Every year, I ask my copyright law class what should be a simple question: What branch of government is the United States Copyright Office of the Library of Congress in? Emphasizing “of Congress” usually provokes an earnest and sensible response—the legislative branch. This provides a nice teachable moment to revisit how con law and admin law basics apply to copyright’s administration. Do any of the Copyright Office’s functions—copyright registration, rulemaking, advising, and so forth—have executive qualities? In turn, the prospect of the Office taking executive action from within the legislative branch leads folks to wonder if there’s a bad separation-of-powers thingy that someone should deal with.
Well, it turns out that fully answering the question takes about thirty thousand words. Fortunately, Maggie Chon kindly gave me an excellent platform to write all of them in Separation of Copyright Powers (just published in the Seattle University Law Review Online and the Seattle Journal of Technology, Environmental, and Innovation Law) as part of an awesome TILE Institute symposium with many great folks. I especially recommend reading my piece in tandem with Leslie Street’s and Amanda Runyon’s The Library of Congress at a Crossroads, which takes on the separation-of-powers problems from the perspective of library policy—a different face of the same cube. The two articles comprehensively cover just about every angle of the legal mess flowing from the White House’s stunning 2025 attempt to fire and replace the Librarian of Congress and Register of Copyrights (now before the Supreme Court in Blanche v. Perlmutter).
While I wish I could leave it at that, some late-breaking developments in congressional efforts to insulate the Library of Congress from the President (with big implications for the Copyright Office) warrant what surely won’t be the last post-publication update to the article. Unfortunately, the bills emerging from Congressional committees suggest that members have not yet clocked the complexity of the separation-of-powers problem with the Library-Office relationship or fully worked through the tricky details and tradeoffs of a fix. Threading the constitutional needle—to say nothing of the consequences for copyright and library policy—will require careful deliberation.
The Separation-of-Powers Telescope
The legal backdrop here is very complex, and I strongly recommend the articles linked above as primers for the uninitiated. But let’s start with a very oversimplified way to think about it. A legislative agency performing (potentially) executive functions presents a telescopic problem that you can look at through two very different lenses. The two lenses for understanding the separation-of-powers problem with the Library-Office relationship are presidential interference and judicial oversight. Fully understanding the problem and recognizing the tradeoffs of possible fixes requires looking through both lenses.
The Presidential-Interference Lens
At the moment, members of Congress are peering at the Library-Office relationship through the presidential-interference lens. In particular, members are (understandably) worried about the President interfering with—and perhaps controlling—the Library of Congress. The Library is an integral part of the legislative branch, and the President directly controlling a congressional agency is a five-alarm separation-of-powers fire. One especially acute concern (which Leslie and Amanda describe in detail) is the prospect of the President controlling the person in charge of the Library’s Congressional Research Service (CRS). Among other things, the CRS handles confidential research inquiries from members of Congress on important matters, such as oversight of the executive branch. Yikes!
Yet Congress itself gave the President power to appoint the Librarian of Congress in a statute that dates back to the Library’s formal inception in 1802. So why can’t Congress just amend or repeal that statute to cut the President out of the loop?
One possible reason is the prospect that Librarian—or an inferior officer, such as the Register of Copyrights—have accumulated executive (and not merely legislative) power over the years. Under the rising “unitary executive” theory, the President might therefore assert constitutional (not just statutory) authority over the Librarian. If the courts recognize that authority, Congress can’t insulate the Librarian from the President by merely deleting the President’s statutory role in the appointment process—so long as the Librarian’s functional responsibilities of the entail exercising executive power.
The Judicial-Oversight Lens
Looking through the telescope’s judicial-oversight lens reveals another dimension of the separation-of-powers problem. If the Librarian (or Register) performs an executive function, then a private party harmed by the results might ask the courts to intervene. The core separation-of-powers argument remains the same —a legislative official is unlawfully exercising executive power. But the posture of the challenge and the identity of the challenger seek a different remedy. Through this lens, the challenger’s goal is not to establish the President‘s authority to supervise the official’s exercise of executive power to render it lawful. Rather, the challenger wants the judiciary to enjoin the official’s exercise of executive power because it is unlawful.
Ironically, the Library and the Copyright Office have long survived these kinds of private-litigant separation-of-powers challenges because Congress enshrined presidential interference (or more charitably, presidential supervision) right in the agencies’ governing statutes. More precisely, Congress gave the President the authority to appoint the Librarian, and the Librarian the authority to appoint the Register. This arrangement effectively created an executive chain of command from the President to the Librarian to the Register that more or less squared any arguable exercise of executive power with the requirements of the Appointments Clause.
