For those who might be new to this series, qualifying for our monthly “Dishonorable Judicial Conduct Award” means a judge has refused to apply the law as written or follow binding precedents or has made absurd findings that twist or defy the facts in a case. And the judge does this to achieve a particular — and usually a “woke” — political, social, or cultural outcome. Our August award goes to two judges on the U.S. Court of Appeals in Washington who just want to interfere with the White House addition currently under construction.
In National Trust for Historic Preservation in the United States v. National Park Service, the National Trust for Historic Preservation (NTHP), a non-profit group chartered by Congress, sued to stop construction of the addition that includes a ballroom above ground and security and communications facilities below. The first rule in civil lawsuits like this is that the plaintiff must have legal “standing,” that is, an imminent and particularized legal injury caused by the defendant that a court is able to remedy. No standing, no lawsuit.
The NTHP said it was suing on behalf of one member, retired Professor Alison Hoagland, who claimed that “the sight of the ballroom will harm her during her monthly walks past the White House.” That’s right, she claimed this “aesthetic injury” was so real, so imminent, that she could ask a federal judge to just stop the whole thing in its tracks. A district judge bought it, issued a temporary restraining order, and in a 2-1 decision, the appeals court affirmed the order. Judges Patricia Millett and Bradley Garcia, appointed, respectively, by Presidents Barack Obama and Joe Biden, jointly wrote the majority opinion and easily earn our Dishonorable Judicial Conduct Award.
Their opinion has lots of rhetoric about their personal opposition to this construction that has nothing to do with the legal issue before them. They expressed, for example, their outrage at the fact that the president “unilaterally and using privately collected funds demolished substantial portions of the White House that Congress authorized to be built and American taxpayers paid for.”
What does it matter whether Congress authorized the prior construction or the taxpayers paid for it? The legal question was whether one person’s distaste for the design or the dimensions gave her standing to sue over it. That is an easy question to answer, and they got it wrong.
Those who have served in administrations of both parties, Republicans and Democrats, will tell you that expanding the space for large White House events, such as state dinners, is long overdue. Whether the White House needs more event space as well as an adjoining safe-space for the president in the event of an attack, and what that space should look like, are policy decisions. The legal issue here is whether someone not liking the White House design choices has enough skin in the game to file a lawsuit.
In a long line of precedents, the Supreme Court has held that to have standing to file a lawsuit, you must show an actual, concrete injury. Taxpayers, or even members of Congress, who don’t like policy decisions of the executive branch or a president don’t have an actual injury and don’t have standing to go to federal court and challenge those decisions.
The facts here are very straightforward. Because the White House is situated in President's Park, a unit of the National Park System, the Office of the Executive Residence is managing the project in coordination with the National Park Service. As dissenting Judge Neomi Rao explained, the NTHP has no standing because it was not provided by Congress “with any statutory authority or interest pertinent to the White House.”
The NTHP, Congress said when creating it, can “acquire real property for preservation,” but is strictly “prohibited from acquiring property within the National Park System.” Thus, the NTHP is violating its own charter by even bringing this lawsuit, and it has no standing. According to Rao, the majority claims the National Trust has standing to pursue lawsuits for purposes unconnected to its congressional statutory grant: “But that is really grasping at straws… [t]he majority's authorities are thus worthy of no more precedential effect than a drive-by jurisdictional ruling, which is to say: none.”
The NTHP must have known that it was grasping at legal straws and so brought Hoagland along just in case. But an organization cannot sue on behalf of its members unless those members have their own standing. All Hoagland could claim was that she occasionally walks by the White House and, assuming she would continue doing so, seeing the new ballroom will be aesthetically displeasing to her. Her entire claim is based on her saying that she anticipates being “impressed with the White House” but “displeased with the planned ballroom.”
The fact that Millett and Garcia gave her standing not only violates binding precedent on standing, as Rao ably points out, but it is also patently absurd. The court elevated “the aesthetic displeasure of a single passerby over the government's security interests in the ballroom and the security risks of leaving an open construction site at the President's home and office.”
Hoagland obviously “has failed to demonstrate an imminent and particularized injury in fact,” wrote Rao. Not only should the injunction never have been issued, but the case should have been dismissed immediately because of the blatant lack of standing of the challengers. But in “deciding the ballroom construction ‘has to stop!’” says Rao, the court “transgressed the equitable authority of the federal courts. The preliminary injunction is a clear abuse of discretion.”
Millett and Garcia tried to justify their activism by claiming that Trump's actions to renovate the White House, improve its security, and provide the needed additional space for official functions will “seriously intrude on the public interest.” The opinion is full of this mushy, vague, subjective rhetoric.
No, what “seriously intrudes on the public interest” is partisan judges acting far outside of their judicial authority and interfering in the functions of the executive branch. Fortunately, Chief Justice John Roberts has issued a temporary administrative stay of that injunction while the Court considers an emergency appeal from the Trump administration.
But such misbehavior by the lower court deserves a Dishonorable Judicial Conduct Award.
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