Takeaways from the appeals court hearing on the White House ballroom project

By Devan Cole, CNN

(CNN) — President Donald Trump’s push to construct a massive ballroom at the White House without congressional approval was sharply questioned by a federal appeals court on Friday during a high-stakes hearing in a case testing the president’s power.

The two-hour-long hearing before a three-judge panel of the US DC Circuit Court of Appeals was the latest flashpoint in a protracted legal fight over the project. Work has continued on the nearly 90,000-square foot event space even as courts have looked skeptically at the legality of it.

The administration is asking the panel to indefinitely pause a lower-court ruling that said Trump could not continue with above-ground work on the ballroom until lawmakers explicitly bless the project.

That ruling, issued earlier this year by US District Judge Richard Leon, was frozen by the appeals court in April, permitting Trump to move ahead with construction for now. In recent weeks, above-ground parts of the new space have risen on the site of the former East Wing, which was fully demolished nearly two months before the nation’s top historic preservation group sued in December.

The case is one of nearly 10 brought in recent months by individuals and groups seeking to stop pet projects pursued by Trump in his second term. Other challenges question the lawfulness of the president’s desire to rename the Kennedy Center, erect an American version of Paris’ l’Arc de Triomphe and paint the Reflecting Pool “American Flag Blue.”

Here’s what to know from Friday’s hearing:

A fait accompli, DOJ argues

As a Justice Department attorney urged the appeals court to reverse Leon’s ruling and made clear that even if the administration loses during this round of wrangling and again before the Supreme Court, the DOJ attorney didn’t think any court would have the power to order Trump to tear down the ballroom.

“I’m asking you a straightforward question: That court, this court, the Supreme Court – no court could stop the building of this?” Judge Patricia Millett, an appointee of former President Barack Obama, asked DOJ lawyer Yaakov Roth, who quickly responded, “Yes.”

“When did it become a fait accompli? Was it when the destruction happened? Was it when you started doing the underground work?” the judge asked. “When did it become impossible for courts to stop this project?”

“I think it would have been improper to enjoin it even on day one,” Roth said, referring to the day the lawsuit by the National Trust for Historic Preservation was filed.

“If this were complete lawlessness by the government, it couldn’t be stopped?” Millett asked, to which Roth replied: “On these theories, I think that’s right.”

He went on to say that he thought construction could only be frustrated by an act of Congress and that courts had no independent role to play in disputes over the ballroom.

Tad Heuer, an attorney for the Trust, later seized on that argument and said it conflicted with a landmark 1803 Supreme Court case that established the power of judicial review.

“Under Marbury v. Madison, it is emphatically the province of the judicial department to say what the law is. And the government’s position, apparently, is that even a lawless action of this type could never be stopped by the court.”

“That is entirely wrong,” Heuer said. “That’s exactly the court’s job.”

‘Move fast and break things’

Millett, who was especially inquisitive during Friday’s hearing, at one point skewered Roth over his argument that the bar for being able to challenge a government action is much higher after it’s already occurred.

Much of Trump’s strategy in the dispute has been to question whether the National Trust has the legal right – known as “standing” – to bring its lawsuit. Among other things, the president has argued that the harm the group says it has suffered from the demolition of the East Wing and construction of the massive ballroom is not sufficient to give it standing, which would mean the case would fail on technical grounds.

Had the case been brought before the East Wing was demolished last fall, Roth argued, their claims would be much stronger than the ones that were raised nearly two months after that part of the White House was flattened.

The government’s position, Millett said, was “move fast and break things and then nobody has standing.”

She later raised a hypothetical in which Trump decided to quickly bulldoze the Statue of Liberty.

“The people whose ancestors – that was the first thing they saw coming to this country, but the government moved too fast – nothing can be done (by them to challenge it)?” the judge asked.

“I think that’s right, yes,” Roth said.

Pushing back on Millett’s “move fast and break things” assertion, Roth posited that Trump had previewed his plans for the ballroom many months before demolition got underway.

“They did not sue in August or September or October or November,” he said.

One panel member, Trump appointee Judge Neomi Rao, was sympathetic to the president’s arguments on this front. In an order this year during a different stage in the case, she said she believed the Trust lacked standing to bring the challenge, and she repeated that view on Friday.

Rao also brought up the non-ballroom purposes of the East Wing replacement project.

“The president has talked about the national security interests,” below the ballroom and in the structure itself, Rao said.

“On the other side, the Trust has some aesthetic concerns of someone who walks past once a month,” she said, referring to a member of the Trust’s board who has said the changes to the White House have caused an “aesthetic injury” to her.

Question of congressional approval

At issue in the case is whether a series of federal statutes the government is leaning on as legal justification for the project actually give Trump the authority he claims to have.

Leon said they did not, and a majority of the panel on Friday appeared ready to agree with that view.

Judge Bradley Garcia, an appointee of former President Joe Biden, questioned Trump’s argument that a law permitting the National Park Service to “promote and regulate the use of the National Park System,” authorized the project.

“You have to agree it doesn’t give express authority to construct anything,” Garcia said at one point.

Garcia also seemed unpersuaded that another law the government has invoked, which gives Trump the power to undertake regular maintenance of the White House, gave him the legal right to pursue his ballroom project.

“He’s authorized to make $2.5 million of maintenance changes to the White House. This cannot be a source of authority for demolishing and replacing part of the construction,” he said.

The judge seemed especially interested in a separate law that says anything erected on federal land in Washington, DC, needed to be approved by lawmakers. He said if the court just looked at that law in isolation, “that’s the end of the case.”

Millett, too, poised sharp questions to Roth, saying at one point, “You need to have an authorization somewhere.”

For its part, the Trust urged the appeals court to keep Leon’s ruling intact and lift the temporary pause it placed on it while the legal wrangling plays out.

“Congress is right to be able to be involved and say here is exactly what you can do,” he told the court. “Congress can allow a ballroom to be built.”

This story has been updated with additional details from the hearing.

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