Noah Feldman

An op-ed by Noah Feldman: You practically need a scorecard to keep up with all the conflicts between Congress and President Donald Trump over executive…

An op-ed by Noah Feldman: Something unusual happened Monday at the U.S. Supreme Court: A Native American tribe won a case. The 5-4 decision preserved the rights of the Crow Tribe to hunt according to the promise of an 1868 treaty. It was written by Justice Sonia Sotomayor and joined by the court’s three other liberals — and somewhat surprisingly, by conservative Justice Neil Gorsuch. The other conservatives dissented. The case is important primarily for its moral meaning. In essence, the 1868 treaty, like many others, was written to mislead or even deceive the Indians who signed it. The court’s decision Monday didn’t repudiate the deceptive language. It’s hard for courts to do anything other than read legal documents the way they’re written.

An op-ed by Noah Feldman: The Georgia anti-abortion law signed last week and the near-total abortion ban Alabama will consider again Tuesday are just the most recent examples of what you could call “Kavanaugh laws.” Like anti-abortion statutes recently enacted by Iowa, Kentucky, Mississippi, North Dakota and Ohio, these are blatantly unconstitutional laws openly intended to violate the U.S. Supreme Court’s abortion-rights jurisprudence that goes back to Roe v. Wade. ... So what happens next? In the immediate term, the overwhelmingly likely outcome is that the bills will be blocked by the federal district courts, as the first handful of Kavanaugh laws have already been. The vast majority of federal district judges, whether appointed by Democrats or Republicans, recognize that it isn’t their job to change Supreme Court precedent.

An op-ed by Noah Feldman: In a 5-4 decision Monday, the U.S. Supreme Court allowed iPhone users to sue Apple Inc. for being a monopolist when it comes to apps. The fascinating fact about the holding isn’t its legal logic, which was sensible enough, although by no means obvious. Rather, it’s worth noticing that the opinion was written by Justice Brett Kavanaugh—and joined by the court’s four liberals. Four other conservative justices dissented, joining an opinion by Justice Neil Gorsuch.

An op-ed by Noah Feldman: Vice President Mike Pence says that the Trump administration will ask the U.S. Supreme Court to bar federal district courts from issuing nationwide injunctions — the court orders that make the entire government stop enforcing a law or policy that one district judge finds is likely to be unconstitutional. Such injunctions are always bad for the administration that’s in office, so you can understand why this Republican administration might think the conservative-leaning Supreme Court would be sympathetic to its request. But in the long run, nationwide injunctions are a powerful judicial tool to check the president and Congress, regardless of party. So you can expect the justices to think hard before taking that power away from lower courts — and effectively transferring it to themselves.

Law professors explain what it would mean for Congress to hold Trump attorney general William Barr in contempt—and what House Democrats are likely to do next. ... An across-the-board stonewalling strategy places what is supposed to be a basic element of American tripartite democracy—the checks and balances each branch imposes on the others—in serious jeopardy. "The Trump administration's refusal to cooperate represents a challenge to the very idea that Congress provides oversight of the president," Harvard Law School constitutional law professor Noah Feldman told me. "Anyone elected president, by definition, has a lot of power. Unless someone is in a position to provide oversight, the president functions as above the law." ... In the alternative, Congress can enforce its own contempt findings by ordering the House sergeant-at-arms to arrest an uncooperative witness who, as the Supreme Court put it in a landmark 1935 opinion, "obstruct[s] the performance of the duties of the legislature." Lawmakers haven't invoked this "inherent contempt power" in nearly a century, notes Larry Tribe, Feldman's colleague at Harvard Law School, which can make it sound a little outlandish to modern ears. "But you have to realize we are not living in normal times," he says. "In confronting this kind of unrestrained White House occupant, Congress might have to reach back into its toolbox."

An op-ed by Noah Feldman: President Donald Trump’s administration invoked executive privilege Wednesday to explain why Attorney General William Barr won’t hand over special counsel Robert Mueller’s full report to Congress. There’s just one problem: Executive privilege has nothing whatsoever to do with the parts of the report that were redacted in its earlier release.

