Alison Hoagland has lived on Capitol Hill since 1977, about two miles from the White House. She's an architectural historian, a professor emerita at Michigan Tech, the author of six books on American vernacular architecture, and a former senior historian at the Historic American Buildings Survey, the National Park Service program that documented the White House itself. She's been a member of the National Trust for Historic Preservation for more than forty years and now sits on its board. She swore in a declaration that she walks through Lafayette Square about once a month and will keep doing it.
On August 31, in an unsigned 5–4 order, the Supreme Court held that the government is likely to show she has no injury a federal court can hear. The Trust had relied on her declaration and nobody else's, so with her out, two lower-court rulings on whether the president needed Congress's permission to demolish the East Wing go unreviewed, and the ballroom keeps going up.
Gwen and Marc work through both halves of the order and the Chief Justice's dissent, then set the case beside Bost v. Illinois State Board of Elections, decided seven months earlier by the same Court, where a congressman who won his last race with 75 percent of the vote did have standing to challenge how ballots are counted.
In this episode:
- The 1912 statute at the center of the case: no structure in federal public grounds in D.C. without express authority of Congress, and whether a maintenance appropriation supplies it
- Why the litigation runs against the Park Service at all, and the government's shifting position on who was actually building the ballroom
- Two parallel tracks, APA and ultra vires, and what happens when the decisionmaker isn't an agency
- Valley Forge, FDA v. Alliance for Hippocratic Medicine, and the line between an injury and a strong objection
- Laidlaw, Summers, and Lujan: why aesthetic injury counts for a river or a species, and why the majority says a building is different
- Sierra Club v. Morton to Lujan to this order, and the argument that the bar keeps moving once a plaintiff clears it
- The Chief Justice's dissent: the crocodile, Teddy Roosevelt's 1902 message to Congress, and the fact that nobody fishes in the White House
- The equities half of the order, the security declarations, and the dissent's footnote quoting the government against itself
- Bost: candidates, the hundred-meter dash, Justice Jackson's dissent on generalized grievances, and Justice Barrett's narrower pocketbook route
- Why the doctrine lets two reasonable justices sort the same plaintiffs in opposite directions
- What Congress can still do, and why timing may make that academic
Whether the difference between losing a river and losing the view of a building is a principled distinction or just the same fact described twice is, more or less, the whole case.
Tags: standing, Article III, National Trust for Historic Preservation, White House ballroom, Bost v. Illinois, Lujan, Sierra Club v. Morton, Laidlaw, aesthetic injury, emergency docket, administrative law, Supreme Court
00:00:13 --> 00:00:15 Welcome to Administrative Remedies, because you
00:00:15 --> 00:00:17 can't fix what you don't understand. Brought
00:00:17 --> 00:00:19 to you in part by the University of Tulsa College
00:00:19 --> 00:00:22 of Law's Mabee Legal Information Center. I'm
00:00:22 --> 00:00:24 Gwendolyn Savitz, an associate professor here
00:00:24 --> 00:00:26 at TU. And I'm Marc Roark, a professor at the
00:00:26 --> 00:00:29 College of Law. We'll be breaking down complex
00:00:29 --> 00:00:31 doctrines with real-life analogies and examples
00:00:31 --> 00:00:33 to demystify the world of administrative law
00:00:33 --> 00:00:35 for everyone trying to understand how government
00:00:35 --> 00:00:38 actually works. Agencies are the main way the
00:00:38 --> 00:00:40 federal government gets things done. It's not
00:00:40 --> 00:00:42 through Congress, for reasons we'll be addressing
00:00:42 --> 00:00:46 over the course of the series. So, Marc, Alison
00:00:46 --> 00:00:49 Hoagland lives on Capitol Hill. She's about two
00:00:49 --> 00:00:51 miles from the White House. She first moved to
00:00:51 --> 00:00:55 D.C. in 1977. By her own account, she's in the
00:00:55 --> 00:00:56 neighborhood around the White House about once
00:00:56 --> 00:00:59 a month for meetings, for exhibits, for doctor's
00:00:59 --> 00:01:01 appointments. When she's there, she walks through
00:01:01 --> 00:01:03 Lafayette Square to look at the historic buildings
00:01:03 --> 00:01:06 and at the way L'Enfant's plan put the president's
00:01:06 --> 00:01:10 house on an axis with 16th Street. And she also
00:01:10 --> 00:01:12 sees it from the south side, driving along Constitution
00:01:12 --> 00:01:15 Avenue or walking in the area. That's a lot of
00:01:15 --> 00:01:18 detail about a walk. Yes, it is. It's from a
00:01:18 --> 00:01:20 sworn declaration, and the detail there is the
00:01:20 --> 00:01:22 point. She's also an architectural historian
00:01:22 --> 00:01:25 and a professor emerita at Michigan Tech. She's
00:01:25 --> 00:01:28 written six books on American architecture. The
00:01:28 --> 00:01:30 most recent one was on the Washington row house.
00:01:30 --> 00:01:33 Before that, she spent 15 years as a senior historian
00:01:33 --> 00:01:37 at the Historic American Buildings Survey, a
00:01:37 --> 00:01:38 program that documents significant buildings,
00:01:38 --> 00:01:41 including the White House itself. Which is part
00:01:41 --> 00:01:44 of the National Park Service. That's one of the
00:01:44 --> 00:01:46 defendants. Yes. And she's also been a member
00:01:46 --> 00:01:48 of the National Trust for Historic Preservation
00:01:48 --> 00:01:50 for more than 40 years. And she's now one of
00:01:50 --> 00:01:53 its trustees. When the Trust board meets in Washington,
00:01:53 --> 00:01:56 it meets at Decatur House on the corner of Lafayette
00:01:56 --> 00:01:58 Square. And she said she planned to be at those
00:01:58 --> 00:02:00 meetings this year. Okay, so what's her injury?
00:02:01 --> 00:02:03 The ballroom. Her argument is that the White
00:02:03 --> 00:02:06 House makes its statement by standing alone, and
00:02:06 --> 00:02:08 a structure that exceeds it takes that away.
