Welp, the Supreme Court has decided that President Donald Trump gets to build his ballroom. The decision in National Park Service v. National Trust for Historic Preservation is 5-4, with Republican Chief Justice John Roberts joining the three Democratic justices in dissent.
Notably, no member of the Court argued that Trump’s ballroom, an enormous structure that the president plans to build on the former site of the White House’s East Wing, is legal. As Roberts points out in dissent, a federal law prohibits 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.” And, as Roberts writes, “Congress has not passed any law resembling ‘express authority’ for the Executive’s construction of” Trump’s ballroom.
Nevertheless, the five Republicans in the majority manage to rule in favor of Trump by effectively immunizing his ballroom from federal lawsuits.
Their opinion highlights two of the most troubling things about the current Supreme Court: its reluctance to impose limits on Trump’s imperial-style presidency, and the frequent incoherence of its reasoning, especially in Trump cases.
Their opinion suggests that no one is allowed to sue to challenge Trump’s decision to destroy and replace much of the White House. But it is short, does not explain key points of its argument, and relies on several distinctions that do not make any sense.
As a general rule, no one is allowed to file a federal lawsuit unless they can show that they were injured in some way by the defendant they are suing — a requirement known as “standing.” But the Court has long held that plaintiffs suing under conservationist laws that seek to preserve a pristine, sacred, historical, or otherwise beautiful site have standing to bring a suit enforcing such laws against defendants who would damage or destroy such a site’s beauty.
In Lujan v. Defenders of Wildlife (1992), for example, the Court said that “the desire to use or observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest” that can be asserted in federal court. Similarly, the Court held in Friends of the Earth v. Laidlaw Environmental Services (2000) that “environmental plaintiffs adequately allege injury in fact when they aver that they use the affected area and are persons ‘for whom the aesthetic and recreational values of the area will be lessened’ by the challenged activity.’”
So that’s how standing worked right up until Monday afternoon, when the Court handed down its latest opinion. The new rule is…well, it is difficult to parse.
The plaintiff in National Park Service is a conservationist organization whose members include a retired professor who would frequently walk by the White House and who admired its beauty. Under decisions like Lujan and Friends of the Earth, that was enough to give her standing to sue in order to challenge the ballroom.
The five Republicans in the majority, however, falsely claim that this individual merely argued that she is offended by Trump’s construction project, and that past decisions have involved “more than mere offense.” The Republicans note that, in Friends of the Earth, the plaintiffs not only wanted to view a river, but also to fish and swim in it and to camp nearby. But they don’t really even attempt to distinguish Lujan beyond a vague statement that Lujan requires a plaintiff’s injury to be “concrete and particularized.”
Thus, because the majority opinion is so poorly explained, it is hard to tell what its implications will be. If the Court had explicitly overruled its past decisions holding that a plaintiff may often sue to challenge the destruction of something beautiful, that would be an existential threat to countless environmental, conservationist, and historical preservation laws that all exist to preserve natural or historic beauty.
But the Court’s failure to explain why Lujan does not require them to rule against Trump leaves lawyers and judges to guess at what the Court just did to the rules governing standing. Perhaps this is a one-off decision intended solely to do a favor for Trump. Or maybe it’s the harbinger of a future decision setting much of America’s environmental protection regime on fire. The five justices in the majority barely explain themselves, so we cannot yet know what National Park Service means.
But one thing that is clear is that the decision makes no sense. As Roberts writes in dissent, “it now is the case that ‘I want to look at a crocodile’ can adequately answer the ever-critical ‘what’s it to you?’ question of Article III standing, while ‘I want to look at the White House’ cannot.” But the justices in the majority couldn’t even be bothered to explain why.