Perlmutter v. Blanche – Register of Copyrights Sues Trump Over His Attempt to Remove Her

Yesterday evening Register of Copyrights Shira Perlmutter filed suit against a number of individuals involved in both her attempted removal and replacement, including  Todd Blanche “in his capacity as the person claiming to be acting Librarian of Congress,” and Paul Perkins “in his capacity as the person claiming to be the Register of Copyrights,” as well as several member of the Trump administration and President Trump himself. This is Perlmutter’s full complaint and this is the docket for the suit.

If you haven’t been following, see our earlier posts about the firing of Dr. Carla Hayden as Librarian of Congress and the attempted removal of Perlmutter from her post as Register of Copyrights and subsequent attempted appointment of Hayden and Perlmutter’s replacements. 

These positions are important for authors because the Library of Congress preserves and provides access to their works at a scale like no other library, and the Register of Copyrights has several important roles in the administration of U.S. copyright law. 

While we now have some direct statements from the White House on its rationale for firing Dr. Hayden, it’s still not entirely clear why the administration attempted to remove Perlmutter. Speculation abounds, from a somewhat generic desire to remove “deep state librarians” who promote woke ideology to a more specific goal of countering her views on how copyright law should respond to artificial intelligence or other technologies (this insinuated because the Copyright Office issued an unusually timed report on AI training and copyright the day before Perlmutter’s dismissal). This theory is complicated by reporting that the Trump-appointed replacements aren’t exactly friendly to big tech. 

Whatever the reason, we reiterate that we think the attempted removal of Perlmutter should be condemned. While we definitely disagree with some statements in the Office’s AI training report, we respect Shira Perlmutter as the Register and think she has done an admirable job leading the Office. Her continued role as Register would be in the public interest.

Perlmutter’s legal arguments 

The factual allegations in the suit are well-reported and there is nothing in the complaint that really sheds new light on the situation. But the legal arguments that Perlmutter makes, expounded on in her memorandum in support of a temporary restraining order,  are worth examining. She makes basically two: 

1. That her removal was illegal because the Copyright Act (17 USC 701) gives only the Librarian of Congress, not the President, the power to remove her, and 
2. President Trump’s attempted appointment of her and Hayden’s replacements is illegal under something known as the “Federal Vacancies Reform Act.”

Perlmutter’s case against removal

Perlmutter’s first argument is a straightforward separation of powers argument that would seem strong, at least up until recently. 

As recounted in our earlier post, it’s not intuitive that the President has any authority over legislative branch agencies such as the Copyright Office. But, because the Library of Congress and the Copyright Office do exercise executive branch authority (e.g., issuing regulations, making rules), the courts have indicated that the Librarian of Congress is subject to some Executive Branch oversight – the primary means of oversight being removal of the head of the agency. This is why many have concluded that, while unfortunate, it may well be legal for the President to remove Dr. Hayden from her post. It does not necessarily follow, however, that the President has unlimited authority to remove “inferior officers” (as the Constitution puts it) who report to the Librarian of Congress. This is what Perlmutter takes issue with. The Copyright Act is very clear about who appoints and has supervision of the Copyright Office, and it does not include the President: 

“The Register of Copyrights, together with the subordinate officers and employees of the Copyright Office, shall be appointed by the Librarian of Congress, and shall act under the Librarian’s general direction and supervision.”

At least in the past, when Congress had put in place such special provisions about oversight, in effect, insulating certain inferior officers from direct control of the President. As Perlmutter points out, the Supreme Court has stated  in these cases that, “it is ordinarily the department head, rather than the President, who enjoys the power of removal.” 

The idea that Congress can insulate some individuals from direct Executive Branch oversight isn’t novel – it’s a key feature of the structure of independent agencies in the United States, first approved of by the Supreme Court in Humphrey’s Executor v. United States, 295 U.S. 602 (1935) in a case about the President’s authority over the Federal Trade Commission. But in recent years–and especially this year–the Supreme Court’s willingness to continue to uphold limits on Executive Branch removal power are being called into question. 

