The Ballroom, the Betting App, and the Burden on Power

A president wishes to demolish and renovate his official residence, adding a grand ballroom. Congress has, by its own prior act, forbidden the construction of any building or structure on certain federal grounds in the capital without its express authority. Yet the renovation proceeds, the Supreme Court by a narrow vote declining to halt it, while one prominent commentator declares the ballroom “doesn’t belong in court,” but in the political contest between president and legislature. I find in this scene a familiar pattern: the executive claiming a kind of prerogative, the legislature resting on its law, and the judges uncertain whether they ought to interpose. Underneath the quarrel over architecture lies the older question: what is political power, and on what trust is it held?

When I wrote the Second Treatise of Government, I defined political power as a right to make laws with penalties for the regulation and preservation of property—by which I meant lives, liberties, and estates—only for the public good. Anything done in virtue of office that cannot be brought under that definition bears the burden of justification. The law here is clear in its form: no new building or structure on these public grounds without the express authority of Congress. If the president proceeds without that authority, he does not exercise ordinary executive power under a law, but steps into prerogative—power claimed to act for the public good without, or even against, the standing rule. Such power may sometimes be useful, but it is always dangerous, for it leans toward making the magistrate judge in his own case.

Prerogative, as I there argued, is tolerable only so long as it is visibly for the good of the people and remains revocable by them through their representatives. A temporary shelter in an emergency, raised faster than the law can speak, is one thing; a grand ballroom for the comfort or glory of the ruler is another. Here, Congress has already spoken in general terms and reserved to itself any exception. For the executive to build first and seek indulgence later is to invert the order of trust. The question is not whether a ballroom is pleasing, nor whether the president’s taste in buildings is superior to that of legislators, but whether any magistrate may set aside a public rule that crosses his desires, and then plead convenience as a defence.

What then of the Supreme Court’s abstention? There is some wisdom in judges who know the limits of their commission, and who refuse every invitation to become a third political contestant. If the law plainly forbids new structures without Congress’s assent, and Congress chooses not to enforce its own condition, a court may reason that the people’s representatives have, by acquiescence, relaxed their own guard. To that extent, the Court’s sitting out avoids one more step toward judicial empire. Yet abstention does not dissolve the underlying trust. It leaves unsettled whether the legislature’s declared will means what it says, and whether future executives may treat such statutes as mere suggestions. A constitution of liberty cannot live long on winked-at laws.

The same uncertainty appears, in another dress, in the quarrel over a sports-betting platform called Kalshi. One federal circuit has held that federal regulators, not a state division of gaming enforcement, have authority over its “sports-related event contracts.” Another court reports that a different state’s gaming board has sent a cease-and-desist letter, invoking its own statutes and regulations. Here again two powers lay claim to jurisdiction, each with a colour of law, and those who trade on the platform are left to guess whose word will stand. Men in the state of nature are free to dispose of their actions and possessions within the bounds of reason; when they submit to government, it is to gain a known standing rule and an impartial judge. Where overlapping authorities produce only conflicting commands, the improvement over nature is hard to discern.

I do not presume to know, from these narrow reports, which set of regulators has the better legal title. But I know by reason what question must be asked. Do these arrangements, taken together, secure to the people more safety in their property and more clarity in the rules by which they may contract and trade? Or do they instead expose them to penalties first from one hand and then from another, each power insisting that its own will must prevail? If the latter, then even well-meaning regulation begins to taste like arbitrary power. For when a man cannot foresee, by consulting the published law, whether his wager is permitted, he is again subject to the momentary discretion of officials who are, in effect, judges in their own case.

Yet we must not, upon every misstep, cry that government is dissolved. One infringement, one doubtful exercise of prerogative, one circuit split, does not amount to the “long train of abuses” which shows a settled design to reduce a people under absolute power. The people’s right, in such moments, is first to demand clarity: that Congress either enforce or revise its own limits; that executives respect those limits as conditions of their trust; that courts, even when they abstain from immediate intervention, speak plainly about the law’s meaning; and that regulators who would bind men’s contracts state openly their authority and its bounds. If those who govern remember that they are but trustees of the workmanship of one Maker, sent into the world about His business and not their own, the ballroom and the betting app alike can be brought under rules that free men might reasonably consent to obey.

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