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. 🧵

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.

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

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.

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

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.

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.

The Washington Post@washingtonpost.com · 5mo ago

Exclusive: Pro-Trump activists are circulating a draft executive order alleging Chinese interference in the 2020 election, proposing a national emergency to expand presidential power over voting, like banning mail ballots and voting machines.

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 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.

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.

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).

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)

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...

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.

npr.org

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.

Chris Geidner@chrisgeidner.bsky.social · 8mo ago

BREAKING: Judge rules Lindsey Halligan's appointment was not valid, thus, she had no authority to present the James Comey or Letitia James indictments and the indictments are dismissed without prejudice.

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 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.

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.

Anne Joseph O’Connell@ajosephoconnell.bsky.social · 10mo ago

I am listening to CA3 argument now on the Vacancies Act. I am screaming & we are only on minute 4. This is separate from the merits. YOU ARE OFTEN THE FIRST ASSISTANT AND THE ACTING. Now you might not be a proper first assistant but the Vacancies Act assumes when it applies the default has 2 titles.

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

Peter Baker@peterbakernyt.bsky.social · 11mo ago

Aides and allies present Trump's attack on free speech as an effort to stop misinformation, violence and hate speech. But Trump himself has made clear that it's not about hate speech, it's about speech that he hates, namely speech that is critical of him. www.nytimes.com/2025/09/21/u...

“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.”

In Assault on Free Speech, Trump Targets Speech He Hates

nytimes.com

"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."

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.

Chris Geidner@chrisgeidner.bsky.social · 11mo ago

BREAKING: Federal Circuit, 7-4, rejects Trump’s tariffs under the IEEPA, affirming the lower court’s decision against Trump. www.cafc.uscourts.gov/opinions-ord...

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 🧵

Anna Bower@annabower.bsky.social · 12mo ago

NEWS: Federal judge finds that Alina Habba is NOT lawfully performing functions and duties of U.S. Attorney in New Jersey. Judge Matthew Brann disqualifies Habba from prosecution of two criminal defendants who challenged her appointment

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 🧵

Anna Bower@annabower.bsky.social · 12mo ago

NEWS: Federal judge finds that Alina Habba is NOT lawfully performing functions and duties of U.S. Attorney in New Jersey. Judge Matthew Brann disqualifies Habba from prosecution of two criminal defendants who challenged her appointment

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.

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.

cato.org

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.

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