Citizens for Responsibility and Ethics in Washington v. Office of Management and Budget

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

____________

No. 25-5266 September Term, 2024

1:25-cv-01051-EGS

1:25-cv-01111-EGS

Filed On: August 9, 2025

Citizens for Responsibility and Ethics in

Washington,

Appellee

v.

Office of Management and Budget and

Russell T. Vought, in his official capacity as

Director, Office of Management and Budget,

Appellants

------------------------------

Consolidated with 25-5267

BEFORE: Henderson*, Wilkins, and Garcia, Circuit Judges

ORDER

Upon consideration of the motion for a stay, the response thereto, and the reply;

and the amicus brief, which the court construes as including a motion for leave to file, it

is

ORDERED, on the court’s own motion, that the administrative stay entered on

July 23, 2025, be dissolved effective August 15, 2025, to allow the government

sufficient time to restore the database and disclose materials withheld since March, as

required by the Consolidated Appropriations Act of 2022, Pub. L. No. 117-103, div. E,

tit. II, § 204(b), 136 Stat. 49, 257, the Consolidated Appropriations Act of 2023, Pub. L.

No. 117-328, div. E, tit. II, § 204, 136 Stat. 4459, 4667, and the district court’s order. It

is

* A statement by Circuit Judge Henderson respecting the denial of a stay pending

appeal is attached. Circuit Judge Wilkins joins in the statement.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

____________

No. 25-5266 September Term, 2024

FURTHER ORDERED that the motion for leave to file the amicus brief be

granted. It is

FURTHER ORDERED that the motion for a stay be denied. Appellants have not

satisfied the stringent requirements for a stay pending appeal. See Nken v. Holder, 556

U.S. 418, 434 (2009); D.C. Circuit Handbook of Practice and Internal Procedures 33

(2024).

Per Curiam

FOR THE COURT:

Clifton B. Cislak, Clerk

BY: /s/

Scott H. Atchue

Deputy Clerk

Page 2

KAREN LECRAFT HENDERSON, Circuit Judge, statement

respecting the denial of a stay pending appeal: Throughout the

1600s, the Stuart monarchs engaged in a titanic struggle with

Parliament regarding who would reign supreme over the public

purse. That struggle was marked by civil war, regicide and a

new wellspring of liberty in the Glorious Revolution of 1688.

By the end of the upheaval, Parliament emerged supreme in

matters of taxation and spending. Our Constitution followed

suit, granting the Congress plenary control over the public fisc.

Recently, the Executive has once again locked horns in a

struggle for control over the purse strings. Across a slew of

cases, recipients of congressional funding have challenged the

President’s ability to unilaterally freeze or “impound”

spending.1 Today’s case is but the latest chapter in the ongoing

saga.

1

See, e.g., AIDS Vaccine Advoc. Coal. v. Dep’t of State (AVAC

I), 766 F. Supp. 3d 74 (D.D.C. 2025); AIDS Vaccine Advoc. Coal. v.

Dep’t of State (AVAC II), 770 F. Supp. 3d 121 (D.D.C. 2025); Am.

Council of Learned Soc’ys v. McDonald, No. 25-cv-3657, 2025 WL

2097738 (S.D.N.Y. July 25, 2025); Am. Ctr. for Int’l Lab. Solidarity

v. Chavez-DeRemer, No. 25-cv-1128, 2025 WL 1795090 (D.D.C.

June 30, 2025); Am. Libr. Ass’n v. Sonderling, No. 25-cv-1050, 2025

WL 1615771 (D.D.C. June 6, 2025); Ass’n for Educ. Fin. & Pol’y,

Inc. v. McMahon, No. 1:25-cv-999, 2025 WL 1568301 (D.D.C. June

3, 2025); Rhode Island v. Trump, No. 1:25-cv-128, 2025 WL

1303868 (D.R.I. May 6, 2025); S. Educ. Found. v. Dep’t of Educ.,

No. 25-cv-1079, 2025 WL 1453047 (D.D.C. May 21, 2025); U.S.

Conf. of Cath. Bishops v. Dep’t of State, 770 F. Supp. 3d 155 (D.D.C.

2025); In re Dep’t of Health and Human Servs.—Nat’l Insts. of

Health—Application of Impoundment Control Act to Availability of

Funds for Grants, B-337203 (Gov’t Accountability Off. Aug. 5,

2025), [https://perma.cc/9524-MBWA]; In re Dep’t of Transp., Fed.

Highway Admin.— Application of the Impoundment Control Act to

Memorandum Suspending Approval of State Elec. Vehicle

Infrastructure Deployment Plans (Gov’t Accountability Off. May 22,

2025), [https://perma.cc/YTQ3-HJPT].

2

In 2022, the Congress enacted a statute requiring the

Executive to create and maintain a public database to track the

expenditure of congressionally appropriated funds. The

Executive complied until March of this year when, amidst the

burgeoning fight over impoundment, it informed the Congress

that it now deemed the statute unconstitutional and would no

longer comply with it. Two nonprofit organizations sued to

restore the now disabled website and the district court entered

a permanent injunction requiring restoration of the withheld

data.

The Executive now asks this Court to stay that decision.

To hear the Government tell it, the separation of powers hangs

in the balance and only this Court can set things right. But

when it comes to appropriations, our Constitution has made

plain that congressional power is at its zenith. Because the

Executive has not made the requisite showing to support its

motion for a stay pending appeal, the motion must be denied.

