On Friday, the U.S. Court of Appeals for the District of Columbia Circuit found that the three-judge board of the Copyright Board violates the Appointments Clause of the Constitution. The Appointments Clause requires all officers who hold ‘significant authority’ to be appointed by the President with confirmation of the Senate. However, the court found that the three-judge panel of the Copyright Royalty Board, which lays down the rates that broadcasters have to pay for copyright licenses, was appointed by the Librarian of Congress, rather than by the President of U.S.
However, the court apparently found a way out of the constitutional convolution and held that granting the Librarian of Congress the authority to fire the judges would straighten out and fix the problem. Writing for the Court of Appeals, Judge Stephen Williams wrote that “With such removal power in the Librarian’s hands, we are confident that the Judges are ‘inferior’ rather than ‘principal’ officers, and that no constitutional problem remains.”
Saxon Gilmore publications should not be construed as legal advice on any specific facts or circumstances. The contents are intended for general information and educational purposes only, and should not be relied on as if it were advice about a particular fact situation. The distribution of this publication is not intended to create, and receipt of it does not constitute, an attorney-client relationship with Saxon Gilmore. This site may contain hypertext links to information created and maintained by other entities. Saxon Gilmore does not control or guarantee the accuracy or completeness of this outside information, nor is the inclusion of a link to be intended as an endorsement of those outside sites.