Part 3 of 3
But if we're just talking about a general statute and application to the I
mean I think a court would not second guessess congressional decision that that addresses the equities in that way.
So if they spoke specifically to this project have an independent role in weighing the equities here and making decisions. So this is really something that can't be stopped in courts. It can only be stopped by Congress.
I think that's right because Congress is better at weighing equities than courts are. Well, this is ultimately the claims they're raising
are claims that sound in interbranch dispute. And I think that's exactly the type of case where we generally would
let it play out politically um and have them resolve ranch disputes here and and sometimes they get enjoined or
not and sometimes they affect private interests more directly and sometimes as here they affect private interests only very incidentally and I think the more
incidental the private interest is the more appropriate it is it is as matter of separation of powers for this court or a court to say we're going to let this play out in the political process.
Are you arguing this is a political question?
No. No. I'm not arguing it through the through the remedy is what you're through the lens of the equities.
Congress hasn't done anything with respect to the ballroom. Correct. Is that correct? That's correct.
Various bills pending on various different aspects of it, but Congress has not actually stepped it. And and what I told the district court was if you know one thing that you could do if
you think it's illegal, issue a declaratory judgment that it's illegal and Congress can figure out how to deal with that given the fact that we have these national security imperatives and
that we now have a project that like I was there this week. You know, it's it's well along. So, it's above ground. You
know, they've installed like 3 million pounds of steel rebar, which is a lot apparently. Um and you know, it's it's
well on its way. And so I think yes, Congress would be the appropriate entity to decide how do we balance these considerations at this juncture.
Questions?
Thank you. We've a little bit over your time. Thank you very much. We'll still give you some time for rebuttal.
Good morning. May please the court tad chewer on behalf of the plan of the National Trust for Historic Preservation. Uh, I was going to open with something slightly different, but I would just touch on the point that Mr.
Roth just made and emphasize it. Uh, under Marberry versus Madison, it is emphatically the province of the judicial department to say what the law
is. And the government's position apparently is that even a lawless action of this type can never be stopped by the court. That is entirely wrong. That's
exactly the court's job. And this case is about who controls federal property.
Is it Congress, its owner, or is it the president, its temporary tenant? And the Constitution is clear. It is Congress.
And the defendants, as we've just heard, don't really have a persuasive argument on the merits as to either 105D or the Organic Act. Because if they did, I
don't think it would have taken them the amount of time it did to try to explain why what they're doing is permissible.
This is how the district court described it as a Rub Goldberg contraption because it's incredibly hard to follow. and aims
raiser would say the easy way to resolve this is that they just can't do it.
Well, Mr. Her why don't we start then with standing uh for the trust here. So, so I guess there are two aspects. One is
whether Miss Hogland has independently established standing and then also germanine to the trust's purposes. And
and I'm having a hard time seeing why Miss Holand's declaration is any different from Environmental Defense
Fund um or Alliance for Hypocratic Medicine where this court and the Supreme Court have found these types of harms not to confer standing.
Certainly. So let's start with Professor Hogland. Uh so professor Hogland is using this resource exactly as the
National Park Service intends to be used. This is a national park. The park service describes every one of its national parks in something called a
foundation document. That foundation document says what are the essential elements of the park. And here the NPS foundation document says this. They say
the White House and the wings are fundamental resources essential to achieving the purposes of the park. that I think it's interesting that almost all
of your arguments go back to some some substantial generality. Marberry, you know, like the purpose of the White House. I mean, we're we're talking
about, you know, Miss Hogland's specific interest, like what is her particularized concrete use? I mean, she says that
she's going to walk past the White House maybe once a month. She doesn't really say anything specific about the kind of
use that constitutes an article 3 injury in fact. So maybe drill down on the specifics because standing isn't just a generalized feeling.
It absolutely isn't. But here she has made that very specific statement. And if we look at her declaration, she says she intends to continue to travel to the
area to walk through Lafayette Square and to continue to be impressed by this iconic building and appreciates that the building embodies the ideals on which the nation was founded.
Why isn't that a generalized credence?
Because then we look at what the park service says the park is designed to do.