I. BACKGROUND

The Congress appropriates money in one of two forms. A

permanent appropriation makes funds available for a specific

purpose indefinitely. See, e.g., 31 U.S.C. § 1304. A current

appropriation, by contrast, provides a capped lump sum for a

finite period. Most current appropriations expire on an annual

basis and require reauthorization each fiscal year. As part of

its duty to “take Care that the Laws be faithfully executed,”

U.S. Const. art. II, § 3, the Executive must manage those funds.

It does so through apportionment: an internal executive branch

process through which the Office of Management and Budget

(OMB) divides appropriated funds by time or function to

guarantee “the most effective and economical use” of money

and to prevent “a deficiency or [need for a] supplemental

3

appropriation for the period.”2 31 U.S.C. § 1512(a)–(b). OMB

sometimes accompanies its apportionments with footnotes that

guide an agency’s discretion in expending appropriated funds.

See OMB, Circular No. A-11, Preparation, Submission, and

Execution of the Budget, §§ 120.34–120.36 (2024),

[https://perma.cc/PXY4-JTKB]. In the past, apportionment

decisions—and OMB’s guidance—were not ordinarily

communicated outside the executive branch, hindering the

Congress’s ability to track and monitor its appropriations.

In 2022, the Congress chose to remedy that defect. As part

of an omnibus spending bill, it required OMB to maintain a

public website for fiscal year 2022 in order to “post each

document apportioning an appropriation . . . including any

associated footnotes . . . not later than 2 business days after the

date of approval of such apportionment.” Consolidated

Appropriations Act of 2022, Pub. L. No. 117-103, div. E, tit.

II, § 204(b), 136 Stat. 49, 257. The Congress also required that

apportionments “include a written explanation by the official

approving each such apportionment stating the rationale for

any footnotes for apportioned amounts.” Id. § 204(c). The

following year, the Congress made publication of

apportionment decisions a permanent fixture of the Executive’s

duties. See Consolidated Appropriations Act of 2023, Pub. L.

No. 117-328, div. E, tit. II, § 204, 136 Stat. 4459, 4667.

In July 2022, OMB began posting its apportionment

decisions and footnotes on a public website,

https://apportionment-public.max.gov/. The process operated

2

By statute, the President is the relevant apportioning official

for appropriations to executive agencies. 31 U.S.C. § 1513(b). The

President has delegated his responsibility to OMB, a component of

the Executive Office of the President. See Exec. Order No. 6,166

(June 10, 1933), as amended by Exec. Order No. 12,608, 52 Fed.

Reg. 34,617 (Sept. 9, 1987).

4

without hiccup or objection until March 2025, when the

Executive—facing multiple lawsuits claiming that it was

unlawfully impounding congressional funds—changed course.

Three years in, OMB declared “that the disclosure

requirements made OMB’s administration of apportionments

more difficult” and so it disabled the website and declared that

it would no longer operate or maintain the website. Gov’t Br.

7–8 (quotations omitted). The Government Accountability

Office (GAO) requested that OMB restore the apportionment

data, which “facilitates oversight of federal spending” and is

critical to GAO’s numerous investigations “of ongoing

Impoundment Control Act inquiries.”3 Letter from Edda E.

Perez, Gen. Couns., GAO, to Russell T. Vought, Dir., OMB 2

(Apr. 8, 2025) (citation modified), [https://perma.cc/H7UR-

CAJ8].

Meanwhile, two nonprofit organizations, Citizens for

Responsibility and Ethics in Washington (CREW) and Protect

Democracy Project (PDP) (together, Appellees), sued OMB

and its Director to restore access to the database. On summary

judgment, the district court (i) held that OMB’s action violated

the 2022 and 2023 Consolidated Appropriations Acts (CAAs)

and the Paperwork Reduction Act; (ii) vacated and set aside

OMB’s action; and (iii) entered a permanent injunction

prohibiting OMB from removing the database or ceasing to

post apportionment information in conformity with its statutory

duty. See CREW v. OMB, No. 25-cv-1051, 2025 WL 2025114,

at *20 (D.D.C. July 21, 2025). The Government seeks a stay

pending appeal.

3

The GAO is “an independent agency within the legislative

branch that exists in large part to serve the needs of Congress.”

Bowsher v. Merck & Co., 460 U.S. 824, 844 (1983).

5

II. ANALYSIS

A stay “is an intrusion into the ordinary processes of

administration and judicial review” and is thus never awarded

as “a matter of right.” Nken v. Holder, 556 U.S. 418, 427

(2009) (citation modified). Before granting a stay pending

appeal, we consider (1) whether the applicant has made a

strong showing of likelihood of success on the merits;

(2) whether the applicant faces irreparable injury absent a stay;

(3) whether a stay will substantially injure the other parties; and

(4) the public interest. Id. at 434. The Government bears the

burden for making out a case for such extraordinary relief. See

id. at 433–34. As explained below, it has failed to meet that

burden.

A. Likelihood of Success on the Merits

The Government advances two arguments in support of its

likelihood of success on the merits. First, it argues that

Appellees lack standing to challenge OMB’s removal of the

public database. Second, it argues that the CAAs

unconstitutionally intrude on core Article II prerogatives. Each

is addressed in turn.

1. Article III Standing

It is blackletter law that a plaintiff suing in federal court

must satisfy the “irreducible constitutional minimum” of

Article III standing. Spokeo, Inc. v. Robins, 578 U.S. 330, 338

(2016) (quotations omitted). Standing requires a plaintiff to

have “(1) suffered an injury in fact, (2) that is fairly traceable

to the challenged conduct of the defendant, and (3) that is likely

to be redressed by a favorable judicial decision.” Id. The first

of these elements, injury in fact, requires a plaintiff to suffer

“an invasion of a legally protected interest that is concrete and

6

particularized and actual or imminent.” Id. at 339 (citation

modified).

