Tonight in Your Rights: 'Construction has to stop!'

Trump's East Wing ballroom has a stop-work order. PBS and NPR can receive federal funds, and Colorado's "conversion therapy" ban stumbles at SCOTUS.

Aerial view of East Wing construction (Photo by Aaron Schwartz/Getty Images)

On the eve of landmark birthright citizenship arguments, consequential rulings came down in rapid order in Washington, D.C. on Tuesday.

This morning, the Supreme Court delivered a lopsided ruling that could sound the death knell for Colorado’s ban on so-called “conversion therapy,” the discredited attempt to change the sexual orientations and gender identities of LGBTQ patients. Every justice but Ketanji Brown Jackson found Colorado’s law required the highest level of First Amendment review, known as strict scrutiny. That doesn’t necessarily mean the law is doomed, but it could create sprawling litigation to defend laws in 27 states like it. Look out for more analysis below.

Also, this afternoon, a federal judge effectively issued a stop-work order on construction of Donald Trump’s East Wing ballroom, reminding him that he’s the current steward of the White House and not its owner. Another judge inside the same courthouse voided Trump’s executive order blocking all federal funding of NPR and PBS, holding that it amounted to unlawful viewpoint discrimination under the First Amendment.

Those and other rulings are at the center of this evening’s round-up of “Tonight in Your Rights.”

Trump’s East Wing ballroom put on hold

The future of the $400 million ballroom that Trump wants to build in the White House’s East Wing is in doubt after a federal judge ruled on Tuesday that he needs congressional authorization to continue construction.

“The President of the United States is the steward of the White House for future generations of First Families,” Senior U.S. District Judge Richard Leon, a George W. Bush appointee, wrote. “He is not, however, the owner!”

Like multiple other rulings against Trump, Judge Leon let the exclamation marks fly more than a dozen times in his 35-page memorandum opinion.

“After all, the White House does not belong to any one man — not even a president!” he exclaimed.

In one passage, for example, Leon ridiculed the government’s position that Congress has “granted nearly unlimited power to the President to construct anything, anywhere on federal land in the District of Columbia, regardless of the source of funds.”

“This clearly is not how Congress and former Presidents have managed the White House for centuries, and this Court will not be the first to hold that Congress has ceded its powers in such a significant fashion!” he wrote.

Leon wasn’t moved by the government’s argument that stopping construction of the 90,000-square-foot ballroom now would pose a “safety hazard” and “national security” risk.

“While I take seriously the Government’s concerns regarding the safety and security of the White House grounds and the President himself, the existence of a ‘large hole’ beside the White House is, of course, a problem of the President’s own making!” the opinion states.

Shortly after the ruling, Trump took to his social media platform to unload on the National Trust for Historic Preservation, which brought the lawsuit and which he called a “Radical Left Group of Lunatics.”

Judge Leon paused his ruling for 14 days to allow the government to pursue an appeal, ending with a note that reminded Trump that he has the option to try to achieve his same objective without usurping Congress’s power.

“Where does this leave us? Unfortunately for Defendants, unless and until Congress blesses this project through statutory authorization, construction has to stop! But here is the good news. It is not too late for Congress to authorize the continued construction of the ballroom project. The President may at any time go to Congress to obtain express authority to construct a ballroom and to do so with private funds. Indeed, Congress may even choose to appropriate funds for the ballroom, or at least decide that some other funding scheme is acceptable. Either way, Congress will thereby retain its authority over the nation’s property and its oversight over the Government’s spending. The National Trust’s interests in a constitutional and lawful process will be vindicated. And the American people will benefit from the branches of Government exercising their constitutionally prescribed roles. Not a bad outcome, that!”

Read the judge’s full opinion here.

Federal funding for NPR and PBS shielded (somewhat)

Trump’s executive order forbidding any federal agency from funding NPR and PBS is “unlawful and unenforceable,” a federal judge ruled.

U.S. District Judge Randolph Moss said that the “undisputed record shows” that Trump tried to punish the networks for their speech.

“It is difficult to conceive of clearer evidence that a government action is targeted at viewpoints that the President does not like and seeks to squelch. The executive order seeks to exclude NPR and PBS from receiving federal grants or other funding because they have provided more positive coverage of his political opponents than of his party and allies, because their news coverage, in his view, tips left, and because they were critical of him. On this record, there can be no doubt that the executive order does not target [NPR and PBS] merely because they have a viewpoint or consistent perspective and therefore fail to live up to some yet-to-be-attained platonic ideal of ‘unbiased’ journalism, but because he views their speech as unfavorable to him and the Republican party. To be sure, the President is entitled to criticize this or any other reporting, and he can express his own views as he sees fit. He may not, however, use his governmental power to direct federal agencies to exclude [NPR and PBS] from receiving federal grants or other funding in retaliation for saying things that he does not like.”

