Because the Constitution puts limits on courts’ power, and because no one has yet come forward with a clear right to challenge President Trump’s most ambitious vanity project, a divided Supreme Court on Monday gave its permission to go ahead with construction of his gaudy White House ballroom.
While the majority in the 5-to-4 ruling insisted that it was not deciding whether the project is illegal, the practical effect of the decision very likely will allow the project to go a long way toward completion before the question of legality is settled. The four Justices who dissented said the project was “likely unlawful” because Congress has not authorized it.
The case probably will continue in the courts, but there is no realistic chance that it will be settled unless those who oppose the ballroom can come up with someone else to make a new challenge stronger than the one the Court’s majority rejected on Monday.
The bigger hurdle, as the case continues, may be in a separate part of the majority’s opinion suggesting that the lower courts that had blocked the ballroom may have intruded unconstitutionally on the powers of the Presidency and the Executive Branch. That obstacle will be far harder to overcome than the limit the majority imposed on who can make a court challenge.
The eight-page, unsigned majority opinion was based on two core findings:
· The Constitution allows federal courts to decide only cases in which someone has suffered a distinct injury from government action. The majority found that the project’s main challenger, Alison K. Hoagland, lacked the right (“standing”) to sue, because she was only personally offended by the size and “mass” of the new East Wing, topped with a very large ballroom. Ms. Hoagland is a leader of the National Trust for Historic Preservation, with a lengthy resume as a professor of history and an active leader of historic preservation efforts.
· The lower courts that had blocked the above-ground portion – that is, the ballroom – “likely” did not have the constitutional authority to issue such an order to a separate branch of the federal government. “Federal courts,” the majority said, “do not operate as an open forum for citizens to press general complaints about the way in which government goes about its business.”
The National Trust for Historic Preservation was also involved in the case, but an organization like that can only challenge a government action that will harm one of its members, in this case, Ms. Hoagland.
Estimates of how far the East Wing reconstruction has gone so far range from a quarter to about 65 percent complete. The White House is employing work crews around the clock, apparently in part to try to get the job so far advanced that it may be too late to stop it in court.
The Court does not yet have before it a full appeal by the National Park Service, acting for the Trump Administration, so it is far from clear whether even the Supreme Court would be able to make a final decision until sometime next year – almost certainly too late.
Although the majority opinion was unsigned, it would have taken at least five votes to block the lower court orders against construction of the ballroom. (The lower, underground part of the project, not blocked by the lower courts, includes secure facilities to protect the President and other White House occupants in case of a military attack, as well as facilities for national security activity that goes on in the Executive Mansion.)
The majority votes to allow construction to proceed came from five of the conservative Justices: Samuel A. Alito, Jr., Amy Coney Barrett, Neil M. Gorsuch, Brett M. Kavanaugh and Clarence Thomas.
Chief Justice John G. Roberts, a conservative, wrote the dissenting opinion, joined by the Court’s three liberal Justices: Ketanji Brown Jackson, Elena Kagan and Sonia Sotomayor.
The dissenters’ opinion spelled out at considerable length the reasons why they viewed Ms. Hoagland as a person who will indeed suffer enough aesthetic and professional harm from the project to qualify to sue. In suggesting that the project is probably illegal, the dissenters said Congress has strictly limited how the government’s property in the nation’s capital can be altered and how much money can be provided for repairs and improvements needed in “President’s Park” – that is, the site of the White House itself.
The White House, the dissenters said, “is not just another building, and — when it comes to historic preservation — Ms. Hoagland is not just any person.”
