Carla Hayden removed as Librarian of Congress and what this could mean for authors

Last night a number of news outlets reported that President Trump had fired the Librarian of Congress, Carla Hayden. This is very unfortunate. Carla Hayden has really transformed the Library of Congress and updated it in ways that have been badly needed. If efficiency and effectiveness are what this administration is aiming for, she has done a great job of it. 

We’ve already seen, as part of the DOGE effort, the Trump administration sweeping changes that have undermined key parts of our nation’s creative and cultural infrastructure—significant shakeups in agency leadership along with defunding a large number of projects under NEH, NEA, and IMLS grants. A number of lawsuits now challenge the legality of those actions. 

While the Library of Congress similarly supports broad efforts to preserve and provide access to a wide range of cultural and scientific works, it had seemed that the Library of Congress might remain untouched by DOGE. The Library is, of course, the Library of Congress, not “Library of the President,” or the “Library of the United States.” It is organized as part of the legislative branch, and employees are congressional employees. So, at least from the public’s perspective, it might escape relatively unscathed by efforts to consolidate control and minimize expenditures. 

With the removal of Carla Hayden, I’m now not feeling as certain that will be the case. Her removal raises a few questions:

Is this legal? 

You may be wondering, how does the President have the authority to remove the Librarian of Congress from her post? The answer is a little complicated, but it boils down to the Librarian of Congress’s role in acting as an “Officer” of the United States when exercising Executive branch powers, mostly related to the Librarian’s functions under the Copyright Act, such as in issuing regulations, appointing and overseeing Copyright Royalty Judges, or in issuing (indirectly) copyright registrations via the Copyright Office.  

Article II, Section II, Clause 2 of the Constitution provides that the President has the power, with the advice and consent of the Senate, to appoint “Officers of the United States.”  What exactly is an “Officer of the United States” is the subject of a huge number of cases going back to the earliest days of the United States. The basic rule that the Supreme Court has laid out is that “any appointee exercising significant authority pursuant to the laws of the United States is an ‘Officer of the United States,’ and must, therefore, be appointed in the manner prescribed by § 2, cl. 2.” 

Many of the cases about this appointment clause argue about the exact meaning of “significant authority” in various contexts. For the Librarian of Congress, there is pretty well established case law indicating that the post does indeed exercise “officer” level authority because its decisions have considerable consequences—e.g., see this case about billions of dollars at stake in decisions about royalty rates set by the Copyright Office. Again, these cases are mostly about its role with the copyright system. In Eltra v. Ringer, a 1978 4th Circuit decision about copyright registration authority, the court explains the chain of authority issue plainly: 

The registration of copyrights cannot be likened to the gathering of information “relevant to the legislative process” nor does the Register perform a function “which Congress might delegate to one of its own committee.” The operations of the Office of the Register are administrative and the Register must accordingly owe his appointment, as he does, to appointment by one [The Librarian of Congress] who is in turn appointed by the President in accordance with the Appointments Clause. (bracketed text added)

So, it seems pretty clear that even though the Librarian of Congress carries out important legislative branch activities, the position also exercises important executive branch authority and so must be appointed by the president to exercise those powers.

You may have caught that the President’s authority to appoint doesn’t necessarily imply the power to remove that person from office. This, again, is a long-fought-over issue with a significant body of case law. The Supreme Court has explained that the general rule is that “the Constitution has been understood to empower the President to keep these officers accountable—by removing them from office, if necessary. . . . This Court has determined, however, that this authority is not without limit,” such as when Congress has placed specific restrictions on removal.  Right now there are a number of cases pending against the Trump administration about removal of other “officers,” particularly where Congress has specifically said that the President may not remove those individuals except in certain narrow circumstances, with a specific, justified reason for the termination (See here and here for two opposing views of how robust limits on Executive removal authority may be). 

It’s worth noting that this removal authority doesn’t necessarily extend to other “inferior officers” (as the Constitution puts it), so it seems unlikely that the President could directly implement other shakeups (e.g., removing current Register of Copyrights), though if he were to appoint a new Librarian, presumably that person would align with his views and be happy to take steps to effectuate such changes if the President wanted. 

In any case,  in this situation Congress has provided no specific limitations on removal of the Librarian of Congress, and so it was with this basic framework in mind that the D.C. Circuit concluded in a 2012 case, without much discussion, that “the Librarian is appointed by the President with advice and consent of the Senate, 2 U.S.C. § 136, and is subject to unrestricted removal by the President.” There is one small twist–since that case, Congress has changed the law to say that the Librarian of Congress serves a 10-year  term appointment, but that small change probably doesn’t shield this position from the President’s removal authority either, as courts have viewed such limitations as not overriding the President’s authority.  

Who will replace Carla Hayden? 

It has been reported that for now, Robert Newlin, a longtime Library of Congress staff member [edit: serving most recently as Deputy Librarian], will serve as Acting Librarian to fill Hayden’s vacancy.

It is possible that President Trump will move quickly to appoint a new librarian, though there are some good reasons to doubt that will happen. The Librarian of Congress has been a Presidential appointee since at least 1897. As mentioned above in 2015 Congress updated the law to provide for a ten-year term for this position, and Hayden’s term was set to expire next year. Under this law, the President is entitled to appoint a successor, with the advice and consent of the Senate, for a ten year term. But the current administration has left a large number of posts unnominated: according to the Partnership for Public Service, which tracks appointments, of about 1,300 senate-appointed positions, the administration has not yet nominated people to fill 308 positions, while the Senate for its part is slowly moving through nominations (it has 257 nominations pending before it). 

What does this mean for authors?

The Library of Congress serves several important functions for authors: it oversees the Copyright Office, which registers creative works, helps shape regulations and exemptions for users of copyrighted works, studies ways in which the law can be improved, operates the new copyright small claims court, and on occasion will offer its opinion to the courts on issues of importance to authors (e.g., the Office’s recent brief on the scope of authors’ termination rights). 

As for the rest of the Library: with a collection of over 178 million items, it is the largest library in the world—and the United States’ de facto library-of-last-resort—for preserving and providing access to an incredibly broad selection of creative works. If you are an author and care about your work being available to future generations, you should care about the Library of Congress. 

The integrity of the Library’s collection is paramount. In today’s world it seems somewhat remarkable that the Library’s collection has been largely unpoliticized, collecting about as broadly as one could imagine to preserve and provide access to a historical record that is unmatched in human history. We’ve seen some concerning warning signs from this administration that it doesn’t care much for breadth, diversity, or the integrity of a collection when it comes to certain viewpoints in library collections (removing about 300 titles from the Naval Academy library that do not align with the administration’s views). Whether similar action will be taken by the Library of Congress remains to be seen, and I think we should listen closely to what any new appointee has to say about these issues.