The most recent thread in this erosion of independent agency protection actually came just last night, in Trump v. Wilcox, a suit about the removal of members of the National Labor Relations Board and the Merit Systems Protection Board (both independent agencies). The case has generated a stir because while the court did not directly overturn past precedent on protections for independent agencies’ heads, it has as part of its “shadow docket” granted a stay in the case, effectively allowing President Trump to remove those members for now. Many have viewed this as a clear sign that the court intends to overturn or substantially limit Humphrey’s Executor (if you read the opinion, Justice Kagan’s dissent helpfully connects the dots for us)

All this means, I think, that Perlmutter still has a strong case to object to her removal and that under existing Supreme Court precedent such as Humphrey’s Executor, which is still good law and binding on lower courts. So, the lower courts should have good reason to grant Perlmutter’s requested injunction. But it remains to be seen how long Humphrey’s Executor and its protections for positions like the Register of Copyrights will last. 

Perlmutter’s case against the appointment of her replacement

Perlmutter’s second claim, about the attempt to appoint her and Dr. Hayden’s replacements, seems even stronger. For this, Perlmutter points to the Federal Vacancies Reform Act. As you likely know, the President is limited in his authority to appoint officers who exercise significant authority – the Constitution requires that he obtain the advice and consent of the Senate first. The Federal Vacancies Reform Act provides a narrow exception to this rule by allowing the President to appoint, on a temporary basis, individuals to fill vacant posts. 

It was under the FVRA that, we have learned in the complaint, the President attempted to appoint Perlmutter and Hayden’s replacements. The problem, argues Perlmutter,  is that the FVRA does not apply to the Library of Congress. 

The relevant text of the FVRA provides that the President may “temporarily authoriz[e] an acting official to perform the functions and duties of any office of an Executive agency” for which Senate confirmation is required.” 5 U.S.C § 3347(a).  For purposes of Title 5,  an “Executive agency” means an “Executive department,” a “Government corporation,” and an “independent establishment.” 5 U.S.C. § 105. An “executive department” is one of the fifteen departments with cabinet-level heads,  5 U.S.C § 101. A “Government corporation means a corporation owned or controlled by the Government of the United States” and an “independent establishment” means “an establishment in the executive branch” (and the GAO) that isn’t either of the above two entities. 5 U.S.C § 104

The Library of Congress seems to fit none of these definitions. As a matter of statutory definition, the Library is firmly planted in the Legislative Branch. And, as noted before, while it is true that the Library of Congress does serve some Executive branch functions and the courts have sometimes construed it as “executive” for Constitutional purposes, it does not follow that it fits within the narrow statutory definitions provided for in the FVRA.

*For a really excellent overview of the various ways courts have treated the Library of Congress and the Copyright Office, you should check out Aaron Perzanowski’s law review article, The Limits of Copyright Office Expertise. As Perzanowski explains: 

Some courts have concluded that the Office is part of the legislative branch. See, e.g., United States v. Brooks, 945 F. Supp. 830, 834 (E.D. Pa. 1996) (“[T]he Copyright Office is part of the legislative branch.”); Harry Fox Agency, Inc. v. Mills Music, Inc., 720 F.2d 733, 736 (2d Cir. 1983) (“[T]he Library of Congress . . . is a part of the legislative branch itself . . . .”); Barger v. Mumford, 265 F.2d 380, 382 (D.C. Cir. 1959) (“[T]he Library of Congress has long been treated as being in or under the jurisdiction of the legislative branch . . . .”). Other courts have deemed the Office executive in nature. See, e.g., Eltra Corp. v. Ringer, 579 F.2d 294, 301 (4th Cir. 1978) (“[T]he Copyright Office is an executive office . . . .”); Intercollegiate Broad. Sys., Inc. v. Copyright Royalty Bd., 684 F.3d 1332, 1342 (D.C. Cir. 2012) (discussing why the Library of Congress “is undoubtedly a ‘component of the Executive Branch’ ”). Acknowledging that “it is not clear whether the Library of Congress is part of the executive or legislative branch,” the Ninth Circuit explicitly avoided the question in Fox Television Stations, Inc. v. Aereokiller, LLC, 851 F.3d 1002, 1013 n.4 (9th Cir. 2017) (noting that if it were to decide what level of deference the Office is owed, the court “would be required to rule on constitutional questions that could have outsized consequences relative to this case—such as determining whether the Library of Congress is a legislative or executive agency”).