The Trump administration asked the US Supreme Court on Monday to overrule an injunction set by the US Court of Appeals for the District of Columbia preventing the administration from firing Shira Perlmutter as Register of Copyrights and Director of the US Copyright Office.
The administration filed its appeal to the Supreme Court alleging it has the authority to remove the Register through the Librarian of Congress. The Librarian of Congress appoints and oversees the Register under 17 U.S.C. § 701(a). Trump directed the acting Librarian of Congress to remove Perlmutter from he position as Register. According to the administration, because both the Register and Librarian are executive officers, the president has the authority to remove the Register in this manner. The Trump administration argues that the Librarian and Register exercise executive authority through “the power to issue rules implementing a federal statute, to issue orders in administrative adjudications, and even to conduct foreign relations relating to copyright issues.”
In May, Trump fired the Librarian of Congress. Claiming authority under the Federal Vacancies Reform Act (FVRA), Trump appointed Deputy Attorney General Todd Blanche as Acting Librarian of Congress. Blanche carried out the removal of Perlmutter. The FVRA allows the president to temporarily appoint a Senate-confirmed official to fill certain vacant principal officer positions, such as the Librarian.
In granting the injunction, the court of appeals found that the Trump administration likely unlawfully appointed Blanche as Librarian because the the FVRA does not apply to the Librarian of Congress. Under the FVRA, the president’s temporary appointment power only applies to “‘executive agencies'” defined as “‘an Executive department,’ (2) ‘a Government corporation,’ or (3) ‘an independent establishment.'” The court found the Library of Congress was not any of these entities because Title 5 specifically refers to the Library of Congress and executive agencies as different entities. For that reason, the court found that Blanche’s appointment to Librarian was likely unlawful. By consequence, Blanche’s removal of Perlmutter and appointment of a new Register was likely unlawful as well. As such, the court granted an injunction to prevent Perlmutter’s removal, pending the outcome of the entire litigation.
This case comes against the backdrop of the Trump administration’s contested firings of other government officials.
On October 17, the Supreme Court agreed to hear a case regarding the Trump administration’s removal of Federal Trade Commissioner Rebecca Slaughter. This case has the potential to overturn the precedent Humphrey’s Executor v. US from 1935, limiting the president’s power to remove certain independent officers.
