Farewell to the President’s New East Wing

In National Trust for Historical Preservation v. National Park Service, by a divided vote of 2-1, the Court of Appeals for the District of Columbia ordered the East Wing project to shut down midstream, pending a possible appeal to the Supreme Court within fourteen days. An angry President Trump immediately castigated the two democratically appointed Judges, Patricia Millet and Bradley Garcia, for their blatant abuse of discretion, without mentioning the gold-plated ballroom, and vowing an immediate appeal to the Supreme Court. He also praised dissenting Judge Neomi Rao for her stout defense of his plan. Once again, the President is way over his head. 

One of the most difficult problems in the law of property long predates the dispute over whether President Trump has the unfettered executive authority to reshape the East Wing of the White House by ripping down the modest existing structure and erecting in its place a 90,000-square-foot behemoth. The problem arises when a given property is subject to divided private ownership with one party in possession and a second who is entitled to take over that property after the expiration of the lease or the death of a tenant for life.  

The standard conceptual challenge in these cases is to ask what the party in possession may do before the remainderman, as he is called, enters the premises. The life and the tenant in possession may be long or short, and so too, the lease of life estate. Intuitively, the longer the current possession lasts, the greater the possessor’s control over the property’s current use and future development and improvement. The standard Roman law doctrine of usufruct, still in place today, grants a life tenant rights to the use and fruits of the property, and to paint and decorate the house, but wholly without any right to change the layout of the premises. In short, the usufructuary can improve what he finds, so long as he does not change the “character of the house” or “raise its height.” 

The Trump massive redo does not come within a country mile of meeting this well-established substantive standard for changes by a party in possession, especially since he will cease being the White House occupant in about 2 ½ years. It is instructive, moreover, that the Roman legal texts use the word “improve” in a restrictive meaning to cover new appliances or a new handrail, but not a massive gold-plated Trumpian replacement of an older building.  

Our modern statutes mirror the Roman tradition. Thus, Section 3 U.S.C. § 105(d), dealing with Assistance and services for the President authorizes the President to spend “such sums as may be necessary for—(1) the care, maintenance, repair, alteration, refurnishing, improvement, air-conditioning, heating, and lighting (including electric power fixtures) of the Executive Residence at the White House.” Those expenses are limited to “each fiscal year” which excludes all long term capital expenditures, given that this limited grant is paired with similar restrictions for the expenses for running the White House Office, and presidential entertainment. The section also is irrelevant because the East Wing litigation deals with private funds that are outside the purview of the section. Worse still, the more general statute, 40 U.S.C. § 8106, states: “A building or structure shall not be erected on any reservation, park, or public grounds of the Federal Government in the District of Columbia without express authority of Congress.” That consent was never obtained because Trump ordered the old building to be razed without any effort to comply with the strict landmark preservation law for the District of Columbia. 

This sequence of events should be the end of the matter, but there are three more wrinkles in these choppy waters. Modern Supreme Court standing doctrine rests on a colossal blunder that requires any plaintiff to show that it has suffered a discrete personal injury traceable to the defendant’s challenged action. Clearly, the gist of the harm alleged is that the entire public suffers in equal proportion from this presidential usurpation of congressional authority. Yet to say that is to concede the standing issue, because if everyone is hurt, no one can sue, which leaves in tatters any judicial control over major threats to the constitutional order. Rather than repeal the rule, the Supreme Court has embraced legal fictions, squinting, and finding that some individual harm did after all take place, in this instance to a professor of history and historic preservation, Alison Hoagland—an obvious workaround to the long-standing rule.  

Legal fictions are uncommonly ugly and tedious and weaken the Court's public authority. Sadly this one rambles on for over 15 pages in the majority opinion, which makes it a fair target not only for Judge Rao’s pointed dissent on fake standing, but also for the Trump cheap-shot at the court by chortling that the majority “elevated the aesthetic displeasure of a single passerby over the government’s security interests in the ballroom,” In so doing , the majority opinion conveniently bypassed the massive public concern about the location of the ballroom and its architectural discretion that alters the White House grounds, affecting everyone long after Trump is out of office. 

