Two Democrat-appointed judges on a three-judge federal appeals court panel appeared sympathetic Friday to the plaintiffs in a lawsuit challenging the construction of President Donald Trump's White House ballroom.
Judges Patricia Millett and Brad Garcia pressed government attorneys during oral arguments Friday.
The two judges on the U.S. Court of Appeals for the D.C. Circuit questioned the administration's claim that Congress had provided all necessary approvals for the project and that the plaintiffs had no right to sue, according to The Hill.
In response to hypothetical scenarios put forward by Millett, government attorney Yaakov Roth agreed that the government could bulldoze the Statue of Liberty and the White House, and that the descendants of immigrants who came through Ellis Island and the enslaved people who built the White House would not have legal standing to oppose the move.
Millett asked Roth when the ballroom project became a "fait accompli."
"Was it when you started doing the underground work, which is now totally completely integral and connected and inseparable from a massive ballroom on top?" she said. "When did it become impossible for courts to stop this project?"
Roth, the principal deputy assistant attorney general of the Department of Justice Civil Division, replied: "I think it would have been improper to enjoin it even on day one."
At issue is an April 16 order from U.S. District Judge Richard Leon that temporarily blocked above-ground construction on the proposed 90,000-square-foot ballroom. Leon allowed work to continue on a bunker and other below-ground "national security facilities" at the site.
The hearing Friday centered on who has standing to challenge government actions once they have been taken and whether national security concerns can outweigh claims of standing.
The $400 million project prompted a lawsuit from the National Trust for Historic Preservation, which argues that Congress must pass new legislation for the project to continue.
As Roth faced sharp questioning about the project's legality, the panel did at times acknowledge the administration's national security concerns, according to The Hill.
The administration has argued that work on those below-ground security features is distinct from construction of the ballroom itself and should be allowed to continue regardless.
The Trump administration has pointed to two laws that it says authorize the project.
One authorizes appropriations for the "alteration" and "improvement" of the White House.
The other established the National Park Service and stipulates that the secretary of the Interior "shall promote and regulate the use of the National Park System."
Garcia acknowledged that the parks law might implicitly authorize construction. But he suggested the government was effectively conceding the authority is only implied, according to The Hill.
"Promote the use of the National Park Service equals express authority to erect buildings?" Garcia said.
"Yes, that's our position," Roth said, arguing that is how the provision would have been understood when the law was passed.
Roth's arguments did not appear to persuade Garcia, according to The Hill. Garcia openly suggested he interprets the other law the same way the plaintiffs do.
The third judge on the panel, Neomi Rao, raised questions about whether the preservationist group can sue at all.
The group's case focuses on one member who takes walks near the White House, but the government argues that does not establish legal standing. Federal courts generally require plaintiffs to show a concrete and particularized injury before they can sue.
"She says that she's going to walk past the White House maybe once a month. She doesn't really say anything specific," Rao said, according to The Hill.
Thaddeus Heuer, the group's attorney, said his argument would not mean that just anyone who walks by a government building can sue.
He also maintained that no existing law authorizes a project of this scale on White House grounds, according to The Hill.
The Associated Press contributed to this report.
Michael Katz ✉
Michael Katz is a Newsmax reporter with more than 30 years of experience reporting and editing on news, culture, and politics.