WASHINGTON — The courts cannot keep up with President Donald Trump.
In cases on immigration, spending, mass firings, and restructuring agencies, the administration has barreled ahead in the face of slow-moving legal challenges. If Trump loses when those lawsuits are finally resolved, it may be too late as a practical matter to undo what he has achieved.
The challenge to Trump’s enormous White House ballroom project is just the latest example of a mismatch between a judicial system characterized by unhurried deliberation and a presidency built for speed.
“Trump is going to get his ballroom — even if courts conclude it’s illegal,” said Leah Litman, a law professor at the University of Michigan.
Over the past few months, three judges and four justices concluded that Trump likely violated a federal law by razing the East Wing and replacing it with a luxury building.
Five other justices did not dispute that conclusion, ruling instead that the challengers probably lacked a direct interest in the matter sufficient to give them standing to sue.
The litigation continues — but so does the construction. Trump said Tuesday that the project will be done by next year.
Dissenting from an order in a different case last week, on mail-in voting, Justice Ketanji Brown Jackson wrote that she detected a pattern: a “Catch-Me-If-You-Can approach to pursuing the president’s policy agenda.”
Davis Ingle, a White House spokesperson, said velocity was a virtue.
“President Trump is moving at lightning speed,” he said, “because we don’t have time to waste in our mission to make America greater than ever before.”
When the ballroom case was argued before a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit in June, Judge Patricia A. Millett asked a telling question.
If the government were to move very quickly to bulldoze the Statue of Liberty, she asked, was it true that “nothing can be done” by the courts?
Yaakov Roth, a Justice Department lawyer, did not try to duck the question. “I think that’s right, yes,” he said.
The panel ruled for the historic preservationists who had challenged the project by a 2-1 vote, affirming a ruling from a lower court judge blocking the project about four months after it was issued. That is pretty fast by judicial standards.
But the injunction had been paused while the case moved along, and the appeals court added another two weeks. Then Chief Justice John Roberts added another pause, one that would turn out to last 10 days.
During all of this, construction continued at a furious pace.
When the case reached the Supreme Court last month, the challengers warned the justices that Trump had “decided to try to outrun judicial review.”
In response, Solicitor General D. John Sauer did not exactly deny the charge. He crowed that a 250-person crew had been working 20 hours a day, seven days a week, and that the project, which he said included key security upgrades for the White House, had passed the point of no return. Echoing the challengers, he wrote that “the executive has raced to ‘outrun’ the extraordinary security threats facing this president.”
In a decision Monday that let the project proceed for now, no justice said the project was lawful. The five-member majority, in an unsigned opinion, instead tentatively determined that the challengers had not suffered the sort of direct injury that would allow them to sue.
Indeed, the majority went out of its way to say that “we do not pass upon the legality of the government’s East Wing project.”
A frustrated Roberts, joined by the court’s three liberal members, wrote in dissent that “construction of the ballroom has proceeded apace for the better part of a year” even though it was most likely in violation of a federal law that requires Congress’ express permission to erect a building on federal property in Washington.
Should Democrats capture one or both chambers of Congress in the coming election, they may be able to challenge the project in court or through legislation. But it will almost surely be too late.
Aziz Huq, a law professor at the University of Chicago, said there was a pattern.
He pointed to cases in which he said the administration had “immediately shut off funding in violation of law when the recipient depends on the funding and is discouraged from suing by even the temporary loss of funding.”
This, Huq said, “is a striking use of practical power to outrun law.”
The Supreme Court’s deliberate pace helped Trump during his last campaign, too.
Jack Smith, the special counsel prosecuting him on charges that he had tried to subvert the 2020 election, sought to put the case on a fast track, one that would yield a trial before the 2024 election. Trump argued that he was immune from prosecution because his actions had been part of his official duties as president.
Sauer, who was then Trump’s personal lawyer, urged the justices to go slow. The question, Sauer’s brief said, should be “resolved in a cautious, deliberative manner — not at breakneck speed.” He urged the justices not to “rush to decide the issues with reckless abandon.”
The Supreme Court turned away a first appeal in 2023 and did not agree to hear the case until late February 2024, scheduling arguments for that April.
The court’s decision, that July, granted Trump broad but not unlimited immunity, and Smith might in theory have been able to proceed with some elements of his case.
But it had taken the court long enough to decide the immunity issue that the prospect of a trial before the election evaporated. After Trump won, the Justice Department dismissed the charges against him.
“It was entirely foreseeable that the Roberts court’s decisions allowed Trump to outrun both the prosecutors and the lower courts,” said Jed Shugerman, a law professor at Boston University.
The general problem, said Litman, a frequent critic of Trump, is that the Supreme Court, intentionally or not, “keeps missing the forest for the trees,” focusing on technical issues in the face of brazen conduct.
“The court has created a maze of obstacles — and invented obstacles — that have the effect of allowing the executive branch to get away with lawlessness,” she said, “at least for enough time to accomplish what they’re trying to.”
But Samuel Bray, a law professor at the University of Chicago, said courts are so powerful they must observe certain restraints. They cannot decide disputes not brought to them, for instance, and they can decide only cases in which the plaintiffs have a real stake.
“Courts have the special power of giving judgments that are obeyed, even in the bitterest disputes,” he said. “But the special powers and special constraints of courts go together. And in the long run, the legitimacy of a judicial system depends on the judges’ commitment to working in a judicial mode, come what may.”
Many presidents have been aggressive in pursuing their policies, and few have been eager to be second-guessed by the courts. But Trump’s actions are different in kind, said Pamela Karlan, a law professor at Stanford University.
“He really has decided that he can just go ahead and do what he wants,” she said, “daring courts to stop him across a huge range of subject matters.”
