Copyright Royalty Board Found Unconstitutional; Appeals Court Magically Makes It Constitutional Again

from the say-what-now? dept

We've written a few times about constitutional challenges to the legitimacy of the Copyright Royalty Board. As we noted from the beginning, it's pretty clear that, as a matter of fact, the CRB is unconstitutional in that it violates the Appointments Clause. That clause requires judicial appointments to be made only by the President, the courts or the heads of executive branch departments. However, the CRB is appointed by the Librarian of Congress, which you might notice is a part of the legislative branch, not the executive branch, and the Librarian of Congress is a position at a much lower level than a "department head" required under the Appointments Clause. If all that seems pretty technical, you're right -- which is also why we thought that the court cases pursuing this line or reasoning were a waste of time. At best, we said, the courts would agree that the CRB was unconstitutional, and then just have a department head "re-appoint" the same judges.

Back in February, when the appeal to one of these cases was being heard -- the one brought by Intercollegiate Broadcasting Services (IBS), who represents a bunch of college radio stations -- we noted that from the questions raised it seemed clear that the appeals court agreed that, on a technicality, the CRB was unconstitutional, but its main interest was in figuring out how to "minimize" the impact of admitting that a ton of royalty rates have been set and enforced based on an unconstitutional process. And, indeed, that analysis turned out to be entirely accurate.

The ruling has come out and the DC circuit appeals court has agreed that the CRB is unconstitutional... but immediately "fixes" the problem with one change and one statement. The "statement" is that even though no one really considered the Librarian of Congress a "department head" as described in the Appointments Clause, the court now says that the position is, in fact, a Department head. And the one change is that by saying that the Librarian of Congress can not just appoint the judges, but also fire them... suddenly everything is good again:
But we agree with Intercollegiate that the position of the CRJs, as currently constituted, violates the Appointments Clause... To remedy the violation, we follow the Supreme Court’s approach in Free Enterprise Fund v. Public Company Accounting Oversight Bd... by invalidating and severing the restrictions on the Librarian of Congress’s ability to remove the CRJs. 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.
Because of this magical sleight of hand, the appeals court decides that it need not even consider the question of whether the crazy rates that the CRB has set up in the past (when it admits they were unconstitutional) should be reviewed. In other words, this one turned out more or less as expected: even if it was obvious to nearly everyone that the CRB is unconstitutional, a little employment jujitsu suddenly makes it constitutional again. There are all sorts of reasons to be annoyed at the CRB and the royalty setting process -- but the arguments over constitutionality were a sideshow all along.

Filed Under: appointments clause, constitution, copyright royalty board, librarian of congress

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  1. icon
    Josh in CharlotteNC (profile), 6 Jul 2012 @ 1:00pm

    Re: But what of the Branch question?

    Yeah, I don't like this precedent, either. There's a checks and balances failure here. The President (executive branch) gets to appoint federal judges - but they still must be confirmed by the Senate (legislative branch). Even though the LOC is appointed/confirmed in the same manner, who can reign in the LOC? Can Congress refuse to confirm appointments to the CRB?

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