Yet this executive chain of command remained mostly theoretical from the inception of the Copyright Office in 1897 until the Trump administration aggressively asserted it in 2025. Through the Office’s lifespan, Presidents largely left Librarians and Registers to their own devices. This dynamic gave rise to a political understanding of the Library and the Copyright Office as effectively independent legislative agencies—even as the President’s theoretical legal authority over the Librarian and the Register proved an effective defense against accusations they were unlawfully exercising executive power.
Cutting the President out of the chain of command, however, would prevent the Library and Register from credibly claiming that the President supervises them. This could open the Library and the Office to a wave of challenges across their administrative portfolios—from copyright registration to copyright royalty determinations to the triennial review of anti-circumvention exemptions—arguing those responsibilities require executive power the Librarian and Register can’t lawfully exercise without presidential oversight.
Separating Legislative and Executive Power
Through either lens, the events of 2025 made clear that Congress can no longer rely on the President retaining formal legal authority over the Librarian (and by extension, the Register) for their agencies’ benefit while never asserting it to the President’s own ends (or to Congress’s detriment). Converting the political norm of the Library’s (and, to the extent possible, the Office’s) perceived independence into a durable legal arrangement requires coming to grips with the actual extent of the agencies’ exercise of executive power. More specifically, Congress must accurately identify any functions in the Library’s (and Office’s) portfolio that individually or collectively give rise to executive power (under whatever doctrinal contours the Supreme Court ultimately articulates). It must transfer those functions to the executive branch, leave them to judicial resolution, or eliminate them.1
Yet qualifying each of the Library’s (and Office’s) functions as legislative or executive—and potentially quantifying the number of executive functions that cross the line into exercising executive executive power—is an exceptionally challenging exercise (as the articles discuss in detail). The challenge is particularly acute because the President’s formal supervision of the Librarian has long obviated the need for the courts to comprehensively qualify the Library’s (or Office’s) functions. This leaves relatively limited guidance for Congress to follow—in a complex, contested, and evolving area of law.
Reform legislation emerging from Congress, however, does not yet seem to reflect the degree of nuance or deliberation required to navigate this uncertainty. Per Chris Nehls’ and Daniel Schuman’s summary, two approaches (but maybe just one?) have built momentum in the House:
- The House Administration Committee has favorably reported the Legislative Branch Agencies Clarification Act (LBACA). The LBACA (modestly updated since my earlier post on its mechanics) would essentially sever the Copyright Office from the Library of Congress, leaving appointment and oversight of the Librarian of Congress (and the Library) exclusively to Congress while giving the President direct authority to appoint (with Senate confirmation) and oversee the Register of Copyrights (and the Office).
- The House Appropriations Committee has favorably reported out a manager’s amendment in the annual legislative branch appropriations bill. The way it’s written (and as Nehls and Schuman report it), it would be a standalone provision giving Congress new authority to appoint (and remove) the Librarian but leaving the Librarian’s appointment and oversight of the Register of Copyrights untouched. (This approach would loosely track the previously released H.R. 6517, which seems to have fallen off the radar.)
- It’s also possible, however, that the Administration and Appropriations approaches will converge. How would that work? Instead of serving as a standalone provision, the manager’s amendment might merely amend the LBACA’s internal mechanisms for Congress to appoint the Librarian, while leaving in place the LBACA’s overall structure—i.e., severing the Copyright Office from the Library and shifting the Register’s appointment and oversight to the President.
I’m operating under the assumption that, despite the seeming presentation of the manager’s amendment as a standalone provision, the Appropriations Committee’s ultimate intent is to combine it with the LBACA. Why? As an amendment to the LBACA, the manager’s amendment would be only a narrow (though potentially consequential) procedural change.2 But as a standalone provision, the manager’s amendment would create an ambiguous substantive mess. In particular, it would leave in place the statutory provision that currently charges the President with appointing the Librarian. In turn, this would make ambiguous whether Congress intends its new authority over the Librarian to replace—or rather supplement—the President’s existing authority.3 The former possibility would merely cut the President out of the chain of command, and would be an obvious non-starter, separation-of-powers-wise, for the reasons discussed above. The latter—allowing both the President and Congress to independently appoint (and remove) the Librarian without coordinating with each other—seems impracticably chaotic (and probably also unconstitutional for lots of reasons that aren’t worth hashing out in detail). It’s hard to imagine the Appropriations Committee intended either result, though the way the bill and amendment were voted and reported makes it impossible to rule that out completely.