00:02:08 --> 00:02:11 Here's how she put it in the affidavit. To have
00:02:11 --> 00:02:14 an adjacent structure overshadowing the White
00:02:14 --> 00:02:17 House, exceeding it in height and massing, would
00:02:17 --> 00:02:19 diminish the primacy of the White House, which
00:02:19 --> 00:02:21 makes its architectural statement through its
00:02:21 --> 00:02:25 singularity on the landscape. No longer would
00:02:25 --> 00:02:27 the eye be drawn to the jewel of the building
00:02:27 --> 00:02:29 in the center, declaring to viewers that our
00:02:29 --> 00:02:32 president lives in a house. On August 31st, the
00:02:32 --> 00:02:36 Supreme Court said that probably there isn't
00:02:36 --> 00:02:38 an injury here. Right. So this is five to four
00:02:38 --> 00:02:42 in an unsigned order. The Trust relied on her declaration
00:02:42 --> 00:02:44 and nobody else's. If her injury doesn't count,
00:02:44 --> 00:02:46 the Trust has no standing and no federal court
00:02:46 --> 00:02:48 gets to the question the two lower courts had
00:02:48 --> 00:02:51 already weighed in on: whether the president
00:02:51 --> 00:02:54 needed Congress's permission to build, to redo
00:02:54 --> 00:02:57 the East Wing. Okay, and in our standing episode,
00:02:57 --> 00:03:00 we spent a good while on Joyce Kelly, who wanted
00:03:00 --> 00:03:02 to go back to Egypt to see a Nile crocodile.
00:03:03 --> 00:03:06 And Kelly had no trip planned, but Hoagland has
00:03:06 --> 00:03:09 been going about once a month for years, and
00:03:09 --> 00:03:12 she swore she'd keep going. That's the comparison
00:03:12 --> 00:03:14 the Chief Justice makes in his dissent. And he
00:03:14 --> 00:03:16 also talks about the crocodile, but we'll get
00:03:16 --> 00:03:20 there. Okay, so what did the majority see? Somebody
00:03:20 --> 00:03:23 who just doesn't like how a building looks. And
00:03:23 --> 00:03:25 the timeline matters here. The Court said the
00:03:25 --> 00:03:27 demolition of the East Wing started in October
00:03:27 --> 00:03:30 2025 and it was finished by December. The Trust
00:03:30 --> 00:03:33 sued on December 12th. In March, it asked for
00:03:33 --> 00:03:34 a preliminary injunction against the new construction,
00:03:35 --> 00:03:37 not the demolition, which was already done. On
00:03:37 --> 00:03:40 March 31st, the district judge granted it and
00:03:40 --> 00:03:43 stayed his own order for 14 days so the government
00:03:43 --> 00:03:46 could appeal. OK, so construction came to a stop.
00:03:46 --> 00:03:48 It never stopped. The D.C. Circuit
00:03:49 --> 00:03:52 extended the stay, and sent the case back. The
00:03:52 --> 00:03:54 district judge clarified the injunction, that
00:03:54 --> 00:03:56 below-ground security work could continue, above-
00:03:56 --> 00:03:59 ground ballroom construction could not, and
00:03:59 --> 00:04:01 stayed it again. On August 7th, the D.C. Circuit
00:04:01 --> 00:04:04 affirmed 2-1. So the government goes to the
00:04:04 --> 00:04:06 Supreme Court, and on August 31st, the Court
00:04:06 --> 00:04:09 granted a full stay. So two wins in a row in
00:04:09 --> 00:04:13 the lower courts, and not one day with the injunction
00:04:13 --> 00:04:15 in effect. Yes, and the entire time, the building
00:04:15 --> 00:04:18 was being built. Look at the caption, though.
00:04:19 --> 00:04:21 National Park Service versus National Trust.
00:04:21 --> 00:04:24 The president ordered this. Why does the litigation
00:04:24 --> 00:04:27 run through agencies? This is because the APA
00:04:27 --> 00:04:29 reaches agencies and the president isn't one.
00:04:29 --> 00:04:32 We've run into that problem. So in this case,
00:04:32 --> 00:04:34 that turns into one of the big fights. The Trust
00:04:34 --> 00:04:37 first sued the Park Service under the APA. The
00:04:37 --> 00:04:39 government answered that the Park Service wasn't
00:04:39 --> 00:04:41 running the project. The Executive Office of
00:04:41 --> 00:04:42 the President and the Office of the Executive
00:04:42 --> 00:04:45 Residence were. And neither one is an agency
00:04:45 --> 00:04:48 under the APA. So it argued there was no agency
00:04:48 --> 00:04:50 action to enjoin. And the court accepted that?
00:04:51 --> 00:04:54 At first. In February, the district judge denied
00:04:54 --> 00:04:56 a preliminary injunction on essentially that
00:04:56 --> 00:04:58 ground. Then the Trust amended its complaint
00:04:58 --> 00:05:01 and added ultra vires claims. The officials directing
00:05:01 --> 00:05:03 the project were acting without any authority
00:05:03 --> 00:05:06 Congress had given them, which the court can
00:05:06 --> 00:05:09 review in equity even without the APA. Then the
00:05:09 --> 00:05:10 government changed course and argued that the
00:05:10 --> 00:05:12 Park Service had authority to build the ballroom
00:05:12 --> 00:05:15 under its own organic statute. The same Park
00:05:15 --> 00:05:19 Service it had just said had no role. Yes. And
00:05:19 --> 00:05:21 the district judge noted that this argument came
00:05:21 --> 00:05:23 as a surprise. By the time the case reached the
00:05:23 --> 00:05:25 D.C. Circuit, they had two parallel tracks.
00:05:26 --> 00:05:27 There was an APA claim against the Park Service
00:05:27 --> 00:05:30 and an ultra vires claim against the president's
00:05:30 --> 00:05:33 reliance on his own statutory authority. This
00:05:33 --> 00:05:35 case kind of encapsulates a lot of what we've
00:05:35 --> 00:05:38 been talking about. The review machinery is built
00:05:38 --> 00:05:41 around agencies and the question of who is actually
00:05:41 --> 00:05:44 making the decision can decide which machinery
00:05:44 --> 00:05:47 applies. Yes. Both of those tracks, though, hit
00:05:47 --> 00:05:50 the same sentence that Congress wrote in 1912.
