By now, you likely have ingested the Supreme Court’s rulings in Trump v. Slaughter and Trump v. Cook, which Steve Vladeck rightly calls a “nuclear bomb for the separation of powers.” In my corner of the world, however, there are a lot of questions for what this means for the ongoing litigation in Blanche v. Perlmutter and broader fight over the leadership of the Library of Congress and the Copyright Office. Here are my very quick reactions.
(This post presumes basic familiarity with all of the above; check the links for background!)
(2026.7.2 Update) Ben Sheffner flagged that Judge Kelly ordered supplemental briefing from the parties in Perlmutter on the summary judgment motions currently parked at the district court. Presumably that’ll further clarify the procedural posture of it all.
More substantively, my attention was drawn for the first time to a brief but illuminating exchange between SG Sauer, Chief Justice Roberts, and Justice Sotomayor about Perlmutter during the Slaughter oral arguments (starting on p. 6), which sees the three debating the possibility of “severance” in Perlmutter (and Slaughter). Whoa. Sotomayor frames the choice as between (a) severing an official’s/agency’s unconstitutional (executive) functions and (b) severing the President’s removal power. If this is the way the debate over Perlmutter was framed internally at the Court, it’s no surprise at all that the Court punted and deliberately refused to comment on the substance—because it presents nightmarish choices for the conservative justices. Setting aside all the threshold barriers to even getting to the UET arguments discussed below, this dichotomy would have forced the Justices to either sever the executive functions (and, depending on how they qualify those functions, likely blow up the copyright registration system, the Copyright Claims Board, the 1201 triennial review, and who knows what else) or recognize a new Copyright-Office-shaped limitation on Slaughter‘s embrace of the unitary executive theory (and open the door to collateral arguments in other contexts, depending on the justification). I might guess that it was better to kick the can and hope that Congress and the President would moot the issue by either appointing and confirming a new permanent Librarian, or pass legislation to restructure the agencies, before the issue returned to the Court.
(The original post follows…)
Process as Outcome?
First, the complex procedural posture of Perlmutter makes it hard to predict what will happen next. Yesterday, the Supreme Court formally denied the stay that the administration had requested of the emergency injunction that the D.C. Circuit had granted Perlmutter after she was denied relief by the district court. On the one hand, as Justin Hughes correctly observes, this gives Perlmutter a lot of time to wait the administration out as the appeal (presumably?) continues. Moreover, the administration has seemed to lose interest in the case as the AI-fair-use fracas has become out-of-sight, out-of-mind, and Todd Blanche’s disputed appointment as acting Librarian has been overshadowed by his appointment as acting Attorney General. As a result, how much energy will go into the litigation (and how it will affect the political economy of the Legislative Branch Agencies Clarification Act in the Senate) is unclear. (As Dave Hansen smartly noticed, the D.C. Circuit has a standing clerk’s order in the Perlmutter v. Blanche docket giving the parties seven days to file motions once the Supreme Court ruling dropped, so presumably we’ll get a better sense soon.)
On the other hand, the Court’s order explicitly demurs on ruling on the merits of Perlmutter. The D.C. Circuit judges’ concurring and dissenting opinions in Perlmutter came at a very preliminary stage with limited briefing, and the separation-of-powers analysis of both was pretty rudimentary in ways that Slaughter and Cook are likely to complicate—if the case actually raises the issue again.
Slaughter‘s Substance
Let’s presume for the sake of discussion (without predicting as much) that things actually do proceed to some kind of separation-of-powers ruling from the D.C. Circuit (and eventually the Supreme Court). What do Slaughter and Cook portend?
Slaughter explicitly purports not to sketch the bounds of executive power. Both its non-comprehensiveness and Cook‘s carveout for the Federal Reserve will no doubt give some folks who believe the USCO is genuinely not exercising executive power some hope.
In my view, however, the implications of the cases are at at least directionally bad for the viability of the D.C. Circuit majority’s qualitative and quantitative assessments of the Register’s duties in Perlmutter (which weren’t especially convincing even before Slaughter). Why? Slaughter’s formulation of executive power is framed in functional terms and generally encompasses enforcement and administration of laws. Though the analysis centers on the FTC (which is a very different agency), Slaughter specifically calls out as executive both rulemaking (so, the Section 1201 triennial review) and in-house adjudication (so, probably the Copyright Claims Board). There’s not much directly on point about registration, deposit, or intergovernmental advisory functions, but the tenor and embrace of the unitary executive theory in Slaughter suggests that debatable functions are at least directionally more likely to be qualified as executive than they were before.
If I were looking for optimism about exceptional treatment of the USCO, I’d emphasize that Slaughter doesn’t really resolve how to quantify executive power, which split the majority and the dissent at the D.C. Circuit. Slaughter suggests the FTC isn’t a close call because all of its functions are so obviously executive. The presence of at least some legislative functions at the Library and USCO pose the novel question of how to handle a significantly mixed-function agency. Slaughter at least doesn’t outright eliminate the possibility that mixed-function agencies could be regarded as not exercising executive power in some cases. (I wouldn’t bank on this argument, though, given how aggressively the UET frames any exercise of executive power as being in the President’s domain.)
