BAD LAW

Last Friday, Chief Justice John Roberts issued a one-sentence order staying the preliminary injunction issued by a DC federal District Court that would have stopped construction on Trump's ballroom.  

The injunction was issued on April 16, 2026 and upheld by the DC Circuit Court of Appeals on August 7. 

At that time, the appellate court stayed its own decision for fourteen days to allow the defendants to apply to the Supreme Court for an emergency stay.

They did and on Friday Roberts issued his one sentence order.

The order states that the injunction was stayed "pending further order" of Roberts himself "or of the Court."

Though much is unclear in the Chief Justice's opaque one liner, two things are not.  The first is that Roberts acted alone. The second is that a "further order" is not foreclosed.  Either by him or the entire Court. 

This probably means a majority did not agree with him. It also probably means he was giving them time to come around or act on their own. It does not mean Roberts himself necessarily favors a stay or believes the injunction should ultimately be vacated and Trump's ballroom construction permitted to go forward. It also does not mean he is against a continuing stay and Trump's construction.

It does mean he is patient.

The DC Court of Appeals that reviewed the case was a three-judge panel.  The panel voted 2-1 to uphold the injunction.  I have read the appellate court's entire 101-page decision, as well as the thirty-five page dissent and the papers filed with the Supreme Court in support of and opposition to an emergency stay. (You can thank me later.)  

The undisputed facts here are that Trump demolished the east wing of the White House and started building his architectural eyesore of a ballroom without any Congressional approval whatsoever. In doing so, he violated the Property Clause of the Constitution, six statutes, and two hundred fifty years of precedent. The District Court's injunction was careful to stop only construction of the above-ground 90,000 square foot ballroom. All the subterranean work and upgrades on the White House's east wing underground web of sensitive national security bunkers and technology remains undisturbed and on track.

The fact of a thirty-five-page dissent in the appellate court and Roberts's own single-judge order suggests this case is difficult.  

But it really isn't.

The Property Clause of the Constitution (Art. IV, section 3, cl. 2) says "The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting . . . the Property belonging to the United States". The United States Code provides that "A building or structure shall not be erected on any reservation, park or public grounds of the Federal Government in the District of Columbia without express authority of Congress."  In opposing the lawsuit filed to enjoin his ballroom, Trump claimed that three statutes gave him that authority -- the National Park Service Organic Act, 54 USC 100101(a); the so-called "authorization to appropriate" section of a 1978 Act providing for "Assistance and Services for the President", 3 USC 105(d)(1); and the Economy Act, 31 USC 1535(a). 

He claimed the Organic Act authorized the National Park Service to build his ballroom because the White House is actually part of a designated national park (called "President's Park"). He claimed the "authorization to appropriate" section of the '78 Assistance legislation separately gave the White House's Office of the Executive Residence (EXR) the right to do so.  And he finally claimed that the  Economy Act  gave the Park Service authority to transfer both its authority and any gifts it received to the EXR in order to fund and have EXR take over the project.

None of these claims, however, did the trick.

The Organic Act established the Park Service to "promote and regulate the use of the National Park System by means and measures that conform to the fundamental purpose of the System units, which purpose is to conserve the scenery, natural and historic objects, and wild life in the System units and to provide for the enjoyment of the scenery, natural and historic objects, and wild life in such manner and by such means as will leave them unimpaired for the enjoyment of future generations."  It didn't authorize the Service to tear down the East Wing or build Trump's 90,000 square foot ballroom. In fact, if anything, the Act precludes Trump's monstrosity inasmuch as it will literally eliminate the actual main White House as the focal and central point of President's Park and repudiate the "republican simplicity" the structure was designed to symbolize by dwarfing it with  a super-sized ballroom as its new east wing.

Nor do the other two statutes save Trump's project.

