“The Librarian and Register exercise powers that this Court has repeatedly classified as executive, 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. The Librarian and Register are appointed under Article II’s Appointments Clause, not under Article I’s provisions authorizing each House of Congress to choose its own officers,” Sauer said in the petition.

“Treating the Librarian and Register as legislative officers would set much of federal copyright law on a collision course with the basic principle that Congress may not vest the power to execute the laws in itself or its officers,” Sauer added.

The petition also contended that the act of a federal court reinstating a fired official pending litigation is unlawful.

“The traditional remedy for the unlawful removal of an executive officer is back pay, not a preliminary injunction granting interim reinstatement,” the petition said. “Even assuming that respondent could obtain some form of reinstatement remedy at the end of the litigation—an issue the Court need not decide now—the interim relief granted here is plainly unlawful.”

The dispute over Perlmutter’s firing marks the latest instance of the Trump administration going to the Supreme Court over the firing of an independent agency head. The high court has allowed the firings all three times the issue has come before them on its emergency docket.

While a federal district court denied a bid to reinstate Perlmutter, a federal appeals court granted her request to be reinstated 2-1 last month. The majority ruling claimed it was obeying the Supreme Court’s recent rulings on its emergency docket, finding that the president “may remove without cause executive officers who exercise that power on his behalf,” but insisting that the register of copyrights does not exercise executive powers.

APPEALS COURT ORDERS REINSTATEMENT OF TRUMP-FIRED REGISTER OF COPYRIGHTS

The Supreme Court will hear a case over independent agency head firings on its merits docket on Dec. 8, when it hears oral arguments in Trump v. Slaughter. The case, which was elevated from the emergency docket to the merits docket, involves a dispute over whether Trump is legally allowed to fire FTC commissioner Rebecca Slaughter.

Based on recent rulings on its emergency docket, the high court appears poised to overrule its 1935 opinion in Humphrey’s Executor v. United States with the Slaughter case. In Humphrey’s Executor, the Supreme Court found that then-President Franklin Delano Roosevelt could not fire an FTC commissioner at his discretion and could only fire him “for cause,” as outlined in the law passed by Congress authorizing the creation of the FTC.