SCOTUS Greenlights Trump's Ballroom

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2:13Mr. Chief Justice, may it please look forward. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.

2:55Hi, everyone. Here's the deal. We plan to take Labor Day off. It's a holiday. And unlike some people, cough, one first street, we're not anti-union. Unfortunately, the Supreme Court always stays on its hustle of doing the most and being the worst, which means we've got to stay on ours. Hence the bonus episode today. Can't stop, won't stop, never, ever. Think of it this way. We announced hot SCOTUS reform September, and then the Supreme Court decided to make it really easy on us by helping us make the case for SCOTUS reform. So before this Thursday's first episode of Hot SCOTUS Reform September, we bring you this bonus episode.

3:31Because, listeners, the Supreme Court really did it this time. They indulged Mad King Donald Trump's edifice complex. They are letting him have his gold-gilded ballroom, and they are allowing him to use our taxpayer dollars to fund this ballroom. And they did it in part because we all know that Donald Trump is a very special boy, and he needs a very special ballroom, and also national security. Not surprisingly, listeners, there were some casualties along the way. Fiscal conservatism definitely caught some strays, but so too did standing doctrine and a Justice Scalia opinion on standing. So, yes, folks, you heard that right.

4:13These committed conservatives did not have any qualms whatsoever about sacrificing the patron saint of the conservative legal movement on the altar of Donald J. Trump's vely special ballroom. So TLDR, the Scalia opinion and the doctrine of standing are for suckers, much like stare decisis. So in case you're keeping score at home, stare decisis, Scalia opinions and standing all for suckers. Here's the background. Donald Trump decided on his own without congressional authorization, as one does, to tear down part of the White House. The White House is the people's house. It's not his. He doesn't own it.

4:50It is a federal holding. You know how we know he doesn't own it? How? Because it's not literally covered in fucking gold everything. That's how we know it's not his. Well, it's about to be. Well, that's true. He's not even a renter here. And he decided to remake it in the image of Mar-a-Lago. He wants to remake the People's House, the White House, the house that Dolly Madison first lived in, the first First Lady to live there, the lady who took all of the paintings out when they were being attacked during the War of 1812. He's going to take that house, the people's house, and he's going to remake it in the image of his casinos, his garish resorts, and maybe Versailles.

5:31Not the real Versailles, but that Florida Versailles that was the subject of that documentary. Was it Marie Antoinette who said separation of powers? No, let them do coke off of gold toilet seats. Is that Marie Antoinette? Did I get that right? It might have been her, but I do think this is more of a special K crowd, to be honest, than a Koch crowd. But, you know, details. Well, I'm coming to you live from the Department of Health and Human Services, and I would like a word. Okay. Maybe. That's fair. It's hard to say. This isn't a DHS special, though. But Donald Trump decided, again, to be clear on his own without congressional authorization, that he wanted a ballroom.

6:10He wanted a ballroom both because he wanted to throw some sick parties at the White House, but also because his administration was sure to add because of national security. National security is very broadly used here, and I just want to emphasize that. Like, we don't understand exactly what national security means for these purposes, but it basically means you get to do what you want. It's basically a get-out-of-jail-free card for everything, I think. Anyway, all of this is to say that what the president is doing is illegal. many times over. There is no congressional authorization to spend money to tear down a portion of the White House and build a wall room, right?

6:50The president is basically appropriating Congress's power of the purse to feed his edifice complex. That's what's going on here. There is also no congressional authorization to repurpose this federal building, federal property into a ballroom. So it's kind of like defacing public property. You know, I cannot walk up to the Lincoln Memorial and decide to raise it and erect a monument to Olivia Rodrigo and the Daisy Chain Festival because national security. But that's what Donald Trump did. It won't be Olivia Rodrigo, but like we might see the Lincoln Memorial go down. Kid Rock's exactly what I was thinking, like a big statue of Kid Rock.

7:26Yeah, our special cake rod. In any event, on Monday evening, five Republican justices said, what is the separation of powers anyway? Is this separation of powers? No. Instead, we need to build baby build. And again, we know that they are abundance bros and one sis, and they got down to it. But here's the rub, folks. They did this in the most craven way possible, because of course they did. Despite allowing Donald Trump to go ahead with this monstrosity of a ballroom, the court couldn't actually bring themselves to say that it is totally lawful and constitutional to allow a president to raise the White House and create a gilded ballroom in its place.

8:10Because even the Supreme Court and its conservative supermajority, or at least in this case, a conservative majority, are not quite that delusional. What they're basically saying here is that the plaintiffs here did not have standing to bring this lawsuit. And that raises the very pertinent question of whether there's anyone who could bring this lawsuit? Who would have standing to challenge this nonsense? I'm just spitballing here. I mean, I think really the only candidate is Congress and LOLOLOL, because we all know that this Congress is not going to do that. Yeah. What is a Congress? Now you can see why it's so craven.

