Noah Feldman

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.

An article by Noah Feldman: The Supreme Court’s decision in the Wisconsin election case isn’t exactly the shot heard round the world. In a narrow, 5 to 4 decision, the court’s conservatives held that a federal district court shouldn’t have granted a coronavirus-inspired emergency extension for mailing in absentee ballots. But the Supreme Court’s ruling nevertheless matters a lot. It’s the opening salvo in what is likely to be a seven-month long series of legal battles about how the 2020 elections will be accomplished with Covid-19 disrupting the voting process. So it’s highly unfortunate that the justices split along partisan lines in this first case, a case with relatively low stakes. The nation badly needs the court to avoid a scenario reminiscent of the 2000 Bush v. Gore case, in which the justices were perceived to have decided the election for Bush along roughly ideological lines. The takeaway for states, and for democracy, is clear: Plan now, plan well, and don’t rely on the courts to resolve controversial questions about mail-in voting and deadlines — especially at the last minute.

A podcast by Noah Feldman: Lydia Dugdale, the Director of the Center for Clinical Medical Ethics at Columbia University, discusses how medical supplies will likely be allocated if there are shortages.

An article by Noah Feldman: It’s not only factories that can’t retool overnight to meet the Covid-19 pandemic. Our brains can’t, either. The way we think and the things we think about follow patterns that are capable of evolution and change — just not that fast. You can see this phenomenon all around you right now: whatever we cared about before, we’re now using as our lens to think about the novel coronavirus. And subject matter experts, the people we need most in a crisis, are also the most likely to keep thinking as they have, because their thinking is so strongly shaped (or deformed) by professional training and strong collective values. I could give you lots of examples. If you usually think about workplace diversity, now you’re likely to be focused on the disparate impacts of the virus on workers based on sex, race and class. If you’re focused on reforming incarceration, you’re probably among those warning of the pandemic’s impact on the prison population. But perhaps the most important two examples of experts following their training and beliefs are the two disciplines whose knowledge is most central to the current crisis: epidemiologists and economists.

Two weeks ago, Ohio Governor Mike DeWine, a Republican, asked a court to postpone his state’s presidential primary the next day to help stop the spread of the novel coronavirus. When the court refused, DeWine postponed the election anyway, citing the public health threat. It’s an election year. Trump faces the greatest trial of his presidency. And the coronavirus outbreak is a challenge that could make voting in the traditional way a threat to public health. He hasn’t floated the idea, but could a scenario ever emerge in which Trump follows DeWine’s lead and postpones the presidential election this fall? Does a president even have that power? Trump, after all, has wielded presidential power in ways none of his more than 40 predecessors did, testing the limits of the Constitution, his co-equal branches of government, and his party, and taking actions seen as trampling American traditions and mores. But the answer in a word: no, according to legal scholars and the law itself...While state and local elections — and even presidential primary dates — are largely up to individual state and local governments, the general election is not. “The idea that President Trump can somehow delay or cancel the election is just not plausible,” said Harvard Law School professor Noah Feldman. “I am not speaking about his motives. I am [speaking about] his options.”

An article by Noah Feldman: In a little-noticed move over the weekend, California’s judicial council unanimously took some worrisome steps away from constitutional principles. Drawing on emergency powers conferred by state law and an executive order by the California governor, the council changed the deadline of 48 hours for arraigning arrestees to as much as a week. It also extended the date for a mandatory preliminary hearing in criminal cases from 10 days to 30 days; and it added an extra 30 days to the “speedy trial” deadlines for both misdemeanors and felonies. These measures deserve close scrutiny on their own merits. Fast arraignments, hearings and trials are cornerstones of judicial due process. California is the most populous state in the union, and the changes will affect many arrestees. But the measures also need a close look because they may set a trend. Throughout the coronavirus crisis, California has been at the leading edge of adopting new measures. San Francisco and other Bay Area counties were the first to adopt formal shelter-in-place orders; and California was the first state to adopt a statewide movement-restricting order. Both of these became influential models. What California does today in criminal justice may soon be followed by other states.

A podcast by Noah Feldman: Angela Rasmussen, a virologist at Columbia University Mailman School of Public Health, discusses what treatments for COVID-19 are currently being researched, and why rushing the scientific process can be risky.

