President Donald Trump demolished the East Wing of the White House without going through any government approval process. The administration said that it didn’t need anyone’s approval to demolish the old building; it needed approval only for constructing, not destroying, buildings.
Now, when opponents have filed a lawsuit to prevent the construction of the ostentatious Trump Ballroom to replace the old East Wing, the government says that courts should reject that objection because the absence of a building on the site of the East Wing poses a national security concern.
I have a question: Didn’t Trump just create that national security problem by tearing down the old East Wing?
I mean: There was no national security concern six months ago, when the old East Wing existed. And now there’s a national security concern caused by the absence of the building.
So Trump has to solve a national security concern that he just created?
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Shouldn’t he have thought about national security before he tore down the original building?
National security seems to be coming up a lot these days. In January, Trump issued an executive order stopping all leases for wind farms. A few weeks ago, a federal judge threw out that order. Last week, Trump again halted all leases for wind farms, but now he claims that those wind farms cause “clutter” on radar, which is a national security concern.
The National Ocean Industries Association was not amused. NOIA President Erik Milito told Axios that the national-security ramifications of the offshore projects had previously been appraised as part of a regulatory process and “every project under construction has already undergone review by the Department of Defense with no objections.”
It’s almost like the administration is ginning up national security concerns that don’t really exist, huh?
Remember: Trump has justified his tariffs in part because of national security concerns. That justification is correct in certain contexts: We need a domestic steel industry for purposes of defense; in times of war, we should have domestic capacity to build tanks. If we impose a tariff to ensure that our steel industry doesn’t collapse, that seems legitimate. But does it truly involve national security to impose tariffs on toys and food and to retaliate for Brazil having chosen to prosecute Jair Bolsonaro?
I personally think that the world is better off when government officials who have committed crimes are put in jail, although I understand why Trump might disagree with me on that issue.
Trump has also invoked national security as a justification for beefing up border enforcement; designating drug cartels as foreign terrorist organizations (which justifies using military force against the cartels); imposing sanctions on Venezuela; screening new immigrants; and so on.
This poses a problem for courts. The president’s power should legitimately be at its most robust in areas of national security. Defending the country may be the president’s highest priority. Courts properly defer to presidents who act to solve national security concerns.
But what should courts do with a president who is a fabulist and asserts “national security” to justify any stray policy he wants to enact? Perhaps courts should look more closely at whether assertions of national security are grounded in fact?
Otherwise, to borrow from Andy Borowitz, the government will soon invoke national security as the reason for having renamed the Trump-Beethoven Seventh Symphony.
Mark Herrmann spent 17 years as a partner at a leading international law firm and later oversaw litigation, compliance and employment matters at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.
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