Apologies in advance for inflicting a case of litigation whiplash on you this fine Sunday, but...there's been a new development in the epic Battle of the Ballroom. On Saturday, the D.C. Circuit Court of Appeals issued an order extending the district court's administrative stay of its preliminary injunction (originally set to expire on Tuesday) to Friday, April 17, and remanding the case back to the district court for some additional fact-finding.
This is a procedural ruling — one that might be perceived as somewhat "split the baby," but one that is far from the final word on the matter.
The appellate court pressed pause on the litigation due to uncertainty over the exemption the district court included in issuing the preliminary injunction for those “actions strictly necessary to ensure the safety and security of the White House and its grounds, including the ballroom construction site, and provide for the personal safety of the President and his staff[.]”
READ MORE: New: Judge Hits Pause on Trump’s White House Ballroom Project
Trump Admin Asks Court for Emergency Pause of Order Halting Construction of WH Ballroom
One of the Trump administration's arguments for a stay of the district court injunction pending its appeal is that stopping construction creates ongoing security vulnerabilities at the White House, and thus, allowing the injunction to remain in place while its appealed will cause irreparable harm. But the appellate court explains:
The stay papers, in short, have raised serious factual questions about the relationship between, on the one hand, above-ground construction of the ballroom itself and the maintenance of safety and security, and prior governmental representations that the below-ground and above-ground stages were distinct and the above-ground design features subject to change, ECF No. 30 at 13, 47; ECF No. 22 at ¶ 4; ECF No.18 at 21:16-18 (Defendants could “change the size of the ultimate structure” even after “concrete has been poured[.]”). The district court has not yet had occasion to address those questions.
We cannot fairly determine, on this hurried record, whether and to what extent the district court’s “necessary for safety and security” exception addresses Defendants’claims of irreparable harm, insofar as it may accommodate the Defendants’ asserted safety and security need for the ballroom itself or other temporary measures to secure the safety and security of the White House, the President, staff, and visitors while this appeal proceeds. We thus remand these cases to the district court with instructions to promptly address the pending motion to clarify how the injunction and its exception will ensure safety and security pending litigation. The district court’s previously entered stay of its preliminary injunction is hereby extended to April 17th to allow Defendants, ifthey wish, to seek Supreme Court review of this order remanding for factual development and clarification.
The decision was 2-1, with Judges Patricia Millett (Obama) and Bradley Garcia (Biden) in the majority, and Judge Neomi Rao (Trump) issuing a fairly substantial dissent, in which she indicates that she would stay the district court's injunction pending appeal, asserting that the administration:
[H]as demonstrated a strong likelihood of success on the merits because the National Trust for Historic Preservation (the “Trust”) lacks standing to sue and because the construction project is authorized by a statute that allows the President to undertake “improvement[s]” to the White House. 3 U.S.C.§ 105(d)(1). Importantly, the government has presented credible evidence of ongoing security vulnerabilities at the White House that would be prolonged by halting construction. This constitutes irreparable injury and is clearly a weightier interest than the generalized aesthetic harms identified by a single member of the Trust.
To drive that point about security vs. aesthetics home, Rao states in her concluding remarks:
Even if the government’s safety concerns are somewhat mitigated by temporary security measures, the current safety of the President, as well as his family and staff, plainly outweighs future aesthetic harms to the Trust.
So, what does this mean, practically speaking? The case heads back to Judge Richard Leon at the D.C. District Court for clarification. But, as contemplated in the appellate court's order, it is possible the administration will opt to file an application for stay with the Supreme Court in the interim. Either way, this one's likely to wind up with an appeal on the merits before all is said and done, and the only real question is whether the project will continue while that's being sorted out. We'll be watching!
Editor’s Note: Do you enjoy RedState’s conservative reporting that takes on the radical left and woke media? Support our work so that we can continue to bring you the truth.
Join RedState VIP and use the promo code FIGHT to get 60% off your VIP membership!
Join the conversation as a VIP Member