Thomas Berry
@Thomas_A_Berry
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Director, Robert A. Levy Center for Constitutional Studies, @CatoInstitute. Editor in Chief, Cato Supreme Court Review.
Falls Church, VA
Joined July 2014
I'm thrilled to say I was recently promoted to become the director of @CatoInstitute's Robert A. Levy Center for Constitutional Studies. I wouldn't be here without the three directors who came before me. Here's what they, and the Center, mean to me. https://t.co/GX0k7rz5hj
cato.org
As I become the fourth director of Cato’s Center for Constitutional Studies, a tribute to my three predecessors.
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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 @CatoInstitute has filed a brief explaining why she was not validly appointed. (link in reply)
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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. https://t.co/HmiSdjfmES
npr.org
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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As an added bonus, you get to work with me. What could be better?
Come work with me and the legal team at @CatoInstitute 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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Come work with me and the legal team at @CatoInstitute 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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You can read our @CatoInstitute brief by @bskorup, Alex Xenos, and me urging the Court to overrule Humphrey's Executor and strike down the removal restrictions here: https://t.co/GLzFFT7tkO
cato.org
Removal protections for executive officers unlawfully expand the power of the administrative state.
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The Court will soon strike down the statutes insulating "independent" agencies from presidential control, but that's just one half of the equation. As Gorsuch urged, it is just as important that all agencies within the executive branch be confined to purely executive activities.
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But as Justice Gorsuch rightly responded, the answer to this concern is not to keep the insulation from the president in place, but rather to strike down these unconstitutional delegations as well.
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Justice Kagan noted that many independent agencies have a great deal of what appears to be legislative or judicial power, not executive power, and that placing this power under the direct control of the president raises separation of powers concerns.
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Also tellingly, the Court spent barely any time addressing the government's backup argument, which is that courts cannot reinstate officers even if they were unlawfully removed. That question would only arise in this case if the Court held that Slaughter's removal was unlawful.
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Tellingly, many of the questions were not about whether to strike down the restrictions, but about how to write an opinion doing so. The Justices were unsure to what extent their opinion should address (or not) thorny issues like the Federal Reserve or Article I courts.
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I was in the audience for this morning's SCOTUS argument in Trump v. Slaughter, challenging the restrictions on the president's ability to remove FTC members at will. The argument left no doubt that these restrictions will be struck down, the only suspense left is how. 🧵
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Habba steps down but it appears DOJ will continue to litigate the case rather than concede it is moot, likely because of the issue whether past indictments were valid.
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Our @CatoInstitute brief in Arthrex explains in more detail why subdelegation is prohibited. Now that the Third Circuit has created a circuit split, it is even more likely that SCOTUS will take up the question whether the Vacancies Act prohibits wholesale subdelegation. 4/4
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The Third Circuit's reasoning on subdelegation (which I agree with) is in conflict with a Federal Circuit decision called Arthrex, which I disagreed with and (unsuccessfully) urged SCOTUS to review. 3/4 https://t.co/LjxDbnuqB4
cato.org
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.
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In @CatoInstitute's amicus brief, we explained that the Vacancies Reform Act was meant to prevent subdelegations like the one the administration attempted here. Yet until the recent U.S. attorney cases, courts had mostly allowed such delegations. 2/4 https://t.co/OWJIyhmmnK
cato.org
In our brief, we explain why the government’s “first assistant” maneuver did not work.
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The holding that Habba was invalidly appointed will be the headline here (I think the court got the outcome right, though I quibble with the scope), but the holding that Habba could not be subdelegated all the powers of a US attorney is arguably even more important. 1/4
NEWS: A unanimous Third Circuit panel rules that Alina Habba is not U.S. Attorney, cannot be Acting U.S. Attorney, and cannot have the powers delegated to her.
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James Comey and Letitia James aren't out of the woods yet after a federal judge dismissed the criminal cases against them. But the government also faces tough sledding in its quest to win convictions against Comey and James. https://t.co/TBcayhxaGI
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