No court has the authority to halt construction of Donald Trump’s White House ballroom and a secure underground facility, a Department of Justice lawyer has argued, suggesting only US Congress had the power to stop the project.
The Trump administration has asked the Washington DC circuit court of appeals to reverse a lower court decision which blocked construction of a $400m ballroom on the site of the White House’s demolished East Wing. Construction of a secure bunker for staff underground at the site was allowed to proceed while the dispute between Washington DC preservationists and the White House continues.
The National Trust for Historic Preservation sued the National Park Service and the administration in October, after Trump ordered the East Wing’s demolition. Construction began without completing – or really even beginning – what can be a lengthy process of review and approvals, as required by district and federal statute.
The administration has cited national security imperatives for the construction, which Trump has repeatedly emphasized, while using the failed assassination attempt at the White House Correspondents Association event in April as an example of the security threat.
Congress appears unpersuaded. The US Senate voted to advance a long-delayed immigration spending bill early on Friday morning only after Republicans removed $1bn in funding for US Secret Service security upgrades to the proposed ballroom.
The case before the appellate court tests the limits of presidential authority.
In a hypothetical posed to Yaakov Roth, principal deputy assistant attorney general, during a hearing on Friday morning, Justice Patricia Millet asked when the construction of the ballroom and bunker complex became a fait accompli for his purposes. “Was it when the destruction happened? Was it when you started doing the underground work, which we’re now told is completely integral and connected and inseparable from a massive ballroom on top? When did it become impossible for courts to stop this project?”
If the project amounted to “complete lawlessness by the government”, she asked, could it still not be stopped by the courts?
“On these theories, I think that’s right,” Roth replied, arguing that US Congress could instead pass a law to authorize or block the specific action that a court would have to respect. “If Congress has weighed the equities in this particular instance, and reached a conclusion, I’m not sure a court would have the authority to second-guess that, but if we’re just talking about a general statute and application. I think a court would not second-guess a congressional decision that addressed the equities in that way.”
The argument left Thad Heuer, representing the historic trust, aghast.
“Under Marbury v Madison, it is emphatically the province of the judicial department to say what the law is,” Heuer said. “The government’s position, apparently, is that even a lawless action of this type could never be stopped by the court. That is entirely wrong. That’s exactly the court’s job. In this case, it’s about who controls federal property. Is it Congress, its owner, or is it the president, its temporary tenant?”
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