Are you ready, Beege? John? David? All right, fellas – let's GOOOO ....
Last year, Donald Trump razed the East Wing of the White House as part of a project to build a ballroom for official state dinners. The White House has lacked any facility for larger-scale diplomatic events and usually has to rely on outdoor tents, which present security and logistics problems, including restroom access for guests. Trump has funded this project entirely through private donations, and even some of his tougher critics from previous administrations have defended the project as a diplomatic and logistical necessity.
Nevertheless, activists sued to stop construction after the demolition had already taken place, based on historical preservation of a wing that had little historical value and primarily consisted of office space. It turned out that the attorneys involved attempted to sue under a law that doesn't apply to the White House, for a group that doesn't have standing in the first place. Federal judge Richard Leon didn't dismiss the complaint with prejudice, but he refused to order an injunction – while providing some legal advice:
In a ruling Thursday, Leon concluded he was obliged to reject the National Trust for Historic Preservation’s request for a preliminary injunction. The group claimed that the construction violated the Administrative Procedure Act, but that law isn’t applicable to the ballroom project.
“Based on the claims presently before the Court, I agree with Defendants … and conclude that I lack authority to reach the merits of the National Trust’s claims,” wrote Leon, who also denied a temporary restraining order against the project in December.
Justice Department attorneys said Trump’s project is being run by the White House’s Office of the Executive Residence which, like most White House offices, is exempt from the APA. ...
Leon, a George W. Bush appointee, said in his decision that the conservation group could amend its lawsuit to claim that Trump’s actions in launching the ballroom project were “ultra vires,” or taken outside of his legal authority. The judge said the preservation group’s earlier omission of that claim was understandable because the authority the White House was relying on for the undertaking were “not apparent” when the group asked for the injunction.
For those unfamiliar with the APA, it applies to subordinate agencies in rulemaking, orders, licensing, sanctions, and relief. The statute, 5 USC 551, applies to "agency actions" in those areas, but mainly applies to the rulemaking process. Plaintiffs often successfully sue to stop enforcement actions for rules and orders that did not follow the APA's processes. Practically every president has found themselves hamstrung by careless rulemaking and enforcement, and have found themselves forced to start over with more care.
That, however, does not apply to presidents and their use of the White House, as Leon explains in his ruling:
Our Circuit held in Sweetland v. Walters, 60 F.3d 852 (D.C. Cir. 1995), that the "staff of the Executive Residence is not an agency as defined in" the Freedom of Information Act. Id. at 855.3 Whether an entity that has been determined to be a "non-agency" can subsequently become an agency by taking on agency responsibilities has not been resolved by our Circuit. Compare Ryan v. Dep 't of Just., 617 F.2d 781, 788 (D.C. Cir. 1980) ("Once a unit is found to be an agency, this determination will not vary according to its specific function in each individual case."), with Rushforth v. Council of Econ. Advisers, 762 F.2d 1038, 1042 n.5 (D.C. Cir. 1985) (suggesting that "[i]fthe President adds duties to an entity which bring it outside the sole-function test, Congress would want the entity to be covered" by FOIA). But even if EXR could be considered an agency due to the change in its responsibilities, the current record does not support finding EXR an "agency." How so?
As a general matter, the Executive Office of the President is not an "agency" under the APA. Am. Oversight v. Eiden, 2021 WL 4355576, at *6 (D.D.C. Sept. 24, 2021) ( citing United States v. Espy, 145 F.3d 1369, 1373 (D.C. Cir. 1998)). But certain entities within the Executive Office of the President may be considered "agencies" if they "exercise[] 'substantial independent authority."' Competitive Enter. Inst. v. Podesta, 643 F. Supp. 3d 121, 126-27 (D.D.C. 2022) (quoting Armstrong v. Exec. Off of President, 90 F.3d 553, 557-58 (D.C. Cir. 1996)). Courts consider "how close operationally the group is to the President," "whether it has a self-contained structure," and "the nature of its delegat[ed] authority." Id. (alteration in original) (quoting Citizens for Resp. & Ethics in Wash. v. Off of Admin., 566 F.3d 219,222 (D.C. Cir. 2009)).
