Noah Feldman

An article by Noah Feldman: Attorney General William Barr has made good on his threat to take legal action against states that restrict religious services during the coronavirus pandemic. The Department of Justice has filed a brief in federal district court in Virginia in support of a church claiming the right to hold socially distanced worship. The lawsuit should not be allowed to be litigated to completion. The governor of Virginia should make a strategic decision to tweak the state’s rules to make it go away. Analyzed precisely, existing First Amendment doctrine should not enable the church to get an exemption from Virginia law. Yet, because the issues here are tricky, and it’s easy to feel sympathy with the worshippers, a judge could make new law at the invitation of the Justice Department and find in favor of the church. That on its own is a good reason for the state to change its rules. The facts of the case create some natural compassion for the church, Lighthouse Fellowship Church. It’s a congregation that ministers especially to people with substance abuse problems; for them, attending church is almost certainly a meaningful part of preserving their mental and physical wellbeing. And although the pastor knew that he was breaking state guidelines when he invited his flock into the church, he restricted the numbers drastically, imposed social distancing, and made sure the church was carefully disinfected before worship.

A podcast by Noah Feldman: Akiko Iwasaki, a professor of immunobiology at Yale University School of Medicine, explains what types of coronavirus vaccines are currently being researched and evaluates their chances of success.

An article by Noah Feldman: It’s a tale of two mega-states — and probably of two Americas, each with a nearly opposite approach to Covid-19 restrictions. The governor of Texas allowed his stay-at-home order to lapse and restaurants, theaters and stores to reopen, along as long as they stay below 25% capacity. Meanwhile, California’s governor ordered a “hard close” of the beaches of Orange County. The divergence reflects an increasingly fundamental divide between different states’ attitudes toward the public health science about the coronavirus pandemic. Texas is following the most permissive conceivable interpretation of the evidence; California is deploying what is just about the most restrictive possible interpretation. It isn’t only because of different experiences with the virus. Although California has identified over 55,000 cases, and Texas has only 32,000, California is much larger, with about 10 million more residents. It is surely not a coincidence that their decision to go different ways reflects partisan differences in attitudes toward the coronavirus. This bodes ill for any sort of coherent or consistent national approach in the weeks and months ahead. Some ten states, including Texas, eased restrictions on May 1, with some four more scheduled for this week. Just about all of these are red states. Blue states, including many in the hard-hit Northeast, are maintaining restrictions, with some localities actually tightening their rules.

He’s ordered New Jerseyans to stay home, banned gatherings, closed schools, shuttered nonessential businesses, moved elections, declared authorities can seize medical equipment from private companies. And his administration has frequently issued tickets to those who disobey, publicly naming them in the process. Gov. Phil Murphy says the goal of these temporary yet sweeping orders is to protect residents from the coronavirus, a fast-moving disease that has already killed more than 7,700 Garden State residents — more than any state but New York. But the sheer breadth of it all might have you asking: What gives him the right? ... Numerous legal experts say state laws instill governors with broad powers during crises and courts are likely to define their moves are constitutional as long as they’re narrowly crafted to protect the public’s health in a set period of time. “When a government is restricting liberty — fundamental liberty — a state has to have a very compelling state interest. You need a very, very good reason to do this,” said Noah Feldman, a law professor at Harvard Law School. “Stopping people from dying is a compelling interest.” ... Feldman, the Harvard professor, said to dovetail with the U.S. Constitution, governors’ actions must be “narrowly tailored" and “use the least restrictive means possible” to reach that objective. Given the size of New Jersey’s outbreak, Feldman said, it’s “overwhelmingly likely" a court would uphold Murphy’s stay-at-home order. “In any case of an emergency, courts would probably be pretty deferential to the governors because the court’s not gonna say, ‘We know better than public health officials in emergency circumstances,'” he said.

An article by Noah Feldman: President Donald Trump’s decision not to renew the federal stay-at-home advisory is the perfect symbol of his approach to the Covid-19 pandemic: Once again, Trump is operating by signal and sign and suggestion, not concrete directives or orders. It’s not so much that the president is not leading at all. It’s that his leadership operates as a kind of shadow play, not as a practical reality. The federal advisory was never anything more than a nonbinding suggestion to the states. Declining to renew it is also nothing but a nonbinding hint that perhaps some states should be able to reopen. Neither has any formal consequences. Both amount to atmospherics. It’s important to remember that the president of the United States does have the power to lead by action, not suggestion. True, existing federal law most probably didn’t authorize Trump to order a nationwide lockdown. But consider what Trump could have done via regulation. He could have directed every agency in the executive branch to devise and issue Covid-19 regulations binding the industries that those agencies regulate. That would have enabled him to shut down large parts of the economy in order to achieve safety and health results. Trump could have invoked the emergency powers of the Defense Production Act more quickly and more completely to focus resources on protective equipment and tests. Trump has used the DPA to target a few individual firms (some of which were already producing the necessary equipment). But the Act gives him the power to marshal entire sectors of the economy, to nationalize the distribution of key resources, and to designate single a federal agency to coordinate all of this activity. So far, he hasn’t used those powers.

