Rendering of the proposed Obama Presidential Center museum building Credit: Courtesy OPC

There were some surprises at the latest Obama Presidential Center (OPC) court hearing last week, none odder than the fact that four years after President Barack and Michelle Obama announced Chicago as the site for what was then known as the Obama Presidential Library, we’re still futzing around with court hearings about where it should sit—dithering over technicalities like whether Jackson Park was ever submerged land while, at the same time, waging a life-and-death battle with a Darwinian pandemic under the surreal national leadership of an unhinged egomaniac.  

Thanks to the pandemic, this hearing, before a three-judge federal appeals court panel, took place in part via telephone. It was recorded, which means you can still listen in, on the Court of Appeals for the Seventh Circuit website. If you do, you’ll catch University of Chicago (and NYU) law professor Richard Epstein asking for a reversal of last year’s decision by District Court judge John Robert Blakey to dismiss a lawsuit filed by the activist group Protect Our Parks that sought to keep the Obama Presidential Center out of Jackson Park. And you’ll hear city attorney Benna Ruth Solomon, on the other side, arguing that Judge Blakey did everything right and no further court action is necessary.

According to Epstein, the dismissal rested on two incorrect assumptions: that the city and park district have no fiduciary responsibilities in turning Jackson Park land over to the Obama Foundation; and that any responsibility they could have had was satisfied by showing that the Obama Center will offer the public any benefit at all.

It’s complicated, but Epstein’s arguments include these: the city improperly turned over its decision-making authority to the Obama Foundation; the city’s “use agreement” with the foundation is actually an exclusive lease; and the Obama Center is no longer a library, since the presidential papers will be digitized and maintained elsewhere by the federal government. Epstein also disputes the city’s claim that the OPC will take up only 3.5 percent of Jackson Park, arguing that the center’s nearly 20 acres represent a much larger portion of the park’s usable land (since so much of it is occupied by lagoons and roads). He claims that land worth about $200 million is being handed over to the OPC for $10 for 99 years, and that if you add the expense of roadwork and other infrastructure that the project will require, you’ve got about a half-billion-dollar cost to the public.

Solomon, in turn, argues that the Illinois Museum Act allows for presidential libraries in parks; that the OPC will offer many public benefits; and that Jackson Park will remain a park after the OPC is built. She says nonsubmerged land, like Jackson Park, requires only legislative authorization for transfer.

When presiding Judge Amy Coney Barrett asks Solomon (as she had also asked Epstein) to address the question of whether this case belongs in federal court, the city attorney replies unequivocally that both the city and the district court judge have agreed that “there is standing.” In addition, she says, “We would stress the vital public interest in enabling the city to move forward on this important public project, free of the cloud of litigation. There just is no reason to send [the case] to the state court at this late date.”

But, in spite of the fact that neither the city nor Protect Our Parks are questioning whether the federal court has jurisdiction, the judges seem to be focused on it, raising the issue repeatedly, commenting that claims like this can be pursued in state court, and complaining that “it feels like we’re sitting as a zoning board.” A listener who doesn’t know better might be tempted to think that they’re looking for a way to hand it off.

The final minutes of the oral arguments offer another surprise. During Epstein’s brief rebuttal, he’s asked this: “Would the plaintiffs’ analysis differ if the OPC was placed in Washington Park and not Jackson Park?” To which he responds, “We would not have bothered to bring suit.”

Really? A 20-acre complex with a 235-foot tower in Washington Park would be OK?

Protect Our Parks clarified after the hearing that Epstein was referring to the Washington Park neighborhood, not Washington Park itself.

Judge Barrett concluded the 43-minute hearing by announcing that the case would be taken “under advisement.” Within hours, however, the court issued a demand for a new set of briefs on the question of whether this lawsuit should be in federal court at all. The deadline for those briefs is June 4.  v