How you would use that park if you were to go and use it. Everyone understands if you go to Yellowstone, you use the park by going and looking at Old Faithful. You look at the bison, you
look at the mountains. That's how you use Yellowstone. The National Park Service says, "Here's why we established this park. We established it um so that
you would preserve the cultural resource at the White House." And they say on their website, "It is a site for national discourse about what it means to be American as one of the most iconic
sites in the country. It seeks to tell the stories of all the people who have lived, worked, and visited there. when she goes to this park and does those
things, she is using that park exactly as the park service says it should be used. She's not saying that she's walking by and not taking a look. She's
not saying she's on Pennsylvania Avenue just headed somewhere else and doesn't even know that the White House is on her left. She is saying I go there and I do
exactly what the park service says I should be using. any any passer by of any federal building would have standing
to to challenge physical changes to that building. I think I think that's what I just did not say, right? I just said if she were just
walking by on Pencil Avenue, Pennsylvania Avenue and didn't look at it and didn't give it a second glance, then of course she wouldn't have standing passer by who was looking at a federal building.
No, in this particular instance, it's a federal national park and she goes and uses that park exactly as it should be used. Now, there's a difference between
standing and your right of action in your in your claims, right? For standing, we just need to have an aesthetic injury. In fact, is it
possible that someone is walking by a federal building and has the ability to say this harms me greatly because of its aesthetic monstrosity?
Very possible. Um, if somebody else walks by and says, "That's great." Maybe that person doesn't have standing. But that's not our test. Our test is whether
there's an aesthetic injury to how you use or desire to use or observe something for aesthetic purposes. That's Luhan. It says that is undeniably a
cognizable injury for the purposes of standing. The government's position seems to be that every aesthetic injury is really a psychological injury and every psychological injury is not
cognizable. Unfortunately, that's not what Luhan or Summers or Friends of the Earth say.
What about gerineess trust? I mean the trust is not a private I mean the trust
was created by Congress for certain purposes. The trust has no authority over the White House or its grounds. So
Congress has limited the trust's authority and yet the trust is coming to use the article 3 courts to control the
white house. So I'm I'm not sure how that can be gerine to the trust's purposes.
Sure. I'd say two things. The first is that the Supreme Court has said germanine is not a particularly demanding standard. The reason yes
so that's our baseline and where we start from on that is the reason it exists in understanding juristp prudence at all is because the courts have said
we are trying to avoid people with no expertise whatsoever coming in and bringing courts uh these claims.
That's true for private entities which we generally allowed to you know define their own purposes. If you're Sierra Club, we're not going to question that you're interested in the environment or
something like that. But the trust is not that type of entity. The trust's purposes and powers are set by statute.
And so it seems very peculiar for the article 3 courts to do an end run around what the trust could do directly by
allowing the trust to bring a lawsuit that is not gerine to its statutory purposes. And there was nothing in your brief responding to any of these. Um I
believe our pile of beef does, but let's walk through it. So if we look at their enabling act, that's 54 USC 312102.
Um it says that they're established to further the policy enunciated in chapter 3201 of this title and to facilitate
public participation in the preservation of sites, buildings, and objects of national significance or interest. And then they are established. Right?
There's then the purposes clause and the government wants to go right to the purposes clause. One thing I want to make clear at the outset is that that
chapter 3201 is not the National Historic Preservation Act of 1966.
That's where the exemption for the White House is in section 107 of the original act. That reference is to the Historic Sites Act of 1935.
It's an entirely different act. The reason that the National Historic Preservation Act and its 107 exception for the White House isn't here is because there's no claim to be brought.
it is exempt. That's why there's no NHPA claim in this case. You have to look at the policy that they are being asked to further and that's the historic sight setting.
Right. But but so you don't doubt that the trust doesn't have any authority over White House grounds.
No one has any authority over the White House grounds under the National Historic Preservation Act. That's a separate statute.
Right. So you can't acquire property on the White House grounds. you can't manage or or further promote any of
those properties. That is not authority that's been given to the trust.
