The past week has been witness to the rarest of rare Trump-era occurrences: Congress has been standing up for itself a little. It hasn’t happened over any of the numerous brazen abuses of the separation of powers that we have seen this year, like the administration’s withholding of appropriated spending, reorganizing of statutorily mandated agencies, or deformation of emergency powers. It has happened over control of the Library of Congress.
If, like me, you are a connoisseur of the wonky minutiae of American constitutional governance, this little controversy has lots to offer you.
And if the stakes weren’t so high, it could even be fun to watch. But the stakes really are high, and there is more than minutiae to draw out of this controversy: There are some real lessons here about the administration’s means and ends, Congress’s pain points, and the direction of bigger fights to come.
On May 8, President Trump fired the Librarian of Congress, Carla Hayden. Pressed for an explanation, White House press secretary Karoline Leavitt chose instead to insult our intelligence, saying:
“We felt she did not fit the needs of the American people. There were quite concerning things that she had done at the Library of Congress in the pursuit of DEI, and putting inappropriate books in the library for children.”
This was patent nonsense. The Library of Congress is not a community lending library. By law, it stocks pretty much every copyrighted book published in the United States. And it doesn’t allow children to access its holdings. So Leavitt shed no real light on the president’s motives.
Two days later, on May 10, the president also fired Shira Perlmutter, who as the register of copyrights ran the U.S. Copyright Office, which is housed within the Library of Congress and reports to the librarian of Congress. The White House then named Deputy Attorney General Todd Blanche the acting librarian of Congress, and two other senior DOJ officials, Brian Nieves and Paul Perkins, as the acting deputy librarian and acting register of copyrights, respectively.
These moves have drawn an alarmed response from Congress — and not just from Democrats. As Politico put it on Wednesday: “A White House push to seize control of the Library of Congress over the past week has run temporarily aground due to quiet but firm resistance from Speaker Mike Johnson and Senate Majority Leader John Thune.” The Washington Post reported:
“‘We made it clear that there needs to be a consultation around this — that there are equities that both Article I and Article II branches have [with] the Library of Congress,’ Senate Majority Leader John Thune (R-South Dakota) told reporters Tuesday, referring to the legislative and executive branches, adding that Trump administration officials had met with members of the Senate Rules and Administration Committee, which oversees the library.”
Administration officials, including Blanche himself, have now also been called in to meet with Speaker Johnson and relevant House committee leaders, and many individual members of both parties have publicly expressed concerns and a willingness to fight this move.
Congressional leaders even appear to have told library officials not to accept the new appointments. Robert Newlen, the top career official at the library, has been treated as its acting director by Congress so far.
Like a lot of the administration’s actions around the separation of powers, if this move were considered in isolation it would be only legally dubious, not obviously impermissible. On the one hand, the Library of Congress is… well, Congress’s library. It serves the legislative branch; its employees answer to Congress and are not governed by the executive branch’s Office of Personnel Management. Its work is not accountable to the White House or overseen by the executive branch’s Office of Management and Budget. It is, on its face, a legislative-branch agency.
But on the other hand, its director, the librarian of Congress, is appointed by the president, and has been since the role was created by an 1802 statute. Since 1870, the library has also been charged with enforcing the nation’s copyright laws through the Copyright Office, and work of that office — processing applications for copyright, maintaining a record of copyrights, resolving some disputes about copyright claims, and the like — could plausibly be described as an executive function. The courts have seen it that way several times over the years, maybe most notably in a 2012 case in which the D.C. Circuit Court of Appeals declared that, in its role regarding copyrights, “the Library is undoubtedly a component of the Executive Branch.”
This peculiar ambiguity has mostly been a kind of charming wrinkle in the American system of government — until this month. The administration’s actions raise some crucial questions about the nature of the Library of Congress and the character of legislative power — particularly because the president has named executive-branch officials to positions within the library. Trump has done a lot of this kind of thing: Marco Rubio, for instance, is not only the secretary of state but also the acting administrator of USAID, the acting archivist of the United States, and the acting national security adviser at the White House. Ridiculous as that is, those are at least all clearly executive-branch jobs. Can the president do this in Congress’s library? And can he remove and appoint lower-ranked officials, like the register of copyrights, who are not otherwise presidentially appointed?
The Power Struggles of the Moment
This little controversy is modestly interesting in itself, but it is more important for the light it might shed on the broader power struggles of this moment. To see it in that context, we need to ask two simple questions: Why did the president fire the librarian of Congress and the register of copyrights? And why has Congress resisted this time, when it has rolled over so often this year in the face of seemingly far greater affronts to its authority? The answers to those two questions do not point in the same direction.
