The First Mover Defense

Introduction

Courts proceed deliberately. Government agencies do not. That difference may have a constitutional impact. At a time when the government is engaged in highly politicized actions, its opponents may attempt to challenge those actions in court and obtain an injunction until litigation is concluded. Meanwhile, construction proceeds, policies are implemented, and organizational charts are rearranged. The later such challenges are brought, the more difficult courts may find it to undo changes already made.

The dispute over the White House ballroom provides a case in point. After the lower courts had ruled that the President’s plan was not authorized by the Constitution or laws of the United States, the Supreme Court temporarily permitted construction to continue while it reviewed the government’s emergency application for a stay. As of August 21, 2026, the White House ballroom construction was estimated to be approximately sixty-five percent complete.¹²

The dispute raises a serious issue: if the government can exploit the delay inherent in litigation by moving quickly to assert its will, is the government entitled to a first-mover advantage over the courts?

The Logic of an Injunction

An injunction is a preventive remedy. A court may issue an injunction to prohibit a party from taking a particular action before the merits of a dispute between the parties are fully heard. Federal courts have held that “in deciding whether to grant or deny a preliminary injunction, the court should weigh several factors, including ‘likelihood of success on the merits,’ ‘irreparable harm,’ ‘the balance of equities,’ and ‘the public interest.’”³

In particular, courts have held that a party seeking an injunction must establish that “if irreparable harm were to occur, it would be beyond the power of the court to remedy.” In other words, if the wrongdoer acts illegally but the situation can later be restored to what it was, the injured party may not seek an injunction.

There are limits to this principle. A government agency may violate a law or regulation that is designed to protect the public but nevertheless render the violation largely “irreparable.” For instance, the construction of a building cannot later be undone. Neither can a presidentially ordered removal of a sitting member of the Supreme Court be rescinded. And a policy decision that leaves tens of thousands of people subject to new and unforeseen risks cannot be withdrawn. After the fact, a judge who finds such a law to have been violated is faced not with a relatively simple remedy but with a set of uniquely wrenching choices. That is the essence of the first mover problem.

The White House Ballroom

The dispute over the White House ballroom is an especially prominent example of this issue. The executive branch moved to occupy the White House ballroom based on the assertion that doing so was authorized both by the President’s constitutional authority and by his national security responsibilities. The government’s opponents countered that the appropriation of the ballroom violated the Constitution and federal statutes, since Congress had not provided its approval for the construction and continued maintenance of the White House.²

The federal district court and the D.C. Circuit ruled against the government on the question of statutory authorization. The government then asked the Supreme Court to stay that order while the Court considers the government’s petition for a writ of certiorari.²

The Supreme Court’s decision to allow construction to continue while it considers the government’s petition for a writ of certiorari presents the most interesting issue in the dispute. In essence, because construction is a continuous process, each day that passes renders the injunction more difficult to enforce. At any time, the government may assert that the costs of reconstruction would outweigh the harms resulting from its alleged improper use of the ballroom. Meanwhile, the challengers to the government’s use of the ballroom are faced with the prospect that for every day they succeed in delaying construction, the greater the costs will be for everyone when the project is completed.

The Speed Advantage

The dispute over the White House ballroom creates a potential first-mover advantage for the government. In most cases, courts have the responsibility to determine whether a law has been violated, then to fashion an appropriate remedy. However, if a government agency or official can act more quickly than private litigants or even than the courts themselves, the relationship between those branches of government may be reversed.

The government takes action. Its opponents may bring a lawsuit seeking to stop it. Then, the government may move to stay the proceedings while it appeals a lower court’s ruling, or moves to vacate a ruling in the meantime, or take other action to delay the litigation. By the time the litigation has concluded, the government’s acts in the interim may have rendered its respondents’ remedies significantly less effective.

This does not make unlawful action lawful or remove the need for courts to rule on the legality of government action. However, it does diminish the effectiveness of remedies.

The Remedies and the Separation of Powers

The government should not be able to exploit the separation of powers by making decisions difficult for courts to remedy. That said, the government is not entirely without justification in its position. The government is particularly concerned with the ability of courts to fashion effective remedies.

Courts have held that the “interests of the court in preserving the status quo pending a hearing on the merits” must be balanced “against other factors bearing on the propriety of a preliminary injunction.” In particular, courts must consider “whether the movant has shown ‘a sufficient basis for concluding that the public interest would be served by a grant of the requested injunctive relief.’”³

If the government is correct in its position that the security and effective operation of the federal government are matters of public concern, a court order preventing the government from completing construction of an integrated security complex may well interfere with the government’s ability to serve the public interest. At the same time, courts recognize that emergency applications for injunctive relief exist precisely because “litigation is a slow process.” The dilemma is particularly acute when there is an emergency.

