Dear Doc:
I hear that we are now short one Librarian of Congress and one Register of Copyrights. What gives?
Signed,
Alarmed Constitutional Scholar
Dear ACS:
On May 8, 2025, the President fired Carla Hayden, the Librarian of Congress. Ms. Hayden had been confirmed by the Senate in July 2016 in a bipartisan vote of 74-18. Under the law, her term was ten years (she was the first Librarian of Congress not to have a lifetime appointment as the Congress changed the law before she was appointed). Her term was due to expire in a little more than a year. Then, on May 12, 2025, the President fired the Register of Copyrights, Shira Perlmutter.
Not Your Usual Washington Drama
The Doc is (slightly) amused that the important Constitutional issues of separation of powers and the appointment power are now being fought over the area of copyrights. You see, the Library of Congress was created by Congress in 1800 to serve as a reference library for our elected representatives. Although the Librarian was, under an 1802 law, to be appointed by the President and confirmed by the Senate, the Librarian served for life. He (it was, until President Obama appointed Ms. Hayden, always a white man) did not report to the President, and no President has ever fired one. (As a “principal officer” under the Appointments Clause, removal typically requires statutory grounds or procedures.)
Bigger Questions Behind the Firings
Now, the question is whether the Library of Congress is an Executive Agency, or a Legislative one. If Executive, then some legal scholars who support the “unitary executive” theory claim that the President has unlimited power to fire anyone. If Legislative, then…not so much. The Copyright Office, in particular, has been a legislative branch agency since 1870. In addition, the Register of Copyrights is appointed by the Librarian, and, according to a lawsuit filed by Ms. Perlmutter on May 25, only the Librarian has the power to fire her!
So, why should we care about the “inside baseball” of the Library of Congress? Because if the unitary executive theory wins out at the Supreme Court, then even officials of supposedly independent agencies, like the Federal Reserve, may be fired at will by a president. That may threaten the monetary stability of the U.S. dollar, and ultimately make it more expensive for the United States to borrow money, sending the world economy into a tailspin. (The Doc may be playing Chicken Little here, but then again…)
It will be some time until the legal fights of the firings at the Library of Congress are resolved by the courts, and the Doc will be watching closely (so you don’t have to.) In any event, it’s not a spectator sport for those who have either a weak stomach or a healthy respect for the separation of powers and the Constitution.
Have a complex legal issue to sort out? Call the attorneys at LW&H. They follow these issues.
Until next month,
The “Doc
Lawrence A. Husick, Esq.