Two cases in the D.C. Circuit last week continue the drama created by the Trump Administration’s muscular and maximalist views of Executive power. Another was less dramatic.

Shira Perlmutter began serving as Register of Copyrights and Director of the U.S. Copyright Office, a position housed within the Library of Congress and appointed and supervised by the Librarian of Congress, in 2020. On May 9, 2025, she released a report analyzing the use of copyrighted materials to training generative AI models as part of fulfilling her duty to advise Congress. The next day, she was told by the White House Presidential Personnel Office that she had been terminated from her position effective immediately.  In Perlmutter v. Blanche, No. 25-5285, in an order joined by Judges Pan and Childs, the D.C. Circuit granted an injunction pending appeal enjoining the President from interfering with Perlmutter’s service in her role as Register of Copyrights. Judge Pan wrote a concurring statement, joined by Judge Childs. Judge Walker wrote a dissenting opinion.

Judge Pan explained that the district court denied Perlmutter’s request for a preliminary injunction relying on precedents holding that the President’s desire to remove an official who exercises executive power generally outweighs the official’s interest in performing her duties. 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. The majority found there were “unusual” and “extraordinary” features of Perlmutter’s case. First, her removal was an unprecedented violation of the separation of powers because the President removed a Legislative Branch official appointed by the Librarian of Congress based on disagreement with the advice she provided to Congress. Second, the President’s removal of Perlmutter was likely unlawful because only a lawfully appointed and Senate-confirmed Librarian can remove the Register. Third, Perlmutter likely does not exercise executive power because her role is to advise Congress, making this case different from cases in which the President removes an executive branch official.

Judge Walker in dissent explained that the Register of Copyrights exercises executive power because she administers the Copyright Act, including by examining copyright applications, issuing copyright registrations, maintaining copyright deposits, and recording transfers of copyright ownership. Judge Walker further explained that the Supreme Court has recently and often stayed lower-court injunctions that barred the President from removing officers exercising executive power.

The high-profile legal dispute over President Trump’s decision to remove Lisa Cook from the Federal Reserve’s Board of Governors landed in the D.C. Circuit this week.

On August 25, 2025, President Trump published a letter removing Cook from the Board “for cause” under the Federal Reserve Act, 12 U.S.C. § 242. The letter cited two mortgage documents that Cook executed within the span of two weeks in 2021. Both documents claimed “primary residence” status for the subject properties, even though one was located in Michigan and the other was in Georgia. The President’s letter stated that these documents called into question Cook’s competence and trustworthiness as a financial regulator and justified removal.

Three days later, Cook filed a complaint in the U.S. District Court for the District of Columbia challenging the removal decision.  On Tuesday, Judge Jia Cobb granted Cook a preliminary injunction that allows her to stay in office during the pendency of the case. Cook v. Trump, No. 2025-2903. Noting that Cook’s firing marked a first in the Federal Reserve’s 111-year history, the district court held that Cook was likely to succeed on her “for cause” and due process arguments. The court reasoned that the Federal Reserve Act contemplates “for cause” removal only for actions taken while in office.  Because Cook’s mortgage filings preceded Cook’s time in office, they likely could not justify the President’s removal decision. The court also held that the removal likely violated Cook’s procedural rights because she was not provided sufficient notice or an opportunity to be heard before the letter was posted.

The Trump administration immediately appealed the decision to the D.C. Circuit and sought a stay pending appeal.  Cook v. Trump, No. 25-5326.  The Court issued an order on Wednesday asking for a response to the stay motion by Saturday evening, and a reply by Sunday afternoon. The Court did not grant a temporary administrative stay during the briefing period. It’s possible that the Court will issue a decision on the stay before or shortly after this update is published. And that decision will almost certainly be appealed to the Supreme Court. Stay tuned.

And then there was a more pedestrian case that is part of the standard fare on the docket of the D.C. Circuit, and which brings to mind Justice Kagan’s famous quip regarding her failed nomination to the D. C. Circuit:  “Sometimes people ask me: Do you feel bad that your nomination was left hanging up there, that you never had a chance to be a D.C. Circuit judge?” she said. “And, you know, if truth be told, sometimes I do,” she went on. “But I’ve come up with a really good way of making those feelings go away. What I do is pick up another D.C. Circuit opinion.” Adam Liptak, Rare Breed Now: A Justice Who Wasn’t a Judge, New York Times, April 30, 2010.

The Public Utility Regulatory Policies Act of 1978 (“PURPA”) directs the Federal Energy Regulatory Commission (“FERC”) to require utilities to sell power to and buy power from qualifying “small power production facilities” at favorable rates in an effort to encourage companies to produce renewable energy. In 2023, the Solar Energy Industries Association challenged FERC’s order certifying intervenor Broadview’s solar facility as a “small power production facility” based on FERC’s interpretation of the “power production capacity” of the facility. The D.C. Circuit affirmed FERC’s interpretation under Chevron, which certified Broadview as a small facility. The U.S. Supreme Court granted cert, and in light of Loper Bright, vacated the D.C. Circuit’s judgment and remanded for further consideration.

In Solar Energy Indus. Ass’n v. FERC, No. 21-1126, the D.C. Circuit considered whether Broadview is a small power production facility under PURPA based on its “power production capacity” as defined by the statute. In an opinion written by Judge Pillard and joined by Judge Katsas, the D.C. Circuit denied the petitions for review and held that Broadview qualifies as a small facility because the best reading of the statute is that “power production capacity” refers to its maximum net output of AC power to the electrical grid at any given point in time. Broadview must use inverters to convert DC power to AC power to be grid-usable. The D.C. Circuit reasoned that a facility’s power production capacity is the amount of power that a facility as a whole sends out to the electrical grid. Because Broadview’s inverters can only send 80 megawatts of AC power to the grid at any point in time, it qualifies as a small facility under PURPA.   

Concurring in part and dissenting in part, Judge Walker agreed with Judges Pillard and Katsas that the statute’s use of facility requires one to assess the production capacity of a power plant as a whole, not limited to the capacity of a solar array. However, Judge Walker would include the facility’s battery capacity in the power production equation, thereby finding Broadview’s power production capacity over the threshold to be certified as a small facility under PURPA. Judge Walker reasoned that power sent to the facility’s storage battery allows the facility to send power to the grid when it otherwise could not, increasing profitability and enabling the facility to prolong its maximum output during the night. Because Broadview can simultaneously send 80 megawatts of power to the grid and 50 megawatts to its battery for later transfer to the power to the grid, Broadview’s power production capacity would be 130 megawatts, which is over the maximum limit to be considered a small facility under PURPA.

Last week, the Nation was horrified at the shocking murder of Charlie Kirk, one of our most influential public figures. Much has been written about this awful moment, what it means, what it portends. Several months ago, Bob Bauer, who helps lead the Democracy Project at NYU’s law school, asked if I would write a short piece on how we can strengthen our commitment to our democratic republic. Bob decided to run my piece in the immediate aftermath of Kirk’s death. I think you’ll see why. Had I written the piece last week, I would have included a comment made by Justice Amy Coney Barrett in her recent conversation with Bari Weiss.  Much attention was given to Justice Barrett’s comment that she didn’t think the nation was undergoing a constitutional crisis. Little attention was given to what she said next, which I think is a far more important insight: “We need to learn to compromise and talk to one another and move forward past our disagreements to see one another as fellow Americans and citizens, and that is the way to avert a constitutional crisis.” (emphasis added.)