National Trust for Historic Preservation in the United States v. NPS

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

____________

No. 26-5101 September Term, 2025

1:25-cv-04316-RJL

Filed On: April 11, 2026

National Trust for Historic Preservation in the

United States,

Appellee

v.

National Park Service, et al.,

Appellants

------------------------------

Consolidated with 26-5108

BEFORE: Millett, Rao*, and Garcia, Circuit Judges

ORDER

Upon consideration of the emergency motion for a stay, which includes a request

for a 14-day administrative stay, the supplement to the motion, the opposition to the

motion, and the reply, it is

ORDERED that the district court’s stay of its March 31, 2026 preliminary

injunction be extended to April 17, 2026. It is

FURTHER ORDERED, on the court’s own motion, that these cases be

remanded to the district court for further proceedings.

On July 31, 2025, the President announced plans to build a 90,000 square-foot

ballroom at the site of the White House’s East Wing to be paid for by private donors.

Add. 92-93. The President assured that he was “fully committed to working with the

appropriate organizations to preserv[e] the special history of the White House[.]” Add.

57. Then, on October 20, 2025, “without advance notice[,]” the President posted on

social media that “ground ha[d] been broken[.]” Add. 58. Within three days, the East

Wing was completely demolished. Add. 93.

* A dissenting statement of Circuit Judge Rao is attached.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

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No. 26-5101 September Term, 2025

The National Trust for Historic Preservation in the United States then filed this

suit in the United States District Court for the District of Columbia and moved for a

temporary restraining order. Add. 93; ECF Nos. 1, 2. In opposing the National Trust’s

motion, Defendants indicated that “nothing about the ballroom ha[d] been finalized,”

Add. 41, that below-ground construction would not lock in the above-ground ballroom’s

size, scale, or design, TRO Hr’g Tr., ECF No. 18, at 21:09-21, and that above-ground

construction “will not begin until April 2026, at the earliest[,]” Add. 37. The district court

declined to issue a temporary restraining order in express reliance on those

representations. Add. 41-42.

According to Defendants, “a massive excavation and structurally completed site”

now lies where the East Wing once stood. Defs.’ Stay Mot. 1. Defendants report that,

within the large pit, “bomb shelters, [a] hospital and medical area, protective

partitioning, and Top Secret Military installations * * * are built and/or ready to be built,

installed and placed.” Id. Meanwhile, Defendants state that above-ground construction

of the ballroom itself is scheduled to begin shortly. Id. at 10.

On March 31, 2026, the district court granted the National Trust’s motion for a

preliminary injunction. Add. 125. The district court concluded that, to the extent the

Executive Office of the President or the Office of the Executive Residence had ordered

the construction, that action was likely ultra vires because Congress has exclusive

constitutional authority over federal property like the White House, and no statute

authorized the President to demolish an entire Wing of the White House and replace it

with a privately funded ballroom. See Add. 100-114. In addition, to the extent the

National Park Service had a role in directing and funding the construction, the district

court concluded that such action was likely contrary to law in violation of the

Administrative Procedure Act, 5 U.S.C. § 706(2), because the Park Service, too, lacks

relevant statutory authority. See Add. 115-117.

The district court enjoined the Park Service, the Executive Office of the

President, the Office of the Executive Residence and related entities, officers, and

agents “from taking any action in furtherance of the physical development of the

proposed ballroom * * *, including but not limited to any further demolition, site

preparation work, landscape alteration, excavation, foundation work, or other

construction related work[.]” Add. 125-126. At the same time, the court exempted from

the preliminary injunction those “actions strictly necessary to ensure the safety and

security of the White House and its grounds, including the ballroom construction site,

and provide for the personal safety of the President and his staff[.]” Add. 126. At

Defendants’ request, the court stayed the effect of its order until April 14th. See Add.

126.

Defendants noticed their appeal and moved this court to enter a full stay pending

appeal. See generally Defs.’ Stay Mot.

