To the extent that his pet projects need congressional approval, they are dead. And the federal courts are geared to say they require congressional approval.
Late yesterday, President Trump got a taste of life as a lame duck whose party has just been electorally walloped and who will soon face a hostile Congress. To the extent his pet projects need congressional approval, they are dead; and the federal courts are geared to say they require congressional approval.
Judge Tanya Chutkan, an Obama appointee who sits on the federal district court in Washington, D.C. (and presided over the Biden Justice Department’s derailed attempt to prosecute Trump over his attempt to reverse his 2020 election loss), has issued a temporary restraining order (TRO) enjoining the administration from beginning construction of a commemorative arch — alternately referred to as the “Independence Arch” and the “Triumphal Arch.” It is envisioned by the president as a mammoth structure that, at 250 feet in height, would be more than twice the height of the nearby Lincoln Memorial, and would tower over the entrance gates of Arlington National Cemetery.
In a 33-page opinion issued Thursday, Judge Chutkan held that long-standing statutory law mandates that no such structure may be erected “without express authority from Congress.”
The governments of both the District of Columbia and the Commonwealth of Virginia have opposed the project, which would take years to complete and create nightmarish traffic. Their lawsuit has been consolidated with suit brought by three Vietnam War veterans and an architectural historian.
While there is stiff community and national opposition, the president stacked an Interior Department panel with appointees who approved construction of the arch after a lengthy hearing yesterday, hoping to begin breaking ground as early as this morning.
Given the Trump administration’s track record of unilaterally demolishing the East Wing of the White House (for the president’s ballroom project) and felling hundreds of trees (for the president’s golf course project) — i.e., acting in the teeth of legal opposition in pending litigation, with neither judicial nor congressional approval — it is unsurprising that Chutkan was ready to go with a polished, extensively researched, comprehensive opinion barring construction as soon as the Interior Department panel approved the plan to move forward.
There is no prospect of congressional approval of the arch project in the present lame-duck Congress, much less the democratically controlled Congress to come. The administration could appeal, but appellate courts generally will not entertain appeals of TROs.
I would expect Judge Chutkan to delay a final ruling, that could be appealed, until after the current Congress ends. And an appeal is unlikely to succeed, in any event, because courts are sympathetic — as they should be — to arguments that the president should seek congressional approval in matters constitutionally committed to congressional control, especially when statutes make clear that Congress has not delegated its authority to approve or disapprove.