Article III does not appoint federal judges as the White House’s interior designers.
Article III does not appoint federal judges as the White House’s interior designers.
W hen news first broke that President Donald Trump had torn down the East Wing to raise in its place a massive new ballroom, it seemed that the former television star had confused his reality shows. Instead of The Apprentice, which had brought him the fame to run for the presidency, Trump thought he was now leading Extreme Home Makeovers. Incredulity greeted the surprise demolition of the East Wing and its swift replacement with a $600 million ballroom and office complex. Putting aside questions of architectural taste, the project seemed to exceed the president’s powers. The Constitution gives Congress the sole authority over the property of the United States. Congress had not passed any specific law to alter the East Wing and had not appropriated any funds for the new ballroom. End of story.
But a closer look at the law reveals that the president is not waging war with the courts and the Constitution. As is often the case with Trump’s legal controversies, the ballroom fracas really takes the form of a dispute between an energetic executive and a supine Congress. President Trump does not claim he has the constitutional authority to alter the White House or any other federal building. Instead, he claims that Congress has delegated the power of home renovation, as it were, to the presidency. A careful look at the law reveals the controversy to be a much closer case than appreciated, which explains why Chief Justice John Roberts last week lifted lower-court stays of the construction pending full-blown litigation of the case.
Of course, critics will paint themselves as defenders of the “People’s House.” They argue that a president is a temporary occupant who cannot replace part of the White House with a massive structure of his own choosing. “No president has the authority to unilaterally demolish and remodel the country’s White House in such a significant manner without congressional approval,” Senator Chuck Schumer declared earlier this month. Congressman Hakeem Jeffries chimed in: “The American people are understandably horrified about what they’ve seen in terms of the demolition of large parts of the White House so that Donald Trump can erect a ballroom to be celebrating him like a king. That’s unconscionable, unacceptable and, of course, it’s un-American . . . he’s decided to destroy the White House in an unlawful way.”
Critics correctly cite Article IV, Section 3 of the Constitution, which states: “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” The property clause gives Congress the power over all federal property, including its territory, land, rights, and buildings.
The constitutional text, however, is only the beginning of the answer. As the Trump administration argued before the Supreme Court, and Judge Neomi Rao (who dissented from the D.C. Circuit’s finding against the construction of the ballroom) found, Congress has delegated its authority under the property clause to the president to alter the White House. In 1978, Congress enacted a law that allows the president to spend appropriated funds on “the care, maintenance, repair, alteration, refurnishing, improvement, air-conditioning, heating, and lighting (including electric power and fixtures) of the Executive Residence at the White House.” The true legal conflict here comes down to whether this law, set out in Section 105(d)(1) of Title 3 of the United States Code, includes Trump’s project to construct a ballroom and secure facilities beneath.
In its emergency appeal to the Supreme Court, the Justice Department declared that the president ordered the construction of “a highly integrated military complex that incorporates a classical, but highly secured, ballroom and crucial national-security facilities.” The $400 million building includes a five-story underground structure designed to withstand attacks, including a nuclear strike. It will house offices, residences, a hospital, and military personnel. It will also include a “drone port” to defend the city against aerial assault and facilities necessary for the president to exercise command and control of the military. Reasonable minds can differ on whether this complex falls within Congress’s grant of power. The trial judge to first hear the case (brought by the National Trust for Historic Preservation) concluded that Section 105(d)(1) authorizes the president only to engage in “ordinary maintenance and repair” and allowed construction to proceed only on the underground national security facilities. Two judges of the federal appeals court in Washington, D.C., found that the law did not authorize major construction projects.
