Trump and Robert Moses (Guest Post by Professor Martin Siegel)
Much has been written about how Donald Trump learned hardball tactics and power politics at the feet of his father, the developer whose company’s claimed refusal to rent to Black applicants prompted a federal civil rights suit, and Roy Cohn, who schooled Trump in the art of never admitting defeat while personally savaging and countersuing opponents.
But when I read about the latest, absurd round of litigation over the White House ballroom, I didn’t think of Trump père or the infamous Cohn – I thought of Robert Moses.
In his legendary biography of New York’s master builder, The Power Broker, Robert Caro details Moses’s repeatedly successful strategy of outbuilding preliminary injunctions, court dates, and judicial scoldings. In the 1920s, Moses ran riot condemning private property wanted for Jones Beach and other Long Island parks and roads while his outraged opponents racked up court orders. No matter the losses in court, Moses still won. As trial dates loomed, he took frivolous appeals and instructed state lawyers to delay until his antagonists’ money ran out or his political allies rescued him or both.
Later, when Moses wanted to blast a parkway up the Hudson River and decided to bulldoze through the mostly untouched wilderness of Inwood Park despite an alternate route that would have saved the forest, opponents thought they’d halted or at least stalled the destruction by obtaining hearing dates in the city’s powerful Board of Estimate. But then Moses simply cut the trees down while the hearing he’d agreed to was pending.
As Caro writes, “once you did something physically, it was very hard for even a judge to undo it.” That pattern repeated itself for decades as Moses wielded near absolute power to remake New York City.
None of this was lost on Donald Trump, though Moses’s stature was shrinking by the time Trump graduated college and joined his father’s world of New York real estate. In a 1985 piece on the new generation of rising power brokers, the Times said, “if Mr. Moses were to be born again, he’d probably return as Mr. Trump.”
“Trump did want to be identified with him,” Caro commented for a 2018 article:
For a time, I used to hear… ‘Donald Trump is the next Robert Moses.’… But I always felt he himself was behind people saying that, if you know what I mean – that he wanted to be the next Robert Moses. And that’s really a terribly revealing thing. Moses, he didn’t let people stand in his way. He targeted – he not only evicted all these people… he hounded them out like cattle…. To admire him is to say a lot about yourself.
When it comes to the ballroom, Trump, like Moses, keeps losing. Lower courts have found the construction to be illegal but for some reason keep granting stays pending appeal, allowing Trump to keep building despite injunctions putatively ordering him to stop. On Friday, Chief Justice Roberts did so again, staying the original district court injunction while the Court considers the case.
Trump has predictably taken full advantage of this weird and ineffectual naivete: crews of 250 people are working on the project 20 hours a day, seven days a week – a breakneck speed explicable only by a plan to create facts on the ground no court will feel comfortable dismantling.
Never mind that what began as a ballroom has transmuted into a bunker complex supposedly essential to presidential security, though somehow the other 44 men to fill the office managed to live without it. Of course, since the magic words “national security” have now been uttered, the administration claims that no one – least of all judges – can second-guess their decision.
And anyway, judicial consideration is pointless because freshly built realities have mooted all possible objections. “‘Quite frankly, if the building were tragically ordered to be taken down, or even altered, by the court,’” the Solicitor General’s brief warns, quoting an unspecified administration official, “‘there would be no way to do so.’” That’s in part due to the building material, described in the brief as “the hardest and strongest concrete there is, the type used in nuclear power plants… impermeable, and virtually impossible to deconstruct.”
And so as with almost all exercises of executive authority that incant “national security,” the Court will almost surely let Trump have his way, bringing this golden sealed aesthetic nightmare to fruition (not to worry, though, since the SG’s brief also quotes another unnamed official who assures us, “this building is already being adjudged to be one of the most beautiful of its kind, anywhere in the country”).
The ballroom is only the most physical embodiment of the administration’s largely successful strategy to outrun, ignore, transparently evade, and cleverly moot adverse judicial decisions. As the Associated Press reported in May, “district court judges have ruled the Republican administration was violating an order in at least 31 lawsuits over a wide range of issues, including cuts in federal funding, mass layoffs, deportations, and immigration practices.” Immigrants with pending cases or orders precluding removal are shipped abroad, whole federal departments are essentially shuttered through firings and reassignments of employees and duties, grants are terminated, congressionally mandated spending is withheld or reallocated. The judges in these cases have often accused administration officials or lawyers, not just of disobeying their orders, but also of misleading them.
Then there are the cases like the litigation over Trump’s tariffs where the administration acts under dubious legal authority, is sued, ultimately loses months or years later (though often implementing the policy in the meantime), and reinstates the policy or something very similar citing new but equally dubious grounds, starting the cycle all over again. At the current rate, if the latest tariffs are also voided, the administration will complete nearly its full four-year term presiding over an illegal trading system, leaving its successor to repay injured businesses.
In all, the administration’s great and novel genius has been to recognize that it can skip the kind of grandiose, Jacksonian declaration of defiance then-Senator Vance advocated on a podcast in 2021 (“and when the courts stop you, stand before the country like Andrew Jackson did and say: ‘The chief justice has made his ruling. Now let him enforce it’” (in fact, Jackson seems never to have said this)). Much easier to bob and weave and dissemble and delay.
Why does this work? Easy. Employees fired en masse have to get on with their lives and find new jobs. Cancelled grants lead researchers to terminate projects, close down labs, and leave the country. Wrongfully arrested immigrants give up and accept deportation to any better-than-Eswatini destination. People can’t always wait for legal vindication and the clock can’t be unwound, whatever the ultimate judicial decision. More than that, courts can hardly keep up with the administration’s firehose of lawbreaking, and there are no more nationwide injunctions anyway. In the meantime, the administration has accomplished its (often illegal) objectives.
As Adam Liptak highlighted last week, the new name for this strategy, coined by Daniel T. Deacon and Leah H. Litman, is “legalistic noncompliance.” But the strategy isn’t new at all – Robert Moses knew it well.