The Court’s Ballroom Decision Is a Sign of Deeper Problems
The Atlantic · LC · trust 54/100
The conservative justices have separation of powers exactly backwards.
Illustration by Allison Davis / The Atlantic. Sources: Kevin Carter / Getty; Graeme Sloan / Bloomberg / Getty; fotograzia. September 2, 2026, 10:38 AM ET Share Save In deciding to allow President Trump to proceed with constructing a new ballroom, which Congress has not authorized, at the White House, which Trump does not own, the U.S. Supreme Court invoked the separation of powers. But the Court got the constitutional problem precisely backwards: The separation-of-powers problem isn’t that courts are impermissibly blocking the president’s use of taxpayer funds to create a ballroom. It’s that the president is impermissibly using unauthorized taxpayer funds to create a ballroom.
The Court’s missteps were many, starting in the very first sentence of its opinion : “In October 2025, the federal government started a project to replace the East Wing of the White House.” (The opinion, decided via the Court’s shadow docket, was per curiam, meaning that it did not indicate an author, but because the four dissenters noted their names, we know the five justices in the majority were Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.)
But the federal government didn’t begin replacing part of the White House. Only the president and the executive branch did. Under the U.S. Constitution, the president is not the be-all and end-all of the federal government. Far from it: The legislature, Congress, is the body that has the power to establish and regulate federal property (including the White House) and to authorize the spending of federal funds. Indeed, the plaintiff in the case—the National Trust for Historic Preservation in the United States—argued that the president was proceeding without congressional authorization and in violation of federal laws. The Supreme Court majority did not say otherwise, making no claim as to whether the ballroom-construction project was legal or whether the president had the authority to undertake it.
The Supreme Court’s conflation of the president with the federal government is the latest iteration in the Court’s steady embrace of the unitary-executive theory and the accompanying expansion of executive power. This theory maintains that all executive power resides in the president, and that Congress cannot limit the president’s exercise of that power. Yet these days, the president, occasionally with the Court’s blessing, is claiming to possess legislative powers too. That is the case when the president declines to spend funds that Congress has obligated or when the president decides to spend funds that Congress has not authorized. Under the Constitution, Congress, not the president, has the power of the purse. Nevertheless, the unitary-executive theory unites all government power in the president, paving the way for an executive unbound by law.
The Court’s errors continued as justices attempted to explain why the lower courts were wrong to block the president’s demolition of a portion of the White House. The Court relied on the doctrine of standing, which maintains that a plaintiff challenging the government’s actions must show that they have been injured by the actions they are contesting. In this case, one of the members of the National Trust for Historic Preservation, who lives in Washington, D.C., and about once a month visits the neighborhood where the White House is located, alleged that she had “aesthetic, cultural, and historical interests” in what happened there.
Under the Court’s precedents, that injury should have sufficed. Indeed, in a prior opinion by Justice Antonin Scalia, the Court had said that desire to “observe an animal species, even for purely esthetic purposes,” can constitute “a cognizable interest for purpose of standing.” Crocodiles and all animals are great and important, to be sure. But so is the White House. As Chief Justice John Roberts wrote in his dissent, “The White House is not just any building.” It is “an iconic American building whose symbolism and history are wrapped up in its architecture.”
The doctrine of standing, the Court has said, is a vital component of the separation of powers, because it ensures that the judicial branch stays within its role rather than encroaching on the other branches, specifically the executive. But in this case, as in others, the Court has invoked the doctrine to support the flow of power in one direction only: limiting Congress’s authority while expanding the president’s. In the ballroom case, the Court said the National Trust member did not have standing to sue, and therefore the plaintiff (and the federal courts) could not enforce the federal statutes that the president was allegedly violating. Following the decision, it’s unclear who, if anyone, can sue to enforce the federal laws that the plaintiffs allege the president is violating with the ballroom-construction project.
That is the effect of many of the Court’s standing cases—to render congressional statutes unenforceable. In TransUnion v. Ramirez , the Court said that a group of plaintiffs who were incorrectly designated as suspected drug traffickers and terrorists in their credit reports could not sue to enforce Fair Credit Reporting Act provisions requiring consumer-reporting agencies to maintain accurate records. As a result of that decision, the FCRA provisions go largely unenforced. In Lujan v. Defenders of Wildlife and Lujan v. National Wildlife Federation , the Court said that plaintiffs seeking to enforce the Endangered Species Act and the Federal Land Policy and Management Act, among other laws, did not have standing, and thus could not enforce those laws either. Far from ensuring the separation of powers, the Court has used standing to undermine the principle: According to the Constitution, Congress has the power to make laws, but the Court’s standing decisions have freed the executive branch (and other entities) from having to…
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