Cook and History’s Double-Edged Sword
In Slaughter, the Court also opens the door for “functions traditionally handled outside the executive branch,” which is a pretty obvious and hamfisted way of carving out Cook’s treatment of the Federal Reserve. I expect folks will make a big deal out of that in light of the historical arrangement between the LOC and the USCO.
The trouble is that this line of thinking conflates the legal independence at play in Cook with the political independence at play in Perlmutter. As a legal matter, the President has always had direct, unrestricted authority over the Librarian (who has always had inferior-officer appointment control over the Register). Unlike Cook (and Slaughter), there’s no current or even historical statutory restriction on the President’s role in appointing the Librarian or the Librarian’s authority over inferior officers such as the Register (aside the CRJ issues from Intercollegiate Broadcasting, which don’t help the Register). The historically perceived “independence” of the Librarian (and the Office) has always been a product of political deference by the executive, not a legal obligation.
The UET Minus Statutory Restrictions
The absence of a Slaughter or Cook-like statutory restriction creates weird dynamics for Perlmutter and the separation of copyright/library powers going forward. Just as the historical absence of a restriction undercuts Cook-style history-and-tradition arguments for carving the agencies out from Slaughter, the current absence of a restriction denies the administration a vehicle for asserting the UET to fire or replace the Librarian or the Register. That raises an obvious but very weird question: how can there even be a unitary executive problem when the President doesn’t face a statutory restriction on asserting authority over an official?
At the D.C. Circuit, the primary vehicle for asserting the UET without a statutory restriction to flail against was preliminary relief. The administration invoked Wilcox, which allows going hard on the UET to undercut preliminary relief for a plaintiff official fired by the administration. But Wilcox is no longer in play because the D.C. Circuit granted a preliminary injunction despite Wilcox—and the Court declined to stay it.
What, then, about the most important statutory provision in the case—the Federal Vacancies Reform Act? If the FVRA applied to the Library of Congress, that would allow the President to shortcut Senate confirmation to appoint an acting Librarian, who in turn could replace the Register. (I tend to think that Perlmutter’s strongest argument and the most persuasive part of the D.C. Circuit’s opinion in Perlmutter is that FVRA simply doesn’t apply to the Library as a narrow matter of statutory interpretation. If that continues to hold, Blanche’s appointment as acting Librarian was at least unlawful as a statutory matter, and the administration had no statutory basis for replacing Perlmutter.)
So what? The administration might try to argue that FVRA’s inapplicability to the Library is effectively an unconstitutional statutory restriction on the President’s authority to fire and replace officials (including the Librarian and the Register) exercising executive power. But the obvious rejoinder is that FVRA doesn’t have to exist. It’s a discretionary statutory accommodation for the President of the Senate’s normal constitutional prerogative to confirm presidential appointees. (In fact, FVRA’s application is more likely to raise the opposite constitutional argument—that allowing the President to effectively bypass Senate confirmation fails the Appointments Clause requirement that the Senate individually confirm presidential appointees.)
The administration might also try to get to the UET by continuing to argue that it has a constitutional right to shortcut the Librarian’s statutory authority to appoint and replace the Register—because the Register exercises executive power. But the various framings of this argument necessarily go way beyond Slaughter or Cook. Why? The Appointments Clause explicitly allows Congress to vest the appointment of inferior officers (such as the Register) in heads of department (such as the Librarian). Framed differently, Congress putting heads of department as a layer of insulation between the President and inferior officers is a very different kind of statutory restriction—one specifically allowed by the Appointments Clause—from the ones at play in Slaughter and Cook.
The UET Minus Statutory Restrictions (For Real)
Avoiding substantive SOP analysis altogether right in the wake of Slaughter might sound like it’s too good to be true for Perlmutter. And that may well be—there’s always a possibility that the administration or the D.C. Circuit find a new vehicle for the separation-of-powers analysis as the appeal proceeds.
Lest we forget, though, the challenges the administration faces in finding a vehicle for the UET also mean that there are few legal barriers to replacing Perlmutter via regular order. Indeed, the biggest legal threat Perlmutter now faces is one that’s existed all along—that the administration will be able to simply replace her by way of appointing a sympathetic new Librarian to do the job. Even if the administration can’t persuade the D.C. Circuit to revisit and reverse the panel on the FVRA question, there’s no legal barrier to the Senate confirming a new permanent Librarian whose first act is to replace Perlmutter at the President’s behest. If that happens, it’s (legally speaking) game over for Perlmutter because it’s exactly what the statute contemplates.
Of course, the Senate can refuse to confirm an appointment for a new Librarian. But hinging the Register’s (perceived) independence from the President in that way depends, as ever, on politics rather than law.
Finally: the politics also threaten Perlmutter in another way. The administration’s firing of Carla Hayden as Librarian is a bell that will be very hard to unring, leaving the Librarian (and the Congressional Research Service) perennially vulnerable to the President may now be beyond Congress’s comfort zone. Codifying the Register’s independence in law may be very difficult—but codifying the Librarian’s becomes much easier if Congress decides to hand direct supervision of the Register over to the administration.