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Michael A. Burke's avatar

I'm wondering why the Anti-Deficiency Act doesn't come into play--the WH is spending money Congress did not authorize specifically. Has that been declared null and void by a court, or is there no one charged with (or choosing to) enforcing it?

Gabe Fleisher's avatar

Good question, Michael! A few things to note here. There is an agency charged with monitoring compliance of the ADA — Government Accountability Office (GAO) — but they don’t really have enforcement power over it. That falls to the Justice Department, which could theoretically criminally charge someone with violating it, which is of course unlikely (an understatement) at least until a change of administration. There’s no clear legal answer whether a private individual can sue over the ADA, partially because it comes back to the same issue of the plaintiff needing to have standing. The other thing to note is much of the ballroom is being paid with donated funds -- the parts that have used private funds have largely been for the security portions of the project, which have used funds earmarked for Secret Service and WH security. There’s certainly a case to be made there that this is not the purpose Congress had in mind when it appropriated the money, but there is also at least a connection between the appropriation and the usage that the administration would be able to point to if a lawsuit came about.

Michael A. Burke's avatar

Thanks. I knew the GAO is the key (I’ve been through two GAO reviews of projects I worked in while in the Army). In the bad old days, comptrollers and financial management guys within agencies made sure we complied, and the professional staffers of relevant committees in Congress also acted as watchdogs. All that has gone away under this administration, and the taxpayers should be up in arms about it. We could start after the midterms either way hearings about twisted this administration is in abusing statutory authority that’s spending tax dollars in violation of the law.

Randy Robinson's avatar

Great essay. Standing is the issue here and I agree it's difficult to say Hoagland was somehow injured by the ballroom construction.

George Hicks's avatar

We're essentially concluding that the Executive Branch can commit any illegal act it chooses that won't generate a veto-proof vote by Congress, so long as the illegal act doesn't create an obvious victim with standing. I cannot fathom why the National Heritage Trust didn't bring suit on behalf of itself, in defense of its mission, so maybe you could comment on that?

Maybe Congress won't have the votes to block construction, but it will definitely have the votes to block funding, so who exactly is going to pay for it? Why is that not a story angle to explore?

What's really happening is that Trump is building a highly fortified military command post under the new ballroom, and he will use it to attempt some sort of preposterously awkward and un-welcome version of Jan 7 at the end of 2028, with support from Hegseth if he hasn't been removed by Congress by then. Note that although they claim the construction is 65% complete already after several months, they are saying it won't BE complete until the summer of 2028, just a few months before the 2028 election.

DerekF's avatar

I agreed with your assessment of Hoagland's standing until I read today's substack by Steve Vladeck. He takes the position that Lujan is germane and that Scalia's position on standing should have influenced at least Barrett to agree that Hoagland, as a professional whose work is affected by the construction, should have standing. I think that the argument can be made that standing should be viewed more broadly when the underlying action that is in dispute is likely to be judged as illegal or wrong on the merits. Perhaps (and this is purely speculation) under that reasoning, we could infer that there were at least five justices who weren't convinced about the merits and therefore chose to deny the suit on standing grounds instead of dragging out the case and getting into the merits question at all.

By the way, if you didn't see it, Vladeck cites your data on Roberts's disagreements with Trump.

Gabe Fleisher's avatar

Hi Derek -- I agree Lujan is relevant, I just don’t think its holding necessarily translates into a win for Hoagland. While Roberts’ line about crocodiles is snappy, I think there are two issues. One is that Hoagland is still able to “look at the White House”! It might look different, and she might not like how it looks, but unlike in Lujan, where the crocodiles were endangered, Hoagland will still be able to do what she wanted to do before. Saying she has a right not just to look at the WH, but to look at the WH in a forever unchanging way, seems like a stretch. The second issue is that Lujan also talks about the injury to a plaintiff being particularized -- I think there’s an easier case to be made that someone trying to view a particular crocodile might have a particularized injury (though it’s worth noting that the court ruled in Lujan that the plaintiff lacked standing) than someone trying to view the White House, which is such a national landmark that Hoagland’s argument for particularization seems like a stretch.