Appellees assert an informational injury, a class of injury

that has been the source of much doctrinal confusion.

Informational injury first emerged in 1989 and crystalized in a

pair of landmark Supreme Court cases, which held that the

nondisclosure of certain information can constitute a concrete

injury giving rise to Article III standing. See Pub. Citizen v.

DOJ, 491 U.S. 440, 448–49 (1989) (concluding that DOJ’s

denial of information regarding judicial candidates injured

plaintiffs by preventing them from “participat[ing] more

effectively in the judicial selection process”); FEC v. Akins,

524 U.S. 11, 13–14, 21 (1998) (holding that an FEC

determination that a lobbying group was exempt from

disclosing its contributions and expenditures imperiled

plaintiffs’ ability to “evaluate candidates for public office”).

Although given its own doctrinal label, informational injury

stems from basic Article III precepts: the denial of information

can sometimes cause de jure harm just like any other injury in

fact. But if stretched to its outermost limits, informational

injury would support a boundless theory of standing. Almost

any governmental policy might conceivably affect the

information ecosystem. Every file not disclosed could be spun

up into an individualized grievance. Without limits, a plaintiff

need claim only an amorphous impediment to the free flow of

information to have standing.

Two important principles therefore constrain the

informational injury doctrine. First, it is not enough that the

Government deny a plaintiff access to information he desires:

federal law must require the Government “to disseminate such

information.” FDA v. All. for Hippocratic Med., 602 U.S. 367,

395–96 (2024); see also Akins, 524 U.S. at 21 (“A plaintiff

suffers an ‘injury in fact’ when the plaintiff fails to obtain

7

information which must be publicly disclosed pursuant to

statute.”). Second, a plaintiff must allege some “downstream

consequences from failing to receive the required information.”

TransUnion LLC v. Ramirez, 594 U.S. 413, 442 (2021)

(citation modified).

We have combined those principles into a two-part test

that asks whether the plaintiff has (1) “been deprived of

information that, on its interpretation, a statute requires the

government . . . to disclose to it” and (2) “suffer[ed] by being

denied access to that information, the type of harm Congress

sought to prevent by requiring disclosure.” Friends of Animals

v. Jewell, 828 F.3d 989, 992 (D.C. Cir. 2016). In short, “a

denial of access to information qualifies as an injury in fact

where a statute (on the claimants’ reading) requires that the

information be publicly disclosed and there is no reason to

doubt their claim that the information would help them.”

Campaign Legal Ctr. v. FEC, 31 F.4th 781, 783 (D.C. Cir.

2022).

There is no dispute that the Government has a statutory

duty to disclose apportionment data. That much is apparent

from the face of the statutes. Appellees are also likely to

succeed in showing “downstream consequences” from the

Government’s denial of that information. TransUnion, 594

U.S. at 442. Appellees use the withheld information to track

the Executive’s expenditures of public funds and to alert the

public to a potential violation of the Impoundment Control Act,

precisely “the type of harm Congress sought to prevent by

requiring disclosure.” Jewell, 828 F.3d at 992; cf. 1 Farrand,

The Records of the Federal Convention of 1787, p. 546 (1911)

(recounting Benjamin Franklin’s view, shared by many

Framers, that it is of central “importance that the people should

know who had disposed of their money, & how it had been

disposed of” as “those who feel, can best judge”).

8

Moreover, PDP invested substantial time and resources in

building a customized website that relies on OMB’s disclosures

to function. By removing the foundation on which PDP’s

design relies, the Government has injured PDP’s investment.

Its pocketbook harm is a quintessential Article III injury, which

is enough to establish standing. See, e.g., Institutional S’holder

Servs., Inc. v. SEC, 142 F.4th 757, 765 (D.C. Cir. 2025). We

need not decide whether Appellees’ more abstract interests in

the information—standing alone—suffice for standing. See

Ctr. for Biological Diversity v. EPA, 861 F.3d 174, 182 (D.C.

Cir. 2017) (explaining that “we need only find one party with

standing to satisfy [Article III’s] requirement”) (citation

modified).

The Government points to Clapper v. Amnesty

International USA in arguing that PDP’s injury is self-inflicted

and therefore cannot give rise to a judicially cognizable injury

in fact. 568 U.S. 398, 416 (2013). Its authority is inapposite.

In Clapper, a group of organizations sued to challenge the

constitutionality of a provision of the Foreign Intelligence

Surveillance Act. Id. at 401. No organization or member

thereof had any evidence that its communications were being

surveilled and the Supreme Court held that the chain of

inferences necessary to infer that any organization’s or

member’s communications might one day be surveilled were

too speculative to give rise to a judicially cognizable injury. Id.

at 410–14. Seeking to resist this conclusion, the challengers

alleged that they had taken “costly and burdensome measures”

to preemptively protect their communications. Id. at 415. But

the Court explained that parties “cannot manufacture standing

merely by inflicting harm on themselves based on their fears of

hypothetical future harm.” Id. at 416.

