Noah Feldman

An op-ed by Noah Feldman: A White House memo recording Donald Trump’s July phone conversation with Volodymyr Zelenskiy is damning. Trump’s request that the president of Ukraine initiate a corruption investigation into Joe Biden and his son Hunter wasn’t incidental. On the contrary, it appears to have been the point of the call, along with an additional request to investigate the origins of the Russian collusion allegations against Trump. Trump brought up the investigations nearly every time he opened his mouth. Zelenskiy responded positively, suggesting he got the point. There is more than enough evidence here to support an allegation that Trump was not merely asking the president of Ukraine “to do us a favor,” as he put it, but rather proposing a quid pro quo in which U.S. aid for Ukraine would be reinstated in exchange for an investigation into the Mueller investigation, and into Biden. That would constitute an abuse of power by the president of the United States for his own benefit, since Biden was and is the leading contender for the Democratic nomination to challenge Trump in 2020. Such an abuse, if proven, would almost certainly qualify as an impeachable offense.

An article by Noah Feldman:  If it’s true (and we may soon find out) that Donald Trump froze U.S. government aid to Ukraine and made it clear to the Ukrainian president that he would unfreeze it if Ukraine were to investigate Joe Biden, that is certainly an outrage. Depending on how you define the term, it may also be a “high crime” deserving of impeachment under the Constitution. But is it a crime under existing federal law? The answer turns out to be tricky. And if history is a guide, the question will be hotly debated in any process of impeachment.

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.”

An article by Noah Feldman: The Trump administration is gearing up for its next big legal fight, taking on California’s long-established authority to set vehicle emission standards for new cars. Because the state is so large, this effectively creates national miles-per-gallon targets for any manufacturer selling vehicles in the U.S. Trump would like to take this power away from California and set lower national MPG standards. The question is, can he do it? Or is this just another example of presidential overreach in an administration that specializes in going too far?

An article by Noah Feldman: Tuesday, Britain’s Supreme Court will start a pivotal hearing related to Brexit. What it decides could tell us just how aggressive judicial review has gotten, and how far it’s spread from its foundations in the U.S.. Over the last 50 years, the American practice of judicial review has made its way around the world. It has become increasingly common for judges in constitutional systems to see themselves as the final decision-makers on constitutional legitimacy.

An op-ed by Noah Feldman:  It’s not often that hedge funds and the Constitution come up in the same sentence — let alone the same judicial opinion. But the two are very much in play in an important opinion issued by the U.S. Court of Appeals for the Fifth Circuit. In it, the court handed a win to hedge funds that are challenging the 2012 decision by the Federal Housing Finance Agency to make Fannie Mae and Freddie Mac transfer their profits to the U.S. Treasury in perpetuity — a transformation of those previously quasi-private entities known as the net worth sweep.

An op-ed by Noah Feldman:  Donald Trump says that the Supreme Court has given him a big win on asylum. Don’t be so sure. True, by a vote of 7-2, the justices allowed Trump’s new asylum regulation to go into effect — the one that says you can’t apply for asylum at the southern border if you’ve passed through Mexico and haven’t tried and failed to get asylum there.  But reversing the lower courts that blocked the regulation, pending litigation, isn’t the same thing as upholding it as lawful. The court of appeals still has to issue a final ruling on whether the rule violates federal immigration statutes and whether the government was authorized to issue it without first seeking notice and comment from the public. Then, after final rulings from the appellate court, the Supreme Court will surely weigh in — and still might strike it down.

An op-ed by Noah Feldman: In an important constitutional decision, a federal district court in Virginia has held that the government must give people on the Terrorist Screening Database, better known as the “watch list,” the opportunity to challenge the evidence that put them there. History will someday find it astonishing and outrageous that it took 18 years after the Sept. 11 attacks to restore this kind of procedural protection of people’s right to travel unmolested. Yet, late as it is, the decision also demonstrates that careful constitutional reasoning can reach common-sense conclusions — and make the government comply.