00:05:50 --> 00:05:54 Congress said a building or structure shall not
00:05:54 --> 00:05:57 be erected in any reservation, park or public
00:05:57 --> 00:05:59 grounds of the federal government in the District
00:05:59 --> 00:06:02 of Columbia without express authority of Congress.
00:06:02 --> 00:06:05 Express authority of Congress. That seems pretty
00:06:05 --> 00:06:07 straightforward on its face. The White House
00:06:07 --> 00:06:10 grounds are federal public grounds. Nobody's
00:06:10 --> 00:06:12 seriously disputing that. The fight's over whether
00:06:12 --> 00:06:15 Congress had given express authority. The government
00:06:15 --> 00:06:18 pointed to two provisions. One authorizes appropriations
00:06:18 --> 00:06:20 for the care, maintenance, repair, alteration,
00:06:20 --> 00:06:22 and improvement of the Executive Residence. And
00:06:22 --> 00:06:25 this fiscal year, Congress appropriated about
00:06:25 --> 00:06:27 $2.5 million for maintenance and safety work.
00:06:28 --> 00:06:30 The other directs the Park Service to manage
00:06:30 --> 00:06:32 parkland in a way that conserves historic objects.
00:06:33 --> 00:06:35 The Chief Justice's view is that neither comes
00:06:35 --> 00:06:37 close. A couple million dollars for upkeep isn't
00:06:37 --> 00:06:39 express authority to spend hundreds of millions
00:06:39 --> 00:06:43 in private donations to tear down one wing of
00:06:43 --> 00:06:45 the White House and build a 90-square-
00:06:45 --> 00:06:48 foot ballroom in its place. And the majority
00:06:48 --> 00:06:50 disagreed. The majority didn't say a word about
00:06:50 --> 00:06:54 it. So the majority said today we do not pass
00:06:54 --> 00:06:56 upon the legality of the government's East Wing
00:06:56 --> 00:06:59 project. We conclude only that based on the submissions
00:06:59 --> 00:07:03 before us, the government is likely to prevail
00:07:03 --> 00:07:05 in showing that the Trust lacks Article III standing
00:07:05 --> 00:07:08 to challenge the project in federal court and
00:07:08 --> 00:07:11 that the remaining stay factors favor relief.
00:07:11 --> 00:07:14 So the government wins the stay by being likely
00:07:14 --> 00:07:18 to win on standing, not on the statute. Right.
00:07:18 --> 00:07:20 The government had to convince the Court that
00:07:20 --> 00:07:22 it was reasonably likely to take the case and
00:07:22 --> 00:07:24 fairly likely to reverse, that the government
00:07:24 --> 00:07:27 faced irreparable harm and the equities favored
00:07:27 --> 00:07:29 a stay. The likely reversal can rest on any
00:07:29 --> 00:07:31 issue that disposes of the case. And standing
00:07:31 --> 00:07:34 does that. If the Trust can't sue, the statute
00:07:34 --> 00:07:37 never gets construed. And so everyone keeps saying
00:07:37 --> 00:07:41 this is a prediction and not a holding. But the
00:07:41 --> 00:07:43 government says the framework should be substantially
00:07:43 --> 00:07:45 finished by November and the whole building by
00:07:45 --> 00:07:48 August 2028. And at this point, the government's
00:07:48 --> 00:07:50 own filings say that the project is past the
00:07:50 --> 00:07:53 point of return. So in practical terms, you're
00:07:53 --> 00:07:55 right. That prediction does the work of a decision.
00:07:56 --> 00:07:58 And that's not unusual on the emergency docket,
00:07:58 --> 00:08:01 but it's rarely this visible. The Trust's public
00:08:01 --> 00:08:03 statement stressed that this wasn't a final decision
00:08:03 --> 00:08:06 on the merits and asked the Court to move quickly
00:08:06 --> 00:08:09 on the government's certiorari petition. The
00:08:09 --> 00:08:12 actual majority opinion for this was short. Its
00:08:12 --> 00:08:15 core is these two sentences. The majority said
00:08:15 --> 00:08:17 this Court has not found standing in circumstances
00:08:17 --> 00:08:21 like these before. To the contrary, we have repeatedly
00:08:21 --> 00:08:23 held that mere offense, disagreement, or distaste
00:08:23 --> 00:08:27 does not qualify as a concrete and particularized
00:08:27 --> 00:08:30 injury under Article III. And the cases behind
00:08:30 --> 00:08:33 that are the ones every con law student reads. Valley
00:08:33 --> 00:08:36 Forge is the big one. Americans United challenged
00:08:36 --> 00:08:38 the government's transfer of surplus property
00:08:38 --> 00:08:40 to a Bible college. And the Court said being
00:08:40 --> 00:08:43 offended by an Establishment Clause violation
00:08:43 --> 00:08:46 you learned about isn't an injury. A plaintiff
00:08:46 --> 00:08:48 needs something other than the psychological
00:08:48 --> 00:08:50 consequence of watching conduct you disagree
00:08:50 --> 00:08:54 with. It pairs that with the 2024 case, FDA v.
00:08:54 --> 00:08:56 Alliance for Hippocratic Medicine, where doctors
00:08:56 --> 00:08:58 who opposed the FDA's loosening of rules on the
00:08:58 --> 00:09:01 abortion pill lacked standing. The Court said
00:09:01 --> 00:09:03 then that distress at or disagreement with the
00:09:03 --> 00:09:05 activities of others isn't a basis for a federal
00:09:05 --> 00:09:08 lawsuit. And it leaned on that line here more
00:09:08 --> 00:09:10 than anything else. OK, so what's the argument
00:09:10 --> 00:09:13 that an architectural objection is just disagreement?
00:09:14 --> 00:09:18 Hoagland isn't objecting to a policy. She's objecting
00:09:18 --> 00:09:20 to a building she walks past. The majority's
00:09:20 --> 00:09:22 answer is about limits. If offense at a government
00:09:22 --> 00:09:25 project is enough, nearly any government project
00:09:25 --> 00:09:27 is going to offend someone. The order calls the
00:09:27 --> 00:09:30 Trust's view unprecedented and limitless and says
00:09:30 --> 00:09:32 it would mean virtually every citizen could challenge
00:09:32 --> 00:09:34 virtually every government action they don't
00:09:34 --> 00:09:37 like. OK, but that's a floodgates argument. And
00:09:37 --> 00:09:42 here it seems to have some real force. But I'm
00:09:42 --> 00:09:44 not sure I agree with it. We're not just talking
00:09:44 --> 00:09:47 about changing the curtains out. We're talking
00:09:47 --> 00:09:50 about the demolition of an entire building. Millions
00:09:50 --> 00:09:53 of people look at that White House every year.
