Held: It is better to beg forgiveness than to ask permission.
Technically speaking, Donald Trump still has to fight in court to settle the issue of The Case of the Missing East Wing. Practically speaking, though, today's ruling by the Supreme Court will allow Trump to build the ballroom and the secure facilities that will replace the old, WWII-era East Wing and its complement of drab offices. By the time a court hears the case on the merits, Donald and Melania will already have waltzed across the floor:
The Supreme Court on Monday allowed President Trump to keep building his White House ballroom, clearing the way for construction crews to continue their nearly round-the-clock work to complete one of the president’s prized projects.
In a 5-4 ruling, the high court said that a historic preservation group likely doesn’t have legal standing to challenge the ballroom, and that the Trump administration would suffer “irreparable harm” if the construction were halted now.
“We do not pass upon the legality” of the project, the court said in an unsigned eight-page decision from five of the court’s six Republican-appointed justices.
Of course they don't address the legality of the project, because the plaintiff in the case has no standing to object in the first place. That's what makes this 5-4 split notable at all. The plaintiffs in this case are the National Trust for Historic Preservation on behalf of one butthurt member of the trust, whose sensibilities were offended by the construction. Alison Hoagland only comes by the White House once a month, but she claims that the new East Wing would offend her sense of aesthetic:
Hoagland says that she lives in Washington, D. C., and expects to visit the neighborhood around the White House “about once a month.” App. to Application 73a–74a. She asserts that having to view the finished ballroom the government is constructing would cause her to suffer “injuries” to her “aesthetic, cultural, and historical interests” because she finds the “scale,” “height,” and “massing” of the government’s design distasteful. Id., at 75a. On the strength of that declaration, the Trust contends, it has Article III standing to challenge the East Wing project.
This is, of course, sheer nonsense. Property owners have the right to improve their property within the confines of building codes and zoning regulations. Hoagland doesn't even live or work in the neighborhood, but still arrogantly insists that the White House grounds be preserved in whatever state she prefers, as though Hoagland or the Trust has any ownership right over the White House grounds.
The per curiam decision makes minced meat out of this argument:
This Court has not found standing in circumstances like these before. To the contrary, we have repeatedly held that mere offense, disagreement, or distaste does not qualify as a concrete and particularized injury under Article III. As we have put it, “this Court has long made clear that distress at or disagreement with the activities of others is not a basis under Article III for a plaintiff to bring a federal lawsuit.” FDA v. Alliance for Hippocratic Medicine, 602 U. S. 367, 390, n. 3 (2024). Instead, to secure standing a plaintiff must identify some concrete and particularized injury “other than the psychological consequence presumably produced by observation of conduct with which one disagrees.” Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464, 485 (1982); see also Schlesinger v. Reservists Comm. to Stop the War, 418 U. S. 208, 227 (1974) (rejecting “the idea that generalized citizen interest is a sufficient basis for standing”); United States v. Richardson, 418 U. S. 166, 177 (1974) (“genuine interest” alone cannot satisfy the “particular concrete injury” requirement).
Nor is it clear what would remain of Article III’s concrete-and-particularized injury requirement if we were to extend our case law in the manner the Trust now suggests. Perhaps nearly any government action or project offends someone’s sensibilities. And adopting the Trust’s “unprecedented and limitless” view that offense alone suffices to establish a concrete and particularized injury would seemingly usher in a world where “virtually every citizen had standing to challenge virtually every government action that they do not like—an approach to standing that this Court has consistently rejected as flatly inconsistent with Article III.” Alliance, 602 U. S., at 391–392. Absent some considerable revision to our existing standing doctrine, then, the government is likely to succeed on the merits.
Not only would the executive branch prevail on the merits, but the courts should also hope they do. Otherwise, every government building project would get hauled before federal judges based on aesthetic offense to each and every individual that might happen to gaze upon the construction or the finished building. Every federal project would become subject to a Unanimous Up-Twinkles Review comprising each and every American. There is no limiting principle at all. This is precisely why standing matters in court, and why courts police it fairly closely in most cases where one of the respondents is not named Donald Trump.
