Nikolas Bowie

Cedar Point Nursery in far northern California, the birthplace of baby strawberry plants that feed a multi-billion dollar fruit industry, is leading a high-stakes legal battle over labor unions and property rights with potentially sweeping implications far beyond agriculture. The U.S. Supreme Court on Monday will hear arguments in Cedar Point's challenge to a 45-year-old California law that authorizes union organizers to access farm property for 120 days a year, three hours a day, during non-work periods to meet with workers...Legal scholars say a decision that strikes down the California union access law could have potentially major implications for health and safety inspections, home visits by social workers and anti-discrimination rules nationwide. "I'm sure many restaurants would say the same thing about food inspectors and say, you know, we want to allow customers on our property, we just don't want to allow food inspectors to check to see if there are rats running around the kitchen," said Nikolas Bowie, a Harvard Law School professor and expert in labor law. "That ultimately is what's at stake here."

An op-ed by Nikolas Bowie: Every January, I write a letter to my incoming law students to get them excited about learning constitutional law. That letter was not easy to write this time. The past few years have shaken my faith in the Constitution. Like many law professors, I once confidently predicted that the Constitution would never permit a president to ban Muslim travelers or put toddlers in cages. I also thought the document prohibited police officers from inflicting excessive force on Black bodies — despite everything I witnessed to the contrary. Still, as recently as two months ago, I thought there was consensus around some interpretations — for instance, that nothing in the Constitution permitted anyone to single-handedly overturn the results of a presidential election. The white nationalists who stormed the Capitol to reject that interpretation left me questioning how long the document will survive. Yet as surprised as I was, I had to share a difficult truth with my students: This has all been a continuation of — not an aberration from — America’s constitutional tradition. A striking photo from the insurrection depicts a man holding a Confederate flag outside the Senate chamber. Behind him, on permanent display, is a portrait of John C. Calhoun. Calhoun roamed the Capitol shortly after its construction by enslaved workers. He boldly protected the system of racialized violence that oppressed these workers — as did the Constitution.

Massachusetts officials suing Immigration and Customs Enforcement over warrantless arrests at state courthouses got a boost Thursday from Harvard Law School's immigrant and refugee clinic, whose leadership said state courts are being illegally forced to carry out a federal agenda not enumerated in the Constitution and to sideline Sixth Amendment trial rights. The HLS Immigration and Refugee Clinical Program and its leaders, alongside professor Nikolas Bowie, filed the amicus brief Thursday in support of two Boston-area district attorneys, a community organization and a public defender group jointly suing ICE over its warrantless arrests at courthouses where noncitizens have gone for various reasons, including to serve as witnesses in criminal trials. They are currently fighting ICE's motion for dismissal. "The federal government's asserted power to conduct warrantless courthouse arrests is not reasonably necessary for exercising any enumerated power, and the resulting disruption of state court proceedings and interference with the commonwealth's duty to provide access to its courts fails to properly accommodate state interests," the clinic wrote.

Alan Dershowitz, a member of President Trump's legal team, cited Harvard Law Professor Nikolas Bowie as a scholar who supports the argument that abuse of power doesn't warrant impeachment. Bowie told CNN's Anderson Cooper and Jeffrey Toobin that Dershowitz is wrong.

An article by Nikolas Bowie: Watching CNN last week, I learned that I’m partly responsible for President Trump’s legal defense. On the screen was one of the president’s lawyers, Alan Dershowitz, explaining his new position that impeachment requires “criminal-like behavior.” When the legal analyst Jeffrey Toobin interjected that “every single law professor” disagreed with him, Mr. Dershowitz rejoined that one professor — me! — was “completely” on his side. Mr. Dershowitz encouraged Mr. Toobin to read a law review article I wrote on the impeachment of President Andrew Johnson, in which a former Supreme Court justice, Benjamin Curtis, successfully argued that no one should ever be punished for doing something that wasn’t a crime. Mr. Dershowitz apparently thought my article supported his view that even if Mr. Trump did everything the House has accused him of doing, the president shouldn’t be convicted because he hasn’t been accused of criminal behavior. As an academic, my first reaction was to be grateful that someone had actually read one of my articles. But as a legal academic, my second reaction was confusion. Even if you think impeachment requires a crime, as I do, that belief hardly supports the president’s defense or Mr. Dershowitz’s position. President Trump has been accused of a crime. Two in fact: “abuse of power” and “obstruction of Congress.”

On Monday, President Trump’s chief lawyers in his impeachment trial, Jay Sekulow and Pat Cipollone, submitted a 110-page brief to the Senate laying out the case for his acquittal. The articles of impeachment, they say, are “an affront to the Constitution” brought about by a “rigged” “crusade” against a president who “did absolutely nothing wrong.” ... There are a select few scholars, however, who say the consensus should be reconsidered. One is Nikolas Bowie, an assistant professor at Harvard Law School. In 2018, Mr. Bowie suggested in the Harvard Law Review that impeaching a president without any statutory justification conflicts with a fundamental principle of American law: that a crime cannot be retroactively defined. Impeachment without an underlying legal violation also risks setting a dangerous precedent that “would apply not just to someone as unpopular as President Trump but also to future presidents whose policies happen to misalign with a congressional majority,” he wrote. “The philosophical defense that the president should only be impeachable for a defined statutory crime is probably the strongest defense available to Trump’s supporters,” writes Noah Feldman, a professor at Harvard Law School who testified in the House impeachment inquiry.

