SCOTUS told by Trump that ruling restoring Perlmutter to copyright office is ‘improper judicial interference’

SCOTUS told by Trump that ruling restoring Perlmutter to copyright office is ‘improper judicial interference’

The D.C. appellate court’s injunction represents “another case of improper judicial interference with the President’s power to remove executive officers.,” the administration argued.

The Trump Administration has asked the Chief Justice of the US Supreme Court to stay an interlocutory injunction issued by the US Court of Appeals for the D C Circuit in September which allowed Register of Copyrights Shira Perlmutter to return to her post pending her lawsuit against President Donald Trump for allegedly illegally removing her from office. Todd Blanche, Acting Librarian of Congress; Paul Perkins, Acting Register of Copyrights; Sergio Gor, Director, White House Presidential Personnel Office; Trent Morse, Deputy Director, White House Presidential Personnel Office; Executive Office of the President; and Trump submitted to the Chief Justice of the Supreme Court the application for a stay.

The D.C. appellate court’s injunction represents “another case of improper judicial interference with the President’s power to remove executive officers,” the administration argued.

First, Librarian of Congress Carla Hayden was fired by Trump on May 9, two days before he fired Perlmutter and named Deputy Attorney General at the U.S. Department of Justice, Todd Blanche, as acting Librarian of Congress.

A complaint was filed by Perlmutter against Trump on May 22, calling his attempt to remove her “unlawful and ineffective” and arguing that the President “has no authority to name a temporary replacement Librarian of Congress, much less name a high-ranking DOJ official whose presence offends the constitutional separation of powers.”

Perlmutter lost her bid to enjoin Trump in July when the US District Court for the District of Columbia refused her request for a preliminary injunction blocking the removal. Perlmutter filed on June 10 her Motion for a Preliminary Injunction and argued that Trump’s removal has caused her irreparable harm “and will continue to do so absent judicial intervention.”

However, the D.C. court dismissed these concerns, explaining first that Perlmutter may still be restored to her position if she wins on the merits. Whereas Perlmutter argued that “the Copyright Office is in the middle of producing a multi-volume report on copyright and artificial intelligence for Congress and other stakeholders and that her ability to ‘complete’ that report ‘will be forfeited during the months-long pendency of this lawsuit”.

On appeal, the D.C. Circuit said, “the district court abused its discretion by failing to consider ‘unusual actions relating to the discharge itself’ and a ‘genuinely extraordinary situation’— factors that inform the irreparable-harm analysis and distinguish this case from other removal cases.” Circuit Judge Walker dissented.

The administration’s application for a stay referred to Walker’s dissent in arguing that the D.C. Circuit’s “analysis contravenes settled precedent and misconceives the Librarian’s and Register’s legal status.” The powers of the Librarian and Register have been classified as executive by the Supreme Court, “such as the power to issue rules implementing a federal statute, to issue orders in administrative adjudications, and even to conduct foreign relations relating to copyright issues.”

To be granted a stay of a lower court’s injunction, the administration has to show a “reasonable probability” that the Supreme Court “would grant certiorari, a likelihood of success on the merits, and a likelihood of irreparable harm.”

From Perlmutter’s reinstatement, the government faces irreparable harm because it allows a removed officer to continue exercising power over the President’s objection and subjects the agency to disruption. Perlmutter, however, faces no irreparable harm from her removal. The Court should therefore stay the injunction pending the D.C. Circuit appeal and Supreme Court proceedings, the brief concluded.

Perlmutter is still listed by the U.S. Copyright Office website as the present Register of Copyrights.