But PDP did not incur “costs as a . . . reaction to” what the

Government might do. Id. (emphasis added). It incurred costs

9

in reliance on what the Government did do: disseminate

information on which PDP built a website. Put another way,

PDP does not allege a Havens Realty “divergence of resources”

theory in response to Government action but a direct economic

blow to a central “business activit[y]” that predated the

challenged action. Compare Havens Realty Corp. v. Coleman,

455 U.S. 363, 378–80 (1982), with All. for Hippocratic Med.,

602 U.S. at 395. The Supreme Court has routinely found

standing in comparable circumstances. See, e.g., Clinton v.

City of New York, 524 U.S. 417, 426–27, 432 (1998) (farming

cooperative formed in reliance on a tax provision had standing

to challenge President’s line-item-veto of that provision based

on its “concrete plans to utilize the benefits of [the vetoed

provision]”); Cf. Village of Arlington Heights v. Metro. Hous.

Dev. Corp., 429 U.S. 252, 254, 261 (1977) (housing

corporation had standing to challenge zoning laws after

investing time and money on studies undercut by a zoning

ordinance).

The Government offers two further arguments against

standing. First, it asserts that Appellees raise a generalized

grievance. The argument finds no foothold in precedent or in

the record. A generalized grievance is “undifferentiated and

common to all members of the public,” Lujan v. Defs. of

Wildlife, 504 U.S. 555, 575 (1992) (citation modified), in

contrast to a “particularized” injury that “affect[s] the plaintiff

in a personal and individual way, id. at 560 n.1. So, for

example, Maryland and Virginia residents whose organization

was based in Washington, D.C. and who learned that the

Government intended to transfer federal property in

Pennsylvania to a Christian college lacked standing to assert an

Establishment Clause violation because they suffered no

“injury of any kind, economic or otherwise.” Valley Forge

Christian Coll. v. Ams. United for Separation of Church &

State, Inc., 454 U.S. 464, 467–68, 486–87 (1982). And, as the

10

Government notes, in United States v. Richardson the Supreme

Court held that a taxpayer lacked standing to enforce the

Statement and Account Clause.4 418 U.S. 166, 167–70 (1974).

The throughline is a plaintiff lacks standing if his only injury is

a bare interest that the Government follow the law. Appellees

bring far more to the table. The district court found—and the

Government does not contest—that PDP suffered and

continues to suffer a pocketbook injury from the Government’s

alleged violation of the CAAs. See CREW, 2025 WL 2025114,

at *12. That pecuniary harm is in no way a generalized

grievance.

Next, the Government argues that the CAAs lack the

rights-creating language necessary for standing. Its theory is

wrong twice over. As a threshold matter, the Government

confuses jurisdiction with the merits. Whether Appellees have

a right under the relevant statute goes to their cause of action—

a merits inquiry—not their standing, a jurisdictional requisite.

Courts once routinely conflated these two distinct areas of law.

But in 2014, the Supreme Court rejected the notion that

4

The Government repeatedly looks to Richardson for help but

without success. Richardson predates modern standing doctrine and

held that a plaintiff lacked taxpayer standing because no logical

nexus existed between the plaintiff’s taxpayer status and the claim

raised: the Congress’s failure to require a more detailed report from

the Executive of an agency’s expenditures. Richardson, 418 U.S. at

174–75. Subsequent Supreme Court precedent limited Richardson

to “taxpayer standing” cases and explained “that the legal logic

which critically determined Richardson’s outcome is beside the

point” in informational injury cases. Akins, 524 U.S. at 22–23.

Indeed, Richardson’s sweep as pressed by Government relies on the

Akins dissenters’ reading of the case. See id. at 32–37 (Scalia, J.

dissenting). The dissenters themselves acknowledged that Akins

“reduces [Richardson] from a landmark constitutional holding to a

curio.” Id. at 33.

11

so-called “prudential” or “statutory” standing implicates a

court’s subject matter jurisdiction. Lexmark Int’l, Inc. v. Static

Control Components, Inc., 572 U.S. 118, 127–28 & n.4 (2014).

Lexmark emphasized that whether a plaintiff has a viable cause

of action constitutes “a matter of statutory interpretation,”

which seeks to “ascertain . . . the scope of the private remedy

created by Congress.” Id. (citation modified). By contrast,

constitutional standing goes to whether a plaintiff has a case or

controversy within the meaning of Article III. Id.

As relevant here, the standing inquiry turns on whether

Appellees have suffered an injury as a matter of fact; not

whether the Congress has vested them with a means to

vindicate their injury as a matter of law. A party may suffer an

Article III injury without possessing a corresponding cause of

action to vindicate that injury. See, e.g., Morrison v. YTB Int’l,

Inc., 649 F.3d 533, 536 (7th Cir. 2011) (explaining that if “a

plaintiff’s claim under his preferred legal theory fails,” that

failure “has nothing to do with subject-matter jurisdiction”).

And a party may possess a cause of action without suffering an

Article III injury. See TransUnion, 594 U.S. at 426–27. The

two are neither synonymous nor coextensive. Indeed, the

Government’s principal case for its rights-creating argument

was itself resolved on the merits, not at the jurisdictional

threshold. See Medina v. Planned Parenthood S. Atl., 145 S.

Ct. 2219 (2025).

Even taking the Government’s argument on its own terms,

it stumbles out of the gate. It insists that Appellees must

identify “a statute that creates a particular right in the plaintiff”

and highlights that “the relevant section [of the CAA] contains

no rights-creating language.” Gov’t Br. 13 (citing Medina, 145

S. Ct. at 2229). The focus on rights-creating language that the

Government extracts from Medina has no bearing here.

