A version of this essay first appeared in Notice & Comment (Yale Journal on Regulation) on September 19, 2026.

You Can’t Sit With Us

Chief Justice Roberts’s dissent in the White House ballroom case1 turned some heads, for its positioning more than its actual position. To wit, The New York Times characterizes him as being in an unfamiliar minority.

In short he argues construction violates applicable statute which reads in full:

A building or structure shall not be erected on any reservation, park, or public grounds of the Federal Government in the District of Columbia without express authority of Congress.2

And even though Congress in fact appropriated approx. $2.5 million for maintenance purposes in 2026,3 Roberts says that ain’t it:

a couple million dollars for ordinary Executive Residence maintenance and repairs likely does not authorize the President to use hundreds of millions of dollars in private donations to tear down the East Wing and construct a ballroom in its stead.

Preach!

So according to his logic, the construction – and by extension the court’s majority – infringes Congress’s authority over federal buildings.

Notwithstanding his unfamiliar surroundings, the dissent is fairly straightforward and it’s reasoning fairly mundane.

Where’s Congress?

What makes it curious is that the essential party to the case, the one that is being infringed upon by his own framing, is not a party in the case. Roberts is quite concerned about Congress nonetheless.4

Yet the opinion turns on a very specific nexus of harm. In order to vindicate an infringement against Congress - to locate concrete and particularized harm sufficient for standing - he has to take a walk alongside an architectural historian named Alison Hoagland . Because on the basis of “historic preservation,” he notes she “is not just any person.”

In other words, Congress should thank god a history buff happened to walk by.

The majority doesn’t let that fact slide by, noting that Hoagland’s C.V. is irrelevant: scholarship, residency, behavioral patterns, and volunteer work are afforded “no such special carveout” per the rules of standing.5 Lujan and Sierra Club prohibit passage down that path.

But for sake of argument, a litigant’s biography is a curious element to determine standing if protecting Congress’s prerogatives is the actual thing worth worrying about. Congress is an institution, with no particular biography or experience in this sense. “Congress” can’t make a habit of perambulating around the National Mall and accumulating joy from the neoclassical architecture of the White House.6

Congress literally can’t complain.

That’s not an inference. Roberts in “Article III Limits on Statutory Standing” argues explicitly standing only applies to private complainants.7 And no, not individual members of Congress.

How do we know? Maybe it’s just never been tried.

To quote Reuben Tishkoff, “Oh, it’s been tried. A few guys even came close.”

• In Raines v. Byrd,8 a group of individual members sued and even had honest-to-god language in the Line Item Veto Act to authorize it. Nope, entrance closed on account of “wholly abstract and widely dispersed” claim of harm.

• In McClure v. Carter9 it was a Senator McClure of Idaho, again relying on duly passed and pretty clear statutory language:

  Any Member of Congress…may bring a civil action in the United States District Court for the District of Columbia or in any United States District Court in the State he represents

  Again, access denied because it is:

  difficult to see how this statute may, consistent with article III, confer upon a senator or member of the House of Representatives a “right” to seek a decision from a federal court that such a senator or member of the House would otherwise be powerless to procure10

Roberts (1993) cites McClure approvingly — though in passing in a footnote — with no suggestion that a legislator asserting Article III standing might get in through another door. The foreclosure of congressional standing is not something Roberts argues for because he treats it as already settled. The body of his article is given over to defending Lujan and the rule it draws from Sierra Club. He litigates at length the question of which private plaintiffs get in.

That Congress does not is assumed.

According to Roberts’s argument, Congress does have some say in expanding the aperture of standing, up to a point. And where that point is exactly is the whole paradox he has now walked into in this latest dissenting opinion.

Quoting Gladstone v. Village of Bellwood,11 he argues Article III’s threshold that the plaintiff present “a distinct and palpable injury” to themselves is binding, and Congress can’t go below that. In other words, Article III sets the rule, which is all well and good. The court’s jurisdiction should be allowed to determine whether in fact a legal right, properly granted, is being infringed upon.

