At Volokh Conspiracy, Jon Adler makes a good, and deeply disturbing point.
If the Supreme Court does intervene, either on the interim docket or after argument, this case might present a good opportunity for the justices to revisit–and perhaps restrain–the permissive approach to standing in cases against the federal government, particularly those relying upon aesthetic standing. As Judge Rao explains in her dissent, there are serious questions about NTHP’s standing here, both as an organization and as a representative of members who claim “injury” from the ballroom’s construction.
The D.C. Circuit, by 2-1 majority in National Trust for Historic Preservation v. National Park Service, held that only Congress, not the president, has the authority to approve construction of the Trump Ballroom.
Each President is a temporary tenant, not the owner, of the White House and its Executive Residence. The President has no—and claims no—constitutionally assigned authority over that property, which is designed and maintained for the use of all Presidents, current and future, and for the American people. As the defendant National Park Service has explained, “[t]he White House is owned by the American people and stewarded by the National Park Service. It is more than the President’s residence; it is a site for protests and national discourse about what it means to be American.”
This has been understood by president after president. Until now.
We are aware of no instance in American history in which a President unilaterally and using privately collected funds demolished substantial portions of the White House that Congress authorized to be built and American taxpayers paid for. Until now.
The confluence of two things, a president who deluded himself by believing he was a master builder and a Congress unwilling to do anything that might cause the president to send Seal Team 6 to their child’s school, empowered the president to unilterally knock down the East Wing and replace it with a monstrous ballroom that, in accordance with the Queens, NY aesthetic, will be “beautiful.”
The reasons to stop this travesty are many and overwhelming. The problem is who has standing to do so?
In her dissent, Judge Neomi Rao, a Trump appointee, makes two significant arguments: First, that the National Trust For Historic Preservation, as a congressionally chartered corporation, has only the authority given it by Congress. That authority does not extend to the White House, which is part of President’s Park and beyond the scope of the Trust’s purview.
Second, that Alison Hoagland’s claim, raising aesthetic harm from the completion of the ballroom, “failed to demonstrate an imminent and particularized injury in fact.”
Her asserted aesthetic injury can be understood in two ways—as a speculative injury to her particular use of the White House, or as an imminent but generalized injury from incidentally viewing the ballroom. Either way, she lacks standing to sue.
The majority’s holding, that Trump lacks the authority to build the ballroom, or the “Military Center” as he now tries to spin it as if it isn’t about the “beautiful” ballroom at all, is both well-grounded in law and “history and tradition.” for those who care about such things. But the fact that Trump’s actions are unlawful doesn’t necessarily mean that anyone has standing to challenge it. In other words, Trump can violate the law and there is nothing anyone can do about it.
Calling the White House the “People’s House” is a sweet turn of phrase, but does not mean “the People” can stop Trump from ruining it with his grandiose dreams of leaving a legacy of Trumpian beauty. As expressed here before, there are many gaps in the law which rely on the good faith and sound discretion of the president to adhere to the law and norms to prevent irreparable harm from being done, both to the nation and to our national structures. Trump doesn’t care.
Without a working Congress to act to prevent Trump from imposing his tacky version of beauty (see the Oval Office, the Arc de Trump and, god forbid, Trump’s ruinous plan to paint the Eisenhower Executive Office Building), is there anyone, any entity, with standing to stop him? The sad answer may well be no, and the courts may be unable to do what Congress and a better president failed to do, preserve our national heritage from the barbarian in the White House.