the Trust, because the White House is exempt from the National Historic Preservation Act of 1966. That title chartered the National Trust in 1949 “to facilitate public participation in the preservation of sites, buildings, and objects of national significance or interest,” pursuant to the Historic Sites Act of 1935.

The question, which Judge Garcia appears interested in answering as well, is whether this clause is more than oratory. The purposes clause of the statute enables the National Trust to “receive donations of sites, buildings, and objects significant in American history and culture” and preserve and administer those—but the President’s Park isn’t one of the Trust’s holdings.

The discussion of the merits is almost a mirror of the government’s presentation. Section 105(d), says Heuer, doesn’t authorize the president to do anything at all. On the contrary, it sets bounds for what Congress may appropriate funds for, and when Congress appropriates them the president may only utilize those funds for activities within those bounds—not as “a roving construction authority.” Historically, when Calvin Coolidge wanted to build a new roof or when Harry Truman discovered his bathtub was sinking and his daughter’s piano was going through the floor, Congress stepped in and used its property clause authority to provide a separate capital appropriation, beyond the maintenance allowance. Altering a bathroom, in other words, is different from building a ballroom.

Judge Rao says that Congress also provided gift authority in the Organic Act, and historically that, too, has been used for fixing up things in the White House. Heuer responds that those steps are only permissible if the National Park Service has authority to take them (or to vest the Executive Residence with authority to take them in its stead)—but the Organic Act authority isn’t express, it’s only implied. The White House can’t just take donation funds and deposit them, as it were, in a Section 105(d) account while acting as if Congress has appropriated them under that authority.

Judge Rao is skeptical: “How does the ballroom not promote the use of the President’s Park?”

Judge Garcia homes in on history again. What about the argument of practice? The construction of the White House tennis pavilion, for instance, was permitted. Heuer says that Section 106 has a clear statutory command requiring express authority, and that a clear command can’t yield to prior practice. No one challenged the White House pool or tennis pavilion, maybe because the “juice wasn’t worth the squeeze.” But that’s like saying a cop can’t pull you over for going 57 in a 55 zone because you always go 57, and no one has pulled you over before.

Judge Rao moves on to the equities—placing national security on one side of the scale and aesthetic concerns on the other, as the government did. “Does the Trust question those national security concerns? I mean, I don’t know on what basis it would.”

Do they question the bunker? No, says Heuer, we never opposed the bunker. Do they question the drone port on the roof? Well, yes, he responds. The District Court reviewed the classified documents in camera and concluded there was no national security requirement for the ballroom. The government can continue below ground construction. The only thing they can’t do is build a ballroom on top.

Judge Rao invokes the presumption of regularity in a rather different manner than Judge Millett did some half an hour ago: We afford the government the presumption of regularity in many matters, she says, national security more than most.

Heuer says aesthetic concerns are relevant to standing, but when it comes to the equities there’s something bigger at play: Congress’s role in overseeing federal property. Does national security supersede Congress’s plenary authority under the Constitution’s property clause? Youngstown, the consummate separation of powers case, would say no. Congress’s legitimate power can’t be usurped by the executive. (Another broad argument, Judge Rao notes with some apparent scorn.)

Before the government’s brief rebuttal, the National Trust refers to a Supreme Court decision that would seem to have nothing to do with the construction of a 90,000-square-foot ballroom on White House grounds: Trump v. CASA, the birthright citizenship case. The connection? There, too, the government cried “national security” to try to convince the justices not to meddle with its agenda.

“You do agree that that has no impact on the legal analysis before us?” Chief Justice Roberts asked at the time. “It’s a new world. It’s the same Constitution.”