Congress can even go so far as to name a specific party to which it is granting a right in statute.

But that party can’t be Congress.

The Center Formerly Known as Kennedy

Take the nearby case (figuratively and literally) of Beatty v. Trump, the Kennedy Center case. The facts are not in dispute, only standing. Pub. L. 88-260 (1964), amending the National Cultural Center Act, is as straightforward as they come. It’s a glorified postal naming bill:

• There’s a cultural center.

• It gets renamed the “John F. Kennedy Center for the Performing Arts.”

• The Executive Branch later changes the name to not that.

That’s about it.

There’s some appropriations in the original bill, and a Board of Trustees. So according to the judicial precedent to which Roberts up to this point, and seemingly the current Supreme Court majority, are okay with, Congress has no real way on its own to seek redress for a clear violation of the law by the Executive Branch via the courts.

In fact it’s only because the Board of Trustees, per statute, includes a current member of Congress as an ex officio member that there’s a current operative challenge to the Executive Branch’s actions. That is, if Congress didn’t happen to establish a board for this particular purpose and appoint a Congressional member, then there wouldn’t be any nexus of harm sufficient for Congress to have standing. Congress is invisible, but for a sui generis governance provision. (Or again, an architectural historian with sufficient pedigree happened to walk by).

This can’t possibly be where the balance of standing considerations leaves Article I vis-à-vis Article III, for Roberts or any of the other justices.

So Long, Take Care

In theory, “injuries” to Congress are merely proxies for injuries in fact to the public. We shouldn’t be particularly concerned about Congress’s vindication through courts of alleged injuries of rights to itself per se, only insofar as they stand in for harms to the public. As long as those individuals are afforded standing under Article III’s delimitations, the Constitutional intent is intact.

One presumes, though, Congress could say explicitly who those parties are that they are intending to grant rights. Rights wherein if the Executive fails to “take care” in executing the law, there would be a colorable argument someone’s rights are being infringed.

So again in theory, Congress could author and pass a statute designating a person or persons as the beneficiaries of the statute. “Any person” in the case of the Endangered Species Act (1973) (i.e., “any person may commence a civil suit on his own behalf…” (emphasis added)).12

According to Roberts, Congress can’t designate itself as a workaround of Article III standing’s minimal threshold, but also can’t designate any person outside of Congress either (i.e., the public).13 In a manner of speaking, he acknowledges the ESA as drafted wouldn’t make sense to entitle a specific named person(s) with the statute’s rights, but “any person” is too unspecific to be workable. And moreover he argues it can’t possibly be what Congress meant. Yes, he explicitly relies on a Congressional intent reading.

First Branch, Last in Line

Of course Congress is no ordinary party in the Constitutional order, and these interbranch disputes don’t operate in a vacuum. Indeed it is the political situating between Article I and Article II branches that permits unique avenues of redressment unavailable to the general public.

All of which fall under the Work it Out Amongst Yourselves doctrine.

Again Roberts14 and others all proscribe the circumstances and mechanisms by which Congress and the President can resolve disputes without involvement of the courts.15 Appropriations, oversight, passing or repealing statutes, impeachment, and the enterprise of politics broadly, are all ways in which Congress and the President find accommodation on the numerous issues on which there is some disagreement (maybe thousands on any given day). And to presume an Article III pathway for all of them would be not only impractical but, according to this line of thinking, inimical to the Constitution’s separating of powers.

As a prudential matter though, which of the above available mechanisms is able to address the scenario where the President obviously violates a law by renaming a thing Congress already named through statute?

• Is Congress to withhold appropriations…to undo a thing it didn’t want done in the first place?

• Oversight is great, but is for fact-finding. What facts need finding here? It doesn’t take Joe Historian to walk down Virginia Avenue to note the name change.

One retort offered by Isgur and French16 (echoing Justice Powell: interbranch disputes “should, and almost invariably do, turn on political rather than legal considerations”17) grants that the result may appear absurd, but if an issue doesn’t rise to the level of impeachment or other dramatic action, that’s politics at work. The issue isn’t that Congress can’t enforce proper compliance, it’s that it has to pick and choose when and where to use its various leverages. That renaming a cultural center doesn’t, say, merit impeachment proceedings is a political choice.