The administration’s move to take over the library was almost certainly focused on the copyright office, and with an eye to a raging controversy about artificial intelligence and copyright law that is of great interest to some of President Trump’s wealthiest supporters.
AI models are trained on huge amounts of copyrighted material — journalism, literature, film, music, and much more — without seeking permission from or providing payment to their creators. The Silicon Valley tech firms argue that this falls under the “fair use” exception in copyright law. But the creators of this material argue that feeding their work into AI models that use it to produce competition for them — in the form of passable simulacra of their work and ultimately maybe even superior alternatives to it — is nowhere near the meaning of fair use.
That question will ultimately be settled by the courts (or perhaps someday by legislation, if we’re lucky). But in the meantime, the position of the U.S. Copyright Office will matter a lot. Just one day before the register of copyrights was fired, her office released the long-awaited final part of an extensive report on “Copyright and Artificial Intelligence.“ Working its way through the pros and cons of considering AI-model training a form of fair use, the report ultimately sided mostly with the creators of copyrighted material. Its views aren’t binding, but when these questions are litigated, content creators will find a treasure trove of supportive arguments in this document along with powerful refutations of essentially every aspect of the case for extending fair-use exceptions to AI.
That the report’s nominal author was fired the day after its release somehow doesn’t feel like a coincidence. The acting replacements for the librarian of Congress and the register of copyrights are not themselves necessarily allies of Silicon Valley — in fact both have been critics of the tech companies. It may well be, as The Verge’s Tina Nguyen has argued, that their selection was the result of a bargain within the administration on this front, or of some internal pushback to an attempted power play by the tech wing of the Trump coalition. But the decision to remove and replace Hayden and Perlmutter certainly looks to have been such a power play.
The response from Congress, however, was much more focused on the library’s other functions, and particularly its substantive policy advice to members. Many of the member complaints about the move, especially from Republicans, have mentioned the role of the Congressional Research Service, which provides information and advice to congressional offices. CRS’s formal reports are now all public (and they’re enormously valuable), but a lot of what the agency does is to respond privately to member and staff questions, and members seem very alarmed at the notion that the administration would now have access to those questions and answers. The Washington Post summed up this concern well:
Daniel Schuman, a former attorney for the Congressional Research Service, said access to the library’s materials would include a view into communications between congressional offices and attorneys and researchers stretching back decades, including requests for legal advice on legislation not yet filed.
“You can’t have the executive branch seeing the advice that Congress is getting from its own staff,” said Schuman, who now directs the nonprofit American Governance Institute.
It’s good to see Congress showing concern about its own internal operations and prerogatives — or for that matter showing signs of an internal life at all. But the fact that it is this executive incursion that has set off a congressional response for this reason is telling and important.
Jerks of Authority and the Authority of Jerks
The Trump administration’s behavior in this controversy has been par for the course. This administration seeks to advance its interests through jerks of authority and the authority of jerks. Maybe they think this is an effective way to assert power in our system; I suspect time will show it is not. But Congress’s behavior has been very different this time, and it is worth considering why.
In eras of confusion and corruption, it is often possible to gain understanding only through the deciphering of ironies. And this controversy has brought to the surface an irony that would-be reformers of Congress should notice: Members of Congress have responded to an affront to their institution not when the powers of their office have been threatened but when the trappings of their office have been threatened. We should not simply view this cynically. It suggests that legislators have come to think of the power of their office as a burden of which they are pleased to be relieved rather than as itself a privilege or a trapping of the job they have sought out. This in itself tells us something about the nature of the problem to be solved in Congress — about how members see their roles, how that needs to change, and why.
Ultimately, in calmer times, the institutional ambiguity laid bare by this controversy should be resolved by some restructuring. Congress really has no business administering the copyright system, and the president has no business running Congress’s library. Congress should, by legislation, move the Copyright Office to the Commerce Department (alongside the Patent and Trademark Office), and it should make the librarian of Congress appointable by Congress alone, without presidential involvement (like the director of the Congressional Budget Office). Congress did much the same with the architect of the Capitol just in 2023.
But this moment is not likely to allow for such a rational resolution. So for now we will see a messy and confusing fight. And as ambiguous as the legal questions are, every constitutionalist should be a Roundhead in this struggle — a partisan of legislative power. Congress needs to assert itself, and if this is what it takes to wake the institution up to its prerogatives, then by all means let’s fight for the library.
Yuval Levin is the director of Social, Cultural, and Constitutional Studies at the American Enterprise Institute (AEI), where he also holds the Beth and Ravenel Curry Chair in Public Policy. This essay previously was published by The Atlantic.
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