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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

____________

No. 26-5101 September Term, 2025

A stay pending appeal is an “extraordinary” remedy. Citizens for Resp. & Ethics

in Washington v. Federal Election Comm’n, 904 F.3d 1014, 1017 (D.C. Cir. 2018) (per

curiam). To secure that exceptional relief, the stay applicant must demonstrate, among

other things, that it will be “irreparably injured” in the absence of a stay before the

appeal concludes. Nken v. Holder, 556 U.S. 418, 434 (2009) (quotation marks

omitted). “[A] showing of irreparable harm is a necessary prerequisite for a stay.”

KalshiEX LLC v. CFTC, 119 F.4th 58, 64 (D.C. Cir. 2024); see also Margolin v. National

Ass’n of Immigr. Judges, --- S. Ct. ----, 2025 WL 3684278, at *1 (Dec. 19, 2025) (Mem.)

(denying stay application where “the Government has not demonstrated that it will

suffer irreparable harm without a stay”).

On the present record, Defendants’ arguments about irreparable harm, and their

intersection with the district court’s exclusion of necessary safety and security

measures from its injunction, raise unresolved factual questions, as well as a legal

dispute about the scope of the exception.

To start, much of Defendants’ discussion of national-security risks concerns

security fixtures that are, or will be, installed beneath the planned ballroom. See Defs.’

Stay Mot. 1, 3. But the district court’s injunction runs only against the “physical

development of the proposed ballroom[.]” Add. 126 (emphasis added). And

Defendants have repeatedly represented to the district court that any below-ground

work was distinct from construction of the ballroom itself and could proceed

independently. Defs.’ Opp’n to Prelim. Inj., ECF No. 30, at 13 (“[T]he work that must

proceed below-grade will not lock in the scope of above-grade construction.”); id. at 47

(“[B]elow-grade work does not lock in the size of the above-grade design.”); Defs.’ Mot.

to Modify Schedule, ECF No. 22, at ¶ 4 (“[B]elow-grade construction will not necessitate

any specific above-grade design.”). Yet Defendants now seem to suggest that

below-ground “national security upgrades are inseparable from the rest of the Project[.]”

Defs.’ Reply in Support of Stay Mot. 12. As a result, it remains unclear whether and to

what extent the development of certain aspects of the proposed ballroom is necessary

to ensure the safety and security of those below-ground national security upgrades or

otherwise to ensure the safety of the White House and its occupants while the appeal

proceeds.

Defendants also contend that the preliminary injunction will impose irreparable

harm because the ballroom—once completed—will be more secure than the

now-demolished East Wing. Compare Defs.’ Stay Mot. 1 (discussing “drone proof

roofing materials” and “blast proof glass”), with id. at 4 (“[T]he old East Wing was * * *

totally vulnerable to attack by even the most basic of Military weaponry[.]”). But

planning documents in the record estimate that the ballroom was never expected to be

completed for almost three years from when ground was broken. See Add. 21 (“[T]he

completion of construction [is] anticipated to be summer 2028[.]”). So it is unclear on

this record how a potential delay to the construction imposes additional harm beyond

Page 3

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

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No. 26-5101 September Term, 2025

the expected and consciously undertaken risks of a lengthy and major construction

project of the White House. The relevant inquiry for purposes of Defendants’ stay

motion is the narrower question of whether the injunction, with its “safety-and-security

exception[,]” Add. 126, will inflict irreparable harm pending the expeditious resolution of

the appeal.

That leaves arguments about the ongoing security risks caused by Defendants’

decision to demolish the East Wing and undertake a massive excavation and multi-year

construction project to the White House itself. See Defs.’ Stay Mot. 2 (discussing

“expos[ure] to the conditions and elements of an open construction site”), 25

(discussing the risks of “pitching temporary tents”), 26 (relating the Secret Service’s

assessment that the “current open construction site is, in and of itself, a * * * safety

hazard”). This court will not gainsay the importance of ensuring the safety of the White

House, the President, staff, and visitors. The district court did not either. As noted, the

preliminary injunction expressly allows Defendants to take those “actions strictly

necessary to ensure the safety and security of the White House” and those in it or on its

grounds. Add. 126. In other words, as Defendants acknowledge and applaud, the

injunction appears to accommodate precisely the concerns animating their request for a

stay. See Defs.’ Stay Mot. 5 (“We agree with the second part of that ruling having to do

with Presidential and White House safety and security[.]”). Defendants have not, on

this record, explained how, if at all, the injunction interferes with their existing plans for

safety and security at the remaining portions of the White House during the construction

project. The National Trust’s motion to clarify the injunction—now pending before the

district court—highlights the uncertainty. See Pltf.’s Mot. for Clarification, ECF No. 65,

at 1-2.