Scalia says “take care” is the President’s obligation, and determinations of fidelity in that charge are not the court’s problem: “Carried to its logical end, [respondents’] approach would have the federal courts as virtually continuing monitors of the wisdom and soundness of Executive action,”18 which the Executive does on the public’s behalf.19

Break a Leg

But then we’re back to the standing question, not for Congress, but the public. Roberts et al. argue it can’t be “the public,” only a person who passes what I call “the broken leg test.” An individual or specific entity with a plausible claim of demonstrable specific harm.

It apparently either requires:

(a) Congress to assign itself a board seat to every statutorily authorized program (Kennedy Center case); or

(b) a non-member of Congress with sufficient expertise and interest in the subject of a program (White House ballroom case); or,

(c) Congress to show up to the court with a broken leg.

Congress is not permitted to assign the benefit of a law, that is I suppose, unless it does so to a specific person or group of individuals that does not contain any member of Congress. Imagine one person, John T. Plaintiff, who gets written into the end of every law, authorized as such to seek relief in court.

For that not to be the case, the President would have to initiate a wrecking ball to the Capitol Dome itself, in order for Congress to have standing to stop a construction project in lieu of a friendly neighborhood federal buildings expert.

A Long Walk…

Roberts has arrived at the correct outcome, if concern is over Congress’s vindication of its Constitutional prerogative, but done so through an inconsistent and untenable application of principle. The fault is not his alone, but his most recent dissent is conspicuous as a workaround of his earlier corner-painting.

Congress cannot deputize itself as a de facto private plaintiff nor is it clear the degree to which is can do so for actual private plaintiffs. It has numerous political tools at its disposal, but ought not have to be allowed to rely on subject matter experts to stand in for its claims.

The Right to Try

It started with a meeting with a young woman.

Her toddler son suffered from a debilitating genetic disorder called Duchenne muscular dystrophy. While extremely rare (about 1 in 4,000 boys), the median life expectancy was around 30 years. A significant improvement from earlier cohorts.

But a promising therapy was in clinical trials.

Then a meeting with a nonprofit lobbyist. And some state legislators.

They all wanted a federal law that changed access to experimental therapies, ones still being tested but not yet meeting the FDA’s threshold for safety and effectiveness.

States had begun passing a version of laws in this direction, but without a federal statute it was unclear to what effect.

They referred to these as “Right to Try” (RTT) laws.

These meetings were through my job at a Senate committee normally having little to do with healthcare. But “he’s elected, I’m selected” as we would say. My boss was the committee Chairman and decided this needed doing.

The Debate

Advocates for Right to Try wanted to permit patients with the most severe conditions to be able to receive experimental treatments, medicines which have not received approval, without jeopardizing potential FDA approval. The companies developing new therapies could provide them to the most sick people and still continue investigating with intent to sell to the broader medical market.1

A law eventually emerged through negotiations, first with another Senate committee, then with the then highest-funded trade association (PhRMA), and then with the House counterpart committee—though that’s redundant, because the last two were functionally the same thing.2^,3

But it didn’t include experimental substances prohibited by the DEA. Like psychedelic therapies. Exempting controlled substances was a negotiating concession but I would’ve been fine with it (even preferred).

On the way to becoming a law, the bill was name-checked during multiple State of the Union addresses, and afterwards during the infamous Biden v. Trump presidential debate.

But not everyone was supportive.

Pharmaceutical companies, while not opposed per se, appreciated the ability to point to the FDA as the reason they couldn’t provide pre-approved therapies to patients. The FDA enjoyed being able to say the reverse, that it’s not up to them.

But the most vocal opposition was a couple bioethicists, in particular eminent scholars and Alison Bateman-House, NYU faculty and members of the Working Group on Compassionate Use.

