Thomas Berry

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.

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.

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

In Assault on Free Speech, Trump Targets Speech He Hates

“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.”

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.

www.cato.org/blog/governm...

"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."

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.

Full piece:

www.msnbc.com/opinion/msnb...

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

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.

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 🧵

The court noted that Habba's actions might be ratifiable (they weren't exclusive duties, so the ratification bar didn't apply), but the government hadn't tried to ratify them. If the appellate court upholds this reading, it would close the biggest loophole in the Vacancies Act.

Arthrex v. Smith & Nephew By delegating all the PTO director’s powers, the PTO effectively created an acting officer without using the FVRA, thus avoiding the FVRA’s time limits and other restrictions.

The court held that delegating *all* the duties of a vacant office to a *single* person violates the exclusivity provision. We at the Cato Institute advanced precisely this argument in an amicus brief to the Supreme Court:

www.cato.org/legal-briefs...

This opinion in the Habba case breaks that trend, holding that the exclusivity provision is a separate, enforceable bar on using delegations to evade the Vacancies Act. The government tried to delegate all the duties of a U.S. attorney to Habba, in case she was not a valid acting.

But perversely, the existence of the penalty provision has led courts to interpret the exclusivity provision as lacking any teeth. Courts have interpreted it as a general statement of intent, but have told litigants that the penalty provision is their only option to win in court.

Closing the Vacancies Act’s Biggest Loophole Over the last two decades, presidents of both parties have increasingly exploited a loophole in the Vacancies Act to turn temporary acting officers into de facto permanent officers.

Unfortunately, these two provisions combined to create the worst of both worlds. The penalty provision is almost never successfully invoked, because so few duties are exclusive. Courts have consistently held that any delegable duty is not exclusive.

www.cato.org/briefing-pap...

In another portion of the Vacancies Act, Congress added a specific penalty. If an invalid acting officer performs an exclusive duty of the office they purport to hold, that action "shall have no force or effect" and "may not be ratified."

Congress even explicitly clarified that a statute "providing general authority ... to delegate duties" doesn't qualify as an alternative to the Vacancies Act. But the problem is that Congress didn't explicitly spell out the penalty for violating this "exclusivity" rule.

Congress tried to stop the subdelegation strategy in a few ways. First, it added a provision clarifying that the Vacancies Act is "the exclusive means for temporarily authorizing an acting official to perform the functions and duties of any office" absent another specific statute.

Subdelegation is a problem for enforcing the Vacancies Act. When someone is ineligible to be an acting officer, they can just be delegated all the same duties that they would have as the acting officer. The use of this strategy prompted Congress to amend the Vacancies Act in 1998.

Finally, the court makes a very consequential interpretation on the limits that the Vacancies Act places on using subdelegation as a workaround. The duties assigned to officers across the federal government are typically subdelegable, meaning higher-ups can delegate their duties.

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.

The ideal solution would be for Congress to amend the Vacancies Act to limit eligibility to those who have served as first assistants for some reasonable amount of time before a vacancy, such as 30 days.

www.cato.org/blog/alina-h...

If this interpretation is upheld on appeal, it would take away a major tool for the government to evade the limits on who can serve as an acting officer. But people could still be installed as first assistants just *before* a vacancy, if the admin knows a vacancy is imminent.

But the court held that this strategy is illegal, because only someone who is a first assistant *at the time of the vacancy* can become the acting officer. The court focused on the order in the statute, which describes an elevation of the first assistant *when* a vacancy occurs.

This "First Assistant" strategy is how the government appointed Habba as the acting U.S. attorney. She resigned as acting U.S. attorney, was appointed first assistant to the now-vacant position, and was instantaneously elevated back to acting U.S. attorney.

Trump Will Drive His Dubious Appointments Through the Vacancies Act's Many Loopholes Congress and courts can still plug some of them to prevent him from stacking the federal government with deep partisans and loyalists.

Presidents of both parties have appointed first assistants to already-vacant positions just to immediately elevate those first assistants to be the acting officer. I've criticized the use of this loophole as undermining the Vacancies Act's limits.

www.cato.org/commentary/t...

The "first assistant" is the highest ranking deputy to a position (like the VP to the president or the deputy attorney general to the AG) and the natural temporary successor. The question is, what happens if someone becomes first assistant to a position *after* a vacancy?

The Vacancies Act says that when a vacancy occurs in an office requiring Senate confirmation, the "first assistant to the office" shall become the acting officer. But "notwithstanding" this rule, the president may instead select some other qualified person to be acting officer.

Next, the court interpreted the Federal Vacancies Reform Act, which governs acting officer appointments across the federal government. Interpretations of this statute are even more important, because they have implications beyond just U.S. attorneys.

I'm sympathetic to the court's concerns that resetting the 120 days with each new acting U.S. attorney would allow the government to evade Senate confirmation indefinitely. But I think "after appointment" more naturally refers to the current acting appointment, not a previous one.