I don't think that we're claiming it has. What we are saying is that if you look at an injunction from a district court to control how White House property is
used, even though there's no direct authority, again, we're talking about geriness. Um, but if you look at the purposes clause,
it says they can do four things. Their purpose is to receive donations of sites and buildings, preserve and administer the sites, accept hold and administrator gifts of money, and execute other
functions vested in the National Trust by this chapter. That's a catchall. And this chapter, as we've just seen in
paragraph A, says that they are to further the policy established under the Historic Sites Act and to facilitate
public participation, preservation of sites. Those are verbs. to further a policy to facilitate public participation and that's what they are
doing here. They are taking those established purposes as functions vested in them by Congress and they are saying that's what we're going to do here.
So a generalized purpose is a function vested by law.
I don't think it's a generalized purpose. It's a very specific one. Their purpose is not go forth and do all things that you may want to do. They're
being instructed to facilitate public participation in preservation of sites, buildings, and objects of national significance or interest. That's about
as specific as you can get um to furthering the policy. What that policy says, just so everyone is clear,
so the trusts could do that with any any federal building anywhere.
Is it a one of an object of national significance?
I think the White House is I mean I may be wrong but I think the White House is the White House is something of national significance but Congress seems to have carved that out from the type of
building that again they haven't. We're talking about two different acts. Right? If I had said the Medicare act and the National Historic Preservation Act, maybe we
would have a bit more common ground here into understanding why those are different. But the historic sites act of 1935 is 31 years before the national
historic preservation national historic preservation act of 1966.
Right? The 66 act is what says the White House is excluded from 106 review.
Right? That's going through the chapter 106 process. You have, you know, certain types of consultations. You bring in the DC historic preservation officer. You
have anou that resolves how you're going to deal with historic matters. That is not an issue here. We haven't brought a claim here. If it had been, we would
have, but we didn't because it's not. We are looking solely at the trust established purposes and those purposes as established by Congress
can't do the specific thing, but they can go to court to enforce the general thing.
They're two different things. It's like saying you have 18 different causes of action. You're saying you can't do one of them, so therefore you don't have the other 17. That's never how the the courts have worked.
So the I mean I think the concern is that the purposes are to receive donations of sites and then preserve and administer
those sites and the concern is that the trust has no authority to receive and administer property in President's Park.
Correct. And so you need to show that it is germanine to the trust's purposes to preserve objects of national
significance that it has no authority to uh receive and administer. And it sounds like you'd have us look at A.
Mhm.
Which might be enough or might not. Is there anything else in the statute that would you'd point us to to address this concern?
Yes. So look at B4. B4. refers to the rest of the chapter.
So what else in the chapter refers you helps on this?
I don't mean to be pedantic, but the chapter includes 312102A, right? So you're agreeing with me that you're relying on A.
I am. I'm relying on A by virtue of B4.
The government's position is that A is merely merely a hordatory clause that says nice things about historic preservation. Uh I think it would be
rather surprising that the Congress would say we would like to have an entity that furthers the purposes of the historic sites act and also facilitates
public participation in the preservation of sites but the only thing it can do is acquire sites and expend money on them.
Um it would seem that when Congress says we have broader purposes for this organization, those are other functions that is vested in the trust and that's
squarely covered by B4. Um we don't read sequentially and forget what we've just read. It's for the entire chapter, which means we go both up and down the line.
Um, if there are no further questions on standing, um, I would turn to the
arguments on the merits. That's 105D and the Organic Act. Um,
105D doesn't authorize the president to do anything. As we've just had previously in the discussion with uh the
government, the way the red book says that you authorize and appropriate is pretty clear. You authorize Congress to
do something or Congress authorizes itself to do something. Um and it says your appropriators can then appropriate for the things that you have authorized.
Um and it's even clearer in 105.
A serious thing. Congress doesn't need to authorize itself to do it. It can just pass an appropriation. It could.
Um, what is the point of 105D?
105D sets the bounds for what Congress says it can do because Congress change those in the next appropriation.
I don't I don't understand quite what the purpose of it is.
The purpose entirely appropriation authorization quite frankly.
And partly it's how Congress has decided to set its own rules and how it will establish a system for how it orderly creates funding for various projects. I
think for this in particular, it's important because Congress as we know has the plenary authority over federal property and there's a huge distinction
uh which was articulated in the colloquy before about 105A, B and C which say the president may do something. It
authorizes the president, right? And it's for staff and I think it's correct.