Pick a Lane

Eliding the actually defensible counterargument to our own advocacy, the frustration came down to this. At various times these two and sympathetic trade press would argue one or more of the following without acknowledging the internal logical inconsistency:

• this manner of access would expose large numbers of sick patients to undue risks

• no company would want to provide access under this law

• it provided false hope to desperate patients

If you can’t see the contradiction therein, then, well, maybe I’m the problem. A thing is poised to impose likely harm on scores of individuals, but also will be mostly abstained by drug developers? And the third, this may be bioethics inside baseball, but “false hope” is subjective. Our PO: if your doctor is saying you’re facing almost certain death in months, what’s the disutility of hope, false or otherwise?

Paternalistic, chauvinistic, and un-self-aware of their own obtuseness. I begged one of the major trade pubs regularly running their op-eds to host a debate, or at least a written counterpoint to no avail.4

Anyway, we won and passed the law.

Unclear if: (a) scores of patients have been harmed as a result; (b) zero patients have been subject to the law or (c) drug development has been materially jeopardized as a result (oh yah, forgot to mention, that was another confidently stated outcome).

[Later I would find out, when I was 14 and my mother died of breast cancer, her doctor identified but could not administer a then-experimental treatment that had since become standard-of-care]

The Psychonauts Come Knocking

A couple years later, parties interested in the potential therapeutic benefits of psychedelic drugs saw RTT as a pathway to expand legal investigation and use. There has of course been a spate of interest in developing psychedelics for medicinal use across all modalities, and RTT was of particular interest as a pathway. A 9th Circuit court case subjected the law for use along these lines.

So it turned out my work with RTT was inadvertently a psychedelic experience.5

Whatcha Know About Weed?

On my first day at the White House in a role overseeing federal regulations, the USDA was in the midst of establishing a federal regime for a subset of cannabis now defined as “hemp.” And there sat on my desk a 300+ page proposed rule to do so.

I didn’t know from hemp, so I sitting on my office couch I read the whole thing before embarking on a multi-month negotiation amongst the various Executive Branch interests to settle on a federal regulation to permit legal growing, processing, and selling of the psychoactive plant Cannabis sativa L.

This ended up being prong two of my looking glass tumble down the psychedelic policy rabbit hole.

No Man in No Man’s Land

Here I was, in the post 2020-world, one of the few human beings on Earth with direct federal psychedelic-relevant policy experience. At this point I found some of the claims of potential benefits from medical use of psychedelics promising, though often breathless, to the degree I could determine such a thing.

So I became an unpaid advisor to a couple pro-psychedelic advocacy organizations. I merely wanted to offer my experience to help move forward the science of psychedelic medicine, and hopefully bolster the case for federal funding, research, and regulatory approval of potentially life-improving psychedelic medicine.

But what sprouted up around me was a whole ecosystem not so different from the adjacent cryptocurrency industry.

• Overstatements.

• Get rich quick schemes.

• People claiming to be experts in the extremely narrow field that barely existed and in which only a few people had any actual direct experience.

One of the major conferences—I believe now defunct—called Wonderland (put on by an organization called Microdose, lol) promised:

• “Panel insights on psychedelic substance-related industries and regulations

• Dozens of experts, activists and innovators providing perspective, including athlete celebrities Mike Tyson and Lamar Odom”

And they weren’t unique. The famous Davos gathering put on by the World Economic Forum had an entire Psychedelic House in 2022.

Because what had happened was psychedelics had become a hot new thing, with plenty of money to be made. Big time VCs were suddenly pumping in billions of dollars. And an atmosphere of charlatans, fraudsters, and influencers flooded the zone accordingly.

Let the Good Times Roll

All of which was fine until, like all fads/bubbles, the conferences, the celebrity endorsements, and the ecstatic funding all fell back to Earth.

• In August 2024, the oldest and most established psychedelic research organization (formerly MAPS, then Lykos Therapeutics, now Resilient Pharmaceuticals) ran into the entirely foreseeable wall of not knowing WTF they were doing. Their application for FDA approval for MDMA was denied.

