iiinova — where your digital self keeps evolving

Thomas Berry @thomasberry.bsky.social · 05/06/2026

In @lawfaremedia.org, I explain how William Pulte's appointment as acting director of national intelligence exposes a major flaw in the Vacancies Act, and what Congress can do to fix it. 🧵

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Thomas Berry @thomasberry.bsky.social · 28/04/2026

Two members of the cabinet are currently acting officers, and more may be on the way. How long can they serve without Senate consent, and is their service even constitutional? I go over all the rules and controversy below.

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Cato Institute @cato.org · 27/02/2026

If the president could unilaterally change federal election law without Congress, it would destroy the design created by the Framers of the Constitution, says Cato’s @thomasberry.bsky.social. buff.ly/puYeT1r

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Thomas Berry @thomasberry.bsky.social · 10/03/2026

The government is punishing @anthropic.com because Anthropic refuses to change what its AI model will say and do. That retaliation campaign is unconstitutional, because the First Amendment protects the right to design AI models with limits and guardrails as its creators see fit.

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Cato Institute @cato.org · 27/02/2026

If President Trump tries to take control of the midterm elections by executive order, he'll be defying the Constitution in an attempt to trample the authority of Congress and the states and the rights of voters. The time to draw a line is now, says @walterolson.bsky.social. buff.ly/ok13K53

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Thomas Berry @thomasberry.bsky.social · 27/02/2026

If the president could unilaterally change federal election law without Congress, it would destroy the Framers' design. That is why any legal claim of inherent presidential authority to regulate elections during a supposed "national security emergency" must be vigorously opposed.

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Thomas Berry @thomasberry.bsky.social · 26/02/2026

The Constitution explicitly assigns to "the Congress" the power to "make or alter" election regulations "by Law" (i.e., by statute). That explicit textual command leaves no room for any claim that the President has inherent authority to alter election law by executive order.

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Thomas Berry @thomasberry.bsky.social · 03/02/2026

Reminder: We're still hiring legal associates at @cato.org for the upcoming Term, to start in August or September. You'll work with our legal team to draft amicus briefs in the most interesting and important cases of the year. Link to application in reply.

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Thomas Berry @thomasberry.bsky.social · 20/01/2026

Typically each Supreme Court Justice only writes one majority opinion for the set of cases argued each month. Today the Court issued an opinion written by Justice Alito for one of the cases argued in November, which means he is probably not the author of the tariff case opinion.

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Thomas Berry @thomasberry.bsky.social · 13/01/2026

Florida bans noncitizens from handling voter registration forms, despite a lack of evidence that noncitizens are any more likely to abuse that trust than citizens. @cato.org has filed a brief supporting a challenge to the law as a violation of equal protection.

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Thomas Berry @thomasberry.bsky.social · 17/12/2025

I spoke to @bloomberglaw.com about why the Trump Administration's maneuver to appoint Alina Habba and others as acting officers is neither legal nor necessary to keep the government running.

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Thomas Berry @thomasberry.bsky.social · 15/12/2025

Thanks so much to Jeffrey Rosen for having me on the @constitutionctr.bsky.social's We the People Podcast to debate the Trump v. Slaughter case with Professor @jedshug.bsky.social, it was a great conversation (link in reply).

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Thomas Berry @thomasberry.bsky.social · 11/12/2025

Alina Habba and Lindsey Halligan aren't the only disputed acting U.S. attorneys; Sigal Shattah in Nevada is another. Now the Ninth Circuit is reviewing her appointment, and @cato.org has filed a brief explaining why she was not validly appointed. (link in reply)

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Thomas Berry @thomasberry.bsky.social · 09/12/2025

I spoke with NPR immediately after yesterday's argument in the case that will likely overrule Humphrey's Executor. In my view, the only suspense left is how the Court will write the opinion, not what the opinion will hold. www.npr.org/2025/12/09/n...

npr.org

Supreme Court justices appear likely to side with president in FTC firing case

After hearing arguments Monday, the conservative justices on the Supreme Court seem poised to give the president the power to fire people at independent agencies like the FTC and Federal Reserve.

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Thomas Berry @thomasberry.bsky.social · 09/12/2025

Come work with me and the legal team at @cato.org drafting briefs in the most important cases of the year. We're hiring 1-year legal associates and summer interns. See link in reply for more info and how to apply; the sooner we receive applications the better.

