President Donald Trump appears to think that the phrase “national security” is a get-out-of-court-free card whenever he wants to do (or get away with) something. Thanks to the Supreme Court, one can hardly blame him for drawing this conclusion.
Last month, the justices allowed his illegal White House ballroom project to move forward after a lower court had blocked it. Part of the conservative majority’s reasoning was that the executive branch had declared that the project was necessary on national-security grounds, citing sworn statements from a variety of top government officials about the importance of a bunker being built under the ballroom.
Trump and his aides appear to have taken that lesson—that invoking “national security” is a good way to get what you want—to heart. Earlier this week, he announced that another planned project in the nation’s capital would get a militarized makeover. Trump has long sought to build a grandiose and gaudy triumphal arch on a roundabout between the Lincoln Memorial and Arlington National Cemetery.
To smooth the way, Trump proclaimed last weekend that the 250-foot arch would also be a “top grade military complex” with the ability to house and store “large numbers of drones, plus snipers,” as well as “large quantities of sniper ammunition.” Trump bragged that ”there will be no facility like this anywhere in the world,” likely because it doesn’t make any sense. The president also insisted that the change came “at the strong request of the United States Military, and for National Security purposes.”
National security was invoked once again when Trump banned reporters from three outlets—CNN, MS Now, and Politico—from the White House. Past attempts to deny credentialed reporters access to the complex have failed on First Amendment grounds. This time, Trump and his lawyers introduced a new twist by arguing in a court filing that the outlets were “trafficking in verifiable falsehoods about national security and other issues, and publishing sensitive or classified information.”
This did not persuade a federal district-court judge, who ordered Trump to temporarily allow the reporters back into the White House. Nor does the government’s description of the stories in question appear to be accurate. In Politico’s instance, for example, one news outlet reported that the background source for a contested story was none other than Vice President JD Vance.
Judicial deference to presidents on national security grounds is not a new phenomenon, nor is it necessarily wrong in all circumstances. Justices from across the ideological spectrum have justified deferring to the executive branch (and to Congress, to a certain extent) on foreign-policy matters because the Constitution explicitly assigns them there. “Our precedents, old and new, make clear that concerns of national security and foreign relations do not warrant abdication of the judicial role,” Chief Justice John Roberts wrote in a 2010 opinion involving federal bans on support for designated terrorist organizations.
At the same time, Roberts concluded, factual determinations by the elected branches are “entitled to deference” because federal judges often lack the competence and expertise to second-guess them. Drawing the line can be a difficult question for the court. Justice Sonia Sotomayor derided the majority in a 2018 ruling that allowed Trump’s Muslim travel ban to go into effect. In her dissent, she criticized her colleagues for “blindly accepting” the Trump administration’s “superficial claim of national security.”
Some members of the court are more enthusiastic about this deference than others. Last year, Trump announced his “Liberation Day” tariffs that imposed hundreds of billions of dollars in import costs for U.S. businesses and consumers. The White House justified the tariffs by pointing to broad language in the International Emergency Economic Powers Act, or IEEPA, a Cold War-era law that does not explicitly give the president unilateral power to levy tariffs. Some businesses quickly argued in litigation that the lack of explicit authority ran afoul of the Supreme Court’s major-questions doctrine.
Justice Brett Kavanaugh, writing in an unrelated case that summer, suggested that the doctrine should not apply “in the national security or foreign policy contexts” while opining generally on its scope. “The canon does not translate to those contexts because of the nature of presidential decisionmaking in response to ever-changing national security threats and diplomatic challenges,” he wrote. Kavanaugh has always been an extreme proponent of executive power, and his suggestion quickly became part of the Trump administration’s defenses for the law.
The Supreme Court ultimately struck down the IEEPA tariffs in February, but not on major-questions grounds. The six-justice majority grounded its decision in what it called the “ordinary tools of statutory interpretation,” while three conservative justices concluding that the doctrine did not apply. That prompted a mild rebuke from Chief Justice John Roberts and the other two conservative justices in the majority. Roberts opined that abandoning the doctrine “makes little sense when it comes to tariffs” because the power is entirely held by Congress, not by both branches.
But the real turning point came last month when the court vacated a lower court’s order that had blocked Trump from building an illegal ballroom where the East Wing of the White House once stood. The five majority justices’ shadow-docket ruling was unsigned and highly deferential. It cited a flood of sworn statements from Cabinet officials and agency leaders attesting to the project’s importance, the supposed risks of pausing it, and even the essential nature of the ballroom itself.
“The Secretary of the Army, for example, represents that ‘[t]he height and mass’ of the planned above-ground ballroom are ‘crucial’ to shield the planned underground military installation ‘from kinetic impacts,’ and that, without such height and mass, ‘engineers would need to dig impractically deep,’” the majority wrote in its order. In other words, the president’s illegal ballroom needs to be as big and beautiful as possible not just for aesthetic reasons, but because it will deflect bombs, missiles, and the like.
One almost wonders why more people don’t build ballrooms over their air-raid shelters and storm cellars if they are such effective protection. Maybe the next Congress can stimulate the economy by funding the construction of ballrooms in Americans’ backyards in Tornado Alley to help them better shelter themselves from deadly twisters. Lawmakers can even pay tribute to the justices who approved this notion by instructing the Army Corps of Engineers to inscribe “GULLIBLE” on each of the ballrooms’ ceilings.
It remains to be seen whether the president’s latest invocations will succeed if and when they reach the Supreme Court. If they do, future Democratic presidents should take a similarly broad interpretation of what counts as “national security” to advance their own policy goals. At the top of the next president’s to-do list, for example, will be buying a giant ACME-style plunger, wiring it to dynamite bundles inside the illegal ballroom and the anti-American arch, and blowing them up on national television on the Fourth of July in 2029. Don’t bother suing to stop the detonations from taking place. Our national security depends on them.
