/>iDo all federal employees “serve at the pleasure of the President”? That question, usually tucked away in the margins of constitutional law, now sits at the center of one of the most consequential disputes of our time.
When President Trump fired Shira Perlmutter, the Director of the U.S. Copyright Office (formally the Register of Copyrights),1 the move appeared—at first glance—to be the straightforward exercise of presidential authority. After all, presidents hire and fire their own officers; the Librarian of Congress is a presidential appointee; and the Copyright Office sits within the Library.
But a closer look reveals that this case is not about ordinary personnel management. It is about whether the President can extend his reach into Congress’s own library, and in so doing, compromise both the constitutional separation of powers and the First Amendment’s guarantee against viewpoint discrimination.
The USCO Director’s Statutory Role as Congress’s Advisor
The Copyright Act defines the USCO Director not as an executive policymaker, but as Congress’s own advisor. The Director “shall be appointed by the Librarian of Congress, and shall act under the Librarian’s general direction and supervision,” not the President’s.2 Among her enumerated duties are to “advise Congress on national and international issues relating to copyright” and to “conduct studies and programs regarding copyright.”3 Congress deliberately placed the Director within the Library of Congress, ensuring that the office’s principal function is to provide independent expertise to the Legislative Branch.
Presidential Removal Power and Its Limits
As a general rule, officers of the executive branch serve at the pleasure of the President. From Cabinet secretaries to ambassadors, presidents must be able to remove their top officials to carry out the policies on which they were elected.4
But the rule is not absolute. In Humphrey’s, the Court upheld Congress’s ability to insulate commissioners of the Federal Trade Commission from at-will removal, because their work was quasi-legislative and quasi-judicial rather than purely executive.5 Similarly, federal administrative law judges are currently insulated from direct presidential removal by statute, as they may be removed only for good cause determined by the Merit Systems Protection Board.6 The Supreme Court has noted these protections imposed by Congress but has not directly decided their constitutionality.7
The USCO Director, situated within the Library of Congress and appointed by the Librarian with Senate confirmation, fits uneasily into this landscape. Congress has repeatedly considered elevating the Director to a presidential appointment with Senate confirmation—most notably through the 2017 Register of Copyrights Selection and Accountability Act, which passed the House but died in the Senate.8 Under current law, however, the Director “shall be appointed by the Librarian of Congress.”9 The legislative debates surrounding the 2017 bill underscore congressional concern with protecting the Director’s independence,10 particularly in the wake of Librarian Carla Hayden’s removal of then-USCO Director Maria Pallante.11
Furthermore, even if a court were to conclude that the Librarian of Congress is subject to at-will removal by the President, that determination would not resolve whether Perlmutter’s own removal was lawful. Under the Federal Vacancies Reform Act (FVRA), the “first assistant” to a Senate-confirmed officer ordinarily serves as the acting officer in the event of a vacancy.12 In this instance, Principal Deputy Librarian Robert Newlen would have assumed that role following Carla Hayden’s dismissal. Instead, the White House designated Deputy Attorney General Todd Blanche as Acting Librarian, displacing Newlen. Whether Blanche validly qualified as Acting Librarian under the FVRA is itself contested. If his designation was improper, then any action he took—including Perlmutter’s removal—would lack statutory authority. That leapfrogging move is precisely what the FVRA was designed to prevent: presidents bypassing the statutory line of succession in order to install political loyalists.
The question, therefore, is not whether the President may fire any officer he pleases, but whether this officer is his to fire at all.
The Case at the Preliminary Injunction Stage
Perlmutter has not yet had her day in court on the merits. For now, the case turns on whether she should be reinstated while litigation proceeds. When the federal government is a party, courts in the D.C. Circuit typically apply a compressed three-factor test for preliminary injunctive relief: (1) likelihood of success on the merits, (2) irreparable harm absent relief, (3) balance of hardships and the public interest.
In July 2025, Judge Timothy Kelly of the U.S. District Court for the District of Columbia denied her motion, concluding that the loss of even a high-level office was not irreparable harm. Relying on Sampson v. Murray, the court reasoned that reinstatement or back pay could provide an adequate remedy if she ultimately prevailed.13 He distinguished Aviel v. Gor, where the abrupt ouster of an agency head was found to risk collapse of the Inter-American Foundation, and emergency relief was granted.14 By contrast, Judge Kelly found that the Copyright Office could continue under acting leadership, and thus no comparable institutional harm justified an injunction.15
Irreparable Harm Beyond the Individual
Courts have long recognized that irreparable harm is not limited to personal loss. The deprivation of constitutional rights, even briefly, qualifies as irreparable injury. Likewise, courts have acknowledged institutional harms as irreparable when they threaten the effective functioning of government entities.
