Two Issues; Or, The Court Steps Aside

 Standing of the plaintiff (they probably don’t have it, although the court does not definitively rule on that issue, but they might as well do), and national security concerns establish grounds for irreparable harm on behalf of the government.

Declarations from the Director of National Intelligence, the Director of the Central Intelligence Agency, the Director of the Federal Bureau of Investigation, the Director of the United States Secret Service, and the Secretary of State, the Secretary of Homeland Security, and the Secretary of the Army, among others, attesting to national security and other harms that would likely arise from enjoining a “single, coherent” project that cannot be readily cleaved into distinct below- and above-ground pieces. See, e.g., App. to Application 229a, 246a–247a, 397a–398a, 426a–429a, 431a–433a, 437a–439a. The Secretary of the Army, for ex- ample, represents that “[t]he height and mass” of the planned above-ground ballroom are “crucial” to shield the planned underground military installation “from kinetic impacts,” and that, without such height and mass, “engineers would need to dig impractically deep.” Id., at 247a.

No examination of the President's authority to order this construction, because:

Today, we do not pass upon the legality of the government’s East Wing project. We conclude only that, based on the submissions before us, the government is likely to prevail in showing that the Trust lacks Article III standing to challenge the project in federal court and that the remain- ing stay factors favor relief.

IOW, the plaintiffs lack standing, though the Court has not so ruled. And (I didn’t quote it), the Court ruled that the injunction against the executive exceeds the authority of the court (checks and balances and co-equal branches, etc.), and so the executive is likely to prevail at trial (the baseline requirement for upholding, or overturning, a preliminary injunction). No need to get to the question of presidential authority, or the @unitary executive.”  In essence, the ball is entirely in Congress’ court. 

The Court does not rule on the legality of the construction, which means the Court has not placed it beyond the power of Congress by inventing some new constitutional principle. Congress can order a halt to construction, can overrule the national security arguments, can even order a return to status quo ante and force the replacement of the East Wing. And based on this ruling, I think the Court is signaling it will keep the Art. III wing out of it.

I’m intentionally not commenting on the standing argument, or even the irreparable harm argument. I haven’t (yet) read the dissent (s?)*. I’m sure the opposing arguments are well reasoned and stated. I’m focusing on what happens now, because it seems to me the majority is stepping aside, rather than stepping in. Not every administrative action, especially in this Administration, should be solved a court order. Intentionally or not, this another brick in the wall for a Democratic victory in November. Because, as I’ve said before, it’s high time for Congress to reassert its Art. I authority. 

The Court just opened the door for them to do that.

*Interestingly, Roberts’ dissent raises the very issue that the majority refuses to address: that the law explicitly requires Congressional authority in order to build or destroy any building on White House grounds. The majority ducks that issue on the grounds that the lower court interfered with a co-equal branch of government. It’s not a good argument, and I think it does give the executive more power than it should have. But I’m happy for Congress to be forced to address this issue. So while I agree with Roberts, my argument stands.  For better or worse. (Roberts also rejects the majority’s standing argument. It’s really rather remarkable.) But I’m tired of Congress relying on Art. III to rein in Art. II, and pretending their only power is another time-wasting impeachment trial. Legislation is Congress’s primary authority.  And while the law already says Trump can’t do this, take away the money for this project, reassert authority over allocation of funds, and order the destruction of the ballroom. I think the majority is signaling they don’t want to get involved in this any further. That’s Congress’s cue. Time to step into the spotlight, and take that light away from Trump.