Medina involved an attempt by private litigants to enforce a

12

provision of the Medicaid statute—which contains no private

right of action—through 42 U.S.C. § 1983. Medina, 145 S. Ct.

at 2226–28. “But § 1983 provides a cause of action only for

the deprivation of rights, privileges, or immunities.” Id. at

2229 (citation modified). Thus, for another federal statute to

be enforceable via § 1983, a court must ascertain whether that

statute vests the plaintiff with a right. The inquiry looks for

rights-creating language only because § 1983 directs courts to

look for that language.

The APA, by contrast, asks whether a party is aggrieved,

adversely affected or suffering a legal wrong due to agency

action. 5 U.S.C. § 702. If so, the party may challenge that

action. Agency action may be substantively illegal because it

violates another law, but that other law need not contain rights-

creating language to support an APA challenge. Instead, a

plaintiff need only fall “within the ‘zone of interests’ sought to

be protected by the statut[e],” thus “enabling suit by any

plaintiff with an interest arguably sought to be protected by the

statute.” Thompson v. N. Am. Stainless, LP, 562 U.S. 170,

177–78 (2011); see also id. (explaining that the standard is not

met only “if the plaintiff’s interests are so marginally related to

or inconsistent with the purposes implicit in the statute that it

cannot reasonably be assumed that Congress intended to permit

the suit”). The Government has advanced no argument that

Appellees fail to clear that low bar. And because the zone of

interests inquiry is not jurisdictional, the Government’s failure

to raise it renders the issue forfeited.

2. The Constitutional Design

On the merits, the Government claims that the CAAs

“impermissibly intrude on the Executive Branch’s Article II

authorities” by requiring public disclosure of “sensitive

13

information contained in apportionments.” Gov’t Br. 19. Its

argument fails on constitutional first principles.

a. Constitutional Text, Structure and History

The President lacks the inherent power to apportion

money among agencies. Centuries of interbranch contests in

England and the colonies cemented the legislature’s plenary

power over the purse and rejected any assertion of executive

prerogative to the contrary. In dispensing apportionments, the

Executive exercises authority contingent on the Congress’s

exercise of its appropriations power. And when it comes to

appropriations, congressional power is at its zenith.

In the run up to the Revolution, colonists justified their

opposition to the Stamp Act, Townshend Duties and Tea Act

by pressing that only a body representative of the people could

legitimately control the people’s money. See Resolutions of

the Stamp Act Congress (1765) (asserting “that no taxes ever

have been, or can be constitutionally imposed on [the People],

but by their respective legislatures.”). Summarizing a common

sentiment of the era, John Dickinson, the “penman of the

Revolution,” reasoned that:

No free people ever existed, or ever can exist,

without, keeping, to use a common but strong

expression, “the purse strings” in their own

hands. Where this is the case, they have a

constitutional check upon the administration,

which may thereby be brought into order

without violence: but where such a power is not

lodged in the people, oppression proceeds

uncontrolled in its career, till the governed,

transported into rage, seeks redress in the midst

of blood and confusion.

14

John Dickinson, Letters from a Farmer in Pennsylvania IX

(1768), [https://perma.cc/W7VB-58CU]. Following

independence, “[m]any early state constitutions vested the

legislative body with power over appropriations.” CFPB, v.

Cmty. Fin. Servs. Ass’n of Am., Ltd., 601 U.S. 416, 430 (2024).

The Framers followed suit. The Constitution vests the power

to raise revenue and appropriate funds in the Congress’s

exclusive purview, see U.S. Const. art. I, § 8, cl. 1; id. § 9, cl.

7, thus separating the “sword” in the Executive from “the

purse” in the Legislature. The Federalist No. 78, at 465 (A.

Hamilton) (C. Rossiter ed., 1961).5

The Appropriations Clause requires that “[n]o money . . .

be drawn from the Treasury, but in Consequence of

Appropriations made by Law,” U.S. Const. art. I, § 9, cl. 7, and

the Take Care Clause “charges the Executive Branch with

enforcing federal law,” Medina, 145 S. Ct. at 2229 (citing U.S.

Const., art. II, § 3), meaning the Executive may neither spend

unappropriated money nor refuse to spend money appropriated

by the Congress. The Chief Magistrate’s role in appropriations

is ministerial; he is an agent bound to faithfully execute the

legislature’s command. The Take Care Clause is, first and

foremost, a duty imposed on the President. And when the

President exercises his duty to “appl[y] and disburse[] . . . the

public moneys,” he must do so “in conformity to the general

5

During the Ratification debates, one way that Federalists

allayed fears of overweening presidential power was by underscoring

that “[t]he purse is in the hands of the representatives of the people.”

3 Elliot’s Debates on the Federal Constitution 393 (1836). Indeed,

among the three branches, the legislature was considered most likely

to encroach on the powers of the other two because it “alone has

access to the pockets of the people.” The Federalist No. 48, at 310

(J. Madison) (C. Rossiter ed., 1961).

15

appropriations of the legislatures.” The Federalist No. 72, at

435–36 (A. Hamilton) (C. Rossiter ed., 1961).

The Government insists that because it is “executing” the

laws, the source of its power is Article II, not Article I, and thus

the Congress cannot “impair” it “in the performance of its

constitutional duties.” Gov’t Br. 18–19, 22 (quoting Clinton v.

Jones, 520 U.S. 681, 701 (1997) (quotation omitted)); see also

Gov’t Reply 10 (acknowledging the disclosure requirement

stems from the Congress’s Article I power but insisting that

power takes a back seat to Article II execution). As the

Supreme Court underscored, the Congress may “impose upon

any executive officer any duty they may think proper . . . and

in such cases, the duty and responsibility grow out of and are

subject to the control of the law, and not to the direction of the

President.” Kendall v. United States, 37 U.S. (12 Pet.) 524, 610

(1838). A contrary construction, in the Court’s words, “would

be an alarming doctrine.” Id.