The stay papers, in short, have raised serious factual questions about the

relationship between, on the one hand, above-ground construction of the ballroom itself

and the maintenance of safety and security, and prior governmental representations

that the below-ground and above-ground stages were distinct and the above-ground

design features subject to change, ECF No. 30 at 13, 47; ECF No. 22 at ¶ 4; ECF No.

18 at 21:16-18 (Defendants could “change the size of the ultimate structure” even after

“concrete has been poured[.]”). The district court has not yet had occasion to address

those questions.

We cannot fairly determine, on this hurried record, whether and to what extent

the district court’s “necessary for safety and security” exception addresses Defendants’

claims of irreparable harm, insofar as it may accommodate the Defendants’ asserted

safety and security need for the ballroom itself or other temporary measures to secure

the safety and security of the White House, the President, staff, and visitors while this

appeal proceeds. We thus remand these cases to the district court with instructions to

promptly address the pending motion to clarify how the injunction and its exception will

ensure safety and security pending litigation. The district court’s previously entered

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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

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No. 26-5101 September Term, 2025

stay of its preliminary injunction is hereby extended to April 17th to allow Defendants, if

they wish, to seek Supreme Court review of this order remanding for factual

development and clarification. It is

FURTHER ORDERED that the motion for a stay be dismissed as moot.

Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk

is directed to issue the mandate forthwith to the district court.

Per Curiam

FOR THE COURT:

Clifton B. Cislak, Clerk

BY: /s/

Amy Yacisin

Deputy Clerk

Page 5

RAO, Circuit Judge, dissenting: The President has

commenced construction of a new ballroom and security

facilities in the East Wing of the White House. The district

court halted construction based on the alleged aesthetic injury

of one individual residing in Washington, D.C. I would stay the

preliminary injunction pending appeal. The government has

demonstrated a strong likelihood of success on the merits

because the National Trust for Historic Preservation (the

“Trust”) lacks standing to sue and because the construction

project is authorized by a statute that allows the President to

undertake “improvement[s]” to the White House. 3 U.S.C.

§ 105(d)(1). Importantly, the government has presented

credible evidence of ongoing security vulnerabilities at the

White House that would be prolonged by halting construction.

This constitutes irreparable injury and is clearly a weightier

interest than the generalized aesthetic harms identified by a

single member of the Trust. Because my colleagues’ remand

for further factfinding constructively denies the government

the stay to which it is entitled, I respectfully dissent.

I.

Last summer, the President announced plans to renovate

the East Wing of the White House, a project that will include

updated security facilities and construction of a large ballroom

for hosting official events. This East Wing project broke

ground in October 2025 and is being managed by the

President’s Office of the Executive Residence (“EXR”).

Because the White House is situated within President’s Park, a

unit of the National Park System, EXR has been coordinating

the project with the National Park Service and is funding the

project exclusively with private donations.

The Trust, a congressionally chartered nonprofit

corporation, filed this lawsuit in December 2025 seeking to

enjoin construction of the East Wing project and asserting

various claims under the Administrative Procedure Act

2

(“APA”) and the Constitution. The district court concluded the

Trust had associational standing based on an aesthetic injury

alleged by one of its members, Alison Hoagland. The district

court denied the Trust’s request for a preliminary injunction,

however, because EXR was not an “agency” whose actions are

subject to review under the APA and because the Trust failed

to state a constitutional claim under Dalton v. Specter, 511 U.S.

462 (1994).