The House Judiciary Committee is set to vote on holding Attorney General William Barr in contempt of Congress, for failing to provide a full and unredacted copy of the Mueller report. It’s the latest in a series of clashes between the legislative and executive branches—clashes that don’t show any signs of letting up. Was our 230-year-old Constitution designed for this highly partisan, highly confrontational moment? Guest: Noah Feldman, Harvard Law School professor and host of Deep Background, available on Luminary.

An op-ed by Noah Feldman:The speaker of the House has accused the U.S. attorney general of committing a crime by lying to Congress. That’s a huge deal … isn’t it? In principle, it should be. Such public accusations are supposed to reflect strong evidence of criminal conduct and intent. And an accusation against the nation’s top law enforcement officer should have special weight. For one thing, if the attorney general is credibly accused of a crime, there needs to be someone independent of his authority installed to investigate and charge him, like a special counsel or an independent prosecutor. Yet it’s hard to escape the thought that the accusation Nancy Pelosi made Thursday against William Barr shouldn’t be treated so seriously. The circumstances — and the content of the accusation — raise the strong possibility that Pelosi is making a political move in a political game.

An op-ed by Noah Feldman: It’s easy to blame Attorney General William Barr for distorting special counsel Robert Mueller’s report when he summarized it before its release. Even Mueller apparently blamed Barr in a private letter that has now been leaked. But there’s something dissatisfying about blaming a scorpion for being a scorpion. Of course Barr took advantage of his opportunity to distort the report. He took his job to protect President Donald Trump. The question is, why did Barr get a chance in the first place? And the answer lies in the special counsel regulations, produced in 1999 by Janet Reno’s Department of Justice under Bill Clinton’s administration. The regulations give the attorney general the golden opportunity to shape public perception of a special counsel report by issuing a summary of the report’s findings. Indeed, so powerful is the attorney general under the regulations that the nation’s chief law enforcement officer — who, let us not forget, is appointed by the president and answerable to the president  doesn’t even have to release the special counsel’s report at all. If you want to blame someone, or something, for Barr’s sleight of hand, the proper target is clear: blame the regulations.

President Trump has filed a lawsuit in federal court seeking to keep two banks from responding to congressional subpoenas, setting up a legal showdown with Democrats eager to investigate his finances. ... The Supreme Court has traditionally given Congress broad power to investigate and has been reluctant to intervene when lawmakers issue a subpoena, says Harvard Law School professor Noah Feldman. "The courts basically said, 'This is up to the Congress. They do what they want to do. We don't get involved,' " Feldman says. Trump and his attorneys may be hoping they can persuade the Supreme Court to step in and strike down — or at least restrict — the subpoenas, but that may take a while, Feldman says. Without a court order, the banks will have no choice but to comply with Congress' demands and turn over to investigators the records they want, Feldman says.

An op-ed by Noah Feldman: The brewing conflict between the House Judiciary Committee and Attorney General William Barr — over whether he will testify this week as scheduled, and under what ground rules — is a symptom of a much bigger emerging clash between Congress and the president. The most probable outcome is a stalemate: because the framers designed the Constitution that way. We have entered a new phase of the constitutional stress test that began with President Donald Trump’s election and shows no signs of winding down. In the first phases, Trump pushed the limits of executive power on immigration, and went after the criminal justice system in the hopes of delegitimizing it. This time, the initiative comes not from the president, but from a different branch of government.

... After reading the Mueller report, they say, Congress has no option but to fulfill its obligation and impeach Trump. ...  But this view misunderstands impeachment entirely. ... Harvard Law School’s Noah Feldman points out that neither history nor the framers’ intent yields clear lessons on the topic. “It’s quite possible that many founders would have supported impeachment for serious substantive matters like the usurpation of power by the president. By that standard, would [Abraham] Lincoln’s suspension of habeas corpus, FDR’s internment of the Japanese Americans or [Lyndon] Johnson’s massive expansion of the Vietnam War all have been impeachable offenses? Possibly.”

