The Trump administration is racing through construction projects in Washington faster than the legal system can respond, a dynamic that judges and challengers say effectively makes the administration’s construction deadlines the final word in disputes over whether the work is legal.
During a June 3 hearing before the U.S. Court of Appeals for the District of Columbia Circuit, Justice Department lawyer Yaakov Roth argued that the 90,000-square-foot White House ballroom — built where the East Wing once stood — is now too far along for courts to halt it. “It’s above ground,” Roth said. “They’ve installed like three million pounds of steel rebar, which is a lot apparently, and it’s well on its way.”
The ballroom project became ensnared in litigation after historic preservationists argued that Congress must approve the construction before work proceeds. A federal district judge on March 31 blocked aboveground work, but made an exception for an underground bunker and other national security facilities. The administration appealed, and the appeals court allowed construction to continue while it considered the case, giving the government more than two months to advance the project before the hearing.
Now the same appeals judges are wrestling with whether they effectively precluded judicial relief by allowing work to proceed. The administration has argued that only Congress can stop construction at this point because the project is too advanced and because the underground bunker requires a structure above it for protection. “So if this were complete lawlessness by the government, it couldn’t be stopped?” asked Judge Patricia Millett, an Obama appointee, during the hearing. She asked when the project had become “a fait accompli.”
Several bills to authorize the ballroom have been introduced in Congress, but none have reached a vote. Lawmakers tried to attach $1 billion for the ballroom to a package funding U.S. Immigration and Customs Enforcement, but Senate budget rules blocked the addition.
Andrea Katz, a professor at Washington University School of Law in St. Louis, said courts still have the power to stop the construction. “That of course would have the ridiculous effect of leaving a hole in the ground, as the government’s lawyers have said, but I don’t think it’s beyond the powers of the court to do that,” she said.
The administration has used the same speed-to-completion approach on other projects. Work on the Lincoln Memorial Reflecting Pool — which the administration said the National Park Service approved for repair and painting in late March — was finished before a judge could rule on a request to temporarily block it. The pool is already filling with water. Alexander Kristofcak, counsel at Washington Litigation Group, which filed a lawsuit over the project on May 11, said the plaintiffs are not dropping their case. “It’s useful to proceed and have cases on the books that say, ‘You’re not allowed to do this,’ so when the next project comes around there’s hopefully more clarity,” Kristofcak said.
The administration is planning to build a 250-foot triumphal arch near Arlington National Cemetery with crews working 20 hours a day year-round to finish in three years or less, according to plans released last week by the National Park Service. Three veterans and an architectural historian sued in February to halt the project, but a federal judge has allowed work to continue.
In one case where the administration was forced to retreat, a federal judge ruled in May that the Kennedy Center’s board lacked the authority to rename the performing arts center after Trump, saying only Congress could do so. The judge ordered the name removed by June 12 and rejected the administration’s plan to close the facility during renovations. The Kennedy Center said it removed Trump’s name from the building Saturday after delays from storms Friday evening.