Noah Feldman

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.

A podcast by Noah Feldman: Boaz Weinstein, founder of the hedge fund Saba Capital, discusses why the stock market seems to be doing relatively well when the economy is in shambles.

An article by Noah Feldman: It’s not exactly the Montgomery bus boycott, and Elon Musk is no Rosa Parks. But Tesla is apparently engaged in a highly unusual act of corporate civil disobedience. Ordered by Alameda County health authorities to keep its Fremont, California mega-plant shuttered, the company opened the factory over the weekend and started making cars. On Monday, its employee parking lot was reported to be almost full, suggesting a near-total reopening. CEO Elon Musk had announced two days earlier that the company would be suing the county in federal court. That lawsuit hasn’t yet yielded any results, however. So far as it’s possible to determine, Tesla is knowingly and intentionally breaking the law. If that sounds extreme, it should. Corporations aren’t supposed to engage in unlawful disobedience. The principles of corporate law treat intentional unlawful conduct as a violation of the corporation’s fiduciary duty to its shareholders. A glance at Tesla’s lawsuit is enough to reveal that the company’s case is not a sure winner. The first and central argument seems to be that because manufacturing cars counts as critical infrastructure exempted from a statewide shutdown under the California governor’s guidelines, Alameda County can’t shut down the plant.

A podcast by Noah Feldman: Jacob Weisberg, the CEO of Pushkin Industries, interviews Noah Feldman about his new book "The Arab Winter: A Tragedy" which comes out today.

An article by Noah Feldman: It’s astonishing that Attorney General William Barr’s Department of Justice has “withdrawn” criminal charges against Michael Flynn, the former national security advisor, after Flynn had already pled guilty to two counts of lying to federal investigators. But after you get past the initial shock of Barr once again making partisan criminal prosecution decisions while insisting that he’s doing the opposite, a larger question remains: Shouldn’t there be some kind of check on the executive branch’s capacity to make a guilty plea go away? The answer is yes, for extreme cases like this one. And on paper, there is. It’s not only the Department of Justice’s decision to dismiss the charges against Flynn. The federal judge in charge of the case must agree, too. Ordinarily, that’s a pretty easy decision for a judge. But where a defendant has already admitted to the crime; the executive branch is dismissing charges against a former administration official; and the president encouraged the former FBI director to make the same case go away, that may be the one circumstance where the judge should take a close look at the question. And maybe, just maybe, it would be appropriate for the court to refuse the government’s dismissal.

An article by Noah Feldman: In the midst of the constant up-and-down of coronavirus news, both from science and the markets, it’s easy to lose sight of the scariest scenario of them all: the one where there’s no magic bullet. In this entirely plausible situation, there would be no effective Covid-19 vaccine or transformative therapy; the combination of testing and contact tracing wouldn’t successfully suppress the outbreak; and herd immunity would come, if at all, only after millions of deaths around the world. Even raising this possibility is a big downer. But the fact that an outcome is terrible doesn’t make it impossible. Since the end of February, I’ve conducted some 20 interviews with epidemiologists and virologists like Marc Lipsitch, Angela Rasmussen, and Carl Bergstrom; economists like Paul Romer, Stefanie Stantcheva and Larry Summers; and leaders at top hospitals and experts on government agencies whose names you may not know, but whose life’s work is preparing for moments like this one. Despite getting expert answers to dozens of my questions, the one question I haven’t been able to get an answer for is this: Who, exactly, is planning for the nightmare scenario in which we never get a vaccine or a breakthrough treatment?