{"id":148,"date":"2026-06-08T18:41:31","date_gmt":"2026-06-08T18:41:31","guid":{"rendered":"https:\/\/nationalconsumerreportss.com\/?p=148"},"modified":"2026-06-08T18:41:31","modified_gmt":"2026-06-08T18:41:31","slug":"dispatch-move-fast-and-break-things-and-nobody-has-standing","status":"publish","type":"post","link":"https:\/\/nationalconsumerreportss.com\/?p=148","title":{"rendered":"Dispatch: Move Fast and Break Things and Nobody Has Standing"},"content":{"rendered":"
\n

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.<\/p>\n

Read more What Congressional Resolutions Mean for the War in Iran<\/a><\/p>\n

It\u2019s June 5, so summer interns stuff the gallery. They have a less lofty take on the portraits: \u201cThey look really old,\u201d a young man behind me remarks.<\/p>\n

Those of us sitting under former Chief Justice Warren E. Burger\u2019s steely gaze are about to hear oral argument on President Trump\u2019s ongoing attempt to build a ballroom on the site of White House\u2019s erstwhile East Wing. <\/p>\n

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\u2019s request for a preliminary injunction barring construction on the grounds that the government\u2019s actions were not reviewable under the Administrative Procedure Act, because the White House residence isn\u2019t an executive agency. The National Trust revised its complaint to add ultra vires <\/em>claims asserting that no statute allows the government to overcome a prohibition in 40 U.S.C. \u00a7 8106 on construction on federal property in D.C. without \u201cexpress authority\u201d from Congress. The Justice Department countered that such authority could be found in two places: 3 U.S.C. \u00a7 105(d), a provision related to upkeep of the White House, and the National Park Service Organic Act of 1916. <\/p>\n

Judge Leon then granted the preliminary injunction\u2014while allowing any construction \u201cstrictly necessary to ensure the safety and security of the White House and its grounds\u201d 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\u2019s view that his ruling actually allowed it to \u201cproceed with construction of the East Wing project as scheduled because the entire project advances critical national-security objectives as an integrated whole\u201d—and reemphasized that above-ground construction must cease until Congress has approved it.<\/p>\n

Now, the case is back with the D.C. Circuit, where the government is requesting that the court stay or reverse Judge Leon\u2019s order. The proceedings that follow are simultaneously more like and more unlike your typical litigation than those following the matter might have expected. <\/p>\n

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\u2019s most recent filings. Less like, because what this lawyer is saying<\/em> 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.<\/p>\n

Bulldozing the Statue of Liberty<\/strong><\/p>\n

The government\u2019s case for Judges Patricia Millet, Neomi Rao, and Bradley Garcia begins with standing (or \u201cSTANDING!\u201d, as President Trump\u2019s tweets and those recent filings prefer to put it). <\/p>\n

An attorney for the government, Yaakov Roth, begins by characterizing the injury the plaintiff is relying on as a \u201cclassic generalized grievance\u201d: 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 \u201cthinks she will not like how it looks\u201d with the planned ballroom erected. (Trump previously called Hoagland \u201ca woman walking her dog.\u201d)<\/p>\n

This, says Roth, isn\u2019t a sufficiently particularized injury to satisfy Article III\u2019s standards. If the National Trust gets their way, Roth argues, anyone who doesn\u2019t like a government message that has a physical manifestation can go ahead and file a lawsuit simply because they\u2019re upset. He claims that the historian\u2019s research or other work isn\u2019t impeded by the existence of the massive event space. She\u2019s 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\u2014even 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. <\/p>\n

Judge Millett takes issue with this last point: \u201cShe wants to see the White House complex in a way that perpetuates its architectural design of modesty and simplicity.\u201d Is the government basically saying, \u201cHold your hand like this while you look at it, and you\u2019ll be good?\u201d Is it suggesting visitors should seek out odd, obscure, narrow angles from which a 90,000-square-foot structure becomes invisible by optical illusion? <\/p>\n

And what if the White House were <\/em>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\u2014who wanted to walk by to contemplate his personal connection to that sacrifice\u2014be able to sue?<\/p>\n

Not, says Roth, if the destruction of the original White House had already occurred. \u201cSo move fast and break things and nobody has standing?\u201d asks Judge Millett. Roth wants to \u201cpush back a little bit\u201d 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\u2014the symmetry of the old structure is gone; the new structure would introduce greater imbalance\u2014is cognizable.<\/p>\n

Bulldoze the Statute of Liberty, the judge continues, and as long as the government does it fast enough, too bad, nothing to be done? \u201cI think that\u2019s right,\u201d says Roth.<\/p>\n

On this alarming note, the argument moves on to the merits.<\/p>\n

Express Authority<\/strong><\/p>\n

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.<\/p>\n

The statute 40 U.S.C. \u00a7 8106 requires \u201cexpress authority of Congress\u201d for any building or structure to \u201cbe erected on any reservation, park, or public grounds of the Federal Government in the District of Columbia.\u201d The Justice Department tells the court that this authority exists, in two places\u2014because the White House has two roles as the executive residence and as a national park. <\/p>\n