The Trust amended its complaint to assert ultra vires

claims, maintaining that the East Wing project required the

“express authority of Congress,” 40 U.S.C. § 8106, and no

such authority had been given. The Trust again moved for a

preliminary injunction, which the district court granted. The

court found the Trust was likely to succeed in showing the East

Wing project was not authorized by any statute and therefore

barred by section 8106. The district court also held the Trust

had shown irreparable harm to its aesthetic interests. Finally,

the court concluded the balance of the equities favored the

Trust in part because of the “ongoing construction of a

ballroom that would … ‘overshadow[]’ the White House and

disrupt the appearance of a historic and cultural icon” and

because “the White House does not belong to any one man—

not even a president!” The preliminary injunction barred

further construction of the project except “actions strictly

necessary to ensure the safety and security of the White House

and … the personal safety of the President and his staff.” Add.

126.

The government requests a stay pending appeal of the

injunction.

II.

To prevail on a motion for a stay pending appeal, an

applicant must make “a strong showing that it is likely to

3

succeed on the merits,” “that it will be irreparably injured

absent a stay, that the balance of the equities favors it, and that

a stay is consistent with the public interest.” Whole Woman’s

Health v. Jackson, 141 S. Ct. 2494, 2495 (2021) (cleaned up).

The most critical of these factors is the likelihood of success

on the merits. See Ohio v. EPA, 144 S. Ct. 2040, 2052–53

(2024).

A.

The government has made a strong showing that it is likely

to succeed on its appeal of the preliminary injunction halting

the East Wing project. A preliminary injunction is “an

extraordinary remedy that may only be awarded upon a clear

showing that the plaintiff is entitled to such relief.” Winter v.

Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). In granting

the injunction, the district court committed two independent

errors. First, the district court erred in finding the requisite

“clear showing” that the Trust has Article III standing. Murthy

v. Missouri, 144 S. Ct. 1972, 1986 (2024) (cleaned up).

Second, the district court erred in holding the Trust is likely to

prevail on its “Hail Mary pass” of an ultra vires claim. Nuclear

Regul. Comm’n v. Texas, 145 S. Ct. 1762, 1776 (2025)

(cleaned up).

1.

The Trust asserts associational standing based on the

incidental aesthetic harm that one of its members has alleged

will occur when she will occasionally travel near the White

House. Because the Trust does not seek to protect interests

germane to its specific statutory purposes and its member lacks

standing to sue in her own right, the Trust likely lacks standing.

Article III of the Constitution vests the Judiciary with the

power to resolve specific “‘Cases’ or ‘Controversies,’” not

4

abstract “questions and issues.” Ariz. Christian Sch. Tuition

Org. v. Winn, 563 U.S. 125, 132 (2011) (quoting U.S. Const.

art. III, § 2). The federal courts are not an “open forum for

citizens to press general complaints” about violations of

federal law. FDA v. All. for Hippocratic Med., 144 S. Ct. 1540,

1554 (2024) (cleaned up). Plaintiffs seeking to vindicate their

rights must therefore demonstrate standing to sue, which

requires an injury in fact caused by the defendant and

redressable by the court. Lujan v. Defs. of Wildlife, 504 U.S.

555, 560–61 (1992). An injury in fact is an “invasion of a

legally protected interest” that is “concrete and particularized,”

as well as “actual or imminent.” Id. at 560 (cleaned up). This

“irreducible constitutional minimum” ensures that a proper

party is seeking relief that may be properly issued by a federal

court. See id.; William Baude & Samuel L. Bray, Proper

Parties, Proper Relief, 137 Harv. L. Rev. 153, 154–56 (2023).

As an association, the Trust must show that “(1) its

members would otherwise have standing to sue in their own

right; (2) the interests it seeks to protect are germane to [its]

purpose; and (3) neither the claim asserted nor the relief

requested requires the participation of individual members in

the lawsuit.” SSM Litig. Grp. v. EPA, 150 F.4th 593, 596 (D.C.

Cir. 2025) (cleaned up). To obtain a preliminary injunction, the

Trust must submit evidence of specific facts that clearly show

it is likely to establish associational standing. See Elec. Priv.

