Thomas Berry

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.

I also discuss the Habba controversy and what Congress can do to close a loophole in the "acting officer" statute here:

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

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.

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.

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...

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.

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

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.

A Disappointing Supreme Court Decision Weakens Online First Amendment Protections The Supreme Court upholds a Texas law mandating online ID checks for adult content, and silently overrules its own precedents in the process.

A full summary of the opinion and dissent in FSC v. Paxton here:

www.cato.org/blog/disappo...

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

The Court’s reasoning today does not justify ID checks for online speech that is legal and constitutionally protected for people of all ages, such as social media.

Fortunately, the Court’s reasoning applies only to ID checks for content that is obscene for minors and that minors may thus be constitutionally prohibited from accessing. Obscenity is the only category of speech where the Court has held that age can make a difference.

Second, the risk of leaks and blackmail is significantly higher for online ID checks than for in-person ID checks, because ID scans can be accessed by hackers for nefarious purposes. Thus, online ID checkpoints dissuade adults from accessing lawful speech to a significant degree.

First, speech is explicitly protected by the First Amendment, so an ID checkpoint limiting access to speech raises greater constitutional concerns than a similar limitation on access to alcohol, tobacco, or other products.

Free Speech Coalition v. Paxton Texas’s online age verification rules for erotic content fail to pass muster under the First Amendment.

While proof of age is required to access some products in daily life, the Court today gave too little weight to the two key concerns that had been raised by the plaintiffs. We at @cato.org addressed these concerns in an amicus brief supporting them.

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

Although it is true that the procedures in the two laws differed, the upshot of both was the same: mandatory online ID checks for adult content. In effect, the Court has now overruled Ashcroft’s application of strict scrutiny to laws mandating such ID checks for adult content.

Implausibly, the Court today attempted to distinguish Ashcroft as not binding precedent. The Court distinguished Ashcroft because the law at issue in that case placed the burden on websites to show they had verified ID, while the Texas law places the inverse burden on the state.

In the 2004 case Ashcroft v. ACLU, the Supreme Court held that strict scrutiny applied to a very similar federal law. The Court affirmed a lower-court decision blocking that law.

tile.loc.gov/storage-serv...

Unfortunately, this decision upends two decades of settled understanding about adults’ freedom to access legal content online without government-mandated ID checkpoints.

The Court held that the law survives intermediate scrutiny because it advances the state’s interest in shielding children from sexual content and requiring adults to verify their ages online before accessing such content did not impermissibly burden the speech rights of adults.

Rather, the Court applied the middle-ground “intermediate scrutiny.”

supremecourt.gov/opinions/24p...

In rejecting a First Amendment challenge to the law, the Supreme Court held that the law should neither be subjected to the most searching and skeptical form of judicial review (strict scrutiny) nor the most lenient and deferential (rational basis scrutiny).

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. 🧵

Punishing Universities for Their Viewpoints Violates the First Amendment The Trump administration has attempted to punish Harvard for what it chooses to say and teach. That violates the First Amendment.

More here, including a link to the full brief:

www.cato.org/blog/punishi...

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.

The Government Can't Revoke a Visa Because of an Op-ed The government revoked Rumeysa Ozturk’s visa because of the opinions she expressed in an op-ed. That violates the First Amendment.

Summary and link to the full brief here:

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

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.

The Government Uses "Standing" Doctrine to Evade Judicial Review Overly strict applications of standing doctrine are not just inconsistent with the original meaning of the Constitution, they are also inconsistent with established precedent.

More here:

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

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.

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.

Officers Who Make Final Decisions for the Government Must Receive Senate Confirmation Final decisions about federal health care policy are being made by officials who were never nominated by the President or confirmed by the Senate. That’s unconstitutional.

More here:

www.cato.org/blog/officer...

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.

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...