A Constitutional Confrontation at the Library of Congress

Monday was a tumultuous day for the Library of Congress, the broader Legislative Branch, and our system of government.

This past Thursday, President Trump asserted he fired Librarian of Congress Carla Hayden. On Saturday he announced he fired Register of Copyright Shira Perlmutter.

According to CBS News, President Trump announced on Monday he had named Deputy Attorney General Todd Blanche to serve as the Librarian of Congress concurrently with his role at the Justice Department. Blanche previously served as Trump's personal criminal defense attorney. Trump also designated Brian Nieves as acting Deputy Librarian of Congress and Associate Deputy Attorney General Paul Perkins as the Acting Register of Copyrights.

The three Department of Justice officials attempted to enter the Library of Congress but were reportedly escorted from the building. While some reports described a standoff between Capitol Police and the officials, the exact details remain unclear and the Capitol Police have denied they were involved in a confrontation.

In an email to Library staff, Acting Librarian Robert Newlan stated he did not immediately recognize Trump's appointment as valid. According to Politico, Newlen wrote "Congress is engaged with the White House and we have not received direction from Congress about how to move forward."

House Administration Committee Democrats wrote to the Library of Congress Inspector General over concerns that Hayden's firing was a part of a broader effort by the Executive Branch to improperly target the Library, including seeking "confidential communications between congressional offices and the Library's service units." They asked the IG to investigate whether Library staff had received various improper directives from the Executive branch, including improperly sharing information. They likely were concerned about DOGE exfiltrations of vast amounts of information as we have seen in other agencies.

House Administration Ranking Member Morelle and Senate Rules Committee Ranking Member Padilla issued a statement stating "The President of the United States has no authority to appoint an acting Librarian of Congress or terminate the Register of Copyrights."

Senate Majority Leader Thune said "congressional leaders 'want to make sure we're following precedent and procedure' in naming a replacement for Carla Hayden" and added “we want to make sure congressional equities are respected and protected in this process.”

This brief statement by Thune is a welcome development. It did not have an accompanying public statement from Speaker Johnson and it is unknown what communications, if any, congressional Republicans have had with the Trump administration. In fact, it appears some Congressional Republicans were caught unaware that the Trump administration was planning to fire her. Furthermore, Trump was not acting at their request, according to Politico.

These actions threaten Congressional independence and implicate constitutional and statutory issues. The Library of Congress and its staff provide confidential, nonpartisan support to Congress. That work must remain insulated from Executive Branch interference.

The following analysis explores these constitutional, statutory, and institutional questions.

You're Fired?

President Trump claims to have fired Librarian of Congress Hayden and Register of Copyrights Perlmutter. By implication, he also may have assumed the power to fire Acting Librarian Newlen (although that's not clear). Can he do this?

As a constitutional matter, a president generally has the authority to fire individual agency heads although it currently is not lawful to fire the heads of multi-member agencies. (The Supreme Court likely will overturn the longstanding precedent on that point). The matter becomes even more contentious on whether a president has the constitutional authority to fire members of the Legislative branch.

President Biden fired the Architect of the Capitol, Brett Blanton, at the behest of Congress. George Watterston, the third Librarian of Congress, was apparently fired by President Jackson, though this may not be a useful precedent because the political circumstances in the spoils era were very different. Firing a Legislative branch agency head appears to be a power the president can exercise, although there may be limitations. (In the modern era, there may be a distinction between firings with the consent of Congress and firing with the opposition of Congress, as in Youngstown v. Sawyer, although we'll need the federal courts to let us know).

One limitation on presidential powers is federal law. I explained the evolution of the statute regarding the appointment of the Librarian of Congress last week. Nowadays, the statute provides for the president to nominate the Librarian of Congress, who must be confirmed by the Senate, and serves a ten-year renewable term. Can she be removed before her term is up? The statute is silent on whether she can be removed and under what circumstances. There is no useful context from Congress – no accompanying committee report to S. 2162 (114th Congress).

On one hand, the Librarian's appointment to a ten-year term could suggest that it was meant to limit mechanisms by which the Librarian could be removed. Congress could have intended she not be removed before her term ends. Or it could be read she cannot be removed without cause, or perhaps can only be removed through congressional impeachment.

On the other hand, a court could reason Congress knows how to limit the ability of Congress or the White House to remove a Legislative branch agency head. The Comptroller General, for example, can only be removed by impeachment or a joint resolution of Congress for a limited set of reasons. The Supreme Court recognized in Bowsher v. Synar that the CG is viewed as a Legislative Branch officer.

