Noah Feldman

An article by Noah Feldman: In one of its most important decisions in years, the Supreme Court has interpreted federal anti-discrimination law to prohibit discrimination on the basis of sexual orientation or transgender status. In a surprise to most observers, the decision was 6 to 3, and written by Justice Neil Gorsuch, one of Donald Trump's appointees. The decision marks Gorsuch’s most significant move thus far to take on the mantle of the late Justice Antonin Scalia as the intellectual leader of the conservative wing of the court. That may sound strange and counter-intuitive: After all, Scalia harshly opposed landmark decisions expanding gay rights, and it's difficult to imagine him having joined the Gorsuch opinion. And indeed, Justice Samuel Alito explicitly made Scalia the linchpin of his dissent, insisting (not implausibly) that Scalia could not possibly have been on board with a decision like this one. “The court's opinion is like a pirate ship,” Alito memorably wrote. “It sails under [Scalia’s] flag, but what it actually represents is a theory of statutory interpretation that Scalia excoriated.” Gorsuch’s ploy might well work. Conservatives may be briefly frustrated by the outcome of this case. But it is liberals — mostly liberal law professors — who make or break judicial reputations. And liberal legal scholars, who have not liked Gorsuch much thus far, are now going to have to hold him up as a model of judicial honesty. He has applied his method to produce a result against his presumed political preferences. That makes him a hero of legal principle, at least for the moment.

A podcast by Noah Feldman: Dr. Manisha Juthani, an infectious disease specialist and associate professor of medicine at Yale School of Medicine, provides tips for protesting safely and explains why she chose to participate.

An article by Noah Feldman: The Justice in Policing Act of 2020 introduced by House Democrats this week contains a provision that is likely to become the subject of lively debate: The provision effectively eliminates the legal defense known as “qualified immunity” for state and local police who get sued for violating citizens’ civil rights. The proposal is extremely important from a symbolic perspective. The Supreme Court has used the doctrine in recent years to send a message to lower courts that it wants less litigation against police. Now is the time for Congress to send the opposite message. Lawmakers should make it clear that police should not be “immune” from responsibility when they break the Constitution. The doctrine of qualified immunity muddies the principle of equal justice under law. Nor is qualified immunity contained in the text of any federal statute. It was invented by the Supreme Court in a series of cases, most importantly the 1982 decision of Harlow v. Fitzgerald. The basic idea of the doctrine is to create an exception to the important civil rights statute known as Section 1983. That law, whose origins date back to 1871, says that a state or local government official who violates a citizen’s constitutional rights “under color of law” can be sued in federal court and held liable for monetary damages. Essentially, qualified immunity says that you can only win a suit under Section 1983 if you can prove that the official’s conduct violated clearly established federal law.

A podcast by Noah Feldman: Paul Butler, a law professor at Georgetown, a former federal prosecutor and the author of the book "Chokehold: Policing Black Men," on policing, George Floyd, and the Black Lives Matter movement.

An article by Noah Feldman: Did President Donald Trump’s administration violate the First Amendment on June 1 when various police and other security forces tear gassed peaceful demonstrators in Lafayette Square park so the president could walk to St. John’s Church for a photo op? That is the central question in a lawsuit brought over the weekend by the Washington, D.C. chapter of Black Lives Matter and a number of individual protesters. The answer is almost certainly yes. And the lawsuit is extremely important, not because the plaintiffs will necessarily prevail, but because it is the best and maybe only way to prevent such a blatant constitutional violation from happening again just steps from the White House. Like most people, I followed the events of the evening of June 1 on television. The Trump administration may eventually offer a different version than the one we saw. For now, however, it’s reasonable to assume a set of facts pretty close to those alleged in the lawsuit. Essentially, Lafayette Square, directly across from the White House, was full of peaceful protesters. They were exercising their First Amendment rights in a public park, which the courts consider to be the very model of a “traditional public forum” where free speech rights are at their peak. Just after 6 p.m., a large number of armed law enforcement and military gathered around the park. The lawsuit alleges that they included “at least” U.S. Park police, Arlington County police, U.S. Secret Service, D.C. National Guard, and military police from the 82nd Airborne Division of the U.S. Army. Trump had apparently tasked Attorney General William Barr with commanding this wide range of police. There have been divergent accounts of whether Barr gave a direct order to clear the park.

