President Donald Trump is building an illegal ballroom on the ruins of the White House’s East Wing, which he destroyed last fall. Congress forbade the construction of any building on federal property in Washington, D.C., “without express authority of Congress.” Congress did not authorize the ballroom’s construction, nor did it appropriate funds to build it. (Hundreds of millions of dollars in private “donations,” so to speak, have funded it instead.)
What can be done to stop him? Nothing, says the Supreme Court. Five of the six conservative justices ruled on Monday evening that a historic-preservationist group did not have standing to challenge the project in court, which means it is likely to proceed unhindered for the rest of Trump’s second term.
“Today, we do not pass upon the legality of the government’s East Wing project,” the majority wrote in an unsigned per curiam order. “We conclude only that, based on the submissions before us, the government is likely to prevail in showing that the Trust lacks Article III standing to challenge the project in federal court and that the remaining stay factors favor relief.”
The court’s flawed decision sheds new light on a pernicious issue: the conservative justices’ narrowing of Article III standing to weaken Congress and supercharge both the executive branch, at least when Republicans control it, and the Supreme Court itself.
Standing is, in general terms, the right to bring a lawsuit at all. Article III of the Constitution lays out the powers and limits of judicial power. One of those limits is that the federal judiciary can only hear “cases and controversies.” Among other things, this means that federal courts cannot render advisory opinions on acts of Congress or executive-branch decisions. There must be some kind of legitimate and articulable interests at stake.
In the ballroom case, the National Trust for Historic Preservation in the United States sued the president, via the National Park Service, to stop construction of the ballroom. A federal judge temporarily granted that request earlier this year, enjoining further work on the above-ground ballroom while allowing construction for the below-ground security complex to go forward. The Justice Department asked the Supreme Court to lift the lower court’s injunction, which it duly did.
The majority’s mistakes in this case start with their first sentence: “In October 2025, the federal government started a project to replace the East Wing of the White House.” In reality, the president is only one part of the federal government, albeit an important one. The majority’s phrasing gives a benign, normalized gloss to the president’s illegal decision to tear down the East Wing of the White House. Congress authorized no such thing by law and, through other statutes, expressly forbade it.
Another prong in the court’s analysis at this stage is whether a party will suffer “irreparable harm” and how the “balance of the equities” should fall when reviewing a lower court’s injunction. The executive branch exists to “take care” that federal law is executed. Logically speaking, the president cannot suffer “irreparable harm” when a court stops him from doing something illegal. But five of the six conservative justices disagreed, instead crediting a vague national-security justification for the project without questioning the validity of that claim.
The government has also presented declarations from the Director of National Intelligence, the Director of the Central Intelligence Agency, the Director of the Federal Bureau of Investigation, the Director of the United States Secret Service, and the Secretary of State, the Secretary of Homeland Security, and the Secretary of the Army, among others, attesting to national security and other harms that would likely arise from enjoining a “single, coherent” project that cannot be readily cleaved into distinct below- and above-ground pieces.
In an earlier age, these declarations may have deserved at least some deference. But this is the era of the unitary executive. The same justices who nodded along to this passage also insist to Americans that the president can and must wield absolute, untrammeled control over the executive branch, even among the Senate-confirmed officials who help lead it. In that sense, citing them is akin to using my cats and my two-and-a-half-year-old son as sources for one of my columns.
But the real problem is with the majority’s standing analysis, which essentially makes it impossible to challenge the project in court. The National Trust argued that it could bring the lawsuit because at least one of its D.C.-residing board members, Alison Hoagland, would suffer an “aesthetic injury” if the project went forward. Courts, including the Supreme Court itself, have often recognized similar injuries for standing purposes—for example, in cases involving the loss of endangered wildlife. (More on that later.) The illegal destruction of a world-renowned symbol of American republicanism would certainly seem to qualify under that threshold.
The conservative majority—except for Chief Justice John Roberts—disagreed. It reduced the Trust’s alleged “aesthetic injury” to a personal grievance against the Trump administration. “To the contrary, we have repeatedly held that mere offense, disagreement, or distaste does not qualify as a concrete and particularized injury under Article III,” the majority wrote in an unsigned opinion, quoting from recent precedent. “As we have put it, ‘this Court has long made clear that distress at or disagreement with the activities of others is not a basis under Article III for a plaintiff to bring a federal lawsuit.’”
I am almost surprised that whoever wrote this opinion did not call Hoagland and the Trust a woke liberal snowflake. It fell to Roberts to explain, without apparent success, how the law actually works to his colleagues in the majority. “A historic preservationist such as Hoagland can be aesthetically injured in a concrete, particularized way by the transformation of a historic building that she frequently enjoys,” he wrote a dissenting opinion joined by the court’s three liberals, “just as an environmentalist can sustain a concrete, particularized aesthetic injury from the extinction of a particular animal or the transformation of a particular forest or river that he regularly enjoys.”