Info. Ctr. v. Presidential Advisory Comm’n on Election

Integrity, 878 F.3d 371, 377 (D.C. Cir. 2017); Murthy, 144

S. Ct. at 1986. The Trust fails to make the necessary showing.

To begin with, the Trust’s statutory purposes are not

germane to any interests asserted here because the Trust has no

authority over or interest in the White House. “The

germaneness requirement mandates pertinence between

litigation subject and organizational purpose.” Int’l Dark-Sky

5

Ass’n, Inc. v. FCC, 106 F.4th 1206, 1218 (D.C. Cir. 2024)

(cleaned up). Private associations are generally afforded

leeway to define their own purposes, and germaneness often is

easily established in our caselaw. But as a congressionally

chartered nonprofit, the Trust “is required to pursue … goals

defined by statute.” See DOT v. Ass’n of Am. Railroads, 575

U.S. 43, 53 (2015). Congress established the Trust to serve four

defined purposes: (1) receiving donations of historic sites,

buildings, and objects; (2) preserving and administering those

sites, buildings, and objects; (3) accepting and administering

gifts to carry out its preservation efforts; and (4) executing

other statutory functions. 54 U.S.C. § 312102(b). Congress

specified the powers of the Trust, all of which may be exercised

only “[t]o the extent necessary to enable it to carry out the

functions vested in it by this chapter.” Id. § 312105(a)

(emphasis added).

To carry out its statutory purposes, the Trust may acquire

real property, but it is prohibited from acquiring property

within National Park System units. See id. §§ 312105(g),

100102(6), 100501. The White House is located within such a

unit, President’s Park. The Trust therefore has no statutory

purpose related to the White House: it cannot acquire donations

of real property within President’s Park, and it cannot preserve

or administer such property.1 Cf. La. Pub. Serv. Comm’n v.

FCC, 476 U.S. 355, 374 (1986) (explaining that where

Congress has not “confer[red] power upon” an agency, it

“literally has no power to act”). Congress has specifically

defined the Trust’s purposes and powers, none of which are

1

That the Trust is authorized to contract and make cooperative

agreements with other federal entities and officials only underlines

the inappropriateness of its current lawsuit against numerous federal

entities and officials. See 54 U.S.C. § 312105(h).

6

germane to a lawsuit challenging the building of a ballroom

and updated security facilities on White House grounds.

The district court and the Trust maintain the lawsuit is

germane by invoking Congress’s general purpose for creating

the Trust: “to facilitate public participation in the preservation

of sites, buildings, and objects of national significance or

interest.” See 54 U.S.C. § 312102(a). Yet the same Congress

also carved the White House out of the above “sites, buildings,

and objects.” While our associational standing precedents are

sometimes quite capacious, I would not extend them to confer

standing on the congressionally created Trust to vindicate an

interest that Congress expressly withheld from the Trust’s

purview. The lack of germaneness is fatal to the Trust’s

standing.

In addition, the Trust identifies no member with standing

to sue. The declaration of the Trust’s sole identified member,

Alison Hoagland, relies on the claim that she will suffer

aesthetic harm if the East Wing project is completed. Hoagland

Decl. ¶ 14. Aesthetic harm to a plaintiff’s recreational activities

may qualify as injury in fact, but “mere incidental viewership”

of an unpleasant sight does not. Env’t Def. Fund v. FERC, 2

F.4th 953, 969–70 (D.C. Cir. 2021). Hoagland’s declaration

claims that “[a]s a resident of Washington D.C.” she will walk

by and “be impressed” with the White House (but displeased

with the new ballroom) “about once a month.” Hoagland Decl.

¶ 12. Such vague and infrequent viewing supports “nothing

more than [a] generalized grievance[],” which is insufficient

for Article III standing. Env’t Def. Fund, 2 F.4th at 968–70

(rejecting standing to challenge “a looming eyesore” the

plaintiff passed “three times per week”); see Lujan, 504 U.S.

at 562–65 (recognizing the possibility of aesthetic injuries but

denying standing based on “‘some day’ intentions”).

7

The district court’s finding that Hoagland likely has

standing because she intends to travel to the White House in

order to “enjoy” and “derive[] aesthetic value” from the

building as an attraction, Add. 65 (cleaned up), is not supported

by Hoagland’s declaration. Because the aesthetic injury

Hoagland claims is a future one, she must show it is imminent,

and that requires “concrete plans” to “use the area affected by

the challenged activity and not an area roughly in the vicinity

of it.” Lujan, 504 U.S. at 564–66 (cleaned up). Hoagland

critically fails to make such a showing. Lacking any link

between her asserted aesthetic interest in the White House and

concrete future plans to view it recreationally, Hoagland falls

short of the requisite “clear showing” that she has standing.