Congress says we're setting limits on how many people you can have on your staff but it doesn't matter to us who they are. uh you can go and decide
whether you want lots of lawyers, whether you want lots of policy people.
They've just got to fall in various um classifications of GS levels and you're good to go. D is different. D doesn't
ay you're authorized to go and do whatever you wish. D says there is authorized funds for these specific
activities and then after listing them out, it says the president may utilize those funds only for the
purposes appropriate. So, we have a set of requirements that say here's what you can spend it on and then it says we're
going to give you some money and that's all you can spend it on. And as we know, sorry, is it saying the president can do anything or it says we can appropriate
for these things and once we do appropriate then the president deal with the money?
Sure. It's once we do appropriate, the president can then do what he wishes with the funds. Um, but it has to be
consistent with what 105D says he can do. He can't go beyond the bounds of 105D. He can't, as the government seems to say, turn it into a roving
construction authority just because Congress has provided a small amount of money for things like care, maintenance,
refernishing, heating, lighting, alterations, improvements. So, are you saying that sounds like you're saying you don't read 105D as just and only an
appropriation authorization? It's an appropriation authorization. And then in the second the the bottom paragraph here
is an authorization to act limited by the scope of appropriations. Is that a fair summary?
Right. That's all that he can do. He all he can do is limited by the amount of money do the limited things that Congress has told him he could do if they gave him money to do those things.
Um it is not a free floating grant of authority. Um, and we know this because that's what history tells us. As we cite
in our brief, this isn't a new provision. This provision goes back for at least a hundred years. And we know
that Congress has used the same rough language to give the president a maintenance allowance. And we also know
that throughout that hundred-year period, there have been large public projects at the White House when the roof of the White House had problems.
Calvin Culage was still getting this maintenance allowance. Congress then appropriated a certain fund amount of funds for a major capital project to
repair the roof. When Truman said, "I need a gut rehab. The building's falling apart. My foot, you know, my piano fell through the floor." They said, "Right."
They didn't put a lot of money into his 105D account. They said, "We will appropriate you a separate capital appropriation for doing that
renovation." So the history is that Congress views this as limited maintenance type projects of that scale and scope. And when it wants something
bigger, it steps in and exercises its property clause authority and says you want to do something more than just routine maintenance projects or small little improvements around the house.
Then you come to us and we will tell you scope and the amount of money you can have for that. And I will say this goes historical examples of presidents using
the gift authority to build structures on the White House grounds like the swimming pool and the tennis pavilion.
Are we going to gift authority away from 105D?
Well, but the gift authority I mean those are arguably a kind of improvement.
Um they are potentially improvements and I think you know if we're talking about what's an improvement, an improvement may be something very small. Um, but the
other question is you still have 8106 which steps in. So you can have an improvement says I'd like to improve and build a patio. That's not a building or
a structure. You would like to say I'm going to alter a bathroom. Uh, that's not a building or a structure. There are interlocking elements here all of which
the government needs to be able to demonstrate that they've done in order to do what they are doing.
Well, but actually um the trust has brought an ultra vera claim. So you have to show that the any violation of these
statutes is so extreme that you can get a hailmary pass a against the government and and so the
word improvement in 105D I mean 105D like 105D1 is about real property right
and improvement has a meaning in real property that includes buildings and structures and specifically means not
minor repairs. So, so that is an a very established common law meaning from
property law. And if that is a possible meaning of 105D1, I mean, even if you don't agree with that meaning, how do you prevail on an ultravirus claim?
Sure. So, I'd say two things. Uh, one on the Hail Mary pass. Um, let's say Hail Mary pass is difficult to complete only
if the defense has sent back people into the end zone. Um, and here it seems the government is having a bit of difficulty even just calling its plays. It doesn't
know whether EXR is in charge or the park service. No, it's back to the park service is not EXR. Is it that the ballroom is in an integral element of
the bunker or absolutely nothing to do with my statutory question?
But the issue that we have here is that all we need to demonstrate uh for an alter's claim is that there's a clear command and the clear command here in our position is 8106. It's a thou shalt
not thou shalt not build in a federal park in DC. But that just begs the question of whether 105D does provide
the authority. Like you could go yes 8106 says you need authority but then my question is why doesn't D1
provide authority or at least arguably reasonably provide authority which would be enough to defeat an ultravirus claim.