An article by Noah Feldman:  It’s great news that a North Carolina state court has struck down partisan gerrymandering under its state constitution. The ability of states to read their own constitutions differently from the federal constitution is part of what make states laboratories for democracy. And no experiment is more dangerous for the future of democracy than highly effective, computer-modeled partisan gerrymandering. But don’t get too excited about the prospect that lots of states will overcome partisan gerrymandering through state judicial action.

Currently, Facebook relies on a combination of technical tools and human moderators to enforce its community standards. Soon, the company hopes that the final decisions about content it's flagged will be made not by its own teams, but by a group of outsiders. By the end of the year, Facebook plans to have up and running an external, independent oversight board to tackle its most challenging content moderation decisions — a body that Facebook CEO Mark Zuckerberg said will function like an appeals court, or the US Supreme Court...“It's going to consider a selected subset of the most difficult and controversial issues on which reasonable people could reach different conclusions,” said Noah Feldman, a Harvard Law School professor who came up with the idea for the oversight board. “It can’t realistically fix every possible mistake that either computers or humans make. That would be a strange thing for it to do.” Feldman said that when he came up with the idea for an independent oversight board in January 2018, he didn’t have a particular piece of contested content in mind. Rather, he said, he was thinking about the broader content moderation challenges facing the company: being criticized for taking down too much material, therefore stifling free speech, or leaving too many posts intact and jeopardizing users’ safety. When Feldman brought the oversight board idea to Facebook, he was pleasantly surprised by the reception. “I discovered, to my great interest, that Mark Zuckerberg had himself been thinking for a long time about different ways to devolve power, create accountability, put some kinds of decision-making outside of the company,” he said.

An article by Noah Feldman:  Critics of Boris Johnson’s decision to “prorogue” Parliament by sending its members home for several weeks say it is undemocratic: the Prime Minister is making it much harder for Parliament to influence Brexit, and thus making it more likely that the UK will leave the EU without a deal. Johnson’s supporters, however, maintain that there is nothing undemocratic about it, since it helps execute the will of the people as expressed in the 2016 referendum. Who’s right? Is the democratic will of the British people to be found in their Parliament, one of the oldest continuously operating institutions of representative democracy? Or is it to be found in the referendum’s Leave vote?

An article by Noah Feldman:  Critics of Boris Johnson’s decision to “prorogue” Parliament by sending its members home for several weeks say it is undemocratic: the Prime Minister is making it much harder for Parliament to influence Brexit, and thus making it more likely that the UK will leave the EU without a deal. Johnson’s supporters, however, maintain that there is nothing undemocratic about it, since it helps execute the will of the people as expressed in the 2016 referendum. Who’s right? Is the democratic will of the British people to be found in their Parliament, one of the oldest continuously operating institutions of representative democracy? Or is it to be found in the referendum’s Leave vote?

An article by Noah Feldman:  It’s a great story: the Cherokee Nation is asserting its right to send a delegate to Congress under treaties dating back to 1785 and 1835. But it is also potentially a legal puzzle in the making. The 1785 treaty says the tribe is entitled to send a “deputy” to Congress whenever it wants. But that was before the Constitution, so “Congress” was a different body — and it isn’t clear what the role of a “deputy” would have been. A quasi-permanent presence of a Cherokee representative? Or simply someone who would show up on a one-time basis to speak on behalf of the tribe?

An article by Noah Feldman:  The news that an Oklahoma court is ordering Johnson & Johnson to pay $572 million for its part in feeding the opioid crisis probably comes as a surprise to no one familiar with the weird way the United States deals with crises. From IUDs to tobacco and beyond, Americans rely on self-interested plaintiffs’ lawyers to sue deep-pocketed manufacturers – and on state courts to impose big verdicts that are meant to redistribute wealth from companies and their shareholders to state taxpayers and (sometimes) victims. It’s worth pausing to notice the extremely bizarre structure of this uniquely American practice – and to wonder whether it achieves the social goal of creating incentives to avoid the next public health crisis.