Murthy, 144 S. Ct. at 1986 (cleaned up). As the only member

identified by the Trust, this shortcoming also is fatal to the

Trust’s standing.

Failing the germaneness requirement and lacking a

member with standing, the Trust is not a proper party to bring

this lawsuit. For that reason, the government is likely to prevail

on its appeal.

2.

On the merits, the district court held that the government’s

construction of the ballroom is likely ultra vires. Because

federal law authorizes the construction, the government is also

likely to prevail on the merits of its appeal.

“To prevail on an ultra vires claim, the plaintiff must

establish three things: (i) the statutory preclusion of review is

implied rather than express; (ii) there is no alternative

procedure for review of the statutory claim; and (iii) the agency

plainly acts in excess of its delegated powers and contrary to a

specific prohibition in the statute that is clear and mandatory.”

Changji Esquel Textile Co. v. Raimondo, 40 F.4th 716, 722

8

(D.C. Cir. 2022) (cleaned up). The third requirement is

“especially demanding”; it requires a statutory violation “so

extreme that one may view it as jurisdictional or nearly so.” Id.

(cleaned up). For this reason, an ultra vires claim is “essentially

a Hail Mary pass—and in court as in football, the attempt rarely

succeeds.” Nuclear Regul. Comm’n, 145 S. Ct. at 1776

(cleaned up).

The Trust’s ultra vires claim hinges on 40 U.S.C. § 8106,

which requires express congressional authorization to erect a

“building or structure … on any reservation, park, or public

grounds of the Federal Government in the District of

Columbia.” 40 U.S.C. § 8106. The Trust maintains that no

statute authorizes construction of the East Wing project. I

disagree. Construction is likely permitted under 3 U.S.C.

§ 105(d)(1) and therefore not ultra vires.

Section 105(d)(1) authorizes the President to use lawfully

available funds for the “care, maintenance, repair, alteration,

refurnishing, improvement, air-conditioning, heating, and

lighting (including electric power and fixtures) of the

Executive Residence at the White House.” 3 U.S.C.

§ 105(d)(1). The government leans on the authority to make

improvements to support the project. Because the word

“improvement” has multiple definitions, we must determine

which definition “makes sense in the context of the statutory

scheme.” See Jennings v. Rodriguez, 138 S. Ct. 830, 845

(2018). Section 105(d)(1) squarely enumerates modifications

that can be made to real property, and so the real property

definition of “improvement” makes the most sense.2 With

2

Elsewhere, Congress has used “improvement” in the real property

context to include the construction of facilities and buildings. See 16

U.S.C. § 666 (“There is hereby authorized to be appropriated … such

amounts as may be necessary … [for] the construction of such

facilities, buildings, and other improvements.”); 10 U.S.C.

9

regards to real property, “improvement” means a “valuable

addition made to property” that “amount[s] to more than mere

repairs or replacement.”3 Improvement, Black’s Law

Dictionary (5th ed. 1979). The prototypical example is a

“building[],” but the definition also includes “any permanent

structure.” Id.

The planned ballroom and security facilities are buildings

intended to serve as permanent structures supporting the

Executive Residence. The project therefore qualifies as an

improvement permitted under section 105(d)(1). This

interpretation, grounded in the longstanding law of real

property in a statute governing the President’s authority over

real property (the White House), prevents the Trust from

demonstrating the type of “extreme” statutory violation

required for an ultra vires claim. Changji, 40 F.4th at 722

(cleaned up).

The district court concluded that “improvement” was

limited to “ordinary maintenance and upkeep,” relying

primarily on noscitur a sociis, the principle that “statutory

words are often known by the company they keep.” See Add.

103; Lagos v. United States, 138 S. Ct. 1684, 1688–89 (2018).