Sure. A couple answers to that. First is we know Congress doesn't hide elephants in mouse holes. Right here we have a
statute that says uh you can do heating, air conditioning, lighting, other things. Um it doesn't say the president can do it.
It says Congress can appropriate money for that. Correct. And if Congress appropriates money for that, then the president can spend it with discretion for that.
Correct. He can spend I thought your answer would have been in 2024, 2025, and 2026 the appropriations for Congress do not include the word improvement.
Uh that's entirely true. They've done only for maintenance and preventive maintenance and health and safety purposes. But even improvements not in any of the
appropriations. Whatever discretion the president may have under here, it's only for sums appropriated for such expenses.
We do not disagree in the slightest. I think Justice Ralph's question may have been even if they had appropriated slightly more money um or if they had
appropriated to the full extent, could he have used it? And our answer there is still that the answer is no. because improvement as it is interpreted in isolation
I didn't maybe I'm wrong and J will correct me I didn't think she was asking an abstract question to the extent that she's not asking whether it was clear whether you could
bring an alter action that the president in this case couldn't do this thing when in fact the statute mentions the word improvement correct the appropriations have not
I will remain silent unless there's another question as to this no no I'm just I mean so so in terms of like whether
Congress has appropriated I mean Congress Congress, you know, there obviously, you know, I take the trust to be saying it has to be like a line item
appropriation, but but Congress has also provided for this gift authority in the NPS organic
act. And so, and that gift authority is has been used in the past for, you know, fixing things up in the White House. And
so, so you know, the fact that there's not a line item appropriation for that
specifically says you can improve or make a ballroom or something like that, I I'm not sure that that answers the question either where there is this
statutory gift authority that can be used by EXR and has in the past been used by EXR.
So they, as we've just had this discussion, EXR only has that authority if they receive it from the park service. Uh the park service therefore needs to be able to do it on its own.
The park services statute doesn't say anything about constructing buildings in the District of Columbia, which is what they need to be able to do under 8106.
And as the government conceded, all there is at best is an implied authority to construct. That implied authority certainly isn't express authority. Those
two are very different and contravening terms to one another. Furthermore, how does the ballroom not promote the
the use of President's Park where the president has said that it's important not only for national security but for
hosting you know state dinners and you know a whole range of important functions that take place at the White
House. We know it doesn't because the park service itself in its own environmental assessment said that there would be permanent adverse effects to
the park by building the ballroom. Um, and when you have an adverse effect, what the government what the statute that the park service statute says is
impairing a fundamental resource of the park. And recall the park service says the White House and its wings are the fundamental resources. They're what make
that park the park that it is. If you're going to do that, you also need to go to Congress and get their direct and specific authorization. So here you just
2 hoursdon't have 8106 which says you have to go to Congress to get express authorization to build on a park in the District of Columbia. You also have AD
you have the organic act which says that you need to have the direct and specific approval of Congress if you're going to impair the park which the park service has conceded that this project will do.
There's nowhere around that to just say, "I really want to do this and I've got the funds here I'd like to build." And even if there were, that wouldn't get
you over into 105D. There's nothing that says you can move your park service funds. Bring them over into 105D and deposit them in the 105D account and
then say Congress has approved them as though they were 105D funds. The president only gets I think that's their argument. I think
their argument is NPS could come and you can you have your arguments against them, but their argument is NPS could
come and do this or NPS can contract with EXR to do it um through the economy act and has chosen the latter route.
Sure. And then we would have an depositing these funds in a 105D account. this is these are funds that belong to NPS and NPS can do this and it
can if it can do it it can ask EXR to do it. I think that's the argument you need to answer.
I mean I think I hope that's what I just said which is that nothing to do with depositing things in a 105D account. That's not what they're saying is
that that was their position below initially. Um this is part of the difficulty certainly not I'm not I'm concerned with
what their arguments are here and the ones the district court address.
Correct. Um, so our argument on the on the organic act is straightforward. The organic act says does not provide the
express authority to construct on a federal park in the District of Columbia, which this is. So there's no express authority in the organic act.