00:09:53 --> 00:09:57 Some meaningful fraction of them would say this
00:09:57 --> 00:10:00 new wing ruins it. Yes. So that's why the majority
00:10:00 --> 00:10:02 spends a lot of its space on cases that point
00:10:02 --> 00:10:05 the other way. The Trust relied on the environmental
00:10:05 --> 00:10:08 cases where aesthetic injury plainly is good
00:10:08 --> 00:10:10 enough. The majority distinguished them on the
00:10:10 --> 00:10:12 ground that those plaintiffs had lost a use,
00:10:12 --> 00:10:15 not just a view. In Laidlaw, residents had stopped
00:10:15 --> 00:10:17 fishing, camping, swimming, and picnicking in
00:10:17 --> 00:10:19 a river because a plant was polluting it. In
00:10:19 --> 00:10:21 Summers v. Earth Island, the government had
00:10:21 --> 00:10:23 conceded that one member's recreational interest
00:10:23 --> 00:10:25 in a national forest was enough. And in Lujan,
00:10:25 --> 00:10:28 Lujan says the desire to observe an animal species,
00:10:29 --> 00:10:32 even for purely aesthetic purposes, is a cognizable
00:10:32 --> 00:10:35 interest. That's the sentence the Trust must
00:10:35 --> 00:10:37 have built its brief around. Yes, and the majority's
00:10:37 --> 00:10:40 response is the next sentence of Lujan. A cognizable
00:10:40 --> 00:10:43 interest is necessary, but not sufficient. That
00:10:43 --> 00:10:46 standing requires more than an injury to a cognizable
00:10:46 --> 00:10:48 interest. The injury still has to be concrete
00:10:48 --> 00:10:50 and particularized, and in the majority's view,
00:10:51 --> 00:10:53 distaste isn't either one. Okay, but what about
00:10:53 --> 00:10:56 her credentials? I mean, Hoagland isn't just a
00:10:56 --> 00:10:59 tourist. She's a preservationist. She's a scholar
00:10:59 --> 00:11:01 with a documented lifelong interest in exactly
00:11:01 --> 00:11:04 this building. So the majority says that the
00:11:04 --> 00:11:06 rules shouldn't have any carve-out for experts.
00:11:07 --> 00:11:09 Standing isn't measured by how intensely the
00:11:09 --> 00:11:12 litigant cares. That's Valley Forge again. Or
00:11:12 --> 00:11:15 by some special interest in the subject, which
00:11:15 --> 00:11:18 is Lujan quoting Sierra Club v. Morton. OK, but
00:11:18 --> 00:11:20 Morton is a case where the Sierra Club lost because
00:11:20 --> 00:11:23 no member said they used Mineral King at all.
00:11:23 --> 00:11:25 Hoagland says she uses the place at least once
00:11:25 --> 00:11:30 a month. Yes, that is the pressure point with the majority
00:11:30 --> 00:11:33 and the dissent pushes on it hard. So the majority's
00:11:33 --> 00:11:35 implied answer is that what she does there, looking,
00:11:35 --> 00:11:38 hasn't been taken away from her. She can still
00:11:38 --> 00:11:40 walk over and look. What's changed is whether she
00:11:40 --> 00:11:43 likes what she sees. Now let's talk about the
00:11:43 --> 00:11:46 dissent. The Chief Justice wrote for four people,
00:11:46 --> 00:11:49 himself and the liberals. He opened on the merits,
00:11:49 --> 00:11:51 which the majority wouldn't touch. Congress has
00:11:51 --> 00:11:53 plenary authority over federal property in the
00:11:53 --> 00:11:57 District. Section 8106 requires express authority,
00:11:57 --> 00:11:59 and Congress hadn't given it. So in his view,
00:11:59 --> 00:12:02 the construction is likely unlawful. And then
00:12:02 --> 00:12:05 he has to explain why anyone can say so in court.
00:12:06 --> 00:12:08 The Trust has members all over the country, but
00:12:08 --> 00:12:10 it just chose to put forward this one person.
00:12:11 --> 00:12:13 So the case lives or dies on Hoagland. He relies
00:12:13 --> 00:12:15 on the Lujan sentence and on Summers, where the
00:12:15 --> 00:12:18 Court said that an injury to mere aesthetic interests
00:12:18 --> 00:12:20 would suffice. Then he builds the White House
00:12:20 --> 00:12:24 as a particular place. And he quotes Teddy Roosevelt's
00:12:24 --> 00:12:27 1902 message to Congress, written while thanking
00:12:27 --> 00:12:28 Congress for appropriating money for the wings.
00:12:29 --> 00:12:32 Which is a pointed choice, a president thanking
00:12:32 --> 00:12:34 Congress for the money. Chief Justice Roberts says
00:12:34 --> 00:12:37 a historic preservationist such as Hoagland can
00:12:37 --> 00:12:40 be aesthetically injured in a concrete, particularized
00:12:40 --> 00:12:42 way by the transformation of a historic building
00:12:42 --> 00:12:45 that she frequently enjoys, just as an environmentalist
00:12:45 --> 00:12:48 can sustain a concrete, particularized aesthetic
00:12:48 --> 00:12:50 injury from the extinction of a particular animal
00:12:50 --> 00:12:53 or the transformation of a particular forest
00:12:53 --> 00:12:56 or river that he regularly enjoys. With the Court's
00:12:56 --> 00:12:58 rejection of Hoagland's standing today, however,
00:12:59 --> 00:13:02 it now is the case that "I want to look at the
00:13:02 --> 00:13:05 crocodile" can adequately answer the ever-critical
00:13:05 --> 00:13:08 "what's-it-to-you" question of Article III standing,
00:13:08 --> 00:13:11 while "I want to look at the White House" cannot,
00:13:11 --> 00:13:14 no matter how distinctive the particular viewer's
00:13:14 --> 00:13:17 interest in looking at it may be. So her credentials
00:13:17 --> 00:13:20 make her interest more intense. They don't obviously
00:13:20 --> 00:13:23 make it more concrete, but a professor's taste
00:13:23 --> 00:13:26 is still taste. The dissent answers that the
00:13:26 --> 00:13:28 credentials aren't the injury. They're evidence
00:13:28 --> 00:13:30 that the use is real and regular. Decades of
00:13:30 --> 00:13:33 study, monthly visits, a documented reason to
00:13:33 --> 00:13:35 look at this building rather than any other.