Judge Kelly, however, treated Perlmutter’s termination as indistinguishable from any other employment dispute, reasoning that reinstatement or back pay could make her whole. That narrow framing overlooks the distinctive nature of her office. The USCO Director is not simply a senior staff position; it is a statutory office with Senate confirmation, charged with administering the copyright laws and providing expert, nonpartisan guidance to Congress and the public. Removal during ongoing debates over AI and copyright is not an injury that can be repaired after the fact.
The real harm lies in the loss of institutional independence and the risk of viewpoint-based manipulation of copyright policy. These are precisely the kinds of harms—constitutional, structural, and public-facing—that cannot be remedied later with damages. By focusing only on Perlmutter’s personal loss, the district court sidestepped the broader stakes: harm to separation of powers, to the independence of the Copyright Office, and to the public’s interest in copyright policymaking free from political reprisal.
That broader conception of irreparable harm leads naturally to the final factor in the injunction analysis: the public interest.
The Public Interest: Separation of Powers and First Amendment Values
The public interest weighs heavily in favor of relief. At stake is not simply one individual’s employment, but the integrity of two constitutional guardrails: Congress’s exclusive authority over copyright and the broader constitutional value of protecting diverse viewpoints in government policymaking.
The Constitution vests in Congress alone the power to “promote the Progress of Science and useful Arts” through copyright and patent law.16 Congress exercised this authority through the Copyright Act of 1976, as amended by the Digital Millennium Copyright Act and subsequent reforms.17
One of the most pressing questions today—whether the unauthorized use of copyrighted works to train artificial intelligence models is infringement or fair use—is a genuinely novel issue of law. Courts are grappling with it in ongoing litigation, and Congress may yet craft new licensing schemes. What the Executive Branch cannot do is resolve the question unilaterally as a matter of presidential preference. Declaring AI training lawful or unlawful by decree would amount to rewriting the Copyright Act—something Article I forbids.
The U.S. Copyright Office’s May 9, 2025, report on Generative AI Training reflected precisely this careful statutory role. It concluded that “various uses of copyrighted works in AI training are likely to be transformative,” but that when commercial actors use “vast troves of copyrighted works to produce expressive content that competes with them in existing markets … [this] goes beyond established fair use boundaries.”18 That analysis exemplifies the Director’s statutory responsibility to “[c]onduct studies” and “[a]dvise Congress on national and international issues relating to copyright”—a role Congress deliberately insulated from presidential control.19
The Executive Branch has provided no official explanation for Perlmutter’s removal the very next day (a Saturday). President Trump, however, suggested his own view when unveiling the administration’s AI Action Plan on July 23:
“You can’t be expected to have a successful AI program when every single article, book, or anything else that you’ve read or studied, you’re supposed to pay for…. You just can’t do it because it’s not doable. ... China’s not doing it.”20
If, as the timing suggests, Perlmutter’s removal reflected disagreement with the Copyright Office’s report, the public interest concern deepens. This is not merely a personnel dispute; it is an act of executive reprisal against Congress’s designated advisor for advancing a disfavored analysis. Even if ordinary First Amendment doctrine does not apply to internal government personnel decisions, the values underlying that doctrine—resistance to viewpoint orthodoxy and protection of open, independent expertise—are directly implicated. To allow removal on such grounds would transform Congress’s independent adviser into an echo chamber for the Executive, undermining both separation of powers and the public’s trust in copyright policymaking.
Conclusion: Drawing the Line
This case is not about one USCO Director or one President. It is about whether the Copyright Office remains an expert arm of Congress or is absorbed into the shifting tides of presidential politics. The Constitution answers that question: copyright is Congress’s domain, and Congress created the Director to serve as its independent advisor.
At this stage, the question is not who ultimately prevails on the merits, but whether the status quo should be preserved while those constitutional claims are litigated. Preliminary relief may be extraordinary, but so too is the threat posed here. Allowing the President’s removal to stand while the case proceeds risks collapsing the separation of powers and chilling the independence on which Congress relies for sound copyright policymaking.
The district court treated the dispute as though it were any other employment matter. It is not. The stakes are constitutional and structural: whether Congress’s designated adviser can be dismissed for producing an inconvenient analysis, and whether the values that animate the First Amendment—protection against orthodoxy, diversity of views in the marketplace of ideas—apply within the institutional setting of copyright policymaking.
The bottom line is clear: Congress can remove the Director through statute. The Librarian of Congress may remove her, subject to congressional oversight. The President cannot. And until the courts resolve that question definitively, the public interest—rooted both in separation of powers and in the First Amendment’s core values—requires preserving the line.
All of the views and opinions expressed in this article are those of the author and not necessarily those of The National Law Review.