They're claiming that there is merely implied authority and that just doesn't get them far enough. If that's not enough, then you have the second provision of
That's also not what the government said. I mean, the government said that they view promotion of of Parkland as an explicit authority. I mean, you can say
that it's not explicit, but I mean, I don't think it's fair to say that the government said it was an implicit authority.
I mean, I think in their brief, they say they think it's implicit or I think that's around page 47 or 48. I'm just saying what they said. Um, if they're
saying something differently here, then we're of a piece. Um the issue here is that they don't have the authority under
either 8106 or under the second paragraph of their organic act uh which says that if you were going to impair a
fundamental resource, you need to go to Congress. Uh they just don't want to go to Congress. Um but that's not that's
not what the statutes say and that's what the constitutional framework requires, which is that you do go to Congress because Congress controls
federal property. And when Congress says I would like something to happen or not, that's what we deal with. And
is that the the they have a lot of arguments based on practice and one of their better examples is the
tennis pavilion that was constructed. My understanding is that is a structure. is do you have an argument that that um
uh was that permitted under your reading of the NPS Organic Act and 8106?
So with the obvious caveat that that's not this case, I think there are couple of things to say.
You have some examples in the past that were you know not authorized. That's a position you can take. I'm just curious if you think
correct. Yeah. Um, so there are some that, you know, they talk about the tennis pavilion, they talk about the the park service stables near the mall. Um,
our position, first of all, as you see in our brief, is that many of these things actually were authorized by Congress in our view. Mission 66, the funding provisions funded a number of
these items. So the notion that Congress didn't know they were happening um and they just happened to appear is not true. Um second we would say that to the
extent that 8106 is a clear statutory command the fact that people didn't contest these things in the past is not the issue here. Here we are contesting
it. Uh the issue is joined and therefore the clear command as the Supreme Court has said in lexicon can't um yield the
fact that prior practice has done something different. Um, and we would say the same thing about Ford's pool and the tennis pivot, the changing hype on
those on the um White House grounds. Do those violate 8106? Probably. Uh, did anyone challenge them? They did not. Why
didn't they challenge them? Maybe because the juice wasn't worth the squeeze. They're small projects. You can't see them. They're for the president's own personal use for him and
his guests. Um, but if they had been challenged, um, 8106 would certainly apply. It's the same rationale. Someone
says, "I always drive 57 miles an hour in a 55 zone and I never get caught. So when I get pulled over, you tell the police officer, you can't pull me over
for speeding because I always go 57." The police officer says 55 is 55. That doesn't change because you've violated
it in the past. It's what's happening at the moment. And that's what we have here. We have challenged this as violative of 8106. And that's something
the court needs to respect and take into account. And that's exactly what the district court did. Another question.
Um, yes. Can you speak to the to the equities here? I mean,
the president has talked about the national security interests, you know, both below the ballroom in the ballroom structure itself, the necessity of this,
you know, both for social purposes and national security purposes. Um, and on the other side, the trust has some
aesthetic concerns of someone who walks past once a month. I mean, based on those equities,
I mean, h how do how do the equities weigh in favor of the trust given what's at stake here?
Sure. Um just on that point before I talk about the difference uh when you say that it's always been um a a
national security issue uh their reply brief says that they have never suggested that the below ground facilities were independent of the ballroom.
Their supplemental reply brief said the below surface work is driven by national security concerns independent of the above grade construction. So part of our
issue here is that the national security issue um is not one that they have consistently represented even as to the district court.
So some of these issues were were classified and over time I think because of this litigation the president and the department of justice have provided more
details about the national security purposes of both the ballroom and the underground facilities. Does the trust
question those national security concerns? So, I mean, I don't know on what basis it would.
So, recall the trust brought this lawsuit before anyone knew that there was an underground bunker being constructed.