A podcast by Noah Feldman: Marta Figlerowicz, an associate professor of comparative literature and English at Yale, discusses classic works of literature about pandemics from Boccaccio's The Decameron to Camus' The Plague. Plus, she psychoanalyzes Noah's love of detective novels.

A podcast by Noah Feldman: Dr. Louise Ivers, the executive director of the Massachusetts General Hospital Center for Global Health, explains why states like Massachusetts are investing in a strategy called contact tracing to stop the spread of the novel coronavirus.

An article by Noah Feldman: Attorney General William Barr has issued a memo threatening to sue states if they infringe on people’s freedoms during the coronavirus pandemic — and encouraging U.S. attorneys to look for cases to bring against the states. Not to put too fine a point on it, but what in the world does Bill Barr think he’s doing? As the memo itself acknowledges, restrictions on movement are necessary public health measures legitimately carried out by states. It’s hard to know for sure, and the memo is so vague and equivocal that it reads almost like some sort of secret code. One interpretation is that Barr is trying to harness the power of the Department of Justice to contribute to Donald Trump’s rhetorical, electioneering efforts to urge the rapid reopening of state economies. Trump has been making life harder for governors by encouraging public protests against their stay-home orders. Barr’s memo now threatens those governors with legal enforcement measures. If and when the states reopen, Trump (and Barr) can then try to take credit for state governors’ decisions by claiming to have forced them into it.

An article by Noah Feldman: Whenever we’re ready to re-open Covid-closed businesses, we’ll have to resolve some important questions about how to do so safely. One of them: what kind of measures should businesses take to keep employees and customers safe, and how should business owners be held accountable if they play fast and loose with others’ health? This debate over limiting liability has just begun, and it’s already taken a partisan turn. That’s unfortunate, because there’s a straightforward middle-ground solution available. Republicans have called for federal legislation to render businesses immune from lawsuits; Democrats are skeptical of the whole idea. Both sides are on to something important. The risk of being sued — and having to pay outsize damages if people become sick — is real. But so is the risk that complete immunity from lawsuits would lead to lax safety standards that endanger public health. Congress should direct the CDC to issue a specific protocol designed to keep workers and customers safe. Businesses that follow these federal rules should have a safe harbor from liability, even if some people get sick on their premises. Those who break the rules should be able to be sued for breaches that lead to infection.

An article by Noah Feldman: It was easy to miss in the middle of our Covid-19 madness — but this week, the Supreme Court issued its most interesting decision of its current term so far. At issue was whether it’s constitutional for a state to allow for criminal conviction on a 10-2 jury verdict instead of requiring unanimity. But that wasn’t what made the case interesting. Rather, the case, Ramos v. Louisiana, featured heated disputes that, for once, split the court not along squarely ideological lines — but across them. One argument was about whether a law’s racist historical origins are relevant to its constitutionality when there are modern, nonracist reasons for it. The other was about when the principle of judicial precedent should lead the court to uphold a prior decision even if it considers the decision weak or wrong. Both disputes will have long-term consequences — and the latter sheds some light on the perennial question of whether and when the court might overturn Roe v. Wade, the 1973 decision that recognized a legal right to abortion.

A podcast by Noah Feldman: Pardis Sabeti, a computational biologist at Harvard and the Broad Institute, discusses when and how to re-open colleges and universities, why the US is behind other countries when it comes to containing the spread of coronavirus, and a plan to stop pandemics in the future.

An article by Noah Feldman: It’s not an exaggeration to say that the total ban on immigration that President Donald Trump announced by tweet is among the most extreme acts of unilateral executive authority attempted by any president since World War II. It will generate immediate legal challenges, and the ensuing litigation will reach the Supreme Court sooner rather than later. “In light of the attack from the Invisible Enemy, as well as the need to protect the jobs of our GREAT American Citizens,” Trump tweeted at 10pm last night, “I will be signing an Executive Order to temporarily suspend immigration into the United States!” An actual order hasn’t yet been issued yet, and without one, it’s tough to predict what the legal result of any challenges to it will be. But the court’s Trump v. Hawaii decision upholding the president’s Muslim ban provides some guidance. Federal law authorizes the president to “suspend the entry of all aliens” into the United States whenever he “finds” that their entry “would be detrimental to the interests of the United States.” To suspend all immigration now, the Trump administration will have to explain why allowing any immigrant into the country would be detrimental to U.S. interests. In practice, that means the government will have to provide a reason for the ban that is based on facts, not mere presidential fiat expressed in under 240 characters.

A podcast by Noah Feldman: Omai Garner, the director of clinical microbiology testing at UCLA Health, explains why more Americans have not been tested for COVID-19.