Judge Rao dissented on the ground that the project qualified as an “improvement” under Section 105(d)(1). Critics can claim that “alteration” and “improvement,” read alongside terms such as “care,” “maintenance,” “repair,” “heating,” and “lighting,” cover work only on an existing structure and not new construction. But the statutory text supports a broader interpretation. As Judge Rao observed, “improvement” has a settled meaning in real-property law that encompasses valuable, permanent additions. The ballroom is physically and functionally integrated with the rest of the White House. It will adjoin the existing building, permit ceremonial passage from the East Room and secure second-story access, and expand the White House’s capacity to receive foreign dignitaries and host state events. A permanent addition connected to the residence, designed to expand a traditional official function, can reasonably qualify as an improvement.
Congress’s decision to list “improvement” separately strengthens the broader reading. If the district court and the National Trust were right, Congress could not have added “alteration” and “improvement” to Section 105(d)(1). If Congress wanted the president’s powers limited to maintenance and repair, it should have just written “care, maintenance, and repair,” and left the text at that. Section 105(d) draws no lines based on cost, size, or historical significance. The Trump ballroom may fall at the outer edge of an “improvement,” but the statutory text does not clearly place such projects on the other side of the line.
Historical practice provides no clear limiting principle, either. Congress approved and funded the original East and West Wings and created a commission to oversee Harry Truman’s reconstruction of the Executive Mansion. Other changes proceeded without new, project-specific legislation or relied on private support. It appears that FDR had no specific statutory authorization to tear down the East Wing and replace it in 1942. First Lady Jacqueline Kennedy famously redesigned the Rose Garden. President Richard Nixon arranged for construction of a press briefing room directly above FDR’s indoor swimming pool, which was covered but left intact, and Gerald Ford installed a new outdoor pool. Presidents have also removed or relocated tennis courts and repeatedly altered the White House grounds. Congress has taken the lead on many of the largest projects, but presidents have often made other changes without seeking specific approval. At the very least, this mixed record makes it difficult to say that the president acted plainly outside the authority Congress delegated.
The ballroom’s reliance on private donations does not settle the matter. Congress has appropriated only about $2.5 million annually to the White House Repair and Restoration account for required maintenance and safety work, nowhere near the ballroom’s projected cost, so the administration relies on private donations. If the ballroom qualifies as an “improvement” under Section 105(d), the president can argue that no new project-specific appropriation is necessary, just as past presidents used previously available or privately raised funds for other changes. If the project is something so dramatic that it falls outside an “improvement,” Congress must approve and pay for it.
This reading of the law makes plain the real parties to the dispute. The National Trust claimed, and the lower courts found, that it had standing to challenge Trump’s ballroom in federal court based on the alleged injuries of Alison Hoagland, one of its members and trustees. The lower courts allowed the trust to sue based on the ludicrous theory that Hoagland would walk by the White House and suffer “professional and personal injuries” from the ballroom’s appearance. But the real party to the dispute is Congress, not random passersby. If the president has built a ballroom and security complex that required legislative authorization and funding, it is Congress’s constitutional rights that have suffered. Congress must fight President Trump over the meaning of “improvement.” Reserving the dispute to the elected branches of government does not mean that the president owns the White House or has unlimited authority to remake it. Congress can prohibit the ballroom, restrict available funds, or amend Section 105(d)(1). The president can accept limits, negotiate, or veto them. Such conflict is not a constitutional breakdown; it is the political branches performing their constitutional roles. As James Madison wrote in Federalist No. 51, “Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.”
In an earlier era, Congress and the president likely would have resolved the matter through political bargaining. A president seeking a project of this magnitude might have requested approval and surrendered something in return. Judicial intervention instead allows both branches to avoid responsibility. Congress need not vote against the ballroom, and the president need not assemble political support for it. When the Supreme Court dismisses the case for lack of standing, as it should (and as former Attorney General William Barr recently urged in the Wall Street Journal), it is not finding that the president has acted lawfully. It is only returning the dispute to the world of politics where it belongs.
The ballroom may prove grandiose, distasteful, or an eyesore depending on the observer. Those judgments belong in public and political debate, not in an Article III lawsuit based on a generalized aesthetic objection. The Constitution did not appoint federal judges to serve as the White House’s interior designers.