Environmental law keeps coming up in this discussion because of a major precedent that significantly narrowed Article III standing. The pivotal case was 1992’s Lujan v. Defenders of Wildlife. Under the Endangered Species Act, federal agencies must consult with the secretary of the interior when the agency does or funds something that threatens an endangered species or its habitat.
The Interior Department initially held in the 1970s that this consultation process applied to actions undertaken by a federal agency anywhere in the world. In the early 1990s, the Bush and Clinton administrations changed the rules so that the consultation requirement would only kick in if a federal agency did something within the United States or in international waters. Defenders of Wildlife, an environmental group, sued the department in federal court to challenge the rule change.
Defenders identified two members who would have the right to challenge the department’s new rule. One of them told the courts that she had traveled to Egypt in 1986 to view the “traditional habitat of the endangered Nile crocodile,” which she said was threatened by U.S. support for that country’s Aswan High Dam project. The other litigant said something similar about Asian elephants that she had previously encountered in Sri Lanka in 1981, which would be imperiled by USAID funding for a project there.
Justice Antonin Scalia, writing for a 7-2 court, ruled that the plaintiffs had not shown that they had Article III standing to challenge the department’s then-new rule. A plaintiff, he wrote, must demonstrate three things. One is that they have what Scalia called an “injury in fact,” meaning that they face the “invasion of a legally protected interest.” Second, the plaintiff must show that the injury is “concrete and particularized,” meaning that it is not merely abstract or imaginary. Finally, a litigant must show that the injury they face is “actual or imminent,” by which they mean it is not merely hypothetical or possible.
“Of course, the desire to use or observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest for purpose of standing,” Scalia acknowledged. But he concluded that the plaintiffs’ injury was too remote to justify their lawsuit here. Their past visits to these countries was insufficient, he explained, and their future plans to return were too hazy and uncertain to justify a court’s intervention. An intent to return someday to see endangered animals, Scalia concluded, was not concrete enough to stop the executive branch’s rule change.
Scalia went further to suggest that citizen-suit provisions, like the one found in the Endangered Species Act, might be unconstitutional if applied too broadly. He argued that it was not the courts’ role to “vindicat[e] the public interest,” as he put it, without a strict approach to Article III standing. If Congress could authorize private citizens to sue “regardless of whether they suffered any concrete injury,” he reasoned, it would “transfer from the president to the courts the chief executive’s most important constitutional duty, to ‘take care that the laws be faithfully executed.’”
Much of this is highly technical, but the impact of the decision was straightforward. Lujan represented a sea change in how Article III standing worked when challenging the executive branch’s actions in court—and, more importantly, how Congress could define it. One legal scholar noted that it was the first time in modern legal history that the court had limited Congress’s power to “bestow standing on a potential plaintiff” and had seriously injured the legislative branch’s ability to make “judicially enforceable policy decisions.” Another observed that Scalia’s triumphal invocation of history and precedent was surprisingly thin: The oldest Supreme Court case that the justice had cited for his holding, he pointedly noted, was from 1972.
Scalia himself had championed such a reversal long before taking the bench. In a 1983 law-review article, he argued that policing the bounds of standing was important for separation-of-powers reasons. A narrow version, he argued, “roughly restricts courts to their traditional undemocratic role of protecting individuals and minorities against impositions of the majority” and “excludes them from the even more undemocratic role of prescribing how the other two branches should function in order to serve the interest of the majority itself.”
By claiming judicial humility, Scalia effectively argued for expanding the executive branch’s powers and curbing those of Congress. But he also made clear that policy outcomes, not only constitutional theory, were at the forefront of his mind. “Strict enforcement of the environmental laws” by public-interest litigants, Scalia sneered, “met with approval in the classrooms of Cambridge and New Haven, but not in the factories of Detroit and the mines of West Virginia.” He also opined, somewhat nonsensically, that allowing this form of standing was bad for democratic governance.
“It may well be, of course, that the judges know what is good for the people better than the people themselves; or that democracy simply does not permit the genuine desires of the people to be given effect; but those are not the premises under which our system operates,” he wrote with apparent sarcasm. Here he seems to forget that Congress is the primary vehicle through which our democratic system of government is meant to operate, and that upholding its policy decisions through laws is the most elementary way to carry out the people’s will.
Scalia’s faux populism even led him to champion the notion that some laws might go unenforced or disregarded if no one had standing to challenge their non-enforcement by the executive branch. “The ability to lose or misdirect laws can be said to be one of the prime engines of social change, and the prohibition against such carelessness is (believe it or not) profoundly conservative,” he wrote. “Sunday blue laws, for example, were widely unenforced long before they were widely repealed—and had the first not been possible the second might never have occurred.”
That might be understandable for forgotten municipal ordinances, but it does not really make sense for acts of Congress. The lives and fortunes of hundreds of millions of Americans are shaped by the laws that Congress enacts. It is not a stretch to say that the global economy is more or less built on them. Our entire system of government is built on the notion that Congress can pass laws, and that those laws matter. The notion that a president charged with enforcing the laws can defy them so freely turns our constitutional order upside-down.
