A law professor says the Trump administration is stretching a routine legal defense into something he never expected – telling courts a construction project is too speculative to challenge, right up until it's finished.
"It can't be the case that an agency can say: 'Look, it's too soon, it's too soon, it's too soon, it's too soon. It's too late!'" Samuel Bagenstos, a University of Michigan law professor who served in the Biden administration, told the New York Times. "There has to be a moment where the agency action can be challenged."
That strategy shows up across multiple Trump construction projects in Washington. In one court filing, the administration argued that Trump's proposed "garden of heroes" — a plan to fill part of the National Mall with 250 statues — is "only an idea by the executive branch." Yet workers were recently seen pouring concrete on a pedestal at the site, where the administration is installing gazebos donated by Uzbekistan.
The administration has called plans for a luxury golf course in East Potomac Park merely "speculative," even as it has cut down trees there. In a lawsuit over a proposed arch near Arlington National Cemetery, the government argued veterans suing to block it were reacting to little more than "reported dinner remarks" — despite Trump having already selected a site, hired an architect and shown off renderings.
"Lawyers in every administration make versions of this 'too soon' argument," Bagenstos said, but added that this administration is abusing the tactic "in ways that nobody could possibly have imagined."
The strategy echoes what happened with the White House East Wing, demolished last fall with no public notice despite earlier assurances it would remain untouched. The Supreme Court this week allowed construction of a replacement ballroom to proceed, sidestepping whether Trump had legal authority to build it at all.
"The public was told that the East Wing would not be touched, and then it was bulldozed," said Rebecca Miller, executive director of the D.C. Preservation League, which is suing over the garden and the golf course. "It's very much a 'fool me once' type of attitude now."
Ed Stierli of the National Parks Conservation Association, also suing over the garden, said the pattern is deliberate. "Building or doing work in plain sight while claiming that they're not doing the work at the same time," he said. "This has been the strategy."
The White House did not respond to a request for comment. A federal judge is set to hold a hearing this week in the golf course case, where she is expected to question the administration about tree removal at the site.