A podcast by Noah Feldman: Paul Romer, a Nobel Prize-winning economist at New York University, argues that we can keep the economy from tanking during the coronavirus pandemic without risking people's health. We just need many, many more tests.

An article by Noah Feldman: This weekend, President Donald Trump did a rapid about-face, pulling back from his suggestion that he might try to quarantine New York, New Jersey and Connecticut. It marked a significant moment in his response to the coronavirus pandemic. It symbolizes Trump’s fairly consistent choice thus far in the Covid-19 crisis to reject the impulse to grab power. There’s a script for populist autocrats in emergencies: maximize executive power, restrict civil liberties, delay or suspend elections. Trump has pretty consistently done the opposite during this crisis. Trump has even held back from exercising the substantial presidential power afforded him by existing law. Rather than encouraging or promoting restrictions on movement — a key civil liberty — Trump has so far repeatedly discouraged lockdowns. And notwithstanding lots of nervous speculation by Democrats, Trump so far has said not a word about delaying the 2020 election, which in any case he lacks the constitutional power to do.

A podcast by Noah Feldman: Laurie Santos, a Professor of Psychology at Yale, shares tips for dealing with coronavirus-induced anxiety. For further listening, check out Laurie’s podcast “The Happiness Lab,” also from Pushkin Industries.

An article by Noah Feldman: One of the noteworthy aspects of our current coronavirus moment is the rapid proliferation of self-appointed data analysts. These armchair epidemiologists seem to believe they can project the trajectory of Covid-19 better than actual epidemiologists who have spent their whole careers studying the spread of disease. You know who I’m talking about: It’s not just the guy on Medium whose post gets 35 million pageviews. It’s your uncle and your co-worker (funnily enough, many of them are men) who are trying their hand at beating the pros. And of course, it includes our president. Donald Trump has said in his daily press conferences that he’s “a smart guy” who “feel[s] good about” his own predictions and has “been right a lot.” There are several possible explanations for why so many of us are trying to make our own predictions. What they all have in common is that they are based on conceptual errors. As anyone with any kind of subject matter expertise — whether in construction or constitutional law — knows, there’s a difference between actually knowing what you’re talking about and winging it.

An article by Noah Feldman: As more U.S. states roll out stay-at-home orders to combat the spread of coronavirus, it’s now possible to identify an emerging American model of such restrictions. The approach is notably less strict than Covid-19 measures adopted in other affected countries, not only autocratic China, but even democratic Italy. And although the model is sufficiently restrictive that it will have massive effects on the economy, it does not come close to a complete shutdown of economic activity. The emerging American model has several distinctive elements. The first is that, while its contours are being specified in emergency orders issued first by local governments and now by state governments, it isn’t particularly coercive. Indeed, at least in this first iteration, the American model depends mostly on voluntary compliance. To be sure, governors are issuing what they are calling “orders,” not mere recommendations. Some governors, like New York’s Andrew Cuomo, have made a point of saying that the orders are meant to be taken seriously, and hinted that police could issue fines to violators. Yet even if police enforcement is mentioned, there is little practical possibility of systematically implementing it. There just aren’t enough law enforcement officers. The legal basis for such enforcements would be shaky given the language of the orders thus far drafted.

A podcast by Noah Feldman: Farzad Mostashari, the former National Coordinator for Health Information Technology at the Department of Health and Human Services, says we need to collect better data to effectively fight the spread of the virus.

A podcast by Noah Feldman: Homer Venters, the former Chief Medical Officer for the New York City Jail system, says that we need to stop the spread of coronavirus in prisons, jails, and detention centers to have any hope of flattening the curve.

An article by Noah Feldman: With every passing day, it becomes more and more apparent that the U.S. federal government’s  response to Covid-19 has been appallingly slow and inadequate. A major reason is that the person at the apex of that institution, President Donald Trump, dislikes and distrusts the expert bureaucrats who make the government actually function. The laws that govern emergencies like the coronavirus pandemic give enormous power to the executive branch to direct and coordinate disaster response. These laws are not designed to empower the president personally. To the contrary, the whole point of the emergency laws is to empower government experts who know what must be done in a crisis — that is, career technocrats who work at agencies like the Centers for Disease Control and Prevention (CDC) and the federal emergency management agency (FEMA). Congress doesn’t trust the president in an emergency. It trusts the experts.