An op-ed by Noah Feldman: Some of President Donald Trump’s critics are saying that, despite special counsel Robert Mueller’s report, Trump could still be prosecuted for obstruction of justice after he leaves office. Don’t believe it. It’s conceivable that Trump could face charges post-presidency by the U.S. Attorney for the Southern District of New York for campaign-finance felonies he may have committed while paying off Stormy Daniels through Michael Cohen. And who knows what financial shenanigans from before his presidency might be investigated and prosecuted by New York prosecutors.

An op-ed by Noah Feldman: After oral argument Tuesday at the U.S. Supreme Court, it seems modestly likely that a majority of the justices is poised to allow the Trump administration to ask a citizenship question on the 2020 census. That would overturn a lower court decision holding, essentially, that Secretary of Commerce Wilbur Ross didn’t state his true reasons for wanting to add the question in the first place.

An op-ed by Noah Feldman: Does the ban on workplace discrimination based on “sex,” as laid out in Title VII of the 1964 Civil Rights Act, include discrimination based on sexual orientation and gender identity? U.S. Supreme Court agreed Monday to take up both questions in its October 2019 term, which means we will have legal answers to these questions sometime before June 2020. It’s potentially a big moment for LGBT rights. It’s also a watershed moment for a question the Supreme Court has been struggling with in recent years: What is the right way to interpret statutes passed by Congress?

An op-ed by Noah Feldman: Why did Robert Mueller pull his punches? In his report, made public Thursday by the Department of Justice, Mueller laid out significant evidence to support the conclusion that President Donald Trump committed obstruction of justice. Yet the special counsel stated that no matter what evidence he found, he wouldn’t directly say that Trump had committed a crime.

An op-ed by Noah Feldman: In the latest setback to the Guantanamo military commissions, the U.S. Court of Appeals for the D.C. Circuit on Tuesday threw out some three years of pretrial rulings by the military judge presiding over the case of the alleged mastermind of the USS Cole bombing. The decision was based on an inexcusable procedural problem: The military judge was pursuing a job in the executive branch while sitting on a case involving charges brought by the executive branch. The appeals court opinion featured a stinging attack on “all elements of the military commission system” for failing “to live up to” the “shared responsibility” of ensuring criminal justice. The ruling highlights an important evolution in the challenges facing the military commissions, which were set up to bring to justice the U.S. detainees at the prison at Guantanamo Bay, Cuba.

An op-ed by Noah Feldman: A group of parents filed suit Monday against the New York City Department of Health to block an emergency order requiring measles vaccinations for everyone in four ZIP codes in the Williamsburg neighborhood of Brooklyn. The threat of measles — and the opposition to vaccination — isn’t coming from the hipsters who populate some parts of the neighborhood. The target is a community of mostly Hasidic, haredi (ultra-Orthodox) Jews, who have refused vaccination for quasi-religious reasons and who are now caught in the middle of a measles outbreak that city health officials fear could spread fast and dangerously. One yeshiva’s preschool program has already been closed as a health hazard. Forced vaccination is a classic instance of a situation where the courts have to balance individual liberties against the public interest. The U.S. Supreme Court’s jurisprudence on the topic goes all the way back to 1904. Under existing law, there is strong reason to think the city will win and will be able to fine refusers $1,000 in an effort to compel vaccination.

An op-ed by Noah Feldman: The arrest of Julian Assange presages a free-speech debate that we’ve been avoiding for the seven years he was living in the Ecuadorean Embassy in London: Can Assange be lawfully prosecuted for somehow facilitating illegal theft of classified information? Or is the organization he founded, WikiLeaks, protected by the First Amendment when it publishes documents supplied by others, like the New York Times when it published the Pentagon Papers?

An op-ed by Noah Feldman: It’s hard to think of a more unlikely human rights hero than Kirstjen Nielsen, the outgoing secretary of homeland security. But if CNN’s reporting is accurate, Nielsen actually did sacrifice her job for the legal rights of asylum seekers when President Donald Trump instructed her to deny entry to immigrants who are protected by international refugee law. Nielsen also reportedly has spent the last several months resisting Trump’s pressure to separate families at the Mexican border, a policy that has been blocked by several courts while litigation against it continues.