Supreme Court defers decision on whether Trump can fire head of U.S. Copyright Office

The Supreme Court on Wednesday put off a decision on the Trump administration’s request to be able to remove Shira Perlmutter, the head of the U.S. Copyright Office, from her job while her challenge to an effort to fire her moves forward. In a brief, unsigned order, the court indicated that it would not act on the government’s request to pause a ruling by a federal appeals court that had temporarily reinstated Perlmutter to her position until after they rule on similar requests by the Trump administration to fire a member of the Federal Trade Commission and a member of the Federal Reserve’s Board of Governors.

Justice Clarence Thomas indicated that he would have granted the government’s request. He did not provide any explanation for that decision.

The Register of Copyrights is housed within the Library of Congress. On May 8, President Donald Trump fired Carla Hayden, then the Librarian of Congress. He later appointed Deputy U.S. Attorney General Todd Blanche as the Acting Librarian of Congress.

The present dispute began on May 10, one day after the Copyright Office released a pre-publication version of a report on artificial intelligence that made recommendations with which Trump allegedly disagreed. Perlmutter, whose position is known as the Register of Copyrights, received an email from the White House Presidential Personnel Office notifying her that she had been fired, “effective immediately.” 

Perlmutter went to federal court to challenge her removal. U.S. District Judge Timothy Kelly rejected her request to be temporarily reinstated while her lawsuit continued. But the U.S. Court of Appeals for the District of Columbia Circuit reversed that ruling. By a vote of 2-1, that court instructed the Trump administration to allow Perlmutter to resume her job, and the full court of appeals left that decision in place. 

The Trump administration came to the Supreme Court on Oct. 27, asking the justices to step in. U.S. Solicitor General D. John Sauer told the justices that even if the Register of Copyrights is housed in the Library of Congress, she exercises executive power – such as issuing regulations and enforcing copyright laws – and therefore is part of the executive branch. As a result, he argued, the president can fire the Librarian of Congress, who is also part of the executive branch; the Librarian of Congress can then fire the Register of Copyrights. But in any event, Sauer wrote, even if the president lacked the power to remove Perlmutter, a federal court only has the power to award her backpay; it does not have the power to reinstate her. 

Perlmutter urged the justices to leave the D.C. Circuit’s order in place. The Library of Congress, she contended, is not an “executive agency.” To the contrary, she argued, the D.C. Circuit has already said, in a different case, that it is not, and “Congress has elsewhere regulated the Library as part of the legislative branch.” Therefore, she wrote, the president did not have the power to fire Hayden and appoint Blanche. And if Blanche was not validly appointed, Perlmutter continued, he did not have the power to fire her. 

Two weeks after the government submitted its final brief in the case, the court issued its order deferring action on the government’s request until after it acts on Trump v. Slaughter, the challenge by FTC commissioner Rebecca Slaughter to Trump’s efforts to fire her, and Trump v. Cook, in which the president is seeking to fire a member of the Fed’s Board of Governors based on allegations of mortgage fraud that she has disputed. The court will hear oral arguments on Dec. 8 in Slaughter’s case and on Jan. 21 in Lisa Cook’s case, which means that the justices are not likely to act on Trump’s bid to oust Perlmutter until sometime after that.