• Later the same year, Compass Pathways (backed by $360 million from prominent investors like Peter Thiel, Mike Novogratz, and Christian Angermayer) also missed the rim in their MDMA application. Which led their stock to tank and a 30 percent reduction in staff.

• In 2025, in spite of an HHS Secretary favorable to psychedelics, Compass Pathways was cut from the FDA’s new fast-track review pathway (although a 2026 Executive Order put them back on).

It must’ve been love, but it's over now…

It had all moved so fast and well beyond my knowledge and interest, so I backed away. Out of curiosity I catch various goings-on as they cross my desk: MAPS making personal attacks on , surfacing troubling abuse allegations, failure to solve the double-blind problem in clinical trials.

I’ve chosen to have no substantive role for a couple years now, but if anyone asks, I’m happy to provide free advice.

[If you’re curious, the last time I said anything on the record was in 2023 on the Psychedelics Today podcast]

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Member Meeting

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“I can still hear you saying you would never break the chain”

Recently I got caught in a rabbit hole on the Fleetwood Mac album Rumours. One of many stories goes, while Mick Fleetwood was in the control room doing, uh, some important business accounting (your mileage may vary), Stevie Nicks wandered off to the “Sly Stone” room to noodle some ideas. There she assembled a rough version of “Dreams,” which would go on to be one of their biggest hits (back then, and again 48 years later because our pop culture engine stalled out and everything is recycled, and…nevermind).

Congress is like Ms. Nicks back then, before she got into the tex-mex restaurant game of course. She had proven her mettle as a singer, and already had respectable writing credits. The dynamics being what they were, the nominally co-equal women’s contributions were routinely sidelined. Nevertheless, she persisted, and asserted creative agency.1

Perhaps newly freed from her relationship with Lindsay, she wasn’t discovering creative power, she was re-discovering it.

Congress increasingly acts as if the Executive Branch is the bandleader and thems the rules. Quite the contrary, Congress is perfectly capable of grabbing the mic.

We treat statutes as the thing Congress does, and regulations the thing the Executive does, two distinct domains never the twain shall meet, each flowing from its own Constitutional wellspring. But one is theoretically begat by the other. It’s worse than that. News reports routinely speak of “a new law” when describing Executive actions, further conflating the direction of the policy birth order. Even worse is Executive Orders are now characterized by default as changes in law [sigh].

You did this to yourself, Congress. I’m not mad, just disappointed.

“Well, I’ve been afraid of changin’ / ’Cause I’ve built my life around you”

From the POV of most individuals and businesses this all tracks. Our Cali-cuisine restaurant doesn’t particularly care whether changes in healthcare requirements are the result of regulations or statute–I just know I better comply with “the law” (and maybe my HR company says they’re waiting on the “new rules” to update me).

The argument that Congress is not in fact co-equal with the Executive, that placement in Article I of the Constitution is an ordinal choice and not the result of drafting randomization, we can take as stipulated.

And we’ll forgo arguments around limits of delegation because wherever that line is, it won’t matter for the following: Congress should in-source agencies.

The whole conceit of delegating policymaking work to the Executive agencies is they have all the personnel and expertise. Well who do you think funded all that? In most cases, who do you think even created the dang agency?

That’s right: Congress, you should create your own Article I agencies.

Don’t be humble. You’ve done it before. We use different nomenclature: Office, Library, and Service. If you can routinely defer to entities in a whole other part of town, reporting to a whole other elected official, to “fill in the blanks” (i.e., substantive policy decisions that are binding on the public with the force of law), you can very well keep that work in house.

If you’re squeamish about “unelected bureaucrats” making decisions on behalf of the American people, fine, check the Congressional agencies’ work by having some approval mechanism, say this thing called “voting.” Codify their blank-filling exercise. Although again you seem perfectly fine with having little to no say of the same thing being done by people at arm’s length over whom you have no direct authority–only attenuated appropriation and occasional authorization acts.

So if you like, call it replacing their unelected bureaucrats with your own.