Jessie Gaylord's avatar

Best article I've read on this topic and a fair treatment of the facts. Thank you!

Margaret Bryant's avatar

Nice analysis, Gabe. Have you considered law school?

Gabe Fleisher's avatar

Has definitely crossed my mind!

Jean McKinley's avatar

What's the point of something being illegal or unconstitutional if there's no enforcement, no recourse? Why does someone have to bring suit? If someone is murdered are they the only one with standing against the murderer?

DerekF's avatar

Fortunately, your analogy is not correct on two counts. Even if the murder victim is without any family or friends (i.e., completely isolated without anyone who is directly affected by their murder), the state is affected by the unlawful loss of life. That is the why the state acts as the affected party. Moreover, there is a difference between a criminal act and a civil act. In the case of the ballroom, the remedy is civil, not criminal.

Jean McKinley's avatar

The point was this man claims the president is omnipotent and apparently he's right. He does what he wants and to hell with the rest of us. By the time we stop him, if we stop him, it's done, it's gone.

DerekF's avatar

It is only slightly hyperbolic to say that Alito and Thomas, at least, would give Trump virtually complete, unfettered power. To use Trump's own example, they might give him a pass if he shot someone on Park Ave, as long as he claims it is part of his official duties. Gorsuch, Kavanaugh, and Barrett should know better, but they don't always act that way.

Lisa Cron's avatar

Begs the question: Since by the time this gets to court on the "merits" the ballroom will be built, why bring a case on the merits? Same as firing so many people while the legality of the firings drags through the courts. Point being: this is their strategy, while we argue over legal technicalities -- they're already doing "the thing" whatever it is. And hey, we can't "untear-down" the East Wing. Or, I'm betting, tear down the new "ballroom." Kinda heartbreaking.

Richard Werthamer's avatar

There is a way to counteract illegal actions by the President: impeach and convict him. Of course, that's a slow, tortuous process, and unlikely to succeed from a Congress controlled by the President's party.

NEIL NORBERG's avatar

I suppose technically United States Attorney General is Todd Blanche could be someone with “standing” because he too has the responsibility to enforce the law.

A.Gnosticthefirst's avatar

Thanks for the clarity on the legal issues that can stymie the efforts of laypersons who grapple with them. This could be a non-issue if Congress quit bending over for every whim of an unthoughtful president and asserted its responsibility.

Mu's avatar

Don't have time to read all of this, but it makes zero sense that a historic building preservation group would not have standing. If that is true, it is something that needs to be changed asap.

Karen B's avatar

This makes me feel like pulling my hair out.

Rick Schulte's avatar

If the Democrats in Congress have no “standing “ it appears to me that there is little that can be done to stop Trump’s power grab away from congress.

Andy Hoyne's avatar

I guess the problem is that historic structures are old, so not as new and potentially efficient at new buildings. So, if someone does not have an appreciation of history, what good are historic structures? If there are no limits on what a president can do with respect to historic structures, or at least the White House, then we should be glad he did not tear the whole thing down and build a new Trump branded one. And, we should also be glad Congress did not tear the Capital down and build a new one.

William m Gaffney's avatar

I like your analysis but disagree with most of it

To equate a swimming pool, tennis pavilion, bowling alley (Nixon,) is false equivalence. As you said most major additions received Congressional approval

Trump's experience is limited and typically very ego driven and gregarious. Look at the reflecting pool

This monstrosity is over the top. There is much relevance to L'enfant

Trump lied about the secure space.

The two statutes you cited, and correctly pointed out are not relevant.

I am not aware Trump told anyone outside his administration

I totally agree with standing but this court always kicks the real issue down the road

That is enough for now

Gabe Fleisher's avatar

For the record, I agree that the ballroom doesn’t fit in the same category as the swimming pool or tennis pavilion -- was just noting the White House argument. So I think we agree on both the legal merits of the ballroom and on standing!