Section 105(d)(1) of the Assistance Act is an  "authorization to appropriate" statute. It only gives the Constitutionally-established appropriators, namely, the Congress, the right to appropriate monies that the President can then use for the "care, maintenance, repair, alteration, refurbishing or improvement, air-conditioning, heating and lighting . . . of the Executive Residence at the White House." As of now, Congress has appropriated about $2.4 million under this section.  The ballroom's cost, however, is $400 million, the east wing is not a part of the main residence, and demolishing that wing so a new 90,000 square foot structure could be erected is neither a mere "alteration" nor a simple "improvement". In the parlance of real estate common law, it is new construction. In the parlance of the plaintiff National Trust for Historic Preservation and most of the public, it will be a grotesque eyesore that destoys the we-are-not-a-monarchy message the White House was always meant to project but this President obviously abhors.

As for the Economy Act, it only permits the Park Service to transfer rights it has to an agency.  Since it had no right to build the ballroom, it could not authorize EXR to do it.  And since EXR is not an "agency", the Service also could not transfer the gifted funding it claims to be receiving even if it had the right to build.

As I said, this is an easy case.

So why is Roberts delaying?

Two reasons.

First, the National Trust could bring this case only because it had "associational standing", about which a couple of  things can be said.  

One is that the doctrine itself has been around for years and has unlocked the courthouse doors for numerous non-profits, groups and associations.  Think Friends of the Earth or the Sierra Club. The other is that conservatives hate associational standing.  Clarence Thomas wants the doctrine repudiated and the conservative who dissented in the DC Circuit, as well as the administration and its friends who filed amicus briefs, were adamant in arguing that the National Trust did not have it here.

Second, the six Republican appointees who now constitute the Supreme Court's conservative majority have made it a habit to avoid confronting Trump by staying injunctions prohibiting his conduct while the litigation on that conduct proceeds. 

Last week they did it in the ballroom case.  

This week they did it on Trump's executive order requiring the Department of Homeland Security to create lists of "confirmed" citizens in each state and DOJ to then investigate and prosecute state and local officials who distribute or count illegal mail-in ballots, which could be the ballots to or from those who are not on the HHS lists and who (so the Trumpists think) are not eligible to vote. The executive order also requires that the Postal Service initiate a proposed rule-making procedure that the envelopes for all outgoing mail-in ballots contain a barcode to enable tracking and that the Postal Service deliver mailed  ballots only from persons on the citizenship lists. The government admitted its citizenship lists would be incomplete.

Trump's mail-in ballot executive order was enjoined because it unconstitutionally interfered with the states' authority to regulate elections. But in a 6-3 vote, the Supreme Court stayed that injunction, holding that the states who sued lacked standing because Trump's order had no immediate effect on them and the possible but unknown future consequences were too speculative to count and therefore not ripe for judicial review at this time. (A second injunction against the order from a different court remains in effect and has not been appealed. But the only Supreme Court comment on the President's unconstitutional plan to suppress mail-in ballots is its 6-3 opinion staying that first injunction.)

In both the ballroom and the mail-in ballot case, the Court's de facto collective ability to forget who they are dealing with and pretend he is normal is truly astounding.  In the latter, Justice Jackson  understood this, concluding her dissent to the Court's stay with the following: "When the Government’s obvious goal is to interfere with the Plaintiff States’ practices and prerogatives in a manner that the Constitution does not authorize, it is both a serious legal error and a grave misuse of our equitable emergency powers to let the Executive proceed even one step further."  And in the former, the record is replete with misrepresentations and l'etat c'est moi assertions by Trump that should have made upholding the DC Circuit's decision an immediate no-brainer. 

At oral argument, the government admitted it was proceeding at warp speed to complete the ballroom and ultimately claimed -- contrary to its earlier express promises and basically as a middle finger to the judiciary --  that once up, the new structure could never come down. It also admitted the structure would have a "permanent adverse impact" because it would "depart from the  . . . architectural integrity of the White House" and “adversely alter the design, setting, and feeling of the White House ". Over time, its argument for the project morphed from the asserted need for a suitable place for state dinners (the larger ones are now held in tents on the south lawn and have been for years) to the claim that the exposed footprint where the east wing once stood is a security threat that can only be remedied with the above-ground ballroom. 

One would think the Secret Service and Army, both of which filed last minute declarations with the appellate court (itself anomalous because evidence is supposed to be presented to the fact-finding district court considering the injunction in the first place), would have thought about all of this before Trump unilaterally demolished the east wing and therefore has a plan in place to deal with the issue. 

