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Thomas Berry

@thomasberry.bsky.social
2.1K followers 456 following 187 posts

Director, Robert A. Levy Center for Constitutional Studies, Cato Institute. Editor in Chief, Cato Supreme Court Review. www.cato.org/people/thomas-berry

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Thomas Berry @thomasberry.bsky.social · 05/06/2026
More on why Congress should amend the Vacancies Act to prevent future appointments like Pulte's here: www.lawfaremedia.org/article/pult...
lawfaremedia.org
Pulte’s Appointment Shows Flaws in the Vacancies Act
Under current law, the president can choose from more than 350 federal officials to fill any vacant office, regardless of qualifications.
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Thomas Berry @thomasberry.bsky.social · 05/06/2026
But there is a solution, and the statutory fix would be easy. When the president chooses civil servants to be acting officers, they must serve in the same agency as the vacancy. Congress should amend the Vacancies Act so that this rule also applies to Senate-confirmed officers who fill a vacancy.
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Thomas Berry @thomasberry.bsky.social · 05/06/2026
The latter category gives the president far too many options; it allows him to pick people who are unqualified for offices in vastly different departments. Pulte is the Senate-confirmed head of the FHFA, an agency that has virtually no overlap with the responsibilities of @odnigov.bsky.social.
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Thomas Berry @thomasberry.bsky.social · 05/06/2026
The Vacancies Act creates two broad categories of options for the president to choose from when he appoints an acting officer to temporarily fill a vacancy. He can choose a high-ranking civil servant *from the same department,* or he can choose a Senate-confirmed official from *any* department.
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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
www.cato.org/blog/what-ar...
cato.org
What Are the Rules for Acting Cabinet Members?
Two members of the cabinet are now acting officers, which raises both statutory and constitutional questions.
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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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Reposted by Thomas Berry
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
You can read our full brief supporting Anthropic in its lawsuit for First Amendment retaliation here: www.cato.org/sites/cato.o...
cato.org
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Thomas Berry @thomasberry.bsky.social · 10/03/2026
The @cato.org was proud to join @thefireorg.bsky.social, @progresschamber.org, @eff.org, and the First Amendment Lawyers Association to file a brief supporting Anthropic in its lawsuit against the Pentagon. www.cato.org/blog/pentago...
cato.org
The Pentagon's Retaliation Campaign Against Anthropic Is Unconstitutional
The government punished Anthropic because the company refused to change what its AI model would say and do. That violates the First Amendment.
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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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Reposted by Thomas Berry
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
And @walterolson.bsky.social urges the administration to drop this plan now rather than run into certain trouble in the courts: www.cato.org/blog/draw-li...
cato.org
Draw the Line Now Against a Trump Election Takeover
Everyone who cares about federalism and the Constitution, especially lawmakers, should draw the line right now against the idea of letting Donald Trump seize control of elections.
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Thomas Berry @thomasberry.bsky.social · 27/02/2026
My colleague Brent Skorup digs into the "emergency" statutes that Trump might invoke to justify an executive order on the 2026 elections, and why none of them would justify a presidential overhaul of federal elections: www.cato.org/blog/emergen...
cato.org
Emergency Authorities and the Constitutional Allocation of Election Power
Elections are always high-stakes, and public trust in election processes is important. But invoking vague emergency statutes to exert more control over elections would raise the stakes—and reduce publ...
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Thomas Berry @thomasberry.bsky.social · 27/02/2026
Today at @cato.org we're covering the dangers of this reported executive order on the 2026 election from all angles. @stephenricher.bsky.social lays out just how disruptive a change it would effect: www.cato.org/blog/trumps-...
cato.org
Trump's Draft Executive Order Would Be a Sea Change to How Americans Vote and How Elections Are Run
Given that the contemplated executive order is likely a loser in the courts, and that it might be administratively impossible, what is the real goal of the president in drafting such an executive orde...
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Thomas Berry @thomasberry.bsky.social · 27/02/2026
Full blog post responding to the report of a potential executive order on elections here: www.cato.org/blog/framers...
cato.org
The Framers Gave the Power to Regulate Elections to Congress, Not the President
A federal judge recently held that “our Constitution does not allow the President to impose unilateral changes to federal election procedures.” It really is as simple as that.
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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
More info and links to apply for @cato.org's legal associate position, as well as our legal internships. Apply soon; we've already filled two of our four slots for the upcoming Term. www.cato.org/blog/graduat...