Okay. But now we know and now we know more about it and we know more about what's, you know, anticipated for the roof of the ballroom and how the ballroom structure itself is protective
of the underground facilities. So, I I don't take the trust to be questioning the government's representations about
those things. I mean there there's a lot of waving at okay they that's not what they said initially but you could understand why the government want want
to keep some of those issu you know matters classified because they don't want to advertise the types of facilities they're building for national
security purposes and they've had to do so in you know in order to you know in the course of this litigation but but
does the trust question that there are these serious national security concerns? No. And we have never opposed the underground construction of the
bunker which is where the government until recently has said the national security because there does concern the trust question that the that the
ballroom is is now is part of that and like the roof of the ballroom is going to be used for a drone port or you know
whatever these you know other um you know more information that we've received about how the ballroom is going to function.
Yes. And I would say two things on that.
One, the district court reviewed not one, not two, not three, but four exparte in camera filings about national security. We obviously haven't seen
them. This court has seen them. The district court has seen them. The government's seen them. We're the only party here who has no idea what they're talking about. But what we do know is
that the district court reviewed all of those and the district court said and made factual findings that are reviewed on clear error that it found no basis
for a claim that national security required the ballroom. And then it entered a very narrow injunction in our favor which says you can continue doing all your below ground national security.
You can preserve um the White House. You can protect the safety of the president.
The only thing you can't do is build above ground a ballroom. And they had an opportunity when this court remanded
back on national security grounds. This court said tell us just about the national security question. At that moment, it would have been entirely
appropriate for the government to have submitted the affidavit from the secretary of the army um because that's what the judge in the district court was looking at and said here are the issues.
They didn't. They submitted nothing from the secretary. They only submitted that two days later with their stay on motion for an appeal.
Okay. But so let's talk about the equities. If we assume for a minute that what the government is saying, we credit the government. We give them a
presumption of regularity in in many matters and national security more than most. Um, and if those national security
interests are what the government says it is, how can the equities weigh in favor of trust?
First, the government has set it up as essentially the aesthetic injury versus the national security injury. And that's the improper way to do it. Aesthetic
injury is what gets you through the courthouse door. That's a standing based argument. Once we have standing and you're in, then we're talking about the balance of equities. And quite frankly,
here the issue more goes to what the resolution would be, what the red addressibility is. And the addressability here on the standing side
was the project should be stopped and should the construction should be stopped until Congress gets to say pursuant to its property clause power
what can and can't go on at the White House in terms of construction. That's the balance of equities. The balance of
equities is Congress's right to be able to be involved and say here is exactly what you can do. You can leave a hole.
Congress can allow a hole to be left. It's its property. build a ballroom.
Congress can allow a ballroom to be built. It's its property. What the government's position is is that these affidavit about national security
supersede Congress's property clause power. But we know from Youngstown that that's not how it works. In Youngstown, the court faced the Supreme Court faced
a nearly identical circumstance. The government said there is an ex exigency, a national emergency. We're in the middle of wartime. We must have this.
The court said no. It said when Congress has the legislative power, it cannot be usurped by the executive even though the
executive says national security imperative. We have the same thing here.
The property clause is plenary. It goes only to Congress. Rely on the property clause.
The district court didn't rely on the property clause because presumably it felt it didn't need to. Well, but the whole question about the property clause, I mean, again, you know, I think
it's very interesting that trust just keeps going back to its, you know, the most, you know, broad arguments because the whole question about the property
clause is, did Congress in fact give the authority and then we talk about the organic act in 105D, right? that the district court made no no conclusion
about the constitutional claim that was brought by the but the government's position here is that even if they are unlikely to succeed in the merits that they still
should have an injunction issued because of national security and that is a very concerning point because what the
government is saying is that even it is correct that neither of these statutes apply and therefore the only thing left is a constitutional authority which we
don't have this court should still enter an injunction because national security trumps interest
day or uh interest day or reverse the injunction vacate the injunction because that's a question of available remedies
right I mean the the district court could enter a declaratory judgment you know the question is do the equities weigh in favor of the trust getting the
equitable remedy of an injunction the answer is yes um and again the notion
because of the property clause because of the property clause because of the injury that you know they want to say it's because the aesthetic injury and they want to balance it and say one
person looking at the White House doesn't mean but that is the injury that you've put forth that's the injury but that's not balance of equities. Injury gets you in the
door. Balance of equities is is it appropriate to allow the injunction to stand uh or to issue the injunction in the first place from the
equities are the compete the first two prongs or the competing injuries of the two parties.