The law should ensure that, when there is an emergency, the public is served by maintaining the status quo. The danger is that, by attempting to preserve the status quo, courts fail to serve the public interest.

The Danger of Irreversibility

The government’s position in the dispute over the White House ballroom is not as strong as it would like the public to believe. The government’s critics raise an entirely separate concern: that if the government moves first and the courts move second, the government may exploit the opportunity to create facts on the ground that cannot easily be undone.

In a hypothetical dispute, imagine a situation in which the government violated a law that was clearly intended to apply to its actions. The government proceeded with construction of a new federal building that was explicitly unauthorized by the legislature. During the pendency of the litigation, construction was completed. The court then ruled against the government, ordering that the building be demolished.

Such an outcome would waste vast sums of public money and disrupt countless federal employees. The government would then be in the unenviable position of having to justify why it should not be permitted to continue using the building despite the court’s ruling that its construction was unlawful.

In essence, the government would gain an advantage by exploiting the inability of the federal courts to move as quickly as it can act. That danger should be unacceptable to the proponents of the rule of law.

Mootness and the Final Judgment

One of the most significant dangers associated with the government’s ability to move more quickly than the courts is mootness. If events transpire to the point that a court can no longer fashion an effective remedy, the case may be moot. The Constitution requires that federal courts only hear justiciable disputes. Courts are without jurisdiction over moot questions.⁴

Essentially, a government defendant could benefit from a situation in which the government took an action that was unlawful but difficult to reverse. There are limits to this ability. The government cannot manufacture mootness by, for instance, abandoning the complained-of action. Courts have held that “a voluntary discontinuance of proceedings which have been prosecuted to a stage beyond mere inception does not render a controversy moot and nonjusticiable.” They also have held that “a case is not moot merely because it involves a dispute over the continuing applicability of a statute or regulation that the agency is currently applying and the reviewing court has held is unlawful.”⁵

Nevertheless, mootness is a significant danger in any dispute in which the government acted first. Sometimes, courts may be unable to grant an effective remedy even if they rule against the government. That is a particular concern in the dispute over the White House ballroom.

Why It Matters

The First-Mover Defense matters because judicial review matters. Courts cannot compel compliance with the Constitution and laws of the United States unless they can fashion effective remedies. The Framers of the Constitution did not intend for the separation of powers to prevent courts from fulfilling their responsibility to declare and enforce the law.

The dispute over the White House ballroom presents a particular concern because physical constructions can be made or undone. That said, the danger extends far beyond white-collar construction projects. The government regularly engages in a variety of activities that are far more difficult to reverse than building a ballroom: adjusting immigration statutes, reshuffling personnel, and modifying contracts with government contractors are a few of the many examples. In all cases, the longer such activities continue, the more difficult it may be to unwind them.

That places the separation of powers in the United States in a precarious position. Courts possess the power to declare government action unlawful, but rarely can they do more than declare it. The first-mover problem highlights a situation in which that may change.

The First-Mover Defense should be of concern to judges, lawyers, and ordinary citizens. The government is not immune from the responsibility to comply with the Constitution and statues of the United States. At the same time, when it comes to litigation, the government should not always be able to move faster than the courts. If it does, the law will suffer.

Conclusion

Courts are entrusted with interpreting the Constitution and enforcing the laws of the land. However, those duties are meaningless if courts are unable to ensure that government officials act in accordance with the law. The First-Mover problem presents one illustration of how that dynamic can be undermined.

Essentially, the faster the government can act, the more difficult it may be for the courts to provide an effective remedy. That should not happen. The dispute over the White House ballroom is especially illustrative of this phenomenon because the dispute is literally about who moves first. Construction literally changes the facts on the ground while the litigation proceeds.¹²

The danger presented by the First-Mover Defense extends far beyond the dispute over the White House ballroom. The government can engage in a variety of activities, including the modification of statutes, regulations, appointments, and more, that are far more difficult to reverse than the construction of a building.

The problem occurs whenever the government can exploit the fact that litigation is always slower than immediate action. That is why, when it comes to disputes over government action, courts must act with dispatch. Courts must be able to declare unlawful government actions to be unlawful. Even more importantly, they must be able to ensure that those agencies comply with the Constitution and statutes of the United States.

1. Trump Can Keep Building Ballroom While Supreme Court Weighs Appeal, Wall St. J. (Aug. 21, 2026). The Supreme Court temporarily allowed construction of the White House ballroom to continue while considering the administration's emergency appeal.

2. Application for Stay of Injunction, National Park Service v. National Trust for Historic Preservation, No. 26A203 (U.S. Supreme Court Aug. 2026). The government argues that the project serves national-security purposes and challenges the lower court's injunction.

3. Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008).

4. U.S. CONST. art. III, § 2, cl. 1.

5. See United States v. W. T. Grant Co., 345 U.S. 629, 632–33 (1953); Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515 (1911).