Thomas Berry

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.

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...

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.

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.

Florida Banned Noncitizens from Handling Voter Registration Forms—That's Unconstitutional The Fourteenth Amendment prohibits states from discriminating against noncitizens.

Link to the full @cato.org brief here:

www.cato.org/blog/florida...

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.

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...

Here is the full article on the many options available to appoint acting officers:

news.bloomberglaw.com/daily-tax-re...

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.

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

You can listen to my appearance on the @constitutionctr.bsky.social We the People Podcast here:

constitutioncenter.org/news-debate/...

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).

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.

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

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)

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.

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...

Open Positions A list of job opportunities at Cato.

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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.

www.cato.org/blog/graduat...

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.

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.

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.

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.

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).

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.

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.

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

The Supreme Court Should Strike Down the Trump Tariffs Congress never authorized Trump’s tariffs, and the Supreme Court should strike them down.

www.cato.org/blog/supreme...

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.

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...