8:50The National Historic Trust doesn't have standing. No taxpayer would have standing because federal taxpayers don't have standing to argue that their federal taxpayer dollars are being spent illegally. Because we'd be doing it all the time. We would be doing it all the time. So it's left to this boot-looking Congress to challenge it, which the court knows will not happen. So despite knowing that Donald Trump probably could not prevail on the merits, they let him get away with it by fucking around onstanding. Can I just say, it's not the first time they've used these procedural justiciability doctrines to avoid getting to the heart of a matter and basically saying that the president can't do something.

9:29Instead, they fuck around with these justiciability doctrines and they allow him to go forward. They did it just the other day with the Postal Service order where they said that the case had not been brought at the right time, that it wasn't ripe. Leaving aside the very pertinent question, can a president come in and fuck around with elections? The Constitution says no. They don't get to that question, though, because they never get to jurisdiction. Because there is no jurisdiction because it's not right or there's no standing. And then the president gets to go on TV and talk about how he won in the Supreme Court.

9:58And it's just insane. It is. Anyway, the lower courts had here correctly concluded that it is illegal for the president to raise a portion of the White House and construct a ballroom with taxpayer dollars that have not been appropriated by Congress or authorized by Congress for that use. Basically, the lower courts, shorter, another word for what the president is doing is theft. But then, as always, the president and his administration ran off to the Supreme Court and said, Daddy, Skotis, please help us. Please let us raise the White House and put up our ballroom. And as almost always is the case, the Supreme Court, on the shadow docket with very little explanation, decided to block the lower court orders and clear the way for the destruction of the White House.

10:42All because, as we all know, Donald Trump is a very special boy, by which we mean he is a Republican president and because national security. The decision was a 5-4 decision. The justices who decided to stand 10 toes down on separation of powers and Congress's authority to appropriate monies were Justices Sotomayor, Kagan, and Jackson, joined by, wait for it, another special boy, John G. Roberts. How did John G. Roberts come to join the Sanity Caucus? I just don't know. Maybe it's because it didn't matter at all. That conservative supermajorities are gonna supermajority. And John G. Roberts decided that now would be a convenient time to stand up for the Constitution.

11:27Obviously, we are not going to be giving him too much credit for standing up to the president when it didn't actually matter to the outcome. Because not only did it not really matter, all of this is kind of his, that is, John G. Roberts' fault. See Trump versus United States, the immunity opinion. If you are going to give the president kingly powers, you probably should not be shocked if the president acts like a king. Roberts created this multi-headed monster. He both helped make a lawless executive and a Supreme Court that enables a lawless executive specifically on the shadow docket and more.

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15:10The reasoning in the court's very short opinion is actually pretty revealing here. The court, again, issued a per curiam opinion, meaning that they don't actually indicate who is the author of the opinion. Again, a very craven move. Although I think there are some very telling signs that maybe one Neil Gorsuch has his hand in the honeypot here. It's Neil Gorsuch or Brett Kavanaugh or one of them with an assist from the other. I don't know if it's Brett Kavanaugh because it was written in ink. And so it's just hard to say. Well, that's why I said with an assist from Neil Gorsuch, right? Brett could do some finger painting and then Neil could translate for him.

15:49The dictation and Neil writes it all down. Neil could be the scribe here. In any event, the very first sentence of this per curiam opinion reveals the absolute audacity of the Supreme Court's entire project of expanding executive power. So the court writes, quote, in October 2025, the federal government started a project to replace the east wing of the White House. Come again? Excuse me? The federal government did no such fucking thing. The executive branch did. The president did. And I don't know who needs to hear this, but the federal government and the president are not the same thing. They are not synonymous.

16:31Big if true. Big if true. I mean, there's this whole Constitution thing, and they're separate. In any event, I just want to emphasize for those of you listening at home, this isn't a project of the federal government. It is the project of a president, a rogue president. And the problem here for this per curiam opinion is that this court seems to have no problem conflating the federal government with the president, this president specifically, because we all know that Joe Biden did not get the federal government edit from this court. No, he did not. And the court's conflation of the president, or at least this president slash Republican presidents, with the entire federal government reflects a very capacious view of executive power that the Republican justices have embraced in Republican administrations, the unitary executive theory.

17:23The unitary executive theory maintains that the president possesses, or at least Republican presidents possess, all executive power and that laws cannot restrict the president's exercise of what are exclusive executive powers. But as we have said before, there is a creeping trend in the unitary executive theory toward allowing the president to exercise not just executive power, but legislative power and even judicial power as well. So it's now a unitary executive in the sense that this theory unites all government power, all constitutional power in the president, again, only Republican presidents, as the court made clear by just saying the federal government did this and housing that in the presidency.

18:08Republican presidents, of course, also get to exercise Democratic presidents' executive power just as an added boost. All of this is terrifying because it is basically a description of autocracy. Basically. Basically. Trying to dumb it down for the boys in the back. That was literally the understatement of the year. That was literally an understatement. Yeah, the reasoning here is A plus, 10 out of 10. Obviously, just kidding. The court, again, did not actually make a decision on the merits. And again, I don't think they can, because if you were to decide this case on the merits, there's no world in which the Constitution authorizes the president to raise a portion of the White House and go Congress in this way.