00:13:35 --> 00:13:37 That's exactly the kind of showing that Joyce
00:13:37 --> 00:13:39 Kelly couldn't make. Her affidavit said she hoped
00:13:39 --> 00:13:42 to go back someday to view the crocodiles. Hoagland
00:13:42 --> 00:13:45 says she goes regularly. And didn't someone in
00:13:45 --> 00:13:49 Lujan say regular use would have changed the answer?
00:13:49 --> 00:13:52 Yes, Kennedy did in a concurrence. He wrote that
00:13:52 --> 00:13:54 it might seem trivial to demand that Kelly and
00:13:54 --> 00:13:56 the other members buy airline tickets or name
00:13:56 --> 00:13:58 a return date, but that this wasn't a case where
00:13:58 --> 00:14:00 it was reasonable to assume they'd be using the
00:14:00 --> 00:14:03 site on a regular basis. The obvious implication
00:14:03 --> 00:14:05 would be that regular use would have mattered.
00:14:06 --> 00:14:09 Hoagland's declaration is built to be that. OK,
00:14:09 --> 00:14:11 a quick footnote on Kennedy and his distaste
00:14:11 --> 00:14:15 for structured tests should be pinpointed here.
00:14:15 --> 00:14:18 But then the majority has to be saying frequency
00:14:18 --> 00:14:21 isn't the issue here. Right. On the majority's
00:14:21 --> 00:14:23 reading, you could visit every day and it wouldn't
00:14:23 --> 00:14:25 help because all that you're complaining about
00:14:25 --> 00:14:29 is that you dislike what you see. OK, step back,
00:14:29 --> 00:14:31 though. And this is the third time the Court
00:14:31 --> 00:14:34 has moved the line on how close you have to be
00:14:34 --> 00:14:36 to a place to sue about it. Yes. If we start
00:14:36 --> 00:14:40 with Sierra Club v. Morton in 1972, the Sierra
00:14:40 --> 00:14:42 Club sued to stop a ski resort in the Mineral
00:14:42 --> 00:14:44 King Valley, and it lost because it never
00:14:44 --> 00:14:46 alleged that any of its members actually used
00:14:46 --> 00:14:48 the valley. But the Court was clear that aesthetic
00:14:48 --> 00:14:51 and environmental harm could count. The plaintiff
00:14:51 --> 00:14:52 just had to be among the people actually harmed.
00:14:53 --> 00:14:55 So the message from that case was find a member
00:14:55 --> 00:14:58 who's been there. Enter Lujan, which raises the
00:14:58 --> 00:15:00 bar. So then 20 years later, Joyce Kelly says
00:15:00 --> 00:15:03 she's been there. She traveled to Egypt to see
00:15:03 --> 00:15:05 the crocodile's habitat. Under Morton, that could
00:15:05 --> 00:15:08 have been enough. Under Lujan, the case she's
00:15:08 --> 00:15:10 actually part of, it wasn't because having been
00:15:10 --> 00:15:13 there describes the past. And standing to stop
00:15:13 --> 00:15:15 a future harm needs an injury that's actual or
00:15:15 --> 00:15:18 imminent. Here's how Scalia put it. Such someday
00:15:18 --> 00:15:21 intentions without any description of concrete
00:15:21 --> 00:15:24 plans or indeed even any specification of when
00:15:24 --> 00:15:27 the someday will be do not support a finding
00:15:27 --> 00:15:30 of the actual or imminent injury that our cases
00:15:30 --> 00:15:33 require. So after Morton, you needed someone
00:15:33 --> 00:15:35 who'd been there. After Lujan, you needed someone
00:15:35 --> 00:15:38 with a concrete plan to go back. And Hoagland
00:15:38 --> 00:15:40 has both. She's been going for decades. She goes
00:15:40 --> 00:15:43 once a month. She will continue to go once a
00:15:43 --> 00:15:45 month. The majority here says that still isn't
00:15:45 --> 00:15:48 enough. Every time a plaintiff clears the bar,
00:15:48 --> 00:15:51 then the bar seems to move. Yeah, but look at
00:15:51 --> 00:15:54 how it moved this time. Morton and Lujan were
00:15:54 --> 00:15:55 asking whether the harm would actually land on
00:15:55 --> 00:15:58 you, whether you'd really be there. Nobody doubts
00:15:58 --> 00:16:00 that Hoagland will really be there. So the majority
00:16:00 --> 00:16:03 is now saying that what happens to her when she's
00:16:03 --> 00:16:06 there isn't an injury at all. It's not necessarily
00:16:06 --> 00:16:08 a higher bar on the same question. They've moved
00:16:08 --> 00:16:11 it to a different question. And the Laidlaw
00:16:11 --> 00:16:13 distinction? Roberts goes straight at it. Yes,
00:16:13 --> 00:16:16 you enjoy a river by swimming in it and hiking
00:16:16 --> 00:16:18 beside it. But the principal way a person enjoys
00:16:18 --> 00:16:21 a historic building is by looking at it. If looking
00:16:21 --> 00:16:23 counts for the river plaintiffs as part of their
00:16:23 --> 00:16:25 injury, he says, the line between them and Hoagland
00:16:25 --> 00:16:28 doesn't hold. And nobody fishes in the White
00:16:28 --> 00:16:31 House. The majority's best reply just goes back
00:16:31 --> 00:16:34 to what she lost. The Laidlaw plaintiffs lost
00:16:34 --> 00:16:36 the river as they used it. Hoagland hasn't lost
00:16:36 --> 00:16:38 the White House. She's lost the version she prefers.
00:16:39 --> 00:16:41 Whether that difference is principled or just
00:16:41 --> 00:16:42 a way of describing the same thing twice really
00:16:42 --> 00:16:47 is the entire case. OK, so the second half of
00:16:47 --> 00:16:49 the majority's order, though, deals with the
00:16:49 --> 00:16:53 equities. Yeah, they have two alternative rationales.
