The Volokh Conspiracy
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D.C. Circuit Orders Trump Administration to Restore Public Database of Federal Expenditures
Judge Henderson writes a forceful opinion rejecting the Trump Administration's attempt to extend executive authority over federal spending.
The Trump Administration has until Friday to restore a public database tracking the expenditure of appropriated funds. On Saturday, in CREW v. OMB, the U.S. Court of Appeals for the D.C. Circuit rejected the Administration's request for a stay pending appeal of a district court injunction ordering the database's restoration, but said the administration has until August 15 to comply.
Judge Karen Henderson issued a statement respecting the denial of the stay pending appeal, which Judge Wilkins joined. (Judge Garcia apparently joined in the order, but not Judge Henderson's opinion.) The opinion is a powerful rebuke of the Trump Administration's attempt to supplant legislative control over federal spending.
Judge Henderson's statement begins:
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.
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.
And later in the opinion:
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 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. . . .
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 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.
