Perlmutter Tells SCOTUS Trump is Making ‘An Inexcusable Mess’ of Library of Congress Governance

Two weeks after the Trump administration asked the U.S. Supreme Court to stay an interlocutory injunction issued by the U.S. Court of Appeals for the D.C. Circuit, in September that allowed Register of Copyrights Shira Perlmutter to return to her post pending her lawsuit against President Donald Trump for allegedly illegally removing her from office, Perlmutter has responded.

In her opposition to the application for a stay, filed on Monday, Perlmutter accused the administration of making “an inexcusable mess of Congress’s plans for the governance of its Library.”

Trump’s application argued that the D.C. appellate court’s injunction represents “another case of improper judicial interference with the President’s power to remove executive officers” and that its “analysis contravenes settled precedent and misconceives the Librarian’s and Register’s legal status.” The powers of the Librarian and Register have been classified as executive by the Supreme Court, said the administration’s brief, “such as 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.”

But Perlmutter argued in her opposition that “the question here is not whether the Register of Copyrights or the Librarian of Congress has any functions that can be characterized as ‘executive’ for constitutional purposes; it is whether Congress decided to organize the Library as an ‘Executive agency’—not just for purposes of the Federal Vacancies Reform Act of 1998 (“FVRA”), 5 U.S.C. § 3345 et seq., but for all of the purposes for which the same definition of “Executive agency” is used in Title 5, 5 U.S.C. § 105.”

Perlmutter added that Title 5 would “would be left as an incoherent and unworkable jumble were Applicants to prevail” and pointed out that none of the D.C, Circuit judges has accepted the administration’s proposed theories and they denied en banc review “without even a single judge calling for a response to the petition.” What Trump is trying to do, said Perlmutter, is to ask the High Court for extraordinary emergency relief even though they waited 47 days from the issuance of an injunction and 26 days after the denial of en banc review, and when the administration’s appointed replacements for Perlmutter and former Librarian of Congress Carla Hayden—Paul Perkins and Todd Blanche, respectively—had “never exercised their supposed roles at the Library of Congress in the 121 days during which no injunction was in place.”

Perlmutter also discounted the dissent in the D.C. Circuit decision filed by Judge Walker, noting that Walker did “not dispute that Perlmutter is likely to succeed on the merits of her lawsuit, that Perlmutter would suffer irreparable harm absent an injunction pending appeal, or that those two factors are the most critical in deciding whether to grant the requested injunction.”