00:16:53 --> 00:16:55 For the equities, they're leaning heavily
00:16:55 --> 00:16:58 on security. The government filed declarations
00:16:58 --> 00:17:01 from the Director of National Intelligence and
00:17:01 --> 00:17:04 the heads of the CIA, FBI, Secret Service, the
00:17:04 --> 00:17:06 Secretary of State, Homeland Security, the Army.
00:17:06 --> 00:17:09 And the Army Secretary said that the height and
00:17:09 --> 00:17:11 mass of the above-ground structure were critical
00:17:11 --> 00:17:13 to shield the underground military installations
00:17:13 --> 00:17:17 from kinetic impacts. The majority set that
00:17:17 --> 00:17:19 against a harm it described as one member's offense.
00:17:20 --> 00:17:24 If she has no injury, what's on the other side
00:17:24 --> 00:17:26 of that scale? So this is alternative grounds
00:17:26 --> 00:17:28 for the order. They're saying even if the Trust
00:17:28 --> 00:17:31 did have standing, the stay factors would still
00:17:31 --> 00:17:33 favor the government. And courts do that all
00:17:33 --> 00:17:35 the time. But to run the balance, you have to
00:17:35 --> 00:17:38 put her harm on the scale. The case that the majority
00:17:38 --> 00:17:41 cites here is Winter v. NRDC, a case
00:17:41 --> 00:17:44 about the Navy using sonar, where the plaintiffs'
00:17:44 --> 00:17:46 interest in marine mammals was considered real,
00:17:46 --> 00:17:49 it just lost to the Navy's training needs. So
00:17:49 --> 00:17:51 in the second half of the order, her harm looks
00:17:51 --> 00:17:54 like the environmentalist's harm that's real
00:17:54 --> 00:17:56 but outweighed. Yes. So the majority weighed
00:17:56 --> 00:17:58 it at what it thought it was worth, which is
00:17:58 --> 00:18:01 just one member's offense. Either way, the two
00:18:01 --> 00:18:02 halves of the order don't describe her injury
00:18:02 --> 00:18:05 in quite the same terms. And the dissent's answer
00:18:05 --> 00:18:08 on security? So a footnote in the dissent answers
00:18:08 --> 00:18:10 it with the government's own words. In the district
00:18:10 --> 00:18:12 court, the government said its below-ground
00:18:12 --> 00:18:14 work was driven by national security concerns
00:18:14 --> 00:18:16 independent of the above-grade construction.
00:18:17 --> 00:18:19 And the injunction had already allowed the security
00:18:19 --> 00:18:21 facilities and any above-ground work needed
00:18:21 --> 00:18:24 to protect them. It only explicitly barred the
00:18:24 --> 00:18:27 ballroom. So on that account, the equities argument
00:18:27 --> 00:18:30 is about the ballroom, not the bunker. Right.
00:18:30 --> 00:18:32 That's the way the dissent describes it. The
00:18:32 --> 00:18:34 majority's answer is that the Army Secretary's
00:18:34 --> 00:18:36 declaration that the height and mass are the
00:18:36 --> 00:18:40 protection is the essence of why they need that
00:18:40 --> 00:18:42 above-ground structure. And those two positions
00:18:42 --> 00:18:45 don't really meet. But nobody tested either one
00:18:45 --> 00:18:48 of those positions. There's been more on the
00:18:48 --> 00:18:51 security side since August 31st, though. Yes.
00:18:51 --> 00:18:53 They'd already planned to have a drone port on
00:18:53 --> 00:18:56 the ballroom roof. That was in the government's
00:18:56 --> 00:18:59 filings. What happened since August 31st was
00:18:59 --> 00:19:01 that the AP reported that the Secret Service
00:19:01 --> 00:19:03 already had a smaller drone station that was
00:19:03 --> 00:19:06 a few hundred feet away on a Treasury building.
00:19:06 --> 00:19:08 So it kind of complicates the claim that the
00:19:08 --> 00:19:11 ballroom itself is needed for air defense. But
00:19:11 --> 00:19:13 the Secret Service says the two are separate.
00:19:13 --> 00:19:15 And obviously, none of that reporting was before
00:19:15 --> 00:19:18 the justices. We're going to switch to the other
00:19:18 --> 00:19:20 similar standing issue the Court dealt with this
00:19:20 --> 00:19:24 term. Seven months earlier, the same Court decided
00:19:24 --> 00:19:26 Bost v. Illinois State Board of Elections.
00:19:26 --> 00:19:29 Here, Illinois counts mail ballots that are postmarked
00:19:29 --> 00:19:31 by Election Day or that arrive up to two weeks
00:19:31 --> 00:19:34 later. Congressman Mike Bost, who had represented
00:19:34 --> 00:19:37 southern Illinois since 2015, sued, arguing that
00:19:37 --> 00:19:40 federal law setting Election Day forbids counting
00:19:40 --> 00:19:42 ballots that arrived afterwards. And the lower
00:19:42 --> 00:19:45 courts still said no standing. Yeah. This was
00:19:45 --> 00:19:47 at the Seventh Circuit. And it said his costs
00:19:47 --> 00:19:49 to monitor late ballots were voluntary spending
00:19:49 --> 00:19:53 to avoid a hypothetical harm, losing. And it
00:19:53 --> 00:19:54 noted that he'd won his last election with 75
00:19:54 --> 00:19:58 percent of the vote. Which translates as you're
00:19:58 --> 00:20:02 going to win anyway. So what's it to you? That's
00:20:02 --> 00:20:04 the question the Supreme Court answers. And this
00:20:04 --> 00:20:06 is the Chief Justice. And he's quoting "What's
00:20:06 --> 00:20:09 It to You," a 1983 law review article on standing
00:20:09 --> 00:20:13 by Scalia when he was still a judge. And the
00:20:13 --> 00:20:15 answer, the Court says, is obvious. He's a candidate.
00:20:15 --> 00:20:17 A candidate has a personal stake in the rules
00:20:17 --> 00:20:18 that govern counting the votes in his election,
00:20:19 --> 00:20:21 whether or not those rules change his chances.
00:20:22 --> 00:20:24 That's a difference from the ballroom order.
