Federal judge likely to block 'brazen' White House ballroom construction

WASHINGTON (CN) — The Justice Department struggled on Tuesday to defend President Donald Trump’s $400 million White House ballroom project as a federal judge slammed the government for its continually shifting legal theories.

Senior U.S. District Judge Richard Leon pressed the government to explain how the sudden demolition of the East Wing and planned ballroom construction next month was merely an alteration, and thus under the National Park Service’s legal authority.

“Calling a $400 million construction project an alteration is quite brazen,” the George W. Bush appointee said, urging the government to explain its apparent reversal on the park service’s role in the project.

Leon noted that, throughout the earlier steps of the litigation, the government had argued the project was solely under the Executive Residence’s authority, and therefore the National Trust for Historic Preservation could not assert a violation of the Administrative Procedure Act because the residence is not an agency.

Justice Department attorney Jacob Roth argued the Executive Residence was still directing the project, but the park service was raising and managing funds for the project. He asserted that the arrangement was necessary, as the park service’s $2.5 million allocated by Congress for general White House maintenance wasn’t enough.

Roth asserted that the project was clearly authorized under two statutes, the National Park Service’s Organic Act and U.S. Code Section 105(d).

Under the Organic Act, Roth maintained the park service was authorized to regulate the National Park System as necessary, and the ballroom project served the “fundamental purpose” of President’s Park, by modernizing the facilities and improving security for Trump and future presidents.

Further, Roth said Section 105(d) empowers the president to make any “alteration” or “improvement” of the White House, which the president can determine with limited congressional oversight.

Leon seemed skeptical of the argument, noting there was not a single case similar to demolishing and erecting a massive ballroom on the White House complex without some effort to involve Congress. He added that no D.C. Circuit precedent came close to addressing such circumstances, and thus his ultimate ruling will be the first instance in such a case.

He further slammed the “Rube Goldberg” machine-esque funding arrangement between the park service and the Executive Residence, which he said appeared to be an “end run” around the congressional appropriations process.

Roth, a frequent presence before the D.C. Circuit on behalf of the government, agreed with Leon that the case will undoubtedly move to the appellate court soon after his decision.

On Feb. 26, Leon denied the National Trust’s request for a preliminary injunction that would permanently halt construction on the 90,000-square-feet ballroom, unconvinced the East Wing demolition violated the Administrative Procedure Act and the Constitution.

However, Leon left room for the National Trust to amend its complaint to include an ultra vires claim — Latin for “beyond the powers” — that would allow him to fully address the merits and more likely grant the injunction.

Leon found the Trust could not bring its Administrative Procedure Act claims against the Executive Residence, the entity managing the East Wing project, as it not an agency and thus could not be challenged under the statute.

Leon noted the D.C. Circuit held in 1995 the residence is not an agency — although whether an entity could become an agency by taking on agency responsibilities is still an open question.

Thaddeus Heuer, of Foley Hoag and representing the National Trust, said that the historical organization had amended its complaintfollowing Leon’s previous ruling denying a preliminary injunction to include its ultra vires claims.

He argued the government was clearly acting beyond its statutory authority by interpreting “alterations” to include massive demolition and construction projects rather than simple maintenance.

Further, the Justice Department’s assertion that halting the construction now would amount to a national security risk — the Justice Department has claimed the active construction site cannot meet the Secret Service’s standards — by leaving a “gaping hole” near the White House should be rejected.

“The first law of holes is to stop digging,” Heuer said.

Throughout the hearing, Leon showed his frustration with the Justice Department for its apparent “merry-go-round” approach to its legal position, with its initial claims that the president has the constitutional authority to engage in the project disappearing and suddenly reappearing in briefing.

Leon, wearing a green bowtie for St. Patrick’s Day, said he would try to rule before the end of the month.

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