The Ballroom May Be Built Before the Law Catches Up

Donald Trump is no constitutional scholar, but he has long understood and exploited this underrecognized feature of our legal system: it’s hard to be a plaintiff. From New York real estate to the presidency, Trump does his will first and then forces others to run to the courthouse to try to stop him. And, often enough, it works. Now Trump’s (literal) wrecking ball approach will likely enable him to get away with destroying the East Wing and erecting an ostentatious ballroom, despite the patent illegality of it all.

Sure, the President could have requested permits and approvals from regulatory authorities before he demolished one-third of the White House. Or he could have sought authorization from Congress – which, incidentally, is presently controlled by his own party – to rebuild. Instead he just knocked the whole thing down, left a pile of rubble on the ground, and forced objectors to scramble into court as plaintiffs and try to undo what was already mostly done.

Trump’s conduct here is fairly straightforward in its illegality. Congress, not the President, controls spending, federal buildings, and national parks. Accordingly, Congress could have authorized the proposed demolition and renovation project – but apparently Republican lawmakers aren’t eager to attach themselves to a vanity project supported by only 28% of Americans, according to a recent ABC News / Washington Post / Ipsos poll.

Instead, the President’s lawyers have tried to force the square-peg ballroom construction into an array of round-hole laws passed long ago to authorize very different types of projects. Trump’s team primarily points to a law that permits the President to authorize limited spending for White House maintenance, including “alteration” and “improvement” – which works here only if “alteration” is interpreted to mean “destruction of an entire wing and erection of a 90,000-square-foot behemoth in its place.” Unsurprisingly, a George W. Bush-appointed federal district court judge rejected Trump’s legal position (which relied on a “patent misconstruction” of the law, pun perhaps intended), and the Court of Appeals for the District of Columbia Circuit concurred in a two-to-one ruling. Now the case awaits resolution by the Supreme Court on its emergency docket.

It might seem at first glance that plaintiffs in our legal system hold the power position. Plaintiffs sue, plaintiffs accuse others of wrongdoing, plaintiffs demand money or other redress. Meanwhile defendants deny, defendants sweat it out, and defendants cut the check if they lose. Plaintiffs are the NFL offense looking to score a touchdown and spike the football, while a defendants’ best outcome is to avoid getting lit up.

But in reality, it’s rough to be the plaintiff. It takes money, resources, and attention to bring any lawsuit, never mind one against the President and his taxpayer-funded representatives at the Justice Department. The plaintiff in the ballroom lawsuit is the National Trust for Historic Preservation, a non-profit represented by Foley Hoag, a national law firm that generated over $320 million in revenue in 2025. We don’t know how much the lawyers are charging, or whether they’re working at reduced rates or even for free, but those billable hours are valuable resources and somebody – the National Trust or the firm – is absorbing a substantial cost.

Plaintiffs also can face intense time pressure. Even while the National Trust has prevailed at each stage of the litigation so far, the courts have allowed construction to continue on the ballroom, which on August 13 was “65% complete in its entirety, and moving quickly toward total completion,” according to the government. That number has surely risen since then, as a 250-person crew has been working 20 hours per day to finish the ballroom before some judicial interloper can put a stop to it. As time passes, it becomes increasingly difficult to pause or reverse work that has already been completed, even if done illegally. It’s tough to remove bricks that have already been laid.

Trump plainly understands the cold reality here. After Chief Justice Roberts on Friday gave the Court more time to decide the case and allowed construction to continue in the meantime, Trump crowed that he had won, and thanked “the Supreme Court and the Chief Justice.” He’s wrong as a technical legal matter – the Court has not yet ruled on the merits – but he’s right that every day that passes is a practical win for him.

The National Trust, as the plaintiff, also must clear a series of threshold procedural bars. Most vexing among them, a plaintiff must establish legal “standing” to sue. Not just anyone who is aggrieved by some government action can bring a lawsuit, and a party can’t generate standing simply by caring a lot or objecting strenuously, even rightfully or passionately. Rather, a plaintiff bears the burden of showing that he has suffered (or will suffer) some direct, concrete injury that can be remedied by a court.

The two Court of Appeals judges in the majority ruled that the National Trust has standing, but they palpably strained to get there. The judges reasoned that the National Trust has “associational standing” because one of its members – Professor Alison Hoagland, an architectural historian – “routinely recreates by walking in front of the White House” and “is a professional academic who continues to study and relies on the architectural design of the White House and President’s Park in her work.” Professor Hoagland, the judges concluded, stands to suffer “aesthetic,” “cultural,” and “recreational” injuries.

The dissenting judge countered that Supreme Court precedent requires injury that is “concrete, particularized, and actual or imminent” and that speculative injury to one person’s aesthetic and artistic sensibilities doesn’t cut it here. As Trump’s lawyers argued to the Supreme Court, an individual’s “subjective preference does not create a concrete, particularized injury, no matter how strongly she feels about the White House’s appearance.”

That argument may well find a sympathetic audience at the Supreme Court, which has taken a hard line on standing – at times to the benefit of liberal causes, including the 2024 decision dismissing a challenge to FDA’s mifepristone rules and thereby preserving broad access to the abortion drug. Do not be remotely surprised if this Court rejects the National Trust’s claim of concrete injury and dismisses the case based on lack of standing.

Who, then, might actually have standing? The answer might well be, nobody. There’s no rule in law or logic that some person or entity must have standing in every public controversy. Vexing as it might seem, not every governmental overstep is fixable through a lawsuit. Indeed, the apparent standing problem here underscores the conspicuous absence of the entity that should have been running the show from the start: Congress. But Congress has chosen to sit this one out, with Republicans who control the majority in both the House and Senate petrified of either defying their leader or embracing a deeply unpopular, wasteful spending project. As a result, the ballroom may well get built even if the construction is illegal and even if it encroaches on the Legislative Branch’s own institutional (if unexercised) prerogatives.

You’ve heard the expression that possession is nine-tenths of the law. Roughly translated, that means that realities on the ground often dictate the result in court. As a practical matter, it’s difficult to imagine an outcome here that would permanently enjoin the ballroom construction and leave the nation with a massive ditch and partially-built structure on the White House grounds. The standing issue provides the Court with a palatable off-ramp to avoid that result. And if that happens, Trump will get his way, even while he runs roughshod over the law.