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

> Court of Appeals for the D.C. Circuit · August 9, 2025

URL: https://www.frixlaw.com/law-library/cases/11117731

## Case

- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** August 9, 2025
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11117731

## How later opinions describe it (automated extraction)

- explaining that an agency decision is final when it has “real operative effect” and “legal consequences will flow”
- reasoning that the “Congress has plenary power to give meaning to the” Appropriations Clause
- explaining that if “a plaintiff’s claim under his preferred legal theory fails,” that failure “has nothing to do with subject-matter jurisdiction”

## Opinion text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11117731. Public record. Not legal advice.