The first place is 3 U.S.C. \u00a7 105(d), a statute that authorizes the appropriation to the president every fiscal year of funds necessary for, among other things, \u201cthe care, maintenance, repair, alteration, refurnishing, improvement, air-conditioning, heating, and lighting (including electric power and fixtures) of the Executive Residence at the White House.\u201d The second is the National Park Service Organic Act of 1916, which provides that the NPS \u201cshall promote and regulate the use of the Federal areas known as national parks.\u201d<\/p>\n

\u201cPromote,\u201d 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\u2014and 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.<\/p>\n

Judge Rao makes the matter even more technical. She points out that NPS is actually exercising its authority under the Organic Act through <\/em>the Economy Act\u2014allowing 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\u2019s no prohibition on the Executive Residence doing that sort of work, is the practical ability to complete the job all that\u2019s required? Or does the Executive Residence need affirmative authority of its own to take on this role? <\/p>\n

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\u2019t <\/em>an agency for the purposes of the Administrative Procedure Act\u2014a characterization on whose partial basis Judge Leon rejected the National Trust\u2019s initial challenge.<\/p>\n

Roth, citing the Red Book\u2014what the GAO describes as a \u201cmulti-volume treatise concerning federal fiscal law\u201d\u2014argues 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\u2019t build \u201cthis particular thing\u201d (a giant gilded ballroom at the White House)\u2014not that NPS didn\u2019t have construction authority generally. The District Court made that \u201cmistake\u201d on its own initiative. <\/p>\n

The discussion moves on to the other authority the Justice Department cites for the ballroom initiative: 3 U.S.C. \u00a7 105(d). As Judge Millett puts it, \u201cYou need to have an authorization somewhere.\u201d 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\u2019t <\/em>provide express authority, or that the Economy Act doesn\u2019t 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\u2014and it can still use the NPS gift fund to do it. <\/p>\n

The reasoning here is sufficiently complicated (or convoluted) to require an extended colloquy among the attorney and all three judges. The upshot: The government\u2019s claim is that the authorization that \u00a7 105(d) provides for work on the White House (including \u201cimprovement\u201d) can be separated from the appropriations Congress actually makes under that statute. That means it doesn\u2019t matter that recent years\u2019 appropriations were for even narrower purpose than the statute provides, not including \u201cimprovement\u201d at all. And it also means an agency renovating the White House doesn\u2019t have to rely on \u00a7 105(d) funding at all. It can draw on funding from any source\u2014say, the NPS donation stream\u2014and still point to \u00a7 105(d).<\/p>\n

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.<\/p>\n

Fait Accompli<\/strong><\/p>\n

Weighing the equities, Roth argues as Lady Justice and her scales look on, is easy. <\/p>\n

The balance is \u201cso lopsided\u201d in the government\u2019s favor that to grant relief would constitute an \u201cabuse of discretion\u201d by the court. There\u2019s a single \u201cperson\u2019s architectural preference\u201d on the one hand (he has the grace not to mention \u201ca woman walking her dog\u201d), and on the other hand the safety and security of the president of the United States. <\/p>\n

Roth says that the \u201ccompromise\u201d the district court has mandated\u2014permitting below-ground construction of \u201ctop-secret excavations, bunkers, bomb-shelters, protective partitioning, military installations, and hospital and medical facilities\u201d while stalling above-ground construction apart from what is \u201cstrictly necessary to cover, secure, and protect\u201d \u2014is \u201cunworkable.\u201d Indeed, he doesn\u2019t even know what it means to put something on top as long as it isn\u2019t a ballroom, given the entire project\u2014from the below-ground bunker to the above-ground roof equipped with drone ports\u2014was designed with this protection in mind.<\/p>\n

Read more Beyond Glasswing: From Managing to Promoting Access<\/a><\/p>\n

Judge Rao notes that the National Trust has made \u201ca lot of hay\u201d of what they allege has been the government\u2019s constantly shifting position on this point, to which Roth eagerly answers that the Justice Department\u2019s 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\u2019t dictate the structure on top, and now it\u2019s doing just that.<\/p>\n

\u201cYou\u2019ve got to own what your attorney said,\u201d she insists\u2014and Roth does admit to the possibility that the word dictate was used, after all, but claims it was clear what was and wasn\u2019t alterable.<\/p>\n

Judge Millett notes that it wasn\u2019t clear to the district court. <\/p>\n

Judges take attorneys\u2019 word very seriously, she says, from the government most of all. They also take the district court very seriously, and they\u2019re not going to question Judge Leon on supposedly misunderstanding what the Justice Department lawyers said. <\/p>\n

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. \u201cI apologize if it was imprecise language,\u201d Roth concedes.<\/p>\n

