NEW: Trump Asks SCOTUS for Permission to Fill Gigantic Hole on White House Grounds

And so, one of the dumber conflicts in federal-judiciary history will come before the Supreme Court, which likely wants nothing to do with it. The weighty decision will have to balance the president’s authority to direct improvements to the site where executive authority rests against the standing of … passersby who don’t like the sight of construction. 

The DC Circuit Court of Appeals ordered Donald Trump to stop construction last week on the demolished-and-partly rebuilt East Wing, where Trump wants a ballroom to replace the outdoor tents used for larger-scale official dinners and events. In light of at least three assassination attempts, the design also includes more security facilities and now will include a drone port on the roof for security. Today, the administration filed the expected emergency appeal to the Supreme Court:

President Donald Trump on Friday asked the Supreme Court to allow him to continue construction of a sprawling ballroom adjacent to the White House.

The emergency application follows an August 7 ruling by an appeals court in Washington upholding a federal judge’s decision that would block work on site while litigation moves forward.

“If allowed to go into effect, the injunction would wrongfully install a single district judge as sole arbiter of what further construction is ‘strictly necessary’ to protect the safety of the President, his family, staff members, and visitors to the White House, including foreign dignitaries, and presidents and prime ministers of other countries,” Solicitor General D. John Sauer said in the filing.

All of this nonsense rests on the supposed aesthetic injury to bystanders. No, I am not kidding:

One key issue in the case is whether the National Trust for Historic Preservation, which brought the underlying lawsuit, has legal standing to sue based on its members being harmed by construction of a building they object to on aesthetic grounds.

I wrote about the standing issue in February, when a federal judge dismissed the lawsuit over the mistaken claim of an APA violation. The judge suggested that plaintiffs refile the lawsuit using other statutory claims, while warning that it might not succeed either:

The lawsuit itself is predicated on the claim by history professor Alison Hoagland to have been deprived of the enjoyment of “historical buildings” on the White House grounds:

Hoagland intends to continue visiting President’s Park roughly once a month. Id. ,r 12. She asserts that construction of a ballroom of the form and scale proposed by the President would disrupt her enjoyment and use of President’s Park and cause her to “suffer both professional and personal injuries, including to [her] aesthetic, cultural, and historical interests.” Id. ,r 13-14. The President’s proposed ballroom would, in Hoagland’s words, “overshadow[]” the White House and “diminish [its] primacy,” thereby disrupting the message that “our president lives in a house.” Id. ,r 13

An ultra vires claim would then have to mediate whether Hoagland has superior authority over the use of the White House grounds to an elected president who lives and works within them. Leon may find this a “novel and weighty issue,” but most others would consider it absurd. And even Leon tacitly acknowledges that Trump has statutory authority in the use and development of the grounds, albeit perhaps limited in the case of major renovations, even while privately funded. But in that case, the only entity with standing to dispute it would be Congress, not passers-by who like to reflect on architectural styles. 

Given that the demolition has already taken place, that construction on the new wing has already begun, and the sheer nonsense of arguing that presidents have no choice but to hold tent parties for visiting dignitaries, an ultra vires claim makes just as little sense as the APA claim. If Leon doesn’t recognize that, an appellate court certainly will, especially when the alternative is just a big hole in the ground at the moment.

Unfortunately, two judges on the DC Circuit decided that passersby have standing to stop the executive from improving executive facilities. One has to wonder whether the Supreme Court will take this case for its supposedly weighty implications, or just for the lolz. 

Either way, the court has to deal with the reality of the project, which is very much a fait accompli at this stage:

Construction has been continuing apace in the interim.

Sauer said a 250-person crew has been working 20 hours a day, seven days a week. The project, he said, is 65% complete and moving quickly toward total completion, and has passed the point where major changes to the design are feasible.

If the Supreme Court refuses to hear the case or rules in favor of the DC Circuit’s position, what happens then? Do they expect Trump to just leave the site as is, which is hardly pleasing to the aesthetic? Should he tear it down and leave a big hole on the grounds? Or should he rebuild the old East Wing to restore its WWII-era warren of offices and nondescript passages? 

Presumably, the court will intervene on behalf of reality, common sense, and proper executive authority. Hoagland can avert her eyes, and our long national aesthetic crisis will be over. At least, let’s hope that will be the case. 

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