Noah Feldman, Harvard Law professor and Bloomberg Opinion columnist, discusses his column: "Can Trump Send In the Military? Probably, Yes." Hosted by Lisa Abramowicz and Paul Sweeney.

An article by Noah Feldman: At a hastily arranged Rose Garden press conference on Monday, President Donald Trump announced his intention to invoke the Insurrection Act of 1807 to send federal troops into the states unless governors were able to “dominate” protesters using National Guard soldiers. Then, after the Secret Service fired tear gas and rubber bullets at what appeared to be peaceful protesters in Lafayette Park, Trump walked a few hundred feet across the park for a photo op in front of a boarded-up church opposite the White House. Given Trump’s track record of announcing legally problematic measures and not implementing them, it could be that his plan to invoke the Insurrection Act is no more meaningful than was his walk in the park. Nevertheless, it’s worth looking closely at the law in question. The Posse Comitatus Act of 1878 might ring a faint bell in your mind — it’s the law that says the president can’t use the military to enforce the law without authorization from Congress. The Insurrection Act is even more obscure. But it’s also more important right now. That’s because it is an act of Congress that authorizes use of the military to enforce the law in some circumstances. In other words, it functions as an exception to the Posse Comitatus Act.

President Donald Trump, responding to sometimes-violent protests following the death of George Floyd at the hands of police, said he would send in the U.S. military to “quickly solve” the problems of looting and rioting if the nation’s mayors and governors did not act forcefully enough. The use of the armed forces within U.S. borders is strictly governed by federal law, however, and there would be serious questions about the legality of such a move...Would the law allow Trump to act alone in the current situation? Many legal experts believe it would. Noah Feldman, a Harvard University law professor and Bloomberg Opinion columnist, says the broad language of the Insurrection Act means Trump “might have a case” that the rioting and looting “is obstructing execution of federal law to the extent that local police and the National Guard can’t successfully stop violence on the streets.”

A podcast by Noah Feldman: Jason Furman, a professor of the Practice of Economic Policy at the Harvard Kennedy School, explains why we don't need to be too concerned about the mounting federal debt caused by the coronavirus pandemic.

An article by Noah Feldman: On Sunday, President Donald Trump tweeted that the executive branch will designate Antifa as a “terrorist organization,” apparently in an attempt to pin blame for the weekend’s violent protests on the loose collection of far-left activists. The president’s announcement was characteristically unclear. Federal law says that if the Secretary of State designates a group as a foreign terrorist organization, then materially supporting that organization becomes a very serious federal crime. There is no comparable domestic terrorism designation under existing law. Setting aside the important factual question of whether groups of anti-fascist protestors are actually to blame for the violence, let’s look at whether Trump can “designate” them as terrorists. (The fact that Antifa may not be very organized wouldn’t itself necessarily stop designation. Nothing in the law specifies how organized a group must be to count as an organization.) If Trump’s “designation” is purely symbolic, the Constitution doesn’t come into it. Even without congressional authorization, the president can say what he likes — including inventing a designation that carries no legal consequences. However, if the Trump administration were to designate Antifa as a foreign terrorist organization, and the designation survived judicial review, then joining the group, funding it or coordinating with the organization in any way could be punished with harsh jail terms.

A podcast by Noah Feldman: Vanita Gupta, the former head of the U.S. Department of Justice’s Civil Rights Division, discusses the protests across the country, and the reforms she would make to how policing works in the U.S.

A podcast by Noah Feldman: Dr. Alex Marson, the Director of the Gladstone-UCSF Institute for Genomic Immunology, explains what antibodies tests can and cannot tell us.

An article by Noah Feldman: As the U.S. Supreme Court decides whether Donald Trump’s tax returns can be released to New York state prosecutors, an experiment in investigating and prosecuting a head of government is taking place across the ocean. On Sunday, Prime Minister Benjamin Netanyahu appeared in an Israeli court for the beginning of a criminal trial in which he is the defendant. Netanyahu’s trial is obviously a watershed in Israeli politics. Previous prime ministers charged with wrongdoing there had stepped aside rather than remaining in office while facing charges. But Americans may also want to keep an eye on the trial for what it might teach us about a constitutional question that has received a lot of attention during Donald Trump’s presidency: whether a sitting president can be subject to criminal prosecution. Of course, Israel has a parliamentary system of government, not a presidential one. It lacks a single, written constitution. It doesn’t have a federal system. Any lessons for U.S. constitutional law will be indirect. Yet Netanyahu’s example could still be highly instructive. That’s because so much of the constitutional debate in the U.S. over prosecuting the president has turned not on jurisprudential abstractions but on the question of whether a head of state charged with a crime would be too distracted to perform the duties of his office.