Here, the limited record suggests that EXR has an "intimate organizational and operating relationship" with the President himself. Armstrong, 90 F.3d at 560. Indeed, the President directed EXR to manage the ballroom construction, see Deel. of Joshua Fisher [Dkt. #30-1] ,i,i 7-8, and the National Trust has alleged that the President "is planning and directing the construction of the Ballroom," Am. Compl. ,i 16; see also id. ,i 79 ("it was reported that President Trump had been 'holding frequent meetings about [the Ballroom's] design and materials"' and "personally select[ ed] the project's contractors" (first alteration in original)). And while there are insufficient facts in the record to determine whether EXR has a "self-contained structure," Competitive Enter. Inst., 643 F. Supp. 3d at 127, this factor alone is not dispositive, see Armstrong, 90 F.3d at 559 (National Security Council had a "firm structure, a staff, and a separate budget" but was not an agency (internal quotation marks omitted)). Finally, EXR's responsibilities- "handling project management" for the ballroom and "coordinating with NPS staff," Suppl. Deel. of Jessica Bowron [Dkt. #30-3],i 11-are distinguishable from the "delegat[ ed] authority" that has made certain entities agencies, see Competitive Enter. Inst., 643 F. Supp. 3d at 127 (alteration in original); see also Meyer v. Bush, 981 F.2d 1288, 1292 (D.C. Cir. 1993) (Council on Environmental Quality was an agency because it had authority to "coordinate federal environmental programs," "issue guidelines to federal agencies," and "promulgate regulations"); Soucie v. David, 448 F.2d 1067, 1075 (D.C. Cir. 1971) (Office of Science and Technology was an agency because it took on the "function of evaluating federal programs").
In other words, EXR is an extension of the president and his authority, and has no independence to act in any other fashion. Further, the extent of their jurisdiction is the White House and its grounds, while regulating nothing else. That isn't an agency in terms of the APA or even by common definition. It's staff.
Leon goes on to explore the potential ultra vires options, and indeed, seems to encourage plaintiffs to refile the lawsuit on that basis. However, Leon warns that this would become a statutory challenge rather than a constitutional or procedural challenge, and that may not go well either:
The National Trust argues that the President "is wholly without constitutional authority to build or demolish anything on federal grounds" and that "[t]here is no statute that provides the President with the authority to demolish the White House or construct a ballroom." Am. Compl. ,r,r 181, 184. Defendants themselves have disclaimed any inherent constitutional authority and have instead argued that the President's authority to construct the ballroom comes from a series of statutes. See Defs.' Suppl. Br. at 12 ("Nor is the President relying here on constitutional authority[.]"), 28-35 (arguing that 3 U.S.C. § 105(d), 54 U.S.C. § 101101(2), 31 U.S.C. § 1321, and 31 U.S.C. § 1535 supply the President's authority). Whether those statutes give the President authority to build the ballroom is thus a statutory dispute! See Glob. Health Council, 153 F.4th at 14. The parties dispute the scope of 3 U.S.C. § 105(d), see Pl.'s Suppl. Br. at 12-15; Defs.' Suppl. Br. at 32-35, and whether 40 U.S.C. § 8106 may be read to constrain the President, see Defs.' Suppl. Br. at 28-32; Pl. 's Reply at 8-11. Unfortunately for the National Trust, the Court's equitable power to enjoin constitutional violations does not extend to this kind of statutory dispute! ...
Unfortunately, because both sides initially focused on the President's constitutional authority to destruct and construct the East Wing of the White House, Plaintiff didn't bring the necessary cause of action to test the statutory authority the President claims is the basis to do this construction project without the blessing of Congress and with private funds.
If Plaintiff is inclined to amend its complaint with the necessary ultra vires cause of action to test the President's statutory authority, the Court will expeditiously consider it and, if viable, address the merits of the novel and weighty issues presented.
Ahem. Perhaps at that point, Judge Leon will take a peek into the White House grounds and discover why this complaint is entirely moot. The building is gone, and the grounds have already been disrupted. 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.
In celebration of this momentary victory of common sense and law, let's turn to the only music that can approach the beauty of this decision in our ears. Tia Carrera covered it in Wayne's World, but Sweet did it first and best:
Addendum: Can some clerk in Leon's office please disable the exclamation point on his word-processing program?
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