The Volokh Conspiracy
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Washington Post Article Stresses the Library of Congress's Name, but Largely Ignores Judicial Precedent …
that treats the Library of Congress as an Executive Branch department as to Presidential removal of the Librarian.
From Saturday's Washington Post story; the subhead is,
[Title:] It's Called the Library of Congress. But Trump Claims It's His
[Subtitle:] The case is the latest example of efforts by the Trump administration to erase the traditional lines that separate the branches of government.
[First two paragraphs:] The Trump White House has a new target in its campaign to expand executive power: the Library of Congress. Never mind the name—administration lawyers are now arguing that the main research library of the legislative branch doesn't actually belong to Congress at all.
A legal push to claim the Library as executive turf isn't a one-off. It's the latest move in a broader effort by President Donald Trump and his administration to erase the traditional lines that separate the branches of government….
Later paragraphs likewise give the Administration's actions with regard to the Library as part of "the Trump administration's disregard for the separation of powers."
But this material seems to entirely ignore (with one exception I'll note below) what courts have actually said about this legal question. Those precedents have routinely recognized that the Library of Congress, despite its name, is indeed part of the Executive Branch and subject to Presidential control—and that the President's power to remove the Librarian is a feature of the traditional separation of the branches, not a violation. 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. Intercollegiate Broad. Sys., Inc. v. Copyright Royalty Bd., 684 F.3d 1332, 1342 (D.C. Cir. 2012).
And the Intercollegiate Broad. Sys. D.C. Circuit decision said (emphasis added),
To be sure, [the Library of Congress] performs a range of different functions, including some, such as the Congressional Research Service, that are exercised primarily for legislative purposes. But … the Librarian is appointed by the President with advice and consent of the Senate, and is subject to unrestricted removal by the President. Further, the powers in the Library and the [Copyright Royalty] Board [which is part of the Library -EV] to promulgate copyright regulations, to apply the statute to affected parties, and to set rates and terms case by case are ones generally associated in modern times with executive agencies rather than legislators. In this role the Library is undoubtedly a "component of the Executive Branch."
Indeed, because the Library exercises such executive powers, the Librarian of Congress has to be an executive officer rather than a legislative one. See, e.g., Buckley v. Valeo (1976); Eltra Corp. v. Ringer (4th Cir. 1978). (After 2012, Congress provided that the Librarian serves 10-year terms, but "fixed terms do not confer removal protection": "The Supreme Court [has] rejected [the argument] "that the existence of a term of office implicitly carries with it a prohibition on removal without cause during that term." NLRB v. Aakash, Inc. (9th Cir. 2023) (upholding President Biden's dismissal of the NLRB General Counsel, who was subject to a similar fixed-term statute).)
The Washington Post article does mention, in paragraph 18, that "Anne Joseph O'Connell, an administrative law professor at Stanford Law School, said that the president has authority to fire the librarian based on a past D.C. Circuit ruling." But that strikes me as doing little to correct the implication at the beginning of the article that the Library of Congress "actually belong[s] to Congress" under the "traditional lines that separate the branches of government" that were recognized before Trump's "campaign to expand executive power."
Now, as the article notes, there's a pending lawsuit considering whether the President could fire the Register of Copyrights, who works under the Librarian, and whether the President can assign an interim Librarian under the Federal Vacancies Reform Act. (The President can certainly appoint a new Librarian, but that would require Senatorial confirmation, and a temporary Vacancies Act appointment wouldn't require such confirmation.) That lawsuit raises the question whether the Library of Congress is an "executive agency" for purposes of that Act—a question of statutory interpretation, which the article touches on, but which it doesn't recognize as separate from whether the Library is an executive agency for broader constitutional purposes (e.g., as to the President's removal power).
The article is also correct to point out the possible problems with the President exercising close control over the Library of Congress, given its role doing research in support of Congress (which, as Eltra Corp. noted, "might be regarded as legislative in character"). An Executive Branch agency can provide such support for Congress (though a legislatively appointed agency can't exercise executive powers), but maybe that's not a good idea. It might thus potentially make sense to have a different structure for the Library, in which those legislative research functions are performed entitled within the Legislative Branch under Congressional supervision, and the Register of Copyrights and any other executive operations are put into a separate executive agency. But that just isn't the way the Library is structured under current law.
So there definitely could have been an interesting and balanced article here, which might have gone something like this:
It's Called the Library of Congress. But It's Actually Under Control of the President
A new court case offers an example of how the Trump administration is asserting its executive power.
Despite its name, the Library of Congress is actually seen as an Executive Branch agency for constitutional purposes. By law, the President appoints the Librarian with the Senate's advice and consent, just as he appoints other executive agency heads. And a federal appellate court has recognized that the President also has the power to remove the Librarian.
Yet the Library is also the main research library of the legislative branch, so this Presidential power raises concerns about possible intrusion into the confidentiality of lawmakers' research requests. This leads to the question whether the Library's research office should be split into a purely legislative agency, while the U.S. Copyright Office—long part of the Library—remains an executive agency.
And, it turns out, that though the Library is an executive agency for constitutional purposes, it might not be one under the text of the Federal Vacancies Reform Act, which lets the President to appoint interim directors for some executive agencies even without Senatorial advice and consent. That very issue is being litigated now in federal court….
Or of course the article could have been written in many other ways. But I don't think it was proper to frame it the way it was framed, with virtually no acknowledgment that, "[n]ever mind the name," precedents make clear that the Library of Congress indeed "doesn't actually belong to Congress" but is rather—for constitutional purposes—an Executive Branch agency.