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Thomas Berry @thomasberry.bsky.social · 24/11/2025

The attorney general appoints an acting U.S. attorney for 120 days, and then "if an appointment expires ... the district court ... may appoint a [U.S.] attorney to serve until the vacancy is filled." This holds that the AG cannot make another appointment once 120 days expires.

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Thomas Berry @thomasberry.bsky.social · 05/11/2025

I was in the Supreme Court for today's tariff arguments, and I would rather be the challengers than the government. Justices ranked by likelihood of voting against the tariffs: 1. Sotomayor 2. Jackson 3. Kagan 4. Gorsuch 5. Barrett 6. Kavanaugh 7. Roberts 8. Thomas 9. Alito

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Thomas Berry @thomasberry.bsky.social · 04/11/2025

The Supreme Court will hear arguments in the tariffs cases tomorrow. @cato.org filed a brief explaining why Congress never authorized Trump's tariffs. The Supreme Court should strike them down.

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Thomas Berry @thomasberry.bsky.social · 21/10/2025

Great live thread of this morning's Third Circuit oral argument in the Alina Habba Vacancies Act case. I agree that unfortunately the judges did not show the command of the basics of the FVRA that you would hope for.

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Thomas Berry @thomasberry.bsky.social · 21/09/2025

Thanks to @peterbakernyt.bsky.social for including my thoughts in this great piece on Trump and free speech

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Joe Verruni @verruni.bsky.social · 21/09/2025

“This continues a pattern of Trump being his own lawyers’ worst enemy with his public statements,” Mr. @thomasberry.bsky.social said. “Whereas Carr focused on the alleged falsity of the statement, Trump simply admits that he wants the F.C.C. to go after stations that are unfriendly to him.”

nytimes.com

In Assault on Free Speech, Trump Targets Speech He Hates

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Thomas Berry @thomasberry.bsky.social · 18/09/2025

"Regardless of the truth or falsity of Kimmel’s remark, the government should not serve as the arbiter of truth in public debate." It is all to easy for the government to use a truth-policing power "as a tool to threaten and punish disfavored speakers."

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Thomas Berry @thomasberry.bsky.social · 18/09/2025

I wrote about Pam Bondi getting the First Amendment very wrong this week.

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Thomas Berry @thomasberry.bsky.social · 29/08/2025

Gratified to see that @cato.org's amicus brief was cited in this important decision, a credit to Brent Skorup's excellent work researching and writing our brief as well as Charles Brandt's dedicated research and drafting assistance.

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Thomas Berry @thomasberry.bsky.social · 22/08/2025

This opinion has three major holdings, one interpreting the statute specific to acting U.S. attorneys, and two interpreting the general statute for acting officers across the federal government. I'm skeptical of the first but agree with the latter two. All are a very big deal 🧵

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Thomas Berry @thomasberry.bsky.social · 22/08/2025

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Thomas Berry @thomasberry.bsky.social · 04/08/2025

I'll be on "In the Courts" with @katieleebarlow.bsky.social tonight at 11:30 on @fox5dc.com.web.brid.gy, discussing the controversy over Alina Habba's appointment as an acting U.S. attorney.

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Patrick G. Eddington @pgeddington.bsky.social · 30/07/2025

My colleague @thomasberry.bsky.social provides a detailed, highly readable explainer about the "Who is the actual US Attorney for New Jersey" controversy playing out right now. www.cato.org/blog/alina-h...

cato.org

Alina Habba and the Problems with Acting Officers

Alina Habba’s acting appointment is a case study in the complexities and loopholes of the Vacancies Act.

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Thomas Berry @thomasberry.bsky.social · 30/07/2025

Alina Habba’s acting appointment is a case study in the complexities and loopholes of the Vacancies Act. Link to an explainer in the first comment.

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Thomas Berry @thomasberry.bsky.social · 27/06/2025

Today the Supreme Court upheld a Texas law mandating online ID checks for adult content, effectively overruling its own precedents in the process.

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Thomas Berry @thomasberry.bsky.social · 27/06/2025

Today in Free Speech Coalition v. Paxton, the Supreme Court upheld as constitutional a Texas law mandating that websites impose age-verification if those websites feature one-third or more content that is obscene for minors. 🧵

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Thomas Berry @thomasberry.bsky.social · 24/06/2025

The Trump administration has attempted to punish Harvard for what it chooses to say and teach. That violates the First Amendment. The Cato Institute has joined a broad coalition led by the ACLU to file a brief supporting Harvard.