An op-ed by Nikolas Bowie: In 1947, Congress passed and President Harry Truman signed a law giving the people of Puerto Rico the right to elect their own governor. Until then, all territories of the United States, including Puerto Rico, had been governed by men appointed by the president and confirmed by the Senate. Most governors had been known more for their relationships to the president than, say, for their ability to speak Spanish. But after that 1947 law, Puerto Rican voters elected Luis Muñoz Marín to begin what would become a transformative governorship. Even as more recent governors have resigned in disgrace, democratic self-government in Puerto Rico has remained. But that could change. Next week, the Supreme Court is scheduled to consider a case that could radically undermine the ability of over four million American citizens — in Puerto Rico, other territories and even the District of Columbia — to elect their own chief executives.

The president’s critics have found numerous justifications for impeachment throughout his tenure, including obstruction of justice during the Mueller investigation, violations of campaign finance laws in the payment of hush money to two women and what seems to be regular defiance of the Constitution’s emoluments clause...Impeachment is a process whose territory remains largely uncharted, since only two presidents, Andrew Johnson and Bill Clinton, have ever been impeached, and neither was convicted. “Because it has been used so rarely, and because it is a power entrusted to Congress, not the courts, impeachment as a legal process is poorly understood,” Noah Feldman and Jacob Weisberg have written in The New York Review of Books. “There are no judicial opinions that create precedents for how and when to proceed with it.”...But “not all crimes by federal officials have been seen as impeachable,” write Laurence Tribe, a professor of constitutional law at Harvard, and Joshua Matz, an adjunct professor at Georgetown Law, in their book “To End a Presidency.” So where exactly does the line fall? During Bill Clinton’s impeachment trial, Mr. Tribe argued that his conduct did not rise to the level of an impeachable offense because it related to his private life....The argument against this sort of ad hoc impeachment has its roots in Supreme Court Justice Benjamin Curtis’s defense of President Andrew Johnson during his impeachment trial in 1868. As Nikolas Bowie, an assistant professor at Harvard Law School, writes in the Harvard Law Review, Curtis believed that retroactively criminalizing a president’s behavior — inflammatory, racist campaign speeches — would violate a fundamental principle of common law: “There must be some law,” Curtis argued, “otherwise there is no crime.” Mr. Bowie argues that the decision to impeach Mr. Trump without any statutory justification would set a dangerous precedent that “would apply not just to someone as unpopular as President Trump but also to future Presidents whose policies happen to misalign with a congressional majority.”

A former congressman. Law professors. Advocates for campaign finance reform. But no Republicans. The so-called Citizens Commission, created by Question 2 on the November ballot, now has all 15 of its members. The ballot question, which passed with 71% of the vote, established a commission to research and advocate for a constitutional amendment overturning the U.S. Supreme Court’s 2010 ruling in Citizens United. That decision allowed corporations to spend unlimited amounts of money supporting or opposing a candidate as long as they do not coordinate directly with the candidate. ...The commission includes three professors — Vermont Law School professor Jennifer Taub, of Northampton; Harvard Law School professor Nikolas Bowie, of Cambridge; and Northeastern University political science professor Costas Panagopoulos, of Wellesley.

Huawei’s lawsuit against the United States government could end up lifting the air of “mystery” surrounding the Chinese telecommunications equipment manufacturer should details of its ownership structure and relationship with the Chinese government be revealed, according to a leading Chinese law professor. The US Congress has banned federal agencies from using Huawei equipment due to national security concerns, but the Shenzhen-based firm argues the ban is unconstitutional as it singles out a person or a group for punishment without trial. ...“Huawei’s case will turn on whether the court thinks the NDAA is a punishment or a prophylactic qualification,” said Nikolas Bowie, an assistant professor at Harvard Law School. “On one hand, this is a classic example of punishment. Members of Congress said they were giving Huawei the corporate death penalty because of fears of what Huawei has done in the past and might do in the future. “On the other hand, the NDAA can be interpreted as a prophylactic qualification – a regulation – rather than a punishment. Congress certainly has the power to decide that certain types of business are so dangerous to national security that they’re prohibited from working with the government.”

...Directly above the nation's most important tribunal is another type of court, where victors emerge not with five votes and a majority opinion but with 21 points and a margin of at least two. Yes, on the fifth and top floor of the glorious, neoclassical edifice on First Street NE is a basketball court...For some, the haven of the Highest Court was never more welcome than when the justices adjudicated capital cases. On those evenings Noah Feldman, a clerk for Justice David Souter in 1998–99, would go upstairs, often alone, to shoot as he waited for documents, decompressing and considering the gravity of the moment. "It's impossible to overstate the seriousness of how that is taken by all the personnel of the Court, including the clerks. And rightly—a human being's life is in the balance," Feldman says. "Your cortisol is pounding, you want to do everything right and make sure justice is done. And when that was going on, you really needed a break."...On the fifth floor ideological differences dissipate; strict constructionists don't square off against living constitutionalists, nor do liberals take on conservatives for the right to Kennedy's (or, now that he's retiring, Roberts's) swing vote. "It was sort of a place where everyone took off their uniforms and you couldn't tell who was who," says Nikolas Bowie, who clerked for Justice Sonia Sotomayor in 2015–16. "You were just playing basketball."

An op-ed by Nikolas Bowie. Ever since NFL owners announced last month that they plan to fine players who protest on the field during the national anthem, critics have conducted a scavenger hunt of sorts looking for evidence that the NFL’s policy is unconstitutional. Benjamin Sachs has written that the First Amendment, which generally applies only to governments, should apply to the NFL’s policy because the policy was the product of demands by government officials, including the president. Daniel Hemel has suggested that the First Amendment might apply to the NFL’s stadiums because of all the government subsidies used to pay for them. But these critics may be looking for unconstitutionality in the wrong place: It’s a much clearer case that the NFL policy violates a host of state constitutions.