18:54Just don't see it happening, which is why the court was sort of hemmed in here and had to decide this case on justiciability, in particular standing. So the main thrust of the majority's reasoning here is that the plaintiffs, the National Trust for Historic Preservation in the United States, does not have standing because apparently the destruction of an historic federal site does not injure the National Trust for Historic Preservation in the United States. They have no stake in this whole matter, the National Trust for Historic Preservation in the United States. I'm saying the name over and over again because for textualists, I think it matters.

19:37Like, is this textualism? I think so. It's right there in the name, They are concerned with the preservation of national sites, historic sites like the White House, which historically has been the home of our nation's leaders. Names aside, the court decided that a federal agency charged with the historic preservation of national landmarks and historic sites has no stake in a rogue president's decision to raise a wing of the people's house. Think about it. This kind of aesthetic injury the majority held is basically kind of the same as when pro-life doctors argue that the FDA's regulation of mifepristone offends their interest in seeing beautiful babies born.

20:21Just like it. Just the same vague speculative aesthetic injury. Yeah. A quick snide aside, you can tell that this opinion is very serious and very careful given this passage, which appears on page three. Quote, to establish its standing to bring this case, the trust relies on a declaration from a single of its members, Alison K. Hoagland. Yes, a single of its members giveaway. This was written by Tweedledee or Tweedledum. Great English, great legal reasoning, great all around. I mean, yes. Alison Hoagland, in addition to probably knowing how to write a sentence, Alison Hoagland is an architectural historian.

21:02So maybe she does have a stake in some of this. I don't know. Hard to say. In any event, though, Hoagland at the very least lives in the District of Columbia, where said historic site, the White House, is located. She visits the area around the White House on a monthly basis, being an architectural historian. And she alleges that the monstrosity that is now the hole that used to be the East Wing injures her, quote, ascetic cultural and historical interests. to which the Supreme Court of the United States said, quote, we have not recognized standing like this before. Fact check, you also have not recognized kings as presidents before, but you did that a couple of terms ago.

21:44Yeah, yeah, you did. You also don't have a habit of pulling back rights, but you did that a couple of terms ago. There's a lot of things you do that seem novel and innovative, and I'm surprised you couldn't do it here. In any event, we should note that having a recognized claim or one that is an analog of earlier claims is not necessarily a requirement to establish standing under Article 3. Instead, typically what we require of plaintiffs when we want them to establish standing is that they show, they allege that they have suffered an injury. In fact, there's no court case that says that the injuries have to be similar to ones that earlier plaintiffs allege.

22:25Like, that's not a thing. There can be new injuries, and there likely will be new injuries that we've never heard of when the executive does things that we've never heard of and never seen before. Like, when they're just literally pioneering new lawless ways of governing. So just want to bring that in there. Like, maybe if you don't start doing novel, new illegal stuff, there won't be novel, new illegal injuries. Maybe. Girl can hope. One slightly inconvenient fact for the court's claim that these aesthetic injuries do not suffice for purposes of standing is that one Antonin Scalia, again patron saint of the conservative legal movement, wrote an opinion that said the, quote, desire to observe an animal species, even for purely aesthetic purposes, can constitute an interest for purpose of standing.

23:12Now, we all know Nino Scalia was not quite conservative enough for this court, real rhino, that guy. He's definitely a Republican in name only, an originalist in name only, too. But that court decision, for those of you following along at home and in constitutional law was Lujan versus Defenders of Wildlife. And it's a pretty seminal standing case and really does sort of touch on this question of just having an interest in seeing certain things in the wild. But, you know, it's different and it's distinguishable, Leah, because this isn't in the wild. This is not in the jungle. We're not looking for new species.

23:49We're just looking for new ballrooms. And that's OK. The chief justice, though, wasn't buying this new novel theory of injury. He wrote in a dissent, quote, with the court's rejection of Hoagland standing today, however, it now is the case that I want to look at a crocodile can adequately answer the ever critical what's it to you question of Article 3 standing while I want to look at the White House cannot. Yeah, that is basically me agreeing with John G. Roberts, which almost never happens. Like, I agree with him that the only difference here is that the White House is not in a jungle. Otherwise, the claims are basically the same.

24:24And if it worked for Lujan, it should work here as well. The majority opinion— Real crocodile tears. Real crocodile tears. Crocodile tears. Rhino tears. The majority opinion also does some wild stuff. It cites to Trump versus Casa. That was the nationwide injunction case from a few terms ago and the accompanying claim about irreparable harm. So the court wrote, quote, the district court likely exceeded its Article three authority to enjoin the activities of a coordinate branch of government. And then they cited to Trump versus Casa. Sit with that for a minute. The real problem of lower courts enjoining the president's unlawful destruction of the White House absent congressional approval is the real separation of powers problem.

25:12This is basically like how just thinking about race is the real racism, trying to remedy racism. That's the real racism. They're just doing it in different venues now. Yeah, no. Same logic, different venues. Solving the separation of powers, handing the president more and more power, allowing him to do illegal things, found a problem. They identified a solution. I want to add just two quick points about how fucked up this is. As, Melissa, you were noting, this is very similar to what they did in the mail-in ballot case with respect to irreparable harm. How can it be that the president is irreparably harmed when he is told he cannot do wildly illegal stuff?