A panel of judges on the U.S. Court of Appeals for the District of Columbia Circuit expressed significant skepticism on Friday toward the Justice Department’s argument that the Presidential Records Act (PRA) is unconstitutional. The law, enacted in 1978 following the Watergate scandal, mandates that White House records are government property, must be preserved, transferred to the National Archives after a president leaves office, and are typically made public within a set timeframe.

The Trump administration contends that Congress exceeded its authority by imposing preservation requirements on the executive branch, a position challenged in a lawsuit brought by the American Historical Association and other watchdog groups. The case could ultimately be decided by the Supreme Court.

During the hearing, government attorney John Bailey argued that the PRA represents an unconstitutional encroachment on the presidency and has become outdated in an era of intense political polarization. He warned that the law could prompt future presidents to misuse their predecessors’ records for partisan purposes or deter advisors from providing candid counsel out of concern for later scrutiny.

Judges Cornelia Pillard and Patricia Millett, both appointed by former President Barack Obama, countered that the PRA protects the institution of the presidency itself, not just the individual officeholder. They questioned how future administrations would effectively assume office if records were not preserved and noted the risks of treating presidential records as personal property, which could lead to their sale or destruction by heirs or third parties.

Judge Pillard illustrated a concern that private ownership of records might result in such documents falling into the hands of foreign adversaries. Bailey acknowledged concerns about archiving large volumes of documents digitally—raising the possibility that foreign entities could use artificial intelligence to glean sensitive information from disparate records—but maintained that the law imposes undue restrictions on the executive branch.

The debate also touched on whether Congress has comparable authority to regulate other branches of government, such as the judiciary. Bailey asked if Congress could impose similar archival requirements on Supreme Court records, which are currently considered personal property of the justices and are not publicly available for many years, if at all. Government attorney Jason Jacobson argued that the presidency differs from the judiciary, particularly because transitional administrations depend on access to prior records for national security and governance reasons.

The court’s comments suggested a careful weighing of the PRA’s role in balancing transparency, executive privilege, and national security, underscoring the complexity of defining the limits of congressional authority over presidential materials. Meanwhile, a lower court has ordered the White House to continue preserving records during ongoing litigation.