Shira Perlmutter lawsuit

The E. Barrett Prettyman Federal Courthouse. Photo Credit: Toohool

Weeks following an appellate ruling in favor of Shira Perlmutter, the Trump administration has fired back against the register’s arguments amid a summary judgement sub-dispute.

Said sub-dispute represents just one component of the increasingly convoluted legal battle, which has now been in full swing for four months. And as those who’ve followed the courtroom confrontation on DMN are aware, the multifaceted litigation has produced many twists, turns, and filings thus far.

Nevertheless, the showdown is rather clear cut at the top level: Perlmutter maintains that she was unlawfully dismissed as register, while the Trump administration says the firing was entirely above board.

The highlighted 2-1 decision in Perlmutter’s favor, which we broke down in detail, pertains specifically to an emergency injunction pending appeal.

Thus, the administration – which is seeking a rehearing en banc – is “enjoined from interfering with appellant’s service as Register of Copyrights…pending further order of the court,” per the order.

On the other hand, the summary judgement pushes are playing out in the district court. Earlier in September, Perlmutter formally sought approval for her own motion, which would enjoin the acting Copyright Office appointees (but not the president himself) from carrying out official USCO duties, keep her in the post, and confirm “that the President lacks authority to remove” the register.

Enter the Trump administration’s newly filed retort and cross-motion for summary judgement.

Like with the overarching suit, much of the lengthy legal document explores the position that the Library of Congress falls under the executive, not the legislative, branch. (Of course, Perlmutter holds the opposite view.)

“The President’s power to appoint and remove the Librarian—a power he does not have over true congressional entities like the House Sergeant-at-Arms, who is elected by the members of the House, or the Senate Parliamentarian, who is appointed by the Senate majority leader—confirms the Library of Congress’s placement in the Executive Branch,” the Trump administration’s latest filing reads in part.

Consequently, President Trump’s appointment of deputy AG Todd Blanche as acting librarian (and then the appointment of Perlmutter’s acting replacement) is lawful under the Federal Vacancies Reform Act (FVRA), the filing claims in many more words.

And in any event, even if the Library doesn’t constitute an executive agency under the FVRA, Blanche’s appointment is lawful under Article II of the Constitution, per the document.

“[Perlmutter] does not dispute that the President lawfully exercised his Article II powers when he removed Ms. Hayden as Librarian of Congress,” one important section states. “And she points to no statute prohibiting the President from designating an acting Librarian to replace her. Instead, Plaintiff’s theory appears to be that the President may only designate acting officials if Congress has affirmatively granted him that authority by statute, such as through the FVRA. That would upend the Constitution.”

Finally, if the president does lack the authority to tap an acting librarian, he’s still able to boot “inferior officers” like the register directly, according to the administration.

“If Plaintiff is correct that the President cannot designate an acting Librarian,” a related paragraph spells out, “then the President’s supervisory and removal powers must extend to the inferior officers in the Library of Congress—particularly inferior officers like the Register of Copyrights that wield significant executive power.”

As for where things go from here, Perlmutter’s response is due by October 6th; the Trump administration’s follow-up will then be due by the 14th ahead of a scheduled early November hearing.