After Scalia transmuted this position into constitutional law in Lujan, he received widespread criticism from various legal scholars. One of his defenders was a future colleague: John Roberts, then in private practice, who wrote a 1993 law-review article defending Lujan in the Duke Law Review. The blandly titled article, “Article III Limits on Statutory Standing,” is a revealing pre-judicial window into Roberts’ basic views on the separation of powers.
The future chief justice echoed Scalia’s theories about judicial restraint, albeit without Scalia’s caustic insinuations. “The legitimacy of an unelected, life-tenured judiciary in our democratic republic is bolstered by the constitutional limitation of that judiciary’s power in Article III to actual ‘cases’ and ‘controversies,’” he wrote. This limitation, he argued, gave the courts the legitimacy it needed to countermand the elected branches of government.
Like Scalia and other conservatives, he embraced a sharp divide between the branches. Twentieth-century governance was defined by Congress delegating certain regulatory powers to independent agencies kept at arm’s length from the president. This productive mixture of two branches’ powers has no place in Roberts’ constitutional worldview. “Separation of powers is a zero-sum game,” he wrote. “If one branch unconstitutionally aggrandizes itself, it is at the expense of one of the other branches.”
That much is true in this case. By allowing the ballroom’s construction to go forward, the Supreme Court has allowed the president to break a constitutionally valid law without consequence. (What else is new?) The court has also further weakened congressional primacy by subordinating Congress’s power of the purse and explicit authority over federal property to the whims of a self-aggrandizing president who has given up actual governance in favor of treating the nation’s capital as a personal sandbox.
As a stop-gap measure, Congress should consider giving a statutory grant of authority to challenge future illegal presidential building projects to the mayor of the District of Columbia. The imposition upon city streets and public utilities, combined with Congress’s plenary authority over the District and federal property in general, should overcome even this court’s strict interpretation of Article III standing. Lawmakers may also want to consider empowering committees, ranking members, or even a specially designated legislative-branch official to challenge patently illegal acts by presidents in the future.
Ironically, as Roberts suggested in his dissent, he also had the better read of Lujan. Scalia’s opinion did not foreclose all forms of aesthetic injury. As quoted earlier, Scalia acknowledged that the mere “desire to use or observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest for purpose of standing.” He simply ruled that the plaintiffs in that case hadn’t met it because their ability to actually view the animals in question was too abstract and unsupported.
The five conservative justices in the majority appear to have gone much further than that, adding a new hurdle for standing in environmental cases where aesthetic injury is the basis for standing. Contrary to the expressed wishes of Scalia and Roberts, narrowing Article III standing also doesn’t appear to have reduced the court’s role in public policymaking. Take, for example, the Supreme Court’s decision last month to allow the U.S. Postal Service and other federal agencies to implement Trump’s executive order to undermine state mail-voting systems.
Congress did not grant the Department of Homeland Security any power to create “state citizenship lists,” nor to coerce states to use those lists by threatening prosecution from the Department of Justice, nor to refuse to deliver states’ mail ballots if they do not meet the Postal Service’s standards for whether a ballot is valid or not, which they have no legal authority to do. And yet those agencies can do precisely that, over the loud objections of multiple states with the congressional authority to run elections, precisely because the conservative justices (all six that time) were so narrow and exacting on Article III standing.
The court’s ruling did not mean that implementation of the order “will necessarily be lawful,” the majority reassured Americans in yet another unsigned opinion. “On that score, time will tell.” But the conservative justices felt obligated to let the Trump administration go forward because the states had failed the Article III standing test. As I noted, the court’s framing of the issues at hand gave little comfort that they will ultimately stop Trump’s midterm gambit, though some of the recently reported details of what USPS has planned might go too far for some of them.
The court’s strict approach to Article III standing when challenging Republican presidents also does not apply to Democratic presidents with equal force. In Biden v. Nebraska, the conservative majority allowed a coalition of GOP-led states to challenge—and ultimately defeat—Joe Biden’s student-loan debt relief plan, which was authorized by a 2003 act of Congress. Though the states were not injured in any rational way by the debt-forgiveness order, they claimed an independent student-loan debt servicer created by Missouri would be affected, and therefore Article III’s standing threshold has been met.
Except the servicer in question was fully legally and financially independent from Nebraska, and it had chosen not to challenge the relief plan. “MOHELA is fully capable of representing its own interests, and always has done so before,” Justice Elena Kagan noted in her dissenting opinion. “The injury to MOHELA thus does not entitle Missouri—under our normal standing rules—to go to court.” The court’s conservative justices, who could not disguise their antipathy for the Biden policy at oral argument, ignored those constraints and let the lawsuit continue so it could rule against the administration. So much for judicial restraint.
