Ballroom Blitz Blocked

It's ultra vires ... and ultra ugly.

In July, President Trump announced the construction of a new ballroom adjacent to the White House.

“It’ll be near it but not touching it—and pays total respect to the existing building, which I’m the biggest fan of,” he said, vowing to protect the East Wing. “It’s my favorite. It’s my favorite place. I love it.”

By October, the East Wing was gone, reduced to a pile of rubble dumped in East Potomac Park.

The president lied. And when he got sued by the National Trust for Historic Preservation to block construction of the planned 90,000-square foot neo-Versailles monstrosity, his administration lied some more.

But there are consequences when you lie to federal judges, as the president just found out for the second time in three weeks. The DC Circuit has now ordered the government to explain exactly which part of this gilded monument to Trump’s vanity is for national security, with an eye to blocking everything else.

Please!

Judge Richard Leon, the irascible Bush appointee overseeing this case at the district court, issued a walloping preliminary injunction on March 31. In his inimitable style, he doled out 27 exclamation points and four “pleases.” Such as “according to Defendants, any construction delay will undermine national security. Please!”

The trial judge described the government’s legal theory as a “Rube Goldberg contraption” — which is kinder than calling it bullshit, but less accurate.

Under 40 U.S.C. § 8106, “a building or structure shall not be erected on any reservation, park, or public grounds of the Federal Government in the District of Columbia without express authority of Congress.” The White House is part of President's Park, which encompasses the White House Visitor Center, Lafayette Park, the Eisenhower Office Building, the Treasury Building, and the Ellipse. So that would seem to be the end of the matter. But the administration points to 3 U.S.C. § 105(d), which authorizes Congress to appropriate funds to the president for the “care, maintenance, repair, alteration, refurnishing, improvement, air-conditioning, heating, and lighting” of the White House Executive Residence. The claim is that this law empowers Trump to tear down or construct anything he likes.

Could he pave paradise and put up a parking lot … or a Trump Tower? The DOJ says YES!

Congress only appropriated $2.5 million for Trump to “maintain” the White House, but luckily Trump’s corporate pals — many of whom just happen to have business before the federal government! — are queuing up to pick up the tab.

The National Park Service can accept private donations under 54 USC § 101101, and gladly started hoovering up cash. But during the early phase of the lawsuit, the White House claimed that the Park Service had handed all funds off to the Office of the Executive Residence (EXR), which is the responsible for janitorial, cooking, and general maintenance of the White House, and no longer controlled any aspect of the project.

This wheeze was enough to defeat the first iteration of the Trust’s case, which was based on the Administrative Procedure Act. Since the APA only applies to agency actions, and EXR isn’t an agency, Judge Leon denied the Trust’s first motion for a preliminary injunction. At the same time, he strongly hinted that the Trust should refile its action as an ultra vires claim.

On March 1, the Trust obediently docketed the amended ultra vires complaint, and on March 31, Judge Leon granted a preliminary injunction blocking construction of the ballroom except as “necessary to ensure the safety and security of the White House.” This caveat reflected the changing reality on the ground, as well as the government’s shifting claims about the project.

Previously, to defeat the Trust’s request for a temporary restraining order preserving the status quo, the government said that it was only constructing below-grade features, including an armored bunker, hospital, and classified military installation, all of which were billed as necessary for national security (and wholly separate from the decorative building planned above them). The government represented that none of that construction would lock in design features above ground, and thus there was no imminent harm to enjoin.

“Any aesthetic harms remain hypothetical (if cognizable at all), because plans for the East Wing are still in development, months remain until the start of above-ground construction, and the work that must proceed below-grade will not lock in the scope of the above-grade construction,” the DOJ wrote in a reply brief.

But as the project progressed, with planned construction of the ballroom itself scheduled to be begin this month, the government’s position shifted. Suddenly, the entire structure now implicated national security, whether above or below-grade. “Canvas tents, which are necessary without a ballroom, are significantly more vulnerable to missiles, drones, and other threats than a hardened national security facility,” the administration insisted in an emergency motion to the DC Circuit seeking to stay the trial court’s injunction.

“This order is untenable and must be stayed in that the building is under construction, with deep Top Secret excavations, foundations, and structures, already built, and ready to receive heavily fortified, for security reasons, steel, bullet, ballistic, and blast proof glass, and drone proof roofing materials, which must be finished quickly, and not allowed to be exposed to the conditions and elements of an open construction site,” the government warned. “Time is of the essence!”

Meanwhile at the White House, Trump insisted that the work would continue as before because the injunction allowed construction as needed for national security, “So that’s called ‘I’m allowed to continue building as necessary.’”

The Trust filed a motion to clarify, asking Judge Leon to tell the White House that they can’t just shout NATIONAL SECURITY! and keep building. But meanwhile, the DC Circuit panel issued its ruling on Saturday.

Making the record

In dissent, Trump appointee Judge Neomi Rao huffed that she would have stayed Judge Leon’s order in its entirety. She insisted that 3 U.S.C. § 105(d) is capacious enough to allow Trump to do literally anything he likes to the people’s house. And she rejected the Trust’s claim to aesthetic standing based on the disgust and horror of trustees who see this temple of vulgarity when they walk through Lafayette Park.

These arguments will surely feature prominently — one hopes in an angry dissent! — when the case lands at the Supreme Court. But yesterday’s majority consisted of Judges Patricia Millet and Brad Garcia, appointed respectively by Obama and Biden, who simply rolled their eyes at the government’s histrionics.

Citing “serious factual questions about the relationship between, on the one hand, above-ground construction of the ballroom itself and the maintenance of safety and security, and prior governmental representations that the below-ground and above-ground stages were distinct and the above-ground design features subject to change,” the majority remanded the case to Judge Leon with orders to “promptly address the pending motion to clarify how the injunction and its exception will ensure safety and security pending litigation.”

This will create a more robust record, locking the government into claims about the security implications of each element of the project. Alternatively, the panel gave the White House until Friday to ask the Supreme Court for yet another shadow docket assist, on the theory that making Trump wait to do something illegal, when he really wants to do it anyway, constitutes irreparable harm.

So far, the government hasn’t signaled if it intends to ask the six horsemen of the apocalypse to weigh in. But you can bet your sweet bippy that Judge Leon is raring to ask the government whether it was lying to in January when it said that the natsec stuff was underground, or in April when it accused him of endangering the president by making him eat dinner in a tent where he might get drone striked.

Please!