Regardless, the House Administration’s overarching approach in the LBACA is not the worst starting point in the world for dealing with the separation of powers problems. By shifting the Register’s supervision from the Librarian to the President, the LBACA would excise at least some of the most likely executive functions from the Library’s portfolio.
Yet the lack of detailed judicial guidance on qualifying the Library’s and Office’s functions and the Supreme Court’s looming decisions in Trump v. Slaughter and Trump v. Cook create serious underinclusion risks. Shipping all the Copyright Office’s functions wholesale to the executive might well shift many executive functions out of the Library—but it won’t necessarily address them all. It also risks creating new separation-of-powers issues, particularly around the interplay between the copyright registration system, which would be overseen by the presidentially-supervised Register, and the deposit functions that would stay in the Library.
The uncertainty also means overinclusion risks—i.e., that some of the Office’s functions might safely remain in the Library without causing separation-of-powers problems. That possibility means the bill is likely to face political resistance from organizations primarily concerned about the bill’s copyright and library policy consequences. If the bill’s champions cannot persuasively explain why the wholesale shift of the Office to the President’s supervision is necessary to square the separation-of-powers circle, advocates might suspect ulterior motives or co-option and oppose the bill. And if Congress uncarefully amends the bill in response, it risks failing to fix the separation-of-powers problem.
Righting the Ship
To be fair, some of hardest questions about quantifying and qualifying executive and legislative power can’t be answered confidently in advance of the Court’s rulings in Slaughter, Cook, and Blanche. But the lack of real refinement to the LBACA since its initial introduction and the Appropriations focus on the details of internal congressional mechanisms for appointing the Librarian are cause for concern that the House committees may be whistling past the separation-of-powers graveyard.
Most charitably, the LBACA’s proponents seem to presume that drawing a line between the Library and the Copyright Office will neatly map onto whatever separation-of-powers doctrine ultimately emerges from the Court after Slaughter, Cook, and Blanche. That’s not an impossible outcome, but it doesn’t strike me as a carefully calculated foundation for solving the separation-of-powers problem.
In my view, Congress should further refine its approach with deeper deliberation, even in advance of Slaughter, Cook, and Blanche. It should more directly engage with the separation-of-powers lenses, debug obvious ambiguities, build a legislative record to guide the courts, and refine its own understanding of the legislative-executive line—not least, because the independence and governance of its own agency hangs in the balance. It should specifically tend to the tricky issues surrounding the registration-deposit relationship. At a bare minimum, it should codify the D.C. Circuit’s determination in Perlmutter v. Blanche that the Federal Vacancies Reform Act does not apply to the Library of Congress, thereby cementing the Senate’s important role in confirming Librarian appointees.
- In an earlier age, Congress might have enshrined the Library’s (and Office’s) independence by maintaining the President’s authority while sharply restricting it via statute. However, the Supreme Court is widely expected to sharply curtail, if not altogether eliminate, statutory restrictions on presidential authority over officials exercising executive power in Trump v. Slaughter—perhaps with narrow exceptions for certain historical arrangements in Trump v. Cook. ↩︎
- [Update:] To elaborate: The LBACA, as it stands, would first task “oversight committee leadership”—defined to include the chair and ranking minority member of the House Administration Committee and the Senate Rules and Administration Committee—with recommending three candidates to serve as Librarian. The final appointment of a new Librarian from those three, as well as removal of the Librarian, would be made by a majority vote of “House and Senate leadership”—defined to include “the Speaker of the House of Representatives, the majority leader of the Senate, the minority leader of the House of Representatives, and the minority leader of the Senate.” The manager’s amendment would add to the appointment and removal votes the chairs and ranking minority members of the House and Senate Appropriations Committees (naturally), the House Administration Committee, and the Senate Rules and Administration Committee. (The manager’s amendment does not seem to add the Appropriations Committee leadership to the recommendation committee, however—and if it were a standalone provision, would not have a recommendation committee at all.) I’m not deep enough on congressional inside baseball to predict the likely significance of these changes in future negotiations over the appointment of a new Librarian, though obviously the manager’s amendment would add complexity to the exercise. ↩︎
- Specifically, the amendment purports to operate “notwithstanding” the President’s existing authority under 2 U.S.C. § 136-1. ↩︎