Trump Perfected His Favorite New Legal Pretext in Environmental Cases
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Last week, President Donald Trump announced that his planned 250-foot triumphal arch between the Lincoln Memorial and Arlington National Cemetery would become a “Military Complex” housing drones, snipers, and ammunition, all “for National Security purposes.” It is easy to roll our eyes. The whole thing has the air of an Avengers subplot, not a serious proposal from a U.S. president. But the timing is telling: The announcement came as veterans and an architectural historian pressed a lawsuit arguing that Congress never authorized the arch. Faced with a legal obstacle, the president clearly reached for a pretextual justification that courts are reluctant to question: a national security priority.
There is a reason emergency and national security are powerful words in court. Presidents need flexibility to respond to genuine threats, and courts give the executive branch substantial room when exercising its national security responsibilities. Under past presidents, this has often been appropriate. That is also what makes those words so tempting for this administration. The White House ballroom was recast as a security project; now the arch has been too. But the same move used to try to shore up Trump vanity projects shows up, with far greater consequences, in ordinary domestic policy disputes.
Again and again, the Trump administration invokes an emergency or a national security to justify extraordinary action—from stripping union rights from federal workers and deploying the National Guard to cities including Chicago and Los Angeles to, most recently, barring several major news organizations from the White House grounds. It then asks courts to defer to its judgment—or argues they cannot review the decision at all. And in many cases, it uses the resulting federal power to push aside states, regulators, courts, or other institutions that would ordinarily have a say.
The pattern is particularly prominent in the administration’s attempts to transform the energy sector to the........