The correct way out of this quagmire is to follow the same equitable rule that allows any corporate shareholder, any member of a charitable organization, or any local government to bring a suit for a wrong to the group, which could result in an injunction or other remedy—e.g., removal of the structure. If that party wins then, and only then, do they get risk-adjusted compensation for their work. But until that is done, it is better to keep the fiction and prevent any president from acting like they are liberated from all judicial constraint. 

Trump then added what reads like a fishy argument to save his case, insisting that the social and security aspects were bundled tightly into a single complex building, so the whole project had to continue to keep the security scheme functioning. But there was no reason all these security devices had to be packed underground at this late date. The original White House announcement of July 21, 2025, spoke of a building with a cost of about $200 million funded by private donors and “completed long before the end of the President’s term.”  

National security was treated in this sentence: “The United States Secret Service will provide the necessary security enhancements and modifications for the building”—not for the United States as a whole. But a year later, he has transferred some $350 million for security, which appears to be directed at beefing up the general East Wing project. There is absolutely no excuse to funnel those expenses if that whole East Wing project should be scrapped. Trump insists, however, that “The single, integrated project includes Bomb Shelters, State of the Art Hospital and Medical Facilities, Protective Partitioning, Top Secret Military Facilities, Structures and Equipment, Protective Missile Resistant Steel,” and much more, without explanation as to how this came about.  

Both lower courts did not include in the injunction the national security components to which they gave complete deference, so long as all these activities were kept underground where they would not alter the design features above ground. This decision reads like a sensible compromise, but this strident plea should also be subject to judicial scrutiny, for the new east wing should not call for massive security expenditures if the above-ground structure will never be built, and thus can be safely and cheaply relocated elsewhere. Indeed, the Court in this case is far too kind to Trump, given that the standard rule requires any private party that deliberately builds new construction in excess of the zoning law to face an order for the removal of the offending structure at the owner’s expense. 

There is yet a third gap in the current analysis, which assumes that congressional authorization could cure difficulties with irreversible changes in property. But now suppose that Congress does the improbable and gives a blanket authorization for everything that Trump has asked for. There is nothing in these opinions that addressed any constitutional challenges that could be raised against both Congress and the President under the public trust doctrine, which demands that public actors show the same level of loyalty and care that private trustees owe to their beneficiaries in the management of all kinds of property. Yet here the entire country suffers when the White House grounds are treated in this desultory fashion. It should be possible for any citizen to say that both Congress and the President have acted in violation of the public trust doctrine, whose major purpose is to ensure that the government as a whole acts like a fiduciary that owes to the public duties of care and loyalty. In 1987, I summarized this doctrine as the converse of the takings doctrine: “Nor should public property be transferred for private use, without just compensation.” 

That rule is needed now. So suppose that the current Congress authorized President Trump to take the front façade, worth millions, and sell it for $100 to the Trump family for one of its vaunted real estate projects. Surely, if the head of a corporation had the blessing of the entire board to sell to the CEO or his children assets worth $100 million for $1, no court would allow that raid on corporate assets to take place. Yet in a somewhat different form, that is just what is being done here. Right now this issue has not come up. But it won’t be long. In politics, it is best to always prepare for the worst when any president like this one treats the entire government, the White House grounds included, as his personal plaything, which is the message given to us by the noted New York Times architectural critic Paul Goldberger when he warns that starting with the Trump’s Memorial Arch and the now defaced reflecting pool, the entire District of Columbia could become a lasting tribute to Trump’s egotism and vulgarity.   

Richard A. Epstein is a senior research fellow at the Civitas Institute. He is also the inaugural Laurence A. Tisch Professor of Law at NYU School of Law.