An article by Noah Feldman: President Donald Trump’s encouragement of protests against states’ stay-in-place orders is un-presidential in the colloquial sense: it’s unbecoming of a president. But Trump’s latest gambit is un-presidential in a much deeper sense, too. It contradicts the very constitutional justification for why we have a president in the first place. The whole point of the presidency is to have an elected official who represents the interests of the entire country, not of a specific state or electoral district. That is, the purpose of the presidency is unification. Trump’s goal, to the contrary, is to drive state-by-state division. He’s undermining the very ideal of a unified United States in pursuit of electoral advantage. To understand why we have a president, it’s useful to consider why we don’t have a prime minister. After all, the founding fathers were creating a republic, in which all officials would be elected and nobody would be above the law. If the United States of America was not to have a king, it would have made logical sense for its executive to be a member of the legislature, first among equals. But the framers of the Constitution wanted to create a different version of the separation of powers than Britain’s.

An article by Noah Feldman: As everyone but President Donald Trump seems to understand, the Constitution doesn’t give the president any inherent authority to shut down or open up the economy in an emergency like the coronavirus pandemic. But Congress could lawfully give that authority to the executive branch. And there’s good reason to think that Congress should do exactly that, not for Trump, who has shown himself to be entirely unworthy of congressional trust, but for future presidents, who will almost certainly be better. A truly national crisis in fact demands a truly national response. That response should be centralized and based on expertise, not partisanship. The patchwork of coronavirus responses that we’ve seen across the states has been harmful and irrational. As soon as this crisis is over, we need new legislation that will guide future executives — legislation that will both empower future presidents to act decisively and also constrain them so that they must act on the basis of reasoned, expert judgment, not political gain.

A podcast by Noah Feldman: Carl Bergstrom, a computational biologist at the University of Washington and co-author of the forthcoming book "Calling Bullshit: The Art of Skepticism in a Data-Driven World," explains how to make sense of all the different coronavirus models and discusses the impact of misinformation on public health.

A podcast by Noah Feldman: Former Treasury Secretary Larry Summers helped get us through the 2008 financial crisis. He has some ideas about what to do to get through this one.

An article by Noah Feldman: Yesterday, six governors from a string of contiguous eastern seaboard states stretching from Rhode Island to Delaware announced that they would form a working group to cooperate on reopening businesses in the region. This kind of state-level coordination is much needed. The federal government hasn’t taken the lead in ordering coronavirus lockdowns, and so it won’t take the lead in reopening economies. But the composition of the working group is also a little worrisome — because it reveals the potential effects of partisan politics in efforts to fight Covid-19. The original group included Connecticut, New York, New Jersey and Pennsylvania in addition to Rhode Island and Delaware. But why weren’t Massachusetts and New Hampshire to the immediate north initially included, or Maryland to the immediate south? What about Vermont, which adjoins New York, or Ohio and West Virginia, which adjoin Pennsylvania? It’s not because they don’t share common challenges and interests in fighting the coronavirus. It’s hard to avoid the conclusion that it’s because the initially excluded states all have Republican governors. The six states in the original working group all have Democratic governors.

An article by Noah Feldman: Mail-in voting is the best way to ensure that the November 2020 election can proceed safely despite the coronavirus pandemic. It’s all too likely we’ll still be dealing with outbreaks then, and it’s well before we’ll have a vaccine. The U.S. needs to start making plans for mail-in ballots now; and yet President Donald Trump has begun to make it clear he intends to stymie any large-scale vote-by-mail efforts. Mail-in voting will become the key battleground because it’s essentially the only realistic option for holding an election during a pandemic. Donald Trump can’t delay the November 3 vote — that’s beyond his constitutional power. In fact, the Constitution doesn’t provide any option for suspending or delaying a presidential or congressional election. Congress “may determine the Time of chusing the Electors, and the Day on which they shall give their Votes,” according to the Constitution, but precedent makes it pretty certain that Congress won’t delay the presidential election either; it didn’t even do so in 1864, when the Civil War was in full swing.

An article by Noah Feldman: In the shadow of the coronavirus pandemic, President Donald Trump is taking ever bolder steps to gut the government structures designed to ensure the rule of law in the United States. In the last week alone, he’s fired two prominent inspectors general: the intelligence community inspector general who received the whistleblower complaint that sparked Trump’s impeachment; and the Defense Department inspector general who had just been named by a group of other inspectors general to oversee the coronavirus bailout effort. Technically, firing IGs is within the president’s constitutional ambit. They’re executive officials appointed by the president and confirmed by the Senate. Yet these firings fundamentally undercut the constitutional idea that the president and his appointees are governed by the law, not above it. The purpose of the 70-odd federal inspectors general is to provide rigorous scrutiny and oversight for federal agencies. That’s why the IGs are typically embedded in the agencies they supervise. It’s also why more than two dozen of the most important IGs, like those for defense and the intelligence community, aren’t hired and fired by the heads of the departments or agencies they oversee. Direct presidential appointment is supposed to make them more independent of the agency hierarchy than they otherwise would be.

A podcast by Noah Feldman: To mark the start of Passover, Idan Dershowitz, a biblical scholar and junior fellow at the Harvard Society of Fellows, discusses the ten plagues of Egypt in the context of the coronavirus pandemic.