00:20:25 --> 00:20:29 So Bost doesn't have to show the late ballots
00:20:29 --> 00:20:31 hurt him. Right. The Court said candidates have
00:20:31 --> 00:20:34 an interest in a fair process, win or lose. And
00:20:34 --> 00:20:37 here, here's the analogy it gave. Each runner
00:20:37 --> 00:20:40 in a 100-meter dash, for example, would suffer
00:20:40 --> 00:20:43 if the race were unexpectedly extended to 105
00:20:43 --> 00:20:45 meters. Whether a particular runner expects to
00:20:45 --> 00:20:48 finish strong or fall off the pace in the final
00:20:48 --> 00:20:51 five meters, all would be deprived of the chance
00:20:51 --> 00:20:53 to compete for the prize that the rules define.
00:20:53 --> 00:20:57 The fastest to run 105 meters has not won the
00:20:57 --> 00:21:00 100-meter dash. So the analogy has a hole in
00:21:00 --> 00:21:03 it, though. In a race, the runners are the only
00:21:03 --> 00:21:06 people whose stakes are at issue. In an election,
00:21:06 --> 00:21:08 the voters are the ones deciding. Every voter
00:21:08 --> 00:21:10 in Illinois has an interest in the votes being
00:21:10 --> 00:21:13 counted lawfully. That's what Jackson says in
00:21:13 --> 00:21:16 the dissent. She's joined by Sotomayor, that an
00:21:16 --> 00:21:18 election isn't a contest among candidates with
00:21:18 --> 00:21:21 voters as spectators. The interest in a fair
00:21:21 --> 00:21:23 count is common to every voter. And the Court
00:21:23 --> 00:21:25 has said for a century that an interest common
00:21:25 --> 00:21:27 to the public is a generalized grievance. So
00:21:27 --> 00:21:30 she calls the majority's rule a harm-free, status-
00:21:30 --> 00:21:32 based standing rule for one kind of plaintiff.
00:21:32 --> 00:21:35 And her comparison? She compares this to Los
00:21:35 --> 00:21:38 Angeles v. Lyons, where a man was choked unconscious
00:21:38 --> 00:21:59 by... Okay, so that one kind of stings. And there's
00:21:59 --> 00:22:01 also a third opinion here. Barrett concurred
00:22:01 --> 00:22:03 only in the judgment, and she was joined by Kagan.
00:22:08 --> 00:22:11 ...for candidates. Elections are important, but
00:22:11 --> 00:22:14 so are many things in life. We have always held
00:22:14 --> 00:22:16 candidates to the same standards as any other
00:22:16 --> 00:22:20 litigant. So how did Bost get in on her view?
00:22:21 --> 00:22:24 This was just money. His campaign paid poll watchers
00:22:24 --> 00:22:26 to monitor the counting of late-arriving ballots,
00:22:26 --> 00:22:28 and she treated that the way the Court treats
00:22:28 --> 00:22:31 a traditional pocketbook injury, reasonable spending
00:22:31 --> 00:22:33 to guard against a substantial risk. Her model
00:22:33 --> 00:22:36 was a 2010 case where alfalfa farmers spent money
00:22:36 --> 00:22:38 to protect their crops from genetically engineered
00:22:38 --> 00:22:41 seed. The majority rejected that route. It said
00:22:41 --> 00:22:43 a candidate who paid poll watchers a penny would
00:22:43 --> 00:22:44 have standing, while one who used volunteers
00:22:44 --> 00:22:48 wouldn't. So three opinions and three different
00:22:48 --> 00:22:52 theories, and a candidate still wins 7-2. Yes,
00:22:52 --> 00:22:55 and that rule reaches well past Bost. The majority
00:22:55 --> 00:22:57 held that candidates have standing to challenge
00:22:57 --> 00:22:59 the rules governing how votes are counted in
00:22:59 --> 00:23:01 their elections, whether or not those rules hurt
00:23:01 --> 00:23:04 their chances. And this wasn't a one-off. The
00:23:04 --> 00:23:06 opinion borrowed from a case from the term before,
00:23:06 --> 00:23:09 Diamond Alternative Energy v. EPA, where fuel
00:23:09 --> 00:23:12 producers had challenged EPA's approval of California's
00:23:12 --> 00:23:15 vehicle emission standards. The standards regulated
00:23:15 --> 00:23:18 carmakers, not the fuel companies, so the producers'
00:23:18 --> 00:23:20 injury ran through a third party. It ran through
00:23:20 --> 00:23:23 what the carmakers' response would be. But the
00:23:23 --> 00:23:24 Court still found standing, saying that the producers
00:23:24 --> 00:23:27 weren't mere bystanders and that the effect on
00:23:27 --> 00:23:30 fuel demand was predictable. Bost quotes that
00:23:30 --> 00:23:32 phrase for candidates. And did he win on the
00:23:32 --> 00:23:35 merits? That's the postscript. In June, the Court
00:23:35 --> 00:23:37 held 5-4 that the federal Election Day statutes
00:23:37 --> 00:23:39 don't stop a state from counting ballots that
00:23:39 --> 00:23:41 are postmarked by Election Day, even if they
00:23:41 --> 00:23:44 arrive after. That was Mississippi's law, not
00:23:44 --> 00:23:46 Illinois', but it rejected the statutory theory
00:23:46 --> 00:23:49 behind Bost's suit. So standing got him in the
00:23:49 --> 00:23:51 door, but it didn't get him anything on the other
00:23:51 --> 00:23:54 side of it. Here, Justice Barrett was the interesting
00:23:54 --> 00:23:56 one. She refused a special rule for candidates,
00:23:57 --> 00:23:58 and she found standing in Bost only on a narrower
00:23:58 --> 00:24:02 theory. But she joined the majority in rejecting
00:24:02 --> 00:24:04 Hoagland. The overall pattern invites an ideological
00:24:04 --> 00:24:07 explanation, but the opinions themselves apply
00:24:07 --> 00:24:11 doctrinal distinctions. Each side had a principled
00:24:11 --> 00:24:14 way to reconcile its two votes. For the four
00:24:14 --> 00:24:16 justices in both majorities, a candidate's interest
00:24:16 --> 00:24:18 differs in kind from a voter's because the candidate
00:24:18 --> 00:24:21 is the one competing. Hoagland's interest is
00:24:21 --> 00:24:23 a more informed version of the same view every
00:24:23 --> 00:24:26 passerby has. For Sotomayor and Jackson, the
00:24:26 --> 00:24:28 fair count interest in Bost belongs to every
00:24:28 --> 00:24:31 voter. Hoagland alleged a documented individual
00:24:31 --> 00:24:33 pattern of use that most people don't share.