But, according to Trump, apparently not.

Or at least not enough.

Chief Justice Roberts and his five conservative colleagues are pretending to be patient with a man whose claim to anyone's patience expired long ago.  Questions regarding standing and ripeness are judicial speed bumps that insulate the courts from false or premature controversies. They make litigation a last, not a first, resort. Ordinarily, this is a good thing.  As Trump has proven, however, merely apparent controversies with him are quite real and waiting before stopping him is dangerous. 

And as Justice Jackson has put it, "This is not a close call."

One hundred twenty-two years ago, Oliver Wendell Holmes, Jr. said "hard cases make bad law."

Today . . .

Easy ones do too.

ON COMPLACENCY AND COOL TEA

John Cornyn and Thom Tillis are current but soon to be former Senators from Texas and North Carolina, respectively.  

Cornyn's departure will have been involuntary.  He was defeated earlier this year in a Republican primary by Texas's ethically-challenged but Trump-loving (and Trump-endorsed) Attorney General, Ken Paxton. 

For his part, Tillis is leaving on his own accord.  

Sort of.  

He announced he would not run for reelection in June of last year.  At that time he was one of only two Republican Senators opposed to the administration's Big Beautiful Bill and was being vilified by Trump for that bout of legislative independence. In resigning, he avoided what almost certainly would have been a Trump-supported primary opponent, most of whom wind up doing rather well in today's MAGA/Trump controlled GOP.  

Just ask . . .

John Cornyn.

In any case, either armed or freed by incipient irrelevance to ignore Trump's on-going corruption, both men recently announced they would not vote to advance Trump's nomination of Todd Blanche as Attorney General out of the Judiciary Committee and onto the Senate floor.  

If it did not get out of committee, the nomination would have died.  

If it did, the GOP's 53-47 control would make Cornyn's and Tillis's opposition irrelevant.

This was a big deal and was driving Trump crazy.

In this corrupt Wizard of Oz presidency, Blanche is the guy pulling the strings for Trump. 

At the Senate Judiciary Committee hearing, his "I'm his lawyer, was his lawyer" Freudian slip broadcast his subservience to Trump. 

Far more damning, however, were the  on-going reprisal prosecutions Blanche as the acting head of DOJ has accelerated against Trump's enemies and the "settlement" Blanche rubber-stamped last May of Trump's bogus suit against the IRS.  

That law suit, which the federal judge in Florida overseeing it later condemned as "improper" and brought in "bad faith", became the artificial basis for the unapproved settlement that created the now-infamous $1.776 billion anti-weaponization fund for J6 insurrectionists and granted Trump, his children, his other relatives, his trusts,  his companies and any affiliated entities or individuals immunity from any on-going audits and penalties for tax liabilities. The immunity may be worth as much as $100 million.

Almost immediately after the anti-weaponization fund was announced, it was broadly condemned. 

AOC called it "outright corruption", and if you think her reaction was just left-wing hyperbole, Mitch McConnell said it was "Utterly stupid, morally wrong -- take you pick." Five lawsuits were filed to stop it and in one, a federal judge in Virginia preliminarily enjoined it. 

At that point, Blanche pretended the gig was up. DOJ announced it would comply with the court order and on June 1 Banche told the House they "were not moving forward with the fund, period." Given the source, however, the court was not satisfied. It demanded that assurance in writing, which the administration would not provide. 

Meanwhile, Blanche made clear that the tax immunity settlement was alive, and on July 13, the judge in Trump's IRS lawsuit (which Trump had discontinued the day before the "settlement" was announced but the court had subsequently reopened) issued an order stating the case and settlement were "the product of collusion". It found that Trump and the other plaintiffs had "pursued [the] lawsuit in bad faith for the improper purpose of  dishonestly advancing a political narrative" and referred the lawyers involved to their respective bars for disciplinary hearings.

In this context, Blanche appeared before the Senate Judiciary committee on July 15. At that hearing, though Blanche claimed the anti-weaponization fund was dead, Cornyn noted that "the president of the United States, who's the plaintiff in the lawsuit, ha[d] not agreed in writing to delete" it.  Later, a July 30 vote in the Judiciary Committee was postponed because both Cornyn and Tillis also wanted "clarification" on the immunity deal.

