The D.C. Circuit’s sole administrative law decision last week was a big one: not only because of its high profile (headlines abound), and not only because of its length (136 pages!), but also (most pertinent for this blog) because of the range of administrative law issues it covers.

In National Trust for Historic Preservation v. National Park Service, the D.C. Circuit (Judges Millett and Garcia) affirmed the preliminary injunction the district court (Judge Leon) issued halting construction of a ballroom where the East Wing used to stand. Judge Rao dissented. Construction continues apace, as the injunction has been stayed since the district court issued it, in order to give President Trump time to seek appellate (now Supreme Court) review. The deadline for securing further relief from the Supreme Court is next week.

At the heart of the case is the question whether the President has authority to construct the facility, but that question is wrapped under several layers of legal modifications. To begin, because the case was up on a preliminary injunction, the court had to decide whether the district court abused its discretion in issuing the injunction. That, in turn, depended on the soundness of its prediction that the plaintiff, the National Trust for Historic Preservation, is likely to succeed on the merits. The Trust is proceeding on an ultra vires theory, which means it must ultimately show that the President “has taken action entirely”—or “plainly”—“in excess of his delegated powers and contrary to a specific prohibition in a statute,” that is, his theory of statutory authority is “utterly unreasonable” or based on a “patent misconstruction” of the law. Here, the “specific prohibition” the Trust pointed to appears in 40 U.S.C. § 8106, which requires “express authority of Congress” to construct buildings on “the public grounds of the Federal Government in the District of Columbia.” The Government, in turn, pointed to several sources of “express authority,” but the centerpiece of its argument is 3 U.S.C. § 105(d), which provides that there “are authorized to be appropriated each fiscal year to the President such sums as may be necessary for the . . . improvement . . . of the Executive Residence at the White House.”

And so, the reformulated question is whether the district court abused its discretion in concluding that the Trust is likely to succeed in showing that the construction of the ballroom is entirely/plainly/unreasonably/patently in excess of a statute that requires “express authority” when Congress has authorized appropriations for improvements to the Executive Residence. Phew.

Actually, that is still a simplified version. It leaves out an APA defendant, an Economy Act transfer, waiver and forfeiture disputes, three other preliminary-injunction factors, and a standing dispute that is also wrapped in multiple layers of adverbs: “At the preliminary injunction stage, the National Trust needs to clearly show that it is likely to establish each element of standing.”

Lest this post also run over 100 pages, here are just a few observations:

1. Much has been written about the dangers of preliminary relief and interlocutory review. It can result in hasty decisions without a complete presentation of the merits.  Although their purpose is to preserve the status quo, they sometimes produce real world consequences based on tentative legal reasoning. And so on. One risk is that adverbial layering (like a double negative) sometimes obscures who needs to prove what, and to what level of certainty. It can even make the panel’s own formulations slippery. At one point, the opinion observes that “Defendants are unlikely to succeed on the merits of either provision” the Government cited as the source of its authority to construct the ballroom.  Yet it was the Trust, as plaintiff, that bore the burden of showing it is likely to succeed in showing that the Government is plainly acting beyond statutory authority. Flipping the burden matters, especially in a preliminary and equitable posture, where serious consequences ride on narrow percentages.
2. The opinions make for interesting reading for those interested in the appropriations process. I had read in the news that the ballroom was to be largely funded through private donations, as though that somehow sidestepped the appropriations process. This puzzled me—private donations are private when they leave citizens’ hands, but once they land in government pockets, aren’t they part of the public fisc—“Money” that shall not “be drawn from the Treasury,” but “in Consequence of Appropriations made by Law”? It turns out that the answer is “yes.” Private donations to the government must be appropriated before the intended recipient may spend them. In this case, there is a standing statutory appropriation of donations to the National Park Service. Whether that appropriation authorizes this construction is (part of) the question at the heart of this case. The panel says (probably) no; the dissent says (probably) yes.
3. Suits challenging ultra vires action are an underappreciated corner of administrative law.  We are accustomed to courts reviewing agency action under the Administrative Procedure Act, with the old familiar “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” line. But this case involves an action of the Office of the Executive Residence, which (the Government contends) is not an agency under the APA. Mere abuse of discretion is not enough. Here, the Court concluded that Section 8106 specifically prohibits it from constructing the ballroom without “express authority,” which the Court found wanting.
4. Securing a preliminary injunction requires more than a likelihood of success on the merits. The Trust also had to show that it likely faces irreparable harm, that the balance of the equities tips in its favor, and that the injunction is in the public interest. In many public-law cases, the merits effectively drive the other preliminary injunction factors. Ongoing rights violations, for example, are irreparable. So if a plaintiff is likely to succeed in showing a rights violation, he or she is also likely to succeed in showing an irreparable injury. Impeding legitimate law enforcement, for another example, is against the public interest. So if a plaintiff is unlikely to succeed in showing that the threatened enforcement action is invalid, then an injunction would be against the public interest. In practice, the final three prongs often occupy but a small portion of the briefs seeking or resisting, and opinions granting or denying, preliminary injunctions. Here, however, the harms do not depend on who is right on the merits. The Trust’s standing to challenge the construction project is founded on a member’s aesthetic interest in enjoying the White House grounds during her regular walks through, and visits to, Lafayette Square. The injury to that interest will occur even if Congress authorized the project. Similarly, the equities and public interests cited by the Government—security concerns and costs associated with halting an ongoing construction project, etc.—will accrue regardless of whether the construction is authorized. Consequently, they occupy greater space in both opinions. But the judges divide on how much weight these harms deserve once the court has formed a tentative view of the merits. Merits loom large in the majority’s equitable discussion; too large, according to the dissent. The dueling opinions therefore present an interesting opportunity for thinking about the function of preliminary injunctions and the independent role of each preliminary injunction factor.