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Thomas Berry @thomasberry.bsky.social · 30/04/2025

Cato has joined @thefireorg.bsky.social and a broad coalition of organizations to file an amicus brief supporting Rumeysa Ozturk, the Tufts University graduate student whose visa was revoked on the basis of an op-ed.

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Thomas Berry @thomasberry.bsky.social · 23/04/2025

All too often, the government uses creative arguments to convince courts that those suing the government lack "standing" to make their claims. This morning the Supreme Court will have a chance to push back against that strategy.

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Thomas Berry @thomasberry.bsky.social · 21/04/2025

This morning the Supreme Court will hear arguments in a case about whether those who make final decisions on important policy questions must be nominated by the president and confirmed by the Senate. Ironically, the Trump administration is defending the Affordable Care Act.

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Thomas Berry @thomasberry.bsky.social · 21/04/2025

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Josh Gerstein @joshgerstein.bsky.social · 17/04/2025

JUST IN: #SCOTUS agrees to Trump administration request to delve into power of district court judges to grant nationwide injunctions. Unusual oral arguments set May 15, about 2 weeks after args were to end for term. Doc: www.supremecourt.gov/orders/court... Earlier: www.politico.com/news/2025/03...

supremecourt.gov

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Thomas Berry @thomasberry.bsky.social · 11/04/2025

A Texas city has banned short-term rentals based on flimsy evidence. The Fifth Circuit should hold the ordinance unconstitutional. Link below, with @foxmike90.bsky.social

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Thomas Berry @thomasberry.bsky.social · 11/04/2025

A Texas city has banned short-term rentals based on flimsy evidence. The Fifth Circuit should hold the ordinance unconstitutional. Link below, with @foxmike90.bsky.social

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Thomas Berry @thomasberry.bsky.social · 09/04/2025

In one hour, at 11 eastern, I'll be on a virtual panel co-sponsored by the Georgetown Free Speech Project discussing judicial independence. Tune in! Link in first comment

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Thomas Berry @thomasberry.bsky.social · 03/04/2025

The executive order against Perkins Coie is an unconstitutional attempt to punish the firm for its protected advocacy on behalf of its clients, and to intimidate other law firms from challenging the administration or its officials.

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Thomas Berry @thomasberry.bsky.social · 25/02/2025

Litigating in the public interest requires many sacrifices. Today’s Supreme Court decision in Lackey v. Stinnie means it will require even more. The decision is a setback for civil rights plaintiffs who will now find it more difficult to muster the legal resources they need. 🧵

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Thomas Berry @thomasberry.bsky.social · 21/02/2025

The Supreme Court should reaffirm that only those who have personally profited from criminal activity can be liable in civil forfeiture proceedings. www.cato.org/blog/scotus-...

cato.org

SCOTUS Has a Chance to Rein in Civil Forfeiture

The Supreme Court should reaffirm that only those who have personally profited from criminal activity can be liable in civil forfeiture proceedings.

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Thomas Berry @thomasberry.bsky.social · 21/02/2025

The Supreme Court should reaffirm that only those who have personally profited from criminal activity can be liable in civil forfeiture proceedings. www.cato.org/blog/scotus-...

cato.org

SCOTUS Has a Chance to Rein in Civil Forfeiture

The Supreme Court should reaffirm that only those who have personally profited from criminal activity can be liable in civil forfeiture proceedings.

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Thomas Berry @thomasberry.bsky.social · 11/02/2025

Law students: Just one week left to apply to be a summer legal intern at Cato! 3Ls: Applications to be a one-year post-graduate legal associate are open through the end of the month.

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Thomas Berry @thomasberry.bsky.social · 30/01/2025

I enjoyed getting the chance to watch my former law school professor Cristina Rodriguez debate Supreme Court reform at the new Johns Hopkins building on Pennsylvania Ave (though I still miss the Newseum, which used to be housed here).

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Thomas Berry @thomasberry.bsky.social · 27/01/2025

Looking forward to speaking momentarily at @dukelaw.bsky.social on a legal libertarian view of what's to come in the second Trump Administration.

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Thomas Berry @thomasberry.bsky.social · 23/01/2025

Apply to be a Cato legal associate or legal intern and help write amicus briefs in the most interesting and important cases of the year. www.cato.org/blog/recent-...

cato.org

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Thomas Berry @thomasberry.bsky.social · 23/01/2025

Further, some of these acting leaders were not serving in the federal government in any capacity before January 20. Presumably, Trump is using a provision of the Vacancies Act that arguably allows for deputies to be appointed and then instantaneously elevated to be actings.

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