LEILA FADEL, HOST:
Let’s get into more of the legal issues posed by the Supreme Court’s ruling on the White House ballroom project with Stephen Vladeck. He’s a professor at Georgetown Law and an expert on the Supreme Court, and he’s been listening along with us. Professor Vladeck, good morning.
STEPHEN VLADECK: Good morning, Leila.
FADEL: So in your view, is this case about a group trying to block a construction project ’cause they don’t agree with it, or does this decision set a bigger precedent – this case?
VLADECK: I think, unfortunately, it sets a bigger precedent because it’s just the latest in a string of cases where the Trump administration – and President Trump directly – has tried to spend money that Congress has not appropriated, has basically arrogated to itself the power of the purse. And this is at least the third time that the Supreme Court, through one of these emergency orders, has allowed the president to do that without actually holding that it was legal, simply by making it harder for people to challenge that in court.
FADEL: Were you surprised by the decision?
VLADECK: I guess I was a little surprised. You know, Chief Justice Roberts, acting by himself, had issued what lawyers call an administrative stay about 10 days ago, where he had basically temporarily allowed the construction to continue. I think a lot of folks took that as a harbinger of which way the court was leaning.
But what’s really surprising to me, Leila, is that you had a court basically close the door on a type of standing – on sort of recognizing what kind of plaintiffs could bring a lawsuit like this – that it had deliberately opened in 1992 in an opinion by Justice Antonin Scalia. And so I think the surprise here is not necessarily the result, given what had already happened in the Supreme Court, but the rationale
FADEL: Just to be clear, this ruling means that parties can’t bring lawsuits like this in the future?
VLADECK: It’s going to be much harder for parties to rely on what’s called aesthetic injuries. You know, Carrie talked to Professor Hoagland in the report. And, you know, the 1992 opinion by Justice Scalia had specifically allowed for people like that – especially experts in the field, the ones who are most affected – to bring lawsuits in cases like this. Without that line of plaintiffs, Leila, what this really comes down to is an appropriations dispute that only Congress can litigate. And of course, the Congress we have right now has no interest whatsoever in defending its appropriations power against this administration.
FADEL: Chief Justice John Roberts describes this ruling as, quote, “no victory for the separation of powers.” How do you read that?
VLADECK: I mean, I think he’s entirely right. And I think it should be a sign to everyone that he wrote a dissent only really the third time in one of these Trump emergency docket cases where the chief justice has dissented. The separation of powers is supposed to be a two-way street. And when presidents are allowed to basically spend money Congress hasn’t appropriated, not only is that a violation of the separation of powers, Leila. It’s taking Congress’ most important power, and the only one the Constitution expressly says must be exercised by Congress, away from the legislature.
That has implications far beyond the ballroom. And I think what the chief justice is worried about is leaving it to a place where only Congress can enforce its appropriations power is basically leading to a place where appropriations will be litigated only when there’s divided government in Washington.
FADEL: I mean, I guess it’s hard to get your mind around the fact that the court has not ruled on whether this construction project is legal. And yet it might be finished or close to finished by the time the court issues a final ruling. Is there a flaw in the system when a project like this can outrun the courts?
VLADECK: I think the flaw here is actually in the Supreme Court’s own behavior, which is, you know, this is now the 31st conclusive ruling from the court on an emergency application from the Trump administration just since last February. It’s the 27th time it has granted relief to President Trump in whole or in part. And really, those rulings are increasingly not temporary when they are clearing the way without actually holding that the products are legal – for the president to build the ballroom, for the president to refuse to spend $4 billion in foreign aids appropriations, for the president to, you know, remove all transgender service members from the military.
Justice Kavanaugh likes to say that these are interim rulings. I think, Leila, what we’re seeing on the ground is that increasingly, these rulings are having permanent effects – maybe not in the substantive law, but in the conduct of the executive branch and in the arrogation of power from the legislature.
FADEL: And what does that say to you?
VLADECK: I think it says to me that the court ought to be taking these disputes more seriously, that it should be abandoning the fiction that these are interim rulings and that the court should actually be more careful about the kinds of behavior they’re necessarily endorsing in these decisions and not just sort of throwing up their hands and saying, well, we’re not deciding the merits today. When these rulings are effectively deciding on the merits, I think it would behoove all of us for the court to be clear-eyed about that and to understand the consequences of what it’s doing.
FADEL: Stephen Vladeck is a professor at Georgetown Law. Thank you for your time and your insights.
VLADECK: Thank you.
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