On the third hand, the courts are in the process of demolishing Congress's efforts to protect Executive branch agency heads from willy-nilly presidential removal. It is likely that Trump can remove Hayden, even as a Legislative branch agency head, in light of precedent and in the absence of clear statutory language. (This is something Congress should fix post haste.)

The same does not hold true for the Register of Copyrights or the Deputy Librarian of Congress, however.

The Register of Copyrights is appointed by the Librarian of Congress and acts under her direction and supervision. Dr. Hayden demonstrated that the Librarian of Congress also has the authority to fire the Register of Copyrights. The law is clear about who has the authority to name the Register. Nothing in the statute invokes the president. If the president had the power to remove the Register, the Librarian could simply reappoint, which would lead to an absurd result. The most plausible result is that this power resides only in the Librarian, not the president.

The Librarian of Congress also selects the Deputy Librarian of Congress and sets the rules and regulations for the government of the Library. (This law, providing for rules and requiring senate confirmation, dates to 1897.) The Deputy Librarian serves as Acting Librarian in the event of the absence of the Librarian. So Trump's naming of an Acting Deputy Librarian would also contradict the Librarian's power. Why Trump didn't wait to have his Librarian appoint the Deputy and Register of Copyrights indicates they engaged in insufficient legal analysis.

Nothing in statute provides the president the authority to appoint or remove any employee of the Library of Congress. Appointment and removal power at one point resided in part with Congress, but the law was changed in 1897 to vest that authority solely in the Librarian.

There is a constitutional argument that the president has the authority to appoint the Register of Copyrights because that person performs the duties of an executive branch agency. Such a determination runs counter to longstanding practice and it is unlikely that a president would not have already used this authority if they possessed it.

You're hired?

With the ability to remove the Librarian of Congress the White House may claim the statutory authority to name her replacement under the Federal Vacancies Act. Under that law, the president may "direct a person for which appointment is required to be made by the president, by and with the advice and consent of the Senate, to perform the functions and duties of the vacant office temporarily."

But, the vacant office must be located in "an office of an Executive agency." An executive agency, under the statute, means "an Executive department, a Government corporation, and an independent establishment." The Library of Congress is none of those.

We are seeing some individuals suggest that the Library of Congress is an Executive Branch agency because some aspects of the Library engage in roles that are viewed as belonging to the Executive Branch, notably around copyright rulemakings. This goes too far.

It has been a long time since I took administrative law, but it is commonplace for components of all three branches to have legislative, judicial, and regulatory functions. Just because the Library of Congress engages at times in rulemaking does not make it an Executive branch agency. Having a fly in the ointment doesn't turn the ointment into a fly.

The Library of Congress is a legislative branch agency for nearly all intents and purposes. It receives its funding from the Legislative Branch Appropriations bill. It does not show up in lists of Executive branch agencies. For example, the U.S. Government Manual places the Library in the Legislative branch. The vast majority of the Library is not subject to the Freedom of Information Act or the Administrative Procedures Act. Its labor laws are administered by the Office of Congressional Workplace Rights, a legislative branch entity established in parallel to the Department of Labor for the specific purpose of ensuring that Library practices were overseen by a Legislative branch agency.

The Library's staff routinely provide confidential advice to members of Congress that are protected under the Speech or Debate clause. The constitutional Speech or Debate clause protections apply only to congressional staff, including to the Congressional Research Service, a major component of the Library of Congress. Indeed, it would be absurd to think the White House could obtain all the inquiries of Members of Congress to their research service on questions of law and oversight of the Executive branch.

Finally, for the fans of plain language out there: it is the Library of CONGRESS.

Closing Thoughts

Trump likely can fire the Librarian of Congress. Trump likely cannot appoint an interim replacement. Trump cannot hire or fire subordinates. Congress must provide Robert Newlen support as he protects the independence of the Library of Congress and its ability to serve all members of Congress.

If Trump prefers a new Librarian, he must nominate one and they must be confirmed by the Senate.

Congress would be wise to update how the Librarian of Congress is appointed, as well as appointments for other legislative branch agencies, to ensure their independence. The second branch of government should not be able to dictate the operations of the first branch of government.

The 2023 Architect of the Capitol Appointment Act, enacted into law with bipartisan support, points the way forward. If it were my choice, I would establish a congressional commission to appoint Legislative branch agency heads and other key officers.