U.S. Supreme Court Associate Justices Samuel Alito (L) and Clarence Thomas on January 20, 2025 in Washington, DC. Chip Somodevilla/Pool via REUTERS/File Photo
Law school professor and Supreme Court analyst Leah Litman is warning that the Supreme Court's decision about the construction of the White House ballroom reflects a serious misunderstanding of the Constitution's separation of powers.
Writing for The Atlantic on Wednesday, Litman explained that the problem is not that the federal courts temporarily blocked the project. Instead, it's that the president allegedly used taxpayer money for a White House construction project without authorization from Congress. Trump announced in 2025 that he would build the ballroom using full donations and that was why he didn't need to ask for permission from Congress. Then he failed to raise enough money to pay for new structure.
Under the Constitution, Congress has the "power of the purse," dictating all spending authority over not merely the federal government but also over federal property, including the White House. Litman contends that the Court treated “the federal government” as if it were synonymous with the president, overlooking Congress’s separate constitutional role.
The unsigned shadow-docket decision from the high court called the ballroom something that "the federal government" started. It's not accurate, Litman argued. Trump’s executive branch initiated the work, and Congress never authorized it.
It's all part of the "unitary-executive theory and the accompanying expansion of executive power" that the Supreme Court has supported previously.
"This theory maintains that all executive power resides in the president, and that Congress cannot limit the president’s exercise of that power," wrote Litman. "Yet these days, the president, occasionally with the Court’s blessing, is claiming to possess legislative powers too. That is the case when the president declines to spend funds that Congress has obligated or when the president decides to spend funds that Congress has not authorized. Under the Constitution, Congress, not the president, has the power of the purse. Nevertheless, the unitary-executive theory unites all government power in the president, paving the way for an executive unbound by law."
When the Supreme Court tried to claim the lower courts all made a mistake, they tried to use the "doctrine of standing, which maintains that a plaintiff challenging the government’s actions must show that they have been injured by the actions they are contesting."
The National Trust for Historic Preservation challenged the demolition and construction, alleging violations of federal law and a lack of congressional approval. It challenged the standing, but said that the building could continue while the matter worked its way through the courts.
Broadway lawyer Michael C. Dorf penned his own column attacking the Supreme Court's "standing" argument, made the doctrine all the more difficult for citizens and organizations to meet. The far-right justices held that a historic-preservation advocate’s interest in seeing the White House before its East Wing was altered wasn't enough for a lawsuit.
Chief Justice John Roberts and the Court’s three Democratic appointees dissented, saying precedent dictates that people can suffer legal harm even when the government's action impairs something they have a particularized professional, aesthetic, or personal interest in observing.
The idea that an individual must "use" a place to have standing makes no sense for historic structures, whose central value is often visual, cultural, and symbolic, Dorf said.
Litman argued that these "standing" requirements could make congressional statutes effectively unenforceable. If neither affected citizens nor preservation organizations can challenge allegedly unlawful executive action, it may be unclear who can enforce the legal limits Congress has enacted, she explained.
Her final point was the argument that somehow Trump would suffer “irreparable harm” if lower courts blocked the project. Stopping potentially illegal conduct can't logically count as "injuring the president." Litman compared the ballroom case with another recent shadow docket decision, like the birthright citizenship case. Both matters are clearly outlined in the Constitution, but the Supreme Court's attempt to shield Trump's actions from judicial review while diminishing Congress’s ability to make enforceable laws doesn't hold water, she asserted.