00:24:33 --> 00:24:37 So both cases ask the same question. Is this
00:24:37 --> 00:24:40 plaintiff's interest different in kind from everyone
00:24:40 --> 00:24:43 else's? And the justices disagree about what
00:24:43 --> 00:24:46 counts as a difference in kind. Right. The Bost
00:24:46 --> 00:24:48 majority found the difference in who he is. He
00:24:48 --> 00:24:51 is a candidate. The ballroom dissent found it
00:24:51 --> 00:24:54 in what she does. Her monthly visits, a professional
00:24:54 --> 00:24:57 life built around historic buildings. The ballroom
00:24:57 --> 00:24:59 majority rejected that use here, and the Bost
00:24:59 --> 00:25:02 dissent rejected the status there. So the doctrine
00:25:02 --> 00:25:05 doesn't say which one matters. The problem you're
00:25:05 --> 00:25:09 describing isn't these justices. It seems it's
00:25:09 --> 00:25:11 the doctrine. Concrete and particularized are
00:25:11 --> 00:25:14 open-textured words, and any justice applying
00:25:14 --> 00:25:17 them is going to be making judgment calls. Yes,
00:25:17 --> 00:25:20 that's the point from the standing episode. We've
00:25:20 --> 00:25:22 got two cases from one term to show it. The doctrine
00:25:22 --> 00:25:25 sorts plaintiffs by something about them, like
00:25:25 --> 00:25:28 who they are or what they do. But the test isn't
00:25:28 --> 00:25:30 tightly defined enough to keep the result from
00:25:30 --> 00:25:32 depending on who's applying it. And Lujan says
00:25:32 --> 00:25:35 vindicating the public interest is the job of
00:25:35 --> 00:25:38 Congress and the president. And if no one has
00:25:38 --> 00:25:41 standing to enforce Section 8106, that's not
00:25:41 --> 00:25:44 a gap. It's an assignment. Yeah, the Court has
00:25:44 --> 00:25:46 said since the 1970s that if these plaintiffs
00:25:46 --> 00:25:49 can't sue, nobody can, isn't a reason to find
00:25:49 --> 00:25:52 standing. And that answer is at its strongest
00:25:52 --> 00:25:53 when the political branches are positioned to
00:25:53 --> 00:25:56 act. Here, the challenged project was ordered
00:25:56 --> 00:25:59 by the president. So if Article III keeps the courts
00:25:59 --> 00:26:01 out, the institutional assignment runs to Congress.
00:26:01 --> 00:26:05 And Congress has certain tools. It wrote Section
00:26:05 --> 00:26:08 8106. In fact, bills expressly authorizing the
00:26:08 --> 00:26:11 ballroom were introduced this spring, but none
00:26:11 --> 00:26:15 have become law. It can pass one of those or a statute
00:26:15 --> 00:26:18 forbidding it. It controls appropriations. It
00:26:18 --> 00:26:22 can hold hearings. It is not powerless. Yes,
00:26:22 --> 00:26:25 that's true. But the practical question is timing.
00:26:25 --> 00:26:28 The government expects the framework to be substantially
00:26:28 --> 00:26:30 finished by November, possibly before the Court
00:26:30 --> 00:26:33 even decides whether to hear the case. Whatever
00:26:33 --> 00:26:35 Congress does, it may be acting on a structure
00:26:35 --> 00:26:38 that's already standing, even if the building
00:26:38 --> 00:26:40 won't officially be totally finished until 2028.
00:26:41 --> 00:26:44 Where this stands, the stay remains in place
00:26:44 --> 00:26:45 while the government has time to file its petition.
00:26:46 --> 00:26:48 No petition has been filed, but the deadline
00:26:48 --> 00:26:50 falls in early November, and the government can
00:26:50 --> 00:26:53 also ask for an extension. So because the stay
00:26:53 --> 00:26:54 remains in place during that period, the order
00:26:54 --> 00:26:56 itself doesn't create much pressure to file sooner.
00:26:57 --> 00:26:59 If the Court does take the case, the standing
00:26:59 --> 00:27:02 question comes back on full briefing. So could
00:27:02 --> 00:27:05 the Trust fix this with a better record? The
00:27:05 --> 00:27:07 Trust could build a fuller record around Hoagland's
00:27:07 --> 00:27:09 use of the site, but the majority's theory doesn't
00:27:09 --> 00:27:12 turn on how much evidence she has. It turns on
00:27:12 --> 00:27:15 what kind of harm she's describing. Two courts
00:27:15 --> 00:27:17 say the law probably wasn't followed and the
00:27:17 --> 00:27:20 door may close before any court gets to actually
00:27:20 --> 00:27:22 say so for good. The Sierra Club lost because
00:27:22 --> 00:27:25 no member had been there. Joyce Kelly lost because
00:27:25 --> 00:27:28 she had no concrete plan to go back. And Alison
00:27:28 --> 00:27:30 Hoagland goes once a month and she's probably
00:27:30 --> 00:27:34 going to lose anyway. Yes. So this is the real
00:27:34 --> 00:27:35 question the Court's looking at, what the Court
00:27:35 --> 00:27:37 thinks you've actually lost and whether it sees
00:27:37 --> 00:27:41 that loss as yours or as everybody's. So that
00:27:41 --> 00:27:42 does it for today's episode of Administrative
00:27:42 --> 00:27:45 Remedies. Thank you for joining us today. Please,
00:27:45 --> 00:27:48 if you enjoy this podcast, enjoy this episode,
00:27:48 --> 00:27:51 give us a like on Spotify, iTunes, or whatever
00:27:51 --> 00:27:54 platform you're listening on. And be sure to
00:27:54 --> 00:27:56 tune in next time where we'll continue to dive
00:27:56 --> 00:27:58 into the contours of administrative law, because
00:27:58 --> 00:28:01 remember, you can't fix what you don't understand.