The Government claims that public disclosure of

apportionment decisions risks intrusion into core Executive

powers. And it insists that disclosure is unnecessary for the

Congress to safeguard its authority because “Congress

exercised its spending authority for centuries before first

enacting” the CAAs. Gov’t Reply 10. Our country’s history

teaches otherwise. Disclosure of the very information at issue

here is not only a permissible exercise of legislative authority;

at the Founding, it was considered a necessary exercise of that

authority. Just three days before the close of the Philadelphia

Convention, George Mason introduced the first draft of the

Statement and Account Clause, which would have required an

annual publicization of public expenditures. 2 Farrand, supra,

at 618. Madison changed “annual” to its current form, “from

time to time,” to give “discretion [to] the Legislature” to

control the release of appropriations information. Id. at 619

16

(emphasis added). As it now reads, the Clause provides that

“a regular Statement and Account of the Receipts and

Expenditures of all public Money shall be published from time

to time.” U.S. Const. art. I, § 9, cl. 7.

During the Virginia Ratifying Convention, Mason warned

that Madison’s capacious language might allow the “receipts

and expenditures of the public money” to “be concealed

forever. The people, he affirmed, had a right to know the

expenditures of their money.” 3 Elliot’s Debates on the

Federal Constitution 459 (1836). Patrick Henry similarly

warned that “the national wealth is to be disposed of under the

veil of secrecy.” Id. at 462. Defenders of the Constitution

assured the public that this would not be so. Madison reasoned

that by giving the Congress discretion, its record “would be

more full and satisfactory to the public, and would be

sufficiently frequent.” Id. at 460. Richard Henry Lee, the

erstwhile president of the Continental Congress, dismissed the

Antifederalists’ concerns as “trivial” and emphasized that the

plain import of the language was that information regarding

public money was to be published at “short, convenient

periods.” Id. at 459. And Federalist James McHenry found the

Clause praiseworthy for meeting “the Spirit of Economy and

free Government”—that “the People who give their Money

ought to know in what manner it is expended.” 3 Farrand,

supra, at 150.

Three principles emerge from the Ratification history.

First is the centrality of public disclosure regarding

appropriations. Second is the Congress’s broad discretion to

regulate those disclosures. Third is the danger of Executive

overreach absent public scrutiny. Justice Story underscored

each point in his overview of the Appropriations Clause,

explaining:

17

[I]t is highly proper, that congress should

possess the power to decide, how and when any

money should be applied for [its] purposes. If

it were otherwise, the executive would possess

an unbounded power over the public purse of

the nation; and might apply all its monied

resources at his pleasure . . . . [A]nd to make

[Congress’s] responsibility complete and

perfect, a regular account of the receipts and

expenditures is required to be published, that

the people may know, what money is expended,

for what purposes, and by what authority.

2 Story, Commentaries on the Constitution § 1348, p. 215 (4th

ed. 1873). St George Tucker similarly reasoned that public

disclosure was the ultimate “check” against “the extravagance,

and profusion, in which the executive department might

otherwise indulge itself . . . [and] also against any

misappropriation, which a rapacious, ambitious, or otherwise

unfaithful executive might be disposed to make.” 1 St. George

Tucker, Blackstone’s Commentaries 362 (1803). In a similar

vein, Madison noted that the House of Representatives’ “power

over the purse” was “the most complete and effectual weapon

with which any constitution can arm the immediate

representatives of the people.” The Federalist No. 58, at 359

(J. Madison) (C. Rossiter ed., 1961).

Early practice tracked their understanding. The First

Congress inserted a mandatory disclosure in the legislation

creating the Treasury Department, which required the Treasury

Secretary “to prepare and report estimates of . . . the public

expenditures . . . [and] to make report and give information to

either branch of the Legislature . . . respecting all matters . . .

which shall appertain to his office.” An Act to establish the

Treasury Department, ch. XII, § 2, 1 Stat. 65, 65–66 (1789).

18

Within months, the Treasury was providing the Congress with

quarterly accounting statements of the sort the Government

now deems unconstitutional. See 1 Annals of Congress 17,

1061 (1790). When Thomas Jefferson came into office, he

declared it an “an object of great importance” that the Treasury

Department “simplify our system of finance . . . so that every

member of Congress, and every man of any mind in the Union

should be able to comprehend [it].” Letter from Thomas

Jefferson, President of the U.S., to Albert Gallatin, Sec’y of the

Treasury (Apr. 1, 1802), [https://perma.cc/UQX6-MYNG].

Granted, Madison acknowledged during Ratification that,

notwithstanding the Statement and Account Clause, the

Government might occasionally need to “withhold from the

public knowledge what in their judgment may require secrecy.”

3 Elliot’s Debates, supra, at 331. Reflecting the Clause’s

location in Article I, however, the only implicit withholding

power resides squarely with the Congress. Thus, when

President Madison later wished to make a secret expenditure to

occupy parts of Spanish-controlled Florida, he asked the

Congress for authorization—and the Congress, not the

President, declared that the appropriation could be withheld

temporarily from public disclosure. 3 Stat. 471, 471–72

(1811).

* * *

In a Republic, “the people may have an opportunity of

judging not only the propriety of . . . appropriations, but of

seeing whether their money has actually expended only, in

pursuance of the same.” St. George Tucker, supra, at 362.