This interpretation suffers from two flaws. First, the district

court never considered the meaning of “improvement” in the

real property context, in which improvement means “more than

mere repairs.” Improvement, Black’s Law Dictionary (5th ed.

1979); see Sekhar v. United States, 570 U.S. 729, 732 (2013)

§ 2687a(a)(3)(B)(i) (referring to “construction … or extension of a

building, structure, or other improvement to real property”).

3

The term “improvement” is well established in real property law,

but I cite the definition contemporaneous with Congress’s 1978

addition of the specific list of actions to section 105(d)(1). See Act

of Nov. 2, 1978, Pub. L. No. 95-570, 92 Stat. 2445, 2446.

10

(“It is a settled principle of interpretation that, absent other

indication, Congress intends to incorporate the well-settled

meaning of the common-law terms it uses.”) (cleaned up).

Second, by selecting a colloquial meaning of improvement and

limiting that meaning to “ordinary maintenance and upkeep,”

the district court created a surplusage problem. If

“improvement” means only “maintenance and upkeep,” it is

redundant with “maintenance” and “repair” in section

105(d)(1). See Walters v. Metro. Educ. Enters., Inc., 519 U.S.

202, 209 (1997) (“Statutes must be interpreted, if possible, to

give each word some operative effect.”). Text and context

confirm that the best meaning of section 105(d)(1) is that

“improvement” carries its real property meaning, which

includes the construction of buildings and facilities.

Because the East Wing project is likely authorized under

section 105(d)(1), it is not prohibited under 40 U.S.C. § 8106.

The project is therefore not ultra vires, and the government is

likely to prevail on the merits of its appeal.

B.

The government has also shown imminent irreparable

injury from the district court’s preliminary injunction. To

qualify as “irreparable,” an injury must be both significant and

incapable of being remedied “in the ordinary course of

litigation.” In re NTE Conn., LLC, 26 F.4th 980, 990 (D.C. Cir.

2022) (cleaned up). The government has submitted credible

and detailed evidence that the “open construction site” impairs

White House security. Add. 54. The construction delay

imposed by the preliminary injunction inevitably extends the

time during which the President’s residence remains less

secure. Every additional day of White House vulnerability

harms the government.

11

My colleagues remand for further factfinding about the

security risks and to clarify the scope of the district court’s

exception for construction that is “strictly necessary to ensure

… safety and security.” Add. 126 (emphasis added). But they

properly do not doubt the ongoing security risks described by

the government.4 While the injunction’s exception might

mitigate some safety concerns, the scope of the exception will

ultimately be determined by the district court, not by those

managing construction or overseeing the security of the White

House. Accordingly, the exception does not prevent the

preliminary injunction from “improperly intrud[ing] on a

coordinate branch” in a manner that causes irreparable injury.

Cf. Trump v. CASA, Inc., 145 S. Ct. 2540, 2561 (2025) (cleaned

up).

C.

The government also easily prevails on the balance of the

equities and the public interest factors. See Nken v. Holder, 556

U.S. 418, 435 (2009) (holding these factors merge when the

government is a party). As explained above, the district court’s

order enjoins construction “in a manner credibly alleged to

pose a serious threat to” White House security. Winter, 555

U.S. at 33. That concern is weighed against the incidental

aesthetic harms asserted by the Trust. Even if the government’s

safety concerns are somewhat mitigated by temporary security

4

My colleagues emphasize that the district court’s injunction

nominally runs only against construction of the proposed ballroom.

Order at 3. The government, however, has stated that the security

upgrades are “inseparable” from construction of the rest of the East

Wing project, including the ballroom. Moreover, the possibility that

the ballroom’s exact design might evolve as construction progresses

is consistent with the representation that the security upgrades are

integrated with the ballroom. There is no uncertainty here justifying

a remand.

12

measures, the current safety of the President, as well as his

family and staff, plainly outweighs future aesthetic harms to

the Trust. See id. (finding that the Navy’s national security

interest in an adequately trained antisubmarine force “plainly

outweighed” the plaintiffs’ ecological and recreational

interests in marine mammals).

***

For the foregoing reasons, I would stay the preliminary

injunction and allow construction of the ballroom and related

security facilities to continue during the pendency of an appeal.