A single exchange in last Friday’s D.C. Circuit argument laid bare the Trump administration’s strategy in a series of recent cases: Push through deeply unpopular and frequently illegal measures, and make certain the public can’t do a thing about it.
The exchange concerned Trump’s most cherished goal of remaking the White House—the people’s house—in his imperial and garish image.
Recall how we got here. Last September, with no congressional authorization and no completed legal process, the administration simply got up one day and started taking a wrecking ball to the East Wing. It was only days until the structure was completely demolished. By the time the National Trust for Historic Preservation sued in December, the East Wing was gone, and large-scale excavation for the 90,000-square-foot ballroom was well underway.
By the time of last Friday’s argument, three million pounds of steel rebar were in the ground, and the structure was beginning to rise above it.
Let’s talk about that argument. The D.C. Circuit is commonly considered the second-most-powerful federal court in the nation. Given the court’s sophistication and the personal importance to Trump of the project, the administration sent its version of the A-team. Yaakov Roth is a senior official in DOJ’s Civil Division, with a résumé that includes a clerkship for Justice Antonin Scalia and extensive appellate experience.
The most active questioner on the panel was Judge Patricia Millett. In the course of pressing Roth on the administration’s standing argument, Millett dropped the hypothetical bombshell that crystallized the administration’s position.
“If this were the Statue of Liberty,” Millett asked, “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?”
Roth’s answer: “I think that’s right, yes.”
Roth’s answer was not a mistake under pressure. He had thought through the implications of the administration’s position and understood that Millett would be quick to exploit any inconsistency and use it to unravel the administration’s case.
Millett had simply followed the logic to its destination and asked him to confirm it. He did, as he had to. The only check, he allowed, would be Congress—which would have to pass a law that Trump could veto, requiring two-thirds to override.
Millett then named this attitude that she had extracted from Roth: “Move fast and break things, and then nobody has standing.” Roth conceded that was essentially correct.
That is the administration’s playbook for a series of recent high-handed moves: the $1.8 billion slush fund for January 6 defendants, the systematic destruction of presidential records, the collusive settlements with Mike Flynn and Steve Bannon, and now the ballroom rising on the demolished White House East Wing. Not that they acted lawfully, and not that they aren’t injuring the interests of the American people—but that nobody can do anything about it.
In each of these examples, the administration follows the same two-step. First, neuter Congress: Anything requiring legislation to stop faces a certain presidential veto, and the two-thirds override is a mathematical fantasy as long as enough Republican members remain terrified of Trump’s one remaining real weapon, the threat to come after them. Second, neuter the courts: Argue that no one has legal standing to challenge what is being done, that the injury is too generalized, too abstract, too aesthetic to cross the Article 3 threshold pertaining to standing. Congress can’t act. Courts can’t hear it. The bulldozer rolls with no brakes.
There is nothing inherently improper about an administration’s invocation of standing doctrine. The requirement that plaintiffs show a concrete, particularized injury before federal courts will take up their claim is a valid constraint, rooted in Article 3, and courts across the ideological spectrum have enforced it against litigants of every stripe. The constitutional design is that federal courts are not a substitute for legislative action.
But the administration has taken its reliance on standing to a new low and used it to bypass legal accountability for a series of issues of intense popular concern. It has combined aggressive standing arguments with bare-knuckles intimidation of Republicans in Congress. The result is a pincer movement that leaves the public—the people who overwhelmingly object to a $1.8 billion giveaway to January 6 defendants, who feel in their bones that the White House belongs to all of them, who do not want their government shredding documents that belong to the people—with no branch to turn to and no courthouse door that will open.
The White House is the most universally recognized symbol of the national government. Its relatively modest, neoclassical structure stands in harmony with the Capitol and the Supreme Court up the hill. It is the building that millions of schoolchildren visit, that Americans call “the people’s house.” It’s the antithesis of the gaudy ornateness of Trump’s imperial design.
The power of the Millett hypothetical is that it smokes out where the administration’s argument leads. Can the executive lay waste to the Statue of Liberty? Damn right, says Roth—and even if it’s a rank violation of the executive duty to take care, nobody can stop it because nobody has standing.
There is a profoundly un-American quality to Trump’s ballroom makeover. He is in effect trying to crown himself emperor—cowing Congress and parrying court action with aggressive standing arguments pressed all the way to the Supreme Court. It is a gesture of deep contempt for the country whose most beloved building he is trying to remake in his own image.
An administration lawyer told the judges in the second-most-powerful court in the country that no court can stop a president who moves fast enough from destroying the White House or the Statue of Liberty. The administration is counting on paralyzing the courts and the Congress, and ultimately on the public’s apathy. The recent slush-fund debacle showed that’s a losable bet. The formula is public pressure, judicial accountability, and Republicans made to own it at the polls. The first part is up to us.