Despite their differences, Antifederalists and Federalists

agreed that the citizenry had a right to know how the

Government manages its money, not a privilege contingent

upon the whims of the Executive. Their dispute was only over

19

the wisdom of allowing the legislature to impose reasonable

limitations on that right. Congressional power won out. And

the Congress, as is its right, has opted to keep the citizenry

informed by shedding more light on the appropriations process

through the CAAs. The Constitution’s text, structure and

history uniformly cut against declaring the CAAs

unconstitutional. The only question remaining is whether

precedent compels a contrary result. It does not.

b. Precedent

The courts have long recognized the Congress’s “absolute

control of the money of the United States.” Hart’s Case, 16

Ct. Cl. 459, 484 (1880), aff’d sub nom. Hart v. United States,

118 U.S. 62 (1886). And they have long recognized that a

primary mechanism for the Congress to check unbridled

Executive power is through the Constitution’s “reservation of

congressional control over funds in the Treasury.” OPM v.

Richmond, 496 U.S. 414, 425 (1990). The Government argues

that OMB apportionments fall under the deliberative process

privilege and are thus shielded from disclosure.

Set aside that the privilege applies only to material that is

“predecisional and . . . deliberative,” a requirement that

apportionment decisions likely do not meet.6 In re Sealed

6

Compare Reps. Comm. for Freedom of the Press v. FBI, 3

F.4th 350, 362 (D.C. Cir. 2021) (explaining that “[a] document is

predecisional if it was generated before the agency’s final decision

on the matter” and “is deliberative when it is prepared to help the

agency formulate its position, and it reflects the give-and-take of the

consultative process”), with Bennett v. Spear, 520 U.S. 154, 178

(1997) (explaining that an agency decision is final when it has “real

operative effect” and “legal consequences will flow”), OMB,

Circular No. A-11, supra, at §§ 120.1, 120.34 (describing

apportionments and their footnotes as “legally binding”), and 31

20

Case, 121 F.3d 729, 737 (D.C. Cir. 1997). Set aside that the

Government itself obliquely acknowledges that the privilege

may not “strictly appl[y].” Gov’t Br. 23. And set aside that in

neither of its briefs does the Government fully advance the

deliberative process argument. Cf. Stein v. FEC, 77 F.4th 868,

873 (D.C. Cir. 2023) (noting that “woefully undeveloped

arguments” or “argument[s] raised only summarily” are

“forfeited”) (citation modified). The only case the Government

cites across two briefs, Judicial Watch, Inc. v. FDA, discusses

the deliberative process privilege as codified in the Freedom of

Information Act (FOIA)—and rejects the privilege. 449 F.3d

141, 150–52 (D.C. Cir. 2006).

The deliberative process privilege guards against agency

“chill” by limiting public disclosure of “documents reflecting

advisory opinions, recommendations, and deliberations that are

part of a process by which Government decisions and policies

are formulated.” Reps. Comm. for Freedom of the Press, 3

F.4th at 361. It “originated as a common law privilege” and

was subsequently codified by the Congress as an exception to

FOIA disclosure. In re Sealed Case, 121 F.3d 729, 737 (D.C.

Cir. 1997); see 5 U.S.C. § 552(b)(2). But just as the Congress

may extend the privilege by statute, so too may it decline to do

so. The Government points to no precedent from this Court or

the Supreme Court that has ever held the privilege to be a

constitutional baseline from which the legislature is not free to

depart.7 Moreover, even if we were to embrace the

U.S.C. §§ 1517–19 (imposing civil and criminal penalties on

officials who expend or obligate in excess of an apportionment).

7

In dicta, In re Sealed Case suggested in a footnote that some

undefined aspects of the privilege might have constitutional roots.

121 F.3d at 737 n.4. But elsewhere, the opinion distinguished the

presidential privilege—which it described as “rooted in

constitutional separation of powers principles”—from the

21

Government’s logical leap and constitutionalize the privilege

as a matter of judicial fiat, “[t]he deliberative process privilege

is a qualified privilege and can be overcome by a sufficient

showing of need.” In re Sealed Case, 121 F.3d at 737; accord

Northrop Corp. v. McDonnell Douglas Corp., 751 F.2d 395,

404 (D.C. Cir. 1984). Here, need would readily supersede any

claim of privilege.

As the Supreme Court has explained, the “Congress has

plenary power to exact any reporting and accounting it

considers appropriate.” Richardson, 418 U.S. at 178 n.11; see

also Harrington v. Bush, 553 F.2d 190, 194–95 (D.C. Cir.

1977) (reasoning that the “Congress has plenary power to give

meaning to the” Appropriations Clause). Against that plenary

power, the Government asserts that the CAAs risk revealing

vaguely defined “sensitive,” “deliberative” or “policy”

information, thereby chilling OMB’s communications. Gov’t

Br. 19–22. Yet the Government never explains why OMB

cannot communicate any privileged information to the relevant

agencies outside the apportionment document itself. All it

offers is an unhelpful line that doing so would be less

“efficient[].” App. 70 ¶ 15. That objection is, as the district

court noted, a “policy disagreement with the [CAAs] without a

constitutional foundation.” CREW, 2025 WL 2025114, at *14.

The current administration is not the first to wince at

congressional oversight over spending. “As Alexander

Hamilton learned to his dismay, the reporting requirements in

the hands of political opponents could be a prodigious

mechanism for harassment.” Jerry L. Mashaw, Recovering

American Administrative Law, 115 Yale L.J. 1256, 1287

(2006). But if the Executive finds disclosure burdensome, it

must seek relief from the Congress, not from the unelected

deliberative process privilege, which it described as rooted in

common law. Id. at 745.