On Monday, the two holdouts said they had gotten the needed clarification and agreed to allow Blanche's nomination to go forward.  This apparently came in the form of two documents Blanche posted on Sunday night.  In the first, which he signed, Blanche formally rescinded the anti-weaponization fund.  In the second, an unsigned DOJ statement, the department said the immunity deal was only retroactive and only covered the plaintiffs in Trump v. IRS and not any unnamed parties or relatives.

This is what passes for courage in the Republican party these days.

In fact, however, it is just complacency.

According to behavioral psychologists, complacency is "a natural byproduct of the brain's tendency to automate repetitive tasks."  As Daniel Kahneman, the Israeli-American expert in this field, explained in his Thinking, Fast and Slow,  we are hard-wired to turn thinking that must be deliberate and analytical (or slow) into that which can be made routine and automatic (or fast). Usually this works.  Our careful and deliberate assessment of a new situtation can over time become more immediate as it recurs. 

This can be true even in relationships.

Where initial analytic hesitancy can be replaced by automatic routines borne of repeated trust.

The criticism that first created an "I wonder if she really likes me" can much later turn into a "She's saying it because she loves me."

Sometimes, however, we get it wrong.

We substitute routine for analysis.

The fast for the slow.

And we fail.

John Cornyn and Thom Tillis just failed.

The promise they got is riddled with holes that both Trump and Blanche in the future will willingly exploit.  On the anti-weaponization front, that agreement between Trump and the IRS is in a writing that says it can only be modified in another writing.  Trump and the other plaintiffs never signed any modification.  Trump has appealed the Florida decision (which prohibits the parties from calling their deal a "settlement" and refers the lawyers to state bar disciplinary committees), and still thinks all the J6 insurrectionists who ransacked the Capitol in the service of his 2020 election lie were victims who deserve compensation. The J6 insurrectionists themselves are anxious to cash-in on this insistence and Trump can just as easily pay them via tort claim settlements as through his now (supposedly) defunct anti-weaponization fund.

The immunity deal is even worse.

Even as limited by the department's unsigned Sunday statement, it is a massive, underserved windfall to Trump, his two sons Don Jr. and Eric, and the entire Trump Organization. Cornyn's and Tillis's demand that its retroactivity be confirmed was in truth pointless since by its terms it already was, and the "get" they got in the form of restrictions to just the plaintiffs does not remotely minimize the deal's inherent corruption.

So why did Cornyn and Tillis give up?  

Both of them are leaving office and Trump had no continuing leverage over them.

The answer is . . . 

Complacency.

They decided that  the routine act of blocking a nominee in committee could result in what otherwise would be the needed concessions.  

Because with any other president it would have.

But not this one.

A deliberate analysis would have made clear that the needed concessions were (i) eliminating any possible payments to J6 insurrectionists and (ii) tearing up any immunity deal of any sort. It would have entailed  a long, slow process in which  Trump would have had to cave and save Blanche's current nomination but give up both the anti-weaponization and immunity deal, or he would have had to take his chances on retaining control of the Senate in order to renominate Blanche next year. 

Neither of these options appealed to Trump, mostly because, however much he cared about compensating J6 insurrectionists or retaining his personal attorney as the nation's Attorney General, he cared much more about preserving his windfall tax immunity.  And it is not clear that any lawyer other than the hopelessly compromised Blanche would be willing to preserve it.

The Senate is supposed to be the enemy of complacency.

It is slow by design.

During the founding era, Thomas Jefferson reportedly called upon President Washington. As the two drank tea and Jefferson poured his into a saucer, he asked "Of what use is the Senate?"  Washington explained that Jefferson was "answering [his] own question" and then asked "Why do you pour your tea into the saucer?" When Jefferson said "To cool it," Washington replied "The senate is the saucer into which we pour legislation to cool."

All Cornyn and Tillis had to do was wait.

But they didn't.

Instead . . .

They threw out the saucer.

And pretended the tea had cooled anyway.