A podcast by Noah Feldman: Dr. Emily Rubin, a critical care pulmonologist at Massachusetts General Hospital, discusses what she has learned from treating coronavirus patients since March.

A podcast by Noah Feldman: Yonatan Grad, an assistant professor at the Harvard T.H. Chan School of Public Health, explains why we may have to practice social distancing intermittently until 2022.

A podcast by Noah Feldman: Bill McKibben, who was one of the first people to warn us about climate change more than 30 years ago with his book "The End Of Nature," discusses what COVID-19 and climate change have in common.

The raging public debate over statewide coronavirus lockdowns is running parallel to a series of legal battles in state capitals — and the lockdown skeptics got a big boost this week. The decision by Wisconsin’s Supreme Court on Wednesday to toss Gov. Tony Evers’ statewide shelter-in-place order set off a scramble in cities across the state to impose their own local restrictions. Elsewhere, bars and restaurants shut down by the order declared themselves open for business. And legal challenges are continuing to pile-up across the country — even as governors who extend their state’s shelter-in-place orders begin peeling back some restrictions. The plaintiffs are business owners, aggrieved private citizens, pastors and in some cases, state legislators and legislatures. The targets? Almost always Democratic governors or their top health appointees...Among the chief questions most courts will examine are whether states’ orders have a compelling government interest and whether the order is narrowly tailored in order to achieve that interest, said Noah Feldman, a law professor at Harvard. Feldman slammed the Wisconsin ruling, calling it a political intervention by the conservative majority on the state’s Supreme Court and arguing the outcome in that case was likely an aberration, based on technicalities while sidestepping the statutory matter at hand.

A podcast by Noah Feldman: In this bonus episode, Boaz Weinstein, founder of the hedge fund Saba Capital, tells the story of how the bond market broke for a few days in March.

An article by Noah Feldman: In a fascinating, bizarre, only-in-America moment, a partisan majority of the Wisconsin Supreme Court has struck down the stay-at-home order issued by the Wisconsin Department of Health Services. There is no appeal to the U.S. Supreme Court from the state court’s 4-3 decision, because it’s based entirely on Wisconsin law. Although it probably won’t be replicated in other states, the decision tells you a lot about the state of judicial politics in the U.S. today — and how those politics interact with the developing partisan politics of the coronavirus pandemic. The majority opinion is lawyerly — not in the admiring sense of the word favored only by lawyers, but in the pejorative sense of the term favored by ordinary human beings. To simplify only slightly, the Wisconsin DHS issued its directive to stay at home in the form of what it called an “emergency order.” The state court held that it wasn’t actually an “order” under Wisconsin law, but a “rule.” According to the court, what made the emergency order into a rule was that it applied to the entire state. Orders can be issued on an emergency basis by the Wisconsin DHS. Rules, however, need to go through a somewhat lengthy administrative process of information gathering and public discussion before they can be enacted. Needless to say, the emergency order didn’t go through that process, which would have taken time.

An article by Noah Feldman: You might think that the Supreme Court case regarding President Donald Trump’s tax returns is about him, or least about the power of the presidency. It isn’t. As Tuesday’s live-streamed oral arguments made clear, this is a case about Congress — and whether its oversight authority will be stripped away by an activist Supreme Court. The Constitution gives Congress “all legislative powers herein granted.” The text of the Constitution doesn’t speak of “legislative oversight” because the phrase itself wasn’t used until the 1830s, and didn’t become widespread until after World War II. But make no mistake, Congress has exercised what we call legislative oversight from the very beginning. The way Congress did so was no different from the way it does now: The legislators held hearings, asked questions and subpoenaed documents. The tradition is robust. Today Congress holds a range of different kinds of hearings, including hearings labeled legislative, oversight, investigative, confirmation, ratification and impeachment. All of them include oversight of government in one way or another.