The Volokh Conspiracy
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Can the President Fire the Librarian of Congress? Turns Out That He Likely Can
Last week, the President fired the Librarian of Congress, and then the Register of Copyrights, who is the Librarian's subordinate. I will set aside the question of whether that was a good idea, and focus on the legal question—how can the President fire the Librarian of Congress?
The answer appears to be that the Library of Congress is actually an Executive Branch department for legal purposes, though it also provides some services to Congress. Indeed, I think it has to be such a department in order to have the authority that it has over the implementation of copyright law (via the Register of Copyrights): As Buckley v. Valeo (1976) made clear, in a less famous part of its holding, Congress can't appoint heads of agencies that exercise executive powers.
Indeed, the U.S. Court of Appeals for the D.C. Circuit held last year,
As we have recognized, the Librarian is a "Head of Department" within the Executive Branch.
And that is particularly true when it comes to the appointment of the Librarian: A federal statute expressly provides that,
The President shall appoint the Librarian of Congress, by and with the advice and consent of the Senate.
Likewise, Eltra Corp. v. Ringer (4th Cir. 1978) held that,
The Register [of Copyrights] is appointed by the Librarian of Congress, who in turn is appointed by the President with the advice and consent of the Senate. By the nature of his appointment the Librarian is an "Officer of the United States, with the usual power of such officer to appoint 'such inferior Officers (i. e., the Register), as (he) think(s) proper." …
The operations of the Office of the Register are administrative and the Register must accordingly owe his appointment, as he does, to appointment by one who is in turn appointed by the President in accordance with the Appointments Clause. It is irrelevant that the Office of the Librarian of Congress is codified under the legislative branch or that it receives its appropriation as a part of the legislative appropriation.
And that is true even though "The Librarian performs certain functions which may be regarded as legislative (i.e., Congressional Research Service)" as well as "other functions (such as the Copyright Office) which are executive or administrative." The purely legislative functions might well be done by an entity controlled by Congress, and perhaps that would be a good reform for the future, to avoid undue Executive control over research done on behalf of members of Congress. But because the Librarian and the Librarian's appointees (such as the Register) currently also perform executive functions, the Librarian's office is part of the Executive Branch for purposes of appointment and removal.
To be sure, the statute provides that the Librarian serves 10-year terms; but it's not clear that this would be seen as prohibiting removal by the President before the end of the term. See, e.g., NLRB v. Aakash, Inc. (9th Cir. 2023), upholding President Biden's dismissal of the NLRB General Counsel:
Title 29 U.S.C. § 153(d) provides that the Board's General Counsel "shall be appointed by the President, by and with the advice and consent of the Senate, for a term of four years." The statute contains no provision precluding removal of the General Counsel or requiring cause for removal.
Aakash argues that the existence of a term of office implicitly carries with it a prohibition on removal without cause during that term. The Supreme Court rejected that argument 125 years ago in Parsons v. United States (1897). There, the President appointed a United States Attorney for the Northern District of Alabama to a four-year term but removed him before that term ended. The Attorney argued that he was entitled to serve for the entire four-year term to which he had been appointed. The Court held that the President acted appropriately in removing the Attorney before the end of his four-year term because a statutory provision establishing a fixed four-year term, without any additional limitation, does not affect the President's discretionary power of removal. See also Shurtleff v. United States (1903) (The right of removal "does not exist by virtue of the [statutory text], but it inheres in the right to appoint, unless limited by constitution or statute. It requires plain language to take it away."). The Supreme Court has cited Parsons for the proposition that fixed terms do not confer removal protection. Myers v. United States (1926).
Beyond this, Myers concludes that Congress couldn't limit the President's removal power as to these sorts of individual executive officers even if it wanted to. (The main debate about the President's removal power—the Humphrey's Executor / Seila Law question—is about Presidential power to remove members of multi-headed independent agencies, such as the FTC.)
So in any event, it appears that the removal of the Librarian of Congress is legal, and the President is entitled to appoint a replacement (with the advice and consent of the Senate).