cato.org
Law Students and Early-Career Lawyers: Come Work at Cato!
Apply to be a legal associate at the Cato Institute for the 2026–2027 term.
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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
Link to the full @cato.org brief here: www.cato.org/blog/florida...
cato.org
Florida Banned Noncitizens from Handling Voter Registration Forms—That's Unconstitutional
The Fourteenth Amendment prohibits states from discriminating against noncitizens.
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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
Here is the full article on the many options available to appoint acting officers: news.bloomberglaw.com/daily-tax-re...
news.bloomberglaw.com
Trump’s Failed US Attorney Push to Haunt Future Administrations
President Donald Trump’s failed bid to keep his former personal lawyer as New Jersey’s top federal prosecutor without Senate confirmation creates an obstacle for future administrations to staff up qui...
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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
You can listen to my appearance on the @constitutionctr.bsky.social We the People Podcast here: constitutioncenter.org/news-debate/...
constitutioncenter.org
Can President Trump Fire a Federal Trade Commissioner Without Cause?
Podcast for Can President Trump Fire a Federal Trade Commissioner Without Cause? from the National Constitution Center
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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
www.cato.org/legal-briefs...
cato.org
United States v. Jackson
Several criminal defendants who are being prosecuted by Chattah challenged her authority, and a district court found that she was serving without legal authority.
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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
www.cato.org/about/open-p...
cato.org
Open Positions
A list of job opportunities at Cato.
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Thomas Berry @thomasberry.bsky.social · 09/12/2025
www.cato.org/blog/graduat...
cato.org
Law Students and Early-Career Lawyers: Come Work at Cato!
Apply to be a legal associate at the Cato Institute for the 2026–2027 term.
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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
The vast majority of the argument was devoted to the question whether the statute authorizes tariffs *at all.* Less discussed was whether these particular tariffs are justified as necessary to "deal with" a genuine emergency, given that trade deficits have existed for 50 years.
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Thomas Berry @thomasberry.bsky.social · 05/11/2025
One thing I've never seen before: during seriatim questions when only one justice is allowed to speak at a time, Sotomayor asked Kavanaugh to nod yes if he was planning to ask about an issue, so she wouldn't have to. He did, so she passed.
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Thomas Berry @thomasberry.bsky.social · 05/11/2025
Scott Bessent, Howard Lutnick, and Jamieson Greer were sitting right behind me and kept poker faces throughout (I glanced back when Roberts pressed the SG on who pays for tariffs).
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Thomas Berry @thomasberry.bsky.social · 05/11/2025
Kavanaugh focused heavily on precedents that may or may not have been on the minds of members of Congress when the statute at issue was drafted, and how much weight the Court should give those precedents. Roberts pressed the SG on whether the major questions doctrine applies.
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Thomas Berry @thomasberry.bsky.social · 05/11/2025
Gorsuch focused on the constitutional concerns with interpreting the law at issue to give unilateral power to the president with no practical means of congressional veto. Barrett focused more on the linguistic meaning of "regulate" in the statute and whether it can cover tariffs.
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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
www.cato.org/blog/supreme...
cato.org
The Supreme Court Should Strike Down the Trump Tariffs
Congress never authorized Trump’s tariffs, and the Supreme Court should strike them down.
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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
I think that's right, they could. Ultimately the point of the FVRA delegation bar is to make it a pain for the gov to evade FVRA, and forcing gov to both think about and actually affirmatively withhold some power of a US attorney at least accomplishes that function of making it more of a pain.
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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
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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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Reposted by Thomas Berry
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
www.cato.org/blog/governm...
cato.org
The Government Shouldn't Play "Truth Police"
The FCC Chairman pressured ABC to take Jimmy Kimmel off the air. Policing the “truth” is no justification for such government pressure.
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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
Full piece: www.msnbc.com/opinion/msnb...
msnbc.com
Opinion | Pam Bondi’s ignorance of the First Amendment is no excuse
The attorney general previously threatened to “go after” Americans who express “hate speech,” but the nation’s top cop should know better.
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