The Supreme Court Is Letting Trump Get His White House Ballroom on a Technicality
Slate · L · trust 57/100
On Monday, the Supreme Court allowed the Trump administration to keep building its new White House ballroom, even as four justices concluded that the project itself is likely unlawful.
The lineup was striking. Chief Justice John Roberts joined the court’s three liberal justices, Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson, in dissent. Roberts wrote for the group and accused the majority of allowing a likely infringement of Congress’ constitutional authority to continue because it had drawn the rules governing who may sue in federal court too narrowly.
The dispute arises from one of President Donald Trump’s more characteristically grand building projects, a new White House ballroom that has become part of his broader effort to leave a physical imprint on Washington. Trump has taken a personal interest in the project, which the White House has promoted as a long-needed addition to a building that lacks sufficient space for large official and ceremonial functions. The administration demolished the old East Wing last year and began replacing it with a new structure that includes an underground military installation and an aboveground ballroom.
The project, now estimated to cost roughly $400 million, is supposedly being financed through private donations rather than a congressional appropriation. Private donors can pick up the tab. They cannot necessarily take Congress out of the equation. Federal law requires express congressional authority to erect a building or structure on federal parks and public grounds in Washington. The ballroom is being built on President’s Park, and Congress never expressly approved it.
The National Trust for Historic Preservation sued to challenge the project. In March, a federal district judge granted the trust a preliminary injunction, temporarily restricting the ballroom construction from proceeding while the litigation continued. The function of that relief is unusually tangible here. The challenged conduct is the construction itself, and every additional stage of building changes the facts on the ground while the courts decide whether the project was lawfully authorized in the first place. A ruling months later that the government lacked authority to build the ballroom would come in a very different posture if hundreds of millions of dollars had already been spent and the structure were substantially completed or standing. The injunction therefore sought to preserve the court’s ability to provide meaningful relief before the construction became, as a practical matter, increasingly difficult and costly to unwind.
Importantly here, though, the injunction largely halted further aboveground construction of the ballroom while allowing work on the underground military facility to continue. The government appealed, and the U.S. Court of Appeals for the D.C. Circuit initially put the injunction on hold while it considered the appeal. But on Aug. 7, the appeals court upheld the injunction and announced that its temporary stay would expire on Aug. 21. At that point, the restrictions imposed by the district court were about to take effect again. That is what brought the government to the Supreme Court.
The administration has not yet filed its petition for a writ of certiorari asking the Supreme Court to take the case for a full merits review. Instead, it asked the justices for a stay pending that forthcoming petition. In practical terms, the government wanted permission to keep building while it tries to persuade the Supreme Court to hear the case, with the lower court’s injunction put on hold in the meantime.
To obtain a stay, the government had to make a substantial showing. Among other things, it needed to demonstrate that it was likely to succeed on a significant legal question, that it would likely suffer irreparable harm without a stay, and that the balance of the competing harms favored relief. The majority concluded that the government met that standard.
But the legal question on which the majority thought the government was likely to succeed was one step removed from the controversy that produced the lawsuit. The court did not say the government was likely to prove that it has legal authority to build the ballroom. It instead concluded that the National Trust is unlikely to have standing to ask a federal court to decide whether the project is legal at all.
Standing is the constitutional requirement under Article 3 that a plaintiff have a sufficiently personal stake in a dispute before a federal court may exercise judicial power. A plaintiff cannot sue simply because it believes the government has violated the law but rather must identify a concrete and particularized injury of its own that is actual or imminent and sufficiently connected to the challenged conduct.
The trust relied on the injury asserted by Alison Hoagland, one of its members. Hoagland lives in Washington, expects to visit the White House neighborhood about once a month, and has spent decades studying and working in historic preservation. She said the scale, height, and mass of the new ballroom would impair her aesthetic, cultural, and historical interests in viewing and appreciating the White House.
The majority concluded that her asserted injury probably does not cross Article 3’s threshold. It characterized the injury as one arising from “offense, disagreement, or distaste” and reasoned that allowing such an interest to establish standing could permit citizens to challenge virtually any government project that offends their sensibilities. The court also rejected the trust’s argument that Hoagland’s expertise and long-standing commitment to historic architecture made her injury different. Standing, the majority explained, does not expand according to the intensity of a person’s interest in the subject.
Roberts and his fellow dissenters saw a much more concrete injury. Hoagland regularly visits the White House to view and study its historic architecture and she says the…
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