Sure. Um, and here you think I mean you can't just keep walking away from her question with we don't need to talk about the injury
anymore. That in fact is irreparable injury to you, balanced against harm to the government and
public interest. That's what the balancing of equities is.
Well, I mean I I think we would say that the balancing of equities is the third prong in that test, right? Um, you likely succeed in the
What do you think the equities are that are balanced? The equities that are balanced are the fact that you have a national park that has been turned into
uh or you have a national park whose fundamental resources um one of them has been demolished and is being turned into
a 90,000 square foot ballroom um which is a harm to as we just discussed to Professor Hogland to the National Trust
um and to the national park that they are going to view. That's significant.
Congress has a right as to what goes on in that park and that's the remedy that they've sought that Congress should be able to come in and do it. And we've
said that we are allowed to say to this court, Congress has a right to determine what happens with federal property. Um we are looking at that federal property.
We are harmed by it. Um and the notion that national security supersedes that um is simply not what the court has ever
said before. Um you know we have a new world.
Okay, just just sum up your last point here.
I say that, you know, when we talk about, you know, drone ports and all these other activities, this is a similar argument that the government made earlier this year uh to the Supreme
Court in the birthright citizenship case. They said there things have changed in the new world and Chief Justice Roberts said it may be a new world, but it's the same constitution.
And that's our position here as well. All right. Thank you very much, Mr.
Roth. We will give you uh three minutes for rebuttal.
Thank you your honors. Um so just a few things on the different points on standing. We are not saying every aesthetic harm is psycholog is merely
psychological harm. What we are saying is that u subjective visual disagreement with something the government builds
where the objection is to the statement or message that it sends. That is not cognizable injury. In fact, and it's not just us saying that. I think that is
what EDF says. I think that is what Alliance says. And I think that has to be true or else we would be uh in welcoming and inviting lawsuits over
anything the government does that has a physical manifestation that someone finds offensive or upsetting. That is not the law. On gerineness, I think
council was mischaracterizing the argument. We are relying on the subsection B which specifically enumerates the purposes. Subsection A
says we care, you know, we congress, we care about historic preservation. We're going to create this trust. And then subsection B says, "Here's how it's
going to advance that goal by doing these particular things." And they conceded none of those uh have the
required nexus to this lawsuit. On the merits, I did not really hear a serious answer to the NPS Organic Act part of
the argument. Uh I heard council cite the NPS environmental assessment and took one line out. Yes, as part of that
lengthy analysis, NPS considered all the positives and all the negatives of the project and reached the conclusion that
on the whole it was consistent with advancing the purposes of the park unit.
You can't just pull out one line and say, see, they acknowledge there was harm uh and call that an arbitrary and capriccious or whatever whatever it is
they want to say about it. That that analysis, by the way, is a JA 97 to 144 of uh of the appendix. Uh then I heard
him say, well, even if NPS can build, 8106 says uh that in DC they need something more. Uh and I think a 100
years of practice shows otherwise. And yes, if the text were absolutely crystal clear, maybe that would not be good enough. But it's not. The text is not that clear. It says you need authority.
Uh and it's perfectly reasonable to read that as general authority to build on parkland. And that's how the park service has understood it and applied it
uh for a very long time. for a BAPA claim against the National Park Service.
Well, either whether it's characterized require requires a clarity, but this is I think so. I think
the better reading of the statute for contrary to law.
I think it is I think our reading of the statute is the better reading of the statute.
I just want to make sure I was understanding you use the word clear.
Yeah. Um I also heard council say that some of the projects in DC national parks have
been funded by Congress. That is true, but they were funded by lump sums. So if that is good enough for 8106, then I
don't know why this isn't good enough for 8106. There's a statute that says you can take donations and they're authorized to be appropriated and dispersed consistent with the purposes
of the trust fund. That should be good enough if if all the other projects for 100 years were good enough. Uh and on equities, I'm not sure I have have much
to say. He's conceded it's it's an interest in aesthetics and the you know the the park versus what uh senior
military officials have said is critical to protect the president and the continuity of government and I don't as in winter I don't think that is a close
call on the equities unless the court has further questions we ask to reverse the injunction. All right. Thank you uh to all council. The case is submitted.
Stand please.
This honorable court