ENDNOTES
[1] The long version: President Trump did not directly fire Director Perlmutter. On May 8, 2025, he dismissed Librarian of Congress Carla Hayden, citing disagreements over diversity policies and library collections. By statute, Principal Deputy Librarian Robert Newlen would ordinarily have assumed the role of Acting Librarian, but two days later the White House designated Deputy Attorney General Todd Blanche as Acting Librarian under the Federal Vacancies Reform Act, displacing Newlen. On May 10, Perlmutter was removed under the direction of the interim leadership. See Dennis Crouch, Perlmutter v. Trump: Does the President Control the Copyright Office?, Patently-O.com (May 22, 2025), available at https://patentlyo.com/patent/2025/05/perlmutter-president-copyright.html; and Michelle Morgante, In New Appeal, Ousted Copyright Chief Says AI-Copyright Analysis Motivated Her Removal (Aug. 8, 2025), available at www.washingtonpost.com/politics/2025/05/11/white-house-copyright-office-director-fired/]. Perlmutter filed suit and her motion for preliminary injunction was denied by the district court and is currently on appeal. Perlmutter v. Blanche, No. 1:25-cv-01659 (TJK), 2025 WL ______ (D.D.C. May 22, 2025), appeal filed, No. 25-5285 (D.C. Cir. Aug. 8, 2025)].
[2] 17 U.S.C. § 701(a).
[3] Id. § 701(b)(1), (b)(4).
[4] See Myers v. United States, 272 U.S. 52, 176 (1926) (holding that the President has plenary removal power over purely executive officials, like the postmaster at issue) and Seila Law v. Consumer Financial Protection Bureau, 591 U.S. 197, 220 (2020) (holding that Congress may not restrict the President’s authority to remove the single head of an executive agency, as such insulation “contravenes the separation of powers” and infringes on the President’s ability to ensure the faithful execution of the laws).
[5] Humphrey’s Ex’ r v. United States, 295 U.S. 602, 624 (1935).
[6] See 5 U.S.C. § 7521.
[7] See Lucia v. SEC, 585 U.S. 237, 246–49 (2018); Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 507 n.10 (2010).
[8] Register of Copyrights Selection and Accountability Act of 2017, H.R. 1695, 115th Cong. (2017) (as passed by House, Apr. 26, 2017), 163 Cong. Rec. H2883 (daily ed. Apr. 26, 2017).
[9] 17 U.S.C. § 701(a).
[10] H.R. Rep. 115-91, at 3 (2017) (Register of Copyrights Selection and Accountability Act of 2017, Committee Report) (committee noting that H.R. 1695 “ensures that future Registers are chosen through [a] public process”—reflecting concerns about institutional independence).
[11] See Robert Levine, How the Battle over Control of the U.S. Copyright Office Could Affect the Music Industry (Mar. 23, 2017), available at https://www.billboard.com/music/music-news/battle-control-copyright-office-affect-music-industry-7736441/.
[12] The Federal Vacancies Reform Act provides that when a Senate-confirmed officer “dies, resigns, or is otherwise unable to perform the functions and duties of the office,” the officer’s “first assistant shall perform the functions and duties of the office” as Acting Officer. 5 U.S.C. § 3345(a)(1). The Act also permits the President to direct another senior agency official or a different Senate-confirmed officer to serve, but only within the Act’s strict limits. See 5 U.S.C. § 3345(a)(2)–(3); NLRB v. SW Gen., Inc., 580 U.S. 288, 292–93 (2017).
[13] Perlmutter v. Blanche, No. 1:25-cv-01659 (TJK), 2025 WL ______ (D.D.C. July 30, 2025), at 3-4 (relying on Sampson v. Murray, 415 U.S. 61 (1974).
[14] Id. at 7-8 (discussing Aviel v. Gor, No. 25-cv-778, 2025 WL 1009035 (D.D.C. Apr. 4, 2025).
[15] Id.
[16] U.S. Const., Art. I, Sec. 8, Cl. 8.
[17] Copyright Act of 1976, Pub. L. No. 94-553, 90 Stat. 2541 (codified as amended at 17 U.S.C. §§ 101–805), as amended by the Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860 (1998).
[18] U.S. Copyright Office, Copyright and Artificial Intelligence, Part 3: Generative AI Training (pre-publication version, May 9, 2025), at 107, available at https://www.copyright.gov/ai/Copyright-and-Artificial-Intelligence-Part-3-Generative-AI-Training-Report-Pre-Publication-Version.pdf.
[19] Id. at 1 (citing 17 U.S.C. § 701(b)(1), (b)(4)).
[20] Mohar Chatterjee, Trump derides copyright and state rules in AI Action Plan launch, Politico, available at https://www.politico.com/news/2025/07/23/trump-derides-copyright-and-state-regs-in-ai-action-plan-launch-00472443.