“How can I ever change things that I feel?”

Testifying in Congress a couple years ago2 I made the totally unoriginal point that they need more staff. Pick whatever baseline you want, by any measure Congress (personal office and committees) has fewer staff to do what literally no one would disagree is a more complex job. Whether it’s the novel issues now added to the old ones, the larger constituencies, or the impenetrable pace of advancing tech, the work is more difficult and Congress has less of the wherewithal to handle it.

The committee chair conceded the point but lamented that increasing funding for itself is a hard sell for Congress. Fair. But the funding doesn’t have to be additive: it should be a transfer from the Executive to Congress. It’ll take some explaining.3 If Mick Fleetwood can forgive the guy who had an affair with his wife, you can do this.

Let me anticipate three possible retorts (beyond the political sales job):

1. These existing Congressional “agencies” are not policymaking entities; they are advisory bodies.

   What’s the difference? Congress gave the Executive versions their mandate. And while I would, for instance, be clearer about GAO’s remit and proscription of duties, Congress in many cases laid out extensive functions, structures, restrictions, and funding for incredibly Byzantine organizations (personnel reaching into the hundreds of thousands, even omitting DOD and USPS). Personally I think very highly of much of the federal workforce, but there’s nothing magical about their dedication and expertise tied to where they sit (Constitutionally speaking). And if you don’t think so fondly of that workforce, well, leaving it for someone else to directly oversee won’t help.

2. Very complex, detailed regulations deserve public input, i.e. the APA, a fulsome public comment process, etc.

   Maybe this isn’t a likely objection. But in case it is, I should reply with “uh, what?” The APA at its very core is an endeavor to retrofit a legislative mechanism to a legislative function carried out by a non-legislative branch. The whole conceit is based on a syllogism: If we the lawmaking body are to hand over (“delegate” in “law talking guy” terms) lawmaking authority to the Executive, then to do so they should follow a process approximating legislative input from the public. It’s all just a means to bootstrap constituent input and accountability – Congress is already built this way. There’s no need to scaffold an APA onto itself.

3. The Executive is supposed to administer the laws. This would usurp the Article II prerogative. Is Congress supposed to command the military?

   Not a modest proposal to be sure. But it does have its limits. Congress doesn’t have to assimilate the entire agency infrastructure.

• Printing and mailing Social Security checks subject to the rules set by Congress? That seems pretty administrative to me.

• Investigating and apprehending human traffickers, as defined and subject to penalties set by Congress? Again, squarely in the administrative purview. Nobody wants a Congressional FBI.

• Housing and preserving founding documents, while I never thought would invite political controversy, is otherwise fairly policy-invariant4

• National Arboretum? Knock yourself out.

But for example, determining the contours of the hemp legalization shouldn’t, and doesn’t require, Congress laying out bullet points and expecting the Department of Agriculture et. al. to figure out workable details (Chevron or no).5

"Yesterday’s gone, yesterday’s gone”

People much smarter than myself, inclusive of judges and scholars, have wrestled with this esoteric and complicated question of how to functionally delineate between and Article I and Article II authorities. I wouldn’t presume a practicable answer is an obvious one. Instead consider things were not always as we see them now. And there’s no convincing argument that Congress is precluded from taking (rather, reclaiming) more agency for itself. In limited ways we already see the evidence.

“Why don’t you tell me what’s going on?”

Much of administrative law, Chevron, Loper Bright, et. al, is an ongoing dialectic on the granular meaning of laws passed by Congress and the President’s interpretation thereof.

What’s implicit for all of it is that unless a statute convincingly conflicts with the Constitution, the lawmakers in fact get to write them.

It may feel unfamiliar, technical details and assuming ownership and all. It requires a start. I’m reminded of the weird title track from Fleetwood Mac's Tusk. What started as a four-bar soundcheck riff ended up a double album involving Dodger Stadium, tissue box percussion, and a $1.4 million production budget (ed. in that economy?!).

Perhaps not the best example. The point is “time makes you bolder, even children get older.”