22

judiciary. Our duty is to enforce the law—constitutional and

statutory—and, absent an “irreconcilable variance” between

the two, we cannot disregard a statute any more than we could

the Constitution. The Federalist No. 78, at 467 (A. Hamilton)

(C. Rossiter ed., 1961).

For these reasons, the Government has not shown that it is

likely to succeed on the merits of its claim that the CAAs are

unconstitutional.

B. Irreparable Harm, Harm to Appellees & the Public

Interest

The harm to the Government and the public interest factor

“merge” when the Government is a party so they are considered

together. Nken, 556 U.S. at 435. Assuming the sliding-scale

approach to stays remains viable in our Circuit, a stay applicant

that cannot meet its burden on the merits must show that the

other three factors “strongly favor” a stay. NAACP v. Trump,

321 F. Supp. 3d 143, 146 (D.D.C. 2018) (citing WMATA v.

Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977)). The

Government does not make that showing.

As has become a theme in the Government’s recent

emergency motions practice, it “spends almost all of its brief

arguing the merits.” J.G.G. v. Trump, No. 25-5067, 2025

WL 914682, at *11 (D.C. Cir. Mar. 26, 2025) (Henderson, J.,

concurring). The Government’s opening brief devotes a mere

two paragraphs to the issue of irreparable harm, one of which

simply repackages its merits argument. Its reply brief is

altogether silent on the issue. Insofar as the Government

advances an independent irreparable harm argument, it is that

disclosure cannot be undone so it should presumptively obtain

relief. Its authority is a string of cases acknowledging that stays

pending appeal are “routine in the analogous FOIA context.”

23

Gov’t Br. 25 (quoting People for the Am. Way Found. v. Dep’t

of Educ., 518 F. Supp. 2d 174, 177 (D.D.C. 2007)).

The Government’s own authority shows why its cases do

not control. A stay in FOIA litigation is common because

“release of the documents would moot a defendant’s right to

appeal.” People for the Am. Way Found., 518 F. Supp. 2d at

177. In that context, disclosure is an all-or-nothing proposition.

And a stay is entered for a quintessentially valid function of

preliminary equitable relief: to preserve the remedial power of

the court long enough to reach the merits. That is not the

situation here. In the absence of a stay, the Government will

have to restore the public website pending appeal. But should

it prevail on the merits, it can take down the website and the

information it contains and refuse to make future

apportionment disclosures—just as it did after complying with

the CAAs for three years.

Unlike its merits arguments, the Government’s claims of

injury have some intuitive force. That force, however, is not

enough to meet the irreparable injury factor. As noted, the

Government devotes only threadbare attention to its theory of

irreparable harm before altogether abandoning the issue in

reply. It is the Government’s burden to establish irreparable

harm; not the Court’s responsibility to think of ways in which

it might be harmed. See Nken, 556 U.S. at 434. As we have

previously explained, the Government “must demonstrate the

specific harm that would—not could—result from denying a

stay,” Singh v. Berger, 56 F.4th 88, 97 (D.C. Cir. 2022), as

“[e]quity will not act against something merely feared as liable

to occur at some indefinite time,” Connecticut v.

Massachusetts, 282 U.S. 660, 674 (1931) (citation modified);

see also Nken, 556 U.S. at 434–35 (“[S]imply showing some

possibility of irreparable injury fails to satisfy the second

factor”) (citation modified). Although the question is close, the

24

Government has failed to carry its burden on factor two at this

stage in the litigation.

Appellees, for their part, have shown harm if a stay is

entered. They will be deprived of information that the

Founding generation—from Franklin to Jefferson to Madison

to Mason—all thought vital to our Republic. And PDP will

suffer additional pecuniary harm to its business

It is less clear how a court should weigh the public interest

when the Executive challenges the constitutionality of a duly

enacted congressional statute. See Harris v. Bessent, No.

25-5037, 2025 WL 980278, at *25 (D.C. Cir. Mar. 28, 2025)

(Henderson, J., concurring), vacated en banc, 2025 WL

1021435 (D.C. Cir. Apr. 7, 2025), abrogated sub nom., Trump

v. Wilcox, 145 S. Ct. 1415. When the political branches are at

loggerheads, assessing the public interest can be an exercise in

asking “whether a particular line is longer than a particular rock

is heavy.” Bendix Autolite Corp. v. Midwesco Enters., Inc.,

486 U.S. 888, 897 (1988) (Scalia, J., dissenting). Insofar as we

must offer an opinion, the public interest lies with Appellees.

To grant the Executive a stay pending appeal in this separation-

of-powers standoff would effectively cut the Congress’s purse

strings. No court would allow a losing party to defy its

judgment. No President would allow a usurper to command

our armed forces. And no Congress should be made to wait

while the Executive intrudes on its plenary power over

appropriations and disclosure thereof. The public interest is

best served by maintaining the separation-of-powers balance

struck by the Constitution and especially so if the challenged

statutes keep the citizenry abreast regarding duly appropriated

expenditures.

* * *

25

For the foregoing reasons, the Government’s motion for a

stay pending appeal is denied and the administrative stay

entered on July 23, 2025, is dissolved effective August 15,

2025, to allow the Government sufficient time to restore the

database and disclosure materials withheld since March, as

required by the Consolidated Appropriations Acts and the

district court’s order.