Quoting a separate ruling striking down Trump’s executive order punishing the major law firm Jenner & Block, Judge Moss called the targeting of public media “another lever in the President’s arsenal [to punish or] to extinguish speech he dislikes.”

Despite being a clear win for public media, the order could have limited reach for restoring the networks’ funding.

The Corporation for Public Broadcasting, the one-time umbrella entity for both networks, dissolved about a month ago after Congress drained its funding in Trump’s giant spending bill last year. The ruling won’t revive CPB, but it will allow other federal agencies to fund public radio and television.

Read the 62-page opinion and order here.

SCOTUS, the couch and the ‘scalpel’

More than half of U.S. states and 100 municipalities have laws imposing some kind of ban on “conversion therapy,” but it’s currently unclear how many of those statutes will survive following the Supreme Court’s ruling on Tuesday.

The Supreme Court’s decision has been widely misreported as striking down Colorado’s ban, but the truth is more complicated. Legal experts say it’s still possible that these laws could survive in their current or rewritten forms.

By an 8-1 margin, the justices found that — because the practice of petitioner Kaley Chiles focused on talk therapy — an intermediate appellate court should have subjected Colorado’s law to the highest level of First Amendment review, known as strict scrutiny. That may very well doom Colorado’s law, especially in light of how Justice Neil Gorsuch framed the issue for the lower courts.

“Colorado may regard its policy as essential to public health and safety,” Gorsuch wrote. “Certainly, censorious governments throughout history have believed the same. But the First Amendment stands as a shield against any effort to enforce orthodoxy in thought or speech in this country. It reflects instead a judgment that every American possesses an inalienable right to think and speak freely, and a faith in the free marketplace of ideas as the best means for discovering truth. However well-intentioned, any law that suppresses speech based on viewpoint represents an ‘egregious’ assault on both of those commitments.”

But Supreme Court scholar Leah Litman told All Rise News that it’s “completely unclear” whether conversion therapy bans like Colorado’s will survive on remand.

On the one hand, strict scrutiny — incidentally, the name of Litman’s podcast — is a demanding standard, but she notes that the “science is clear” that conversion therapy causes harm.

In a concurring opinion, Justices Elena Kagan and Sonia Sotomayor explained their support of the majority decision with a thought experiment.

“Consider a hypothetical law that is the mirror image of Colorado’s,” Kagan wrote. “Instead of barring talk therapy designed to change a minor’s sexual orientation or gender identity, this law bars therapy affirming those things. As Ms. Chiles readily acknowledges, the First Amendment would apply in the identical way.”

In her dissent, Justice Jackson criticized her colleagues for creating a “newfound constitutional right to provide substandard medical care.”

“The Constitution does not pose a barrier to reasonable regulation of harmful medical treatments just because substandard care comes via speech instead of scalpel,” she wrote.

Kagan and Sotomayor appeared to send a signal to states and municipalities to draft laws that would pass constitutional review, writing that a “content-based but viewpoint-neutral law” would raise a “different and more difficult question.”

Lawmakers already appear to be adapting.

“We anticipated this ruling, so I introduced SB 934, which makes it much easier for LGBTQ people to bring malpractice claims against those who inflict this torture on them, including with a much longer statute of limitations for kids who’ve been harmed,” California State Sen. Scott Wiener (D) wrote on social media. “The Supreme Court majority opinion explicitly states that malpractice claims for conversion therapy are different than bans.”

“You can’t ‘convert’ someone who’s LGBTQ — full stop — & people who think you can are peddling quackery,” California will always have the community’s back,” he added.

Judge hands Trump admin a ‘list of Jews’?

A federal judge allowed the Trump administration to subpoena wide-ranging records about Jewish students and faculty from the University of Pennsylvania for a discrimination investigation, producing an eye-popping headline from the New York Times.

“Federal Judge Approves Trump Effort to Obtain List of Jews From Penn”

Two weeks ago, All Rise News interviewed a lawyer for UPenn’s Jewish students and faculty who sought to quash the subpoena.

U.S. District Judge Jerry Pappert upheld the subpoena on the eve of Passover, acknowledging that the government could have phrased its request better.

“Though ineptly worded, the request had an understandable purpose—to obtain in a narrowly tailored way, as opposed to seeking information on all university employees, information on individuals in Penn’s Jewish community who could have experienced or witnessed antisemitism in the workplace,” he wrote.

The full ruling is here.

Just a note

The Supreme Court will hear long anticipated oral arguments about Trump’s birthright citizenship ban on Wednesday.

All Rise News will report on the proceedings after they end in a Substack Live.