An article by Noah Feldman:  Democrats are talking seriously about ending the legislative filibuster once and for all, effectively changing the number of Senate votes required to pass a bill from 60 to 51. The result would be a transformation in the way the U.S. Senate has operated for well over a century and a half. This may seem like a terrible idea, robbing the Senate of its traditional role as a moderating influence on legislative enthusiasms. Republican Majority Leader Mitch McConnell seems to think so, writing Thursday in the New York Times that Democrats would “regret it a lot sooner than they think.” But consider that it might be a good idea to make the Senate reflect the will of the public more than it has traditionally done. Entrenching minority veto power can certainly have moderating effects. It also blocks one of the most basic principles of democracy: the idea of majority rule.

An article by Noah Feldman:  A federal appeals court has held that members of the Electoral College have a constitutional right to vote for a different presidential candidate than the one they swore to support — and whom the voting public in their states actually chose. It’s a terrible holding. Inventing a right to be a faithless elector invites chaos, elevates formalism over democracy, and shows how indefensible originalism is when applied to evolving norms of democracy.

An op-ed by Noah Feldman: The decision by the New York Police Department to fire the police officer blamed for the choking of Eric Garner marked a troubling end to the five-year search for justice for the man whose death sparked Black Lives Matter protests. A police department trial found that the officer, Daniel Pantaleo, had not been truthful when he said he had not used a chokehold on Garner. Because both New York state and federal prosecutors declined to bring criminal charges against the officer, and the city settled a civil suit by Garner’s heirs, this is the only “day in court” Garner’s legacy will ever receive. All in all, this outcome shows how important the Black Lives Matter movement remains. The legal system is primarily designed to look backward and assign blame for particular, individual events. Even at that task it performs imperfectly. But the legal system is truly terrible at forward-looking transformation of institutions like police departments. For that you need political will and new cultural attitudes, not courts. In other words, transformative change requires a social movement, not a judicial verdict.

An op-ed by Noah Feldman: If you’re trying to figure out China’s next move in Hong Kong or how India will proceed in Kashmir, here’s a clue: follow the logic of an empire. China and India each inherited control from the British Empire, and are following a script that could have been written a century or more ago. Both governments probably have more legitimacy among their subjects than the British Empire had, but that’s beside the point when it comes to their reasons for acting today. Start with China, which got Hong Kong back from the U.K. in 1997. China promised “one country, two systems,” an arrangement that was supposed to allow a common-law-style judiciary to continue operating in the former British colony. Yet, it’s not as though Hong Kongers enjoyed democratic self-government under the British. The handover of Hong Kong was the exchange of one imperial sovereignty for another. The government of the People’s Republic of China was just much closer at hand, and had a stronger traditional claim to the territory.

A book review by Noah Feldman: This year is a propitious time for Stephen Budiansky’s new biography of Justice Oliver Wendell Holmes Jr. Exactly a century ago, dissenting in the case of Abrams v. United States, Holmes invented the metaphor of the marketplace of ideas, single-handedly laying the groundwork for the modern constitutional protection of freedom of speech. A year later, writing for the Supreme Court’s majority in Missouri v. Holland, Holmes inaugurated the metaphor of the living Constitution. Such a constitution should properly be interpreted “in the light of our whole experience, and not merely in that of what was said a hundred years ago.” Not bad for a man who was already 78 years old in 1919 — and who had been three times wounded in the Civil War, escaping an early death by just inches. When Holmes wrote in the Missouri case that it had cost the framers’ successors “much sweat and blood to prove that they created a nation,” it was his own blood and that of his closest friends that he had in mind.

An op-ed by Noah Feldman:  After the El Paso shooter posted a manifesto on the anonymous message board 8chan, the network provider, Cloudflare, suspended the site’s account, taking it offline — at least for now. Whether you applaud or oppose the action, it raises a fundamental problem for the future of free speech: Should there be some place on the Internet where even the most repellent, vile discussion is allowed? Or would we be better off collectively if we hounded such speech wherever it crops up, driving it ultimately to the dark web, and attacking it even there in the hopes of eliminating it altogether? The case of 8chan seems to provide the basis for the strongest possible case that some speech just shouldn’t be allowed to appear on the Internet.