Is the Copyright Office Really Not Executive? A Head-Scratcher Before the Supreme Court

After nearly 35 years practicing copyright law, it’s rare that a legal argument truly makes me pause and ask, “Wait—are we seriously debating this?” But that’s exactly my reaction to one of the central claims now before the Supreme Court in Trump v. Perlmutter: that the U.S. Copyright Office is not an executive agency.

On a practical level, this argument is a head scratcher.

The Copyright Office issues regulations that implement federal copyright law. It adjudicates copyright registration applications. It enforces statutory requirements like deposit obligations. Its legal interpretations bind the Copyright Royalty Board. It participates in international copyright discussions that affect U.S. trade and diplomacy. None of that is advisory. None of it is theoretical. These are textbook examples of executive power in action.

And yet, in Trump v. Perlmutter, the argument has been advanced that because the Copyright Office is housed within the Library of Congress, it somehow sits outside the Executive Branch altogether. That framing elevates organizational labels over constitutional reality.

The Constitution is clear on one foundational point: Congress makes the law, but it does not execute it. Agencies that administer statutes through rule making, adjudication, and enforcement are exercising executive authority. Courts have recognized this for decades, including with respect to the Copyright Office itself. Calling the Office “legislative” does not change what it actually does.

This is where the argument becomes more than academic. If the Copyright Office is not part of the Executive Branch, then we have a serious separation-of-powers problem. Who is constitutionally accountable for its actions? Congress cannot both write the law and execute it. If the Office is outside executive control, large portions of modern copyright administration rest on shaky constitutional ground.

History cuts strongly against that result. The Librarian of Congress is appointed by the President and confirmed by the Senate. The Register of Copyrights is appointed by the Librarian. That appointment structure only works if the Librarian is treated as a “Head of Department” for Article II purposes. Otherwise, the Register’s own appointment would be constitutionally suspect.

As for where things stand procedurally: Trump v. Perlmutter is currently before the Supreme Court on an emergency application by the government seeking to stay a D.C. Circuit injunction. That injunction temporarily reinstated the Register of Copyrights after her removal. The district court had denied injunctive relief, but a divided D.C. Circuit panel ordered reinstatement pending appeal. The Supreme Court has not yet ruled on whether that injunction will be stayed while the case continues.

Reasonable lawyers can disagree about statutory interpretation or remedies. But denying the executive character of the Copyright Office requires ignoring decades of constitutional doctrine and the Office’s real-world functions.

After three and a half decades in this field, I remain convinced of one thing: copyright law depends on a constitutionally sound administrative structure. Undermining that structure to advance a litigation theory risks creating a far bigger problem than anyone intends.