Frankly, this is so obvious that it should embarrass the entire federal judiciary that the Supreme Court had to point this out.
How did this even get to a 5-4 dissent? Chief Justice John Roberts starts off with a legal non-sequitur, and then proceeds directly into Fantasy Court:
That construction is likely unlawful. Pursuant to its plenary constitutional authority over the District of Columbia and federal property, Congress has explicitly prohibited the construction of any “building or structure . . . on any reservation, park, or public grounds of the Federal Government in the District of Columbia without express authority of Congress.” 40 U. S. C. §8106. The ballroom is a building or structure being erected on federal park grounds—President’s Park—in the District of Columbia. Yet Congress has not passed any law resembling “express authority” for the Executive’s construction of it.
If true – and there is an argument in support of it – then Congress would have standing to sue the White House to stop it. And only Congress would have the right to file that lawsuit. This case presents a balance-of-powers issue, not an aesthetic issue. Alison Hoagland's gag reflex has nothing to do with it, and neither does the National Park Service or the National Trust for Historic Preservation, neither of which has the constitutional authority to oversee or check the executive branch.
One can argue that Congress didn't bring the suit because both chambers are controlled by Republicans. The counter to that is ... so what? Elections have consequences, and Republicans control both the executive and legislative branches. If Congress chooses not to sue over a possible encroachment on their authority, that is a tacit decision to allow it to take place, and voters can make their feelings known about it in the next election. A choice to drop the matter does not give other entities standing to take the place of Congress in such disputes.
Roberts nonetheless attempts to raise Hoagland's status as a preservationist to a high enough status to force the executive branch to gain her approval before starting construction on a project Congress has not bothered to stop:
Hoagland, meanwhile, is deeply committed to the preservation of such historic American buildings, as evidenced by her decades-long membership in the Trust, leadership role in the organization, academic work as a professor of history and historic preservation, volunteer work providing presentations on the District of Columbia’s historic architecture, and authorship of works on historic American architecture. Given this commitment to the preservation of historic buildings, Hoagland enjoys viewing and appreciating such buildings in person. As a Capitol Hill resident, Hoagland regularly visits the White House to take in the historic building’s beauty and to appreciate its symbolism. By overshadowing the traditional White House, Hoagland explains, the new ballroom will detract from the building’s message of republican simplicity and thereby worsen her viewing experience.
Hoagland’s injury suffices for standing.
Where does this end? Would the White House have to check in with every docent at the Smithsonian, too? Would the janitor at the Trust have equal standing to stop construction projects on federal land? Roberts keeps trying to the end to rescue Hoagland's super-sized status for standing:
The White House is not just any building, and—when it comes to historic preservation—Hoagland is not just any person. In failing to appreciate as much, the Court misconceives the plaintiff’s injury, allowing the Executive’s likely infringement of the Legislature’s power of the purse and authority to regulate federal property in the District of Columbia to continue. Today’s decision is no victory for the separation of powers.
Legally speaking, Hoagland is just any person. If the Executive has infringed on the Legislature's authority, then the Legislature can act to protect its jurisdiction. Hoagland isn't a Double Supremo Citizen for the purpose of extending standing in such interbranch disputes. One gets the sense that Chief Justice Roberts simply doesn't like the new building either, and is trying his best to shoehorn his own objection. And he makes that clear in the very next paragraph:
Winston Churchill once remarked that “[w]e shape our buildings, and afterwards our buildings shape us.” Onwards to Victory: War Speeches by the Right Hon. Winston S. Churchill, C.H., M.P. 317 (1944). All the more reason to ensure that those responsible follow the rules in deciding what to tear down and what to build up at the People’s House.
Perhaps. But it's not up to Alison Hoagland to decide what to tear down and what to build up, nor is it up to the other plaintiffs in this case, and that has been abundantly clear from the moment this lawsuit was filed. It's up the two elected branches to decide that, and since Congress hasn't taken an interest or pursued an objection to the new East Wing project, this dispute is legally and constitutionally non-existent.
This dissent is so poorly constructed that one has to wonder whether Roberts put much thought into it at all. Did Roberts take the dissent to prevent an even more embarrassing version from getting published? Hmmmm.
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