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.<\/p>\n

\u201cJust imagine that you get the stay that you\u2019ve requested, or even the PI is overturned on the arguments you have,\u201d Judge Millett asks, \u201cand then the government loses on the merits but it\u2019s a year, year-and-a-half, from now. Would the government\u2019s view be that, okay, we can take it down? Or would it, for the same safety and security reasons, be we can\u2019t take it down?\u201d<\/p>\n

The latter.<\/p>\n

\u201cSo your position is this can\u2019t be stopped by a court?\u201d she asks.<\/p>\n

\u201cWe\u2019re arguing that it would be an abuse of discretion for a court to stop it,\u201d Roth answers.<\/p>\n

\u201cThat court, this court, the Supreme Court, no court could stop the building of this?\u201d <\/p>\n

That is the government\u2019s position. <\/p>\n

\u201cWhen did it become a fait accompli?\u201d asks Judge Millett.<\/p>\n

On Day One.<\/p>\n

\u201cIf this were complete lawlessness by the government,\u201d she wants to know, \u201cit couldn\u2019t be stopped?\u201d<\/p>\n

Yes. Even if the ballroom construction were complete lawlessness by the government, only Congress\u2014not the courts\u2014would have any independent role in stopping it.<\/p>\n

New World, Same Constitution<\/strong><\/p>\n

The National Trust\u2019s presentation invites less drama. However, its attorney, Tad Heuer, does begin with a bit of grandeur: Marbury v. Madison<\/em>, he intones, tells us that it is \u201cemphatically the province of the judicial department to say what the law is.\u201d<\/p>\n

The rest of his argument depends on the fundamental point that the Constitution gives Congress plenary authority over federal property. The Justice Department\u2019s interpretations of \u00a7 105(d) and the National Park Service Organic Act aren\u2019t persuasive\u2014and if they had been, it wouldn\u2019t have taken more than five times the allotted 15 minutes to parse them.<\/p>\n

Judge Rao doesn\u2019t find the reliance on fundamental points and foundational precedent so impressive. She characterizes Heuer\u2019s arguments so far as generalities and pushes for specifics, particularly on standing and germaneness. Heuer explains that Hoagland\u2019s injury is sufficiently particularized because she is using the President\u2019s 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.<\/p>\n

As far as germaneness\u2014required for the Trust to show it has associational standing\u2014Heuer 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 \u00a7\u00a7 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 \u201cto facilitate public participation in the preservation of sites, buildings, and objects of national significance or interest,\u201d pursuant to the Historic Sites Act of 1935.<\/p>\n

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 \u201creceive donations of sites, buildings, and objects significant in American history and culture\u201d and preserve and administer those\u2014but the President\u2019s Park isn\u2019t one of the Trust\u2019s holdings.<\/p>\n

The discussion of the merits is almost a mirror of the government\u2019s presentation. Section 105(d), says Heuer, doesn\u2019t 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\u2014not as \u201ca roving construction authority.\u201d Historically, when Calvin Coolidge wanted to build a new roof or when Harry Truman discovered his bathtub was sinking and his daughter\u2019s 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.<\/p>\n

Judge Rao says that Congress also provided gift authority in the Organic Act, and historically that<\/em>, 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)\u2014but the Organic Act authority isn\u2019t express, it\u2019s only implied. The White House can\u2019t 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.<\/p>\n

Judge Rao is skeptical: \u201cHow does the ballroom not <\/em>promote the use of the President\u2019s Park?\u201d<\/p>\n

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\u2019t yield to prior practice. No one challenged the White House pool or tennis pavilion, maybe because the \u201cjuice wasn\u2019t worth the squeeze.\u201d But that\u2019s like saying a cop can\u2019t pull you over for going 57 in a 55 zone because you always go 57, and no one has pulled you over before.<\/p>\n

Judge Rao moves on to the equities\u2014placing national security on one side of the scale and aesthetic concerns on the other, as the government did. \u201cDoes the Trust question those national security concerns? I mean, I don\u2019t know on what basis it would.\u201d<\/p>\n

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\u2019t do is build a ballroom on top.<\/p>\n

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.<\/p>\n

Heuer says aesthetic concerns are relevant to standing, but when it comes to the equities there\u2019s something bigger at play: Congress\u2019s role in overseeing federal property. Does national security supersede Congress\u2019s plenary authority under the Constitution\u2019s property clause? Youngstown<\/em>, the consummate separation of powers case, would say no. Congress\u2019s legitimate power can\u2019t be usurped by the executive. (Another broad argument, Judge Rao notes with some apparent scorn.)<\/p>\n

Before the government\u2019s 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<\/em>, the birthright citizenship case. The connection? There, too, the government cried \u201cnational security\u201d to try to convince the justices not to meddle with its agenda. <\/p>\n

\u201cYou do agree that that has no impact on the legal analysis before us?\u201d Chief Justice Roberts asked at the time. \u201cIt\u2019s a new world. It\u2019s the same Constitution.\u201d<\/p>\n

Read more Lawfare Daily: The Trials of the Trump Administration, June 5<\/a><\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

No court can stop President Trump\u2019s ballroom, the government says in National Trust for Historic Preservation v. 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