Noah Feldman

Facebook Inc. appears to be moving ahead with the Supreme Court-like content oversight board it has been discussing for a year. It’s a worthy step but also a 1% solution for an unimaginably vast problem. Mark Zuckerberg, Facebook’s co-founder and chief executive officer, has been talking for more than a year about an independent authority that would become a final arbiter about whether a social network post should stay online or be wiped away for breaching the company’s rules against hate speech, calls to violence or other abuses...(Noah Feldman, a Harvard Law School professor and Bloomberg Opinion columnist, pitched the concept of an independent oversight board to Facebook. I haven’t spoken with him about this oversight body.)

An op-ed by Noah Feldman: In what is destined to become a landmark decision, the U.S. Supreme Court on Thursday upheld the constitutionality of a World War I monument in the form of a large Latin cross in a public intersection in Bladensburg, Maryland. The controlling opinion, by Justice Samuel Alito, flatly acknowledged that “the cross is undoubtedly a Christian symbol.” But that wasn’t the end of the story, because the court also said the cross functioned as a monument, a symbol of the nation and a historical landmark. The opinion in American Legion v. American Humanist Association marks the first time the Supreme Court has squarely held that religious symbols dating back many decades should be evaluated under a different standard than newly erected ones.

An op-ed by Noah Feldman: Increased scrutiny from antitrust regulators represents a meaningful threat for the biggest tech companies. That’s what the market seems to believe: Alphabet Inc., Apple Inc., Amazon.com Inc. and Facebook Inc. 1 all lost value Monday, presumably on the expectation that all have at least some monopolistic features that might be reined in by newly vigilant regulators. But keep in mind that there’s a big difference between President Donald Trump’s administration stepping up regulation and the existential threat of breakup. The way to think of the difference is this: Under existing antitrust law, the big tech companies won’t be broken up. If, however, regulators and the courts decide to reimagine antitrust law in new ways, then the risk of breakup would rise precipitously.

An op-ed by Noah Feldman:  Senate Republicans are learning to rue the day Congress gave presidents extensive authority in the International Emergency Economic Powers Act. The latest nail in the coffin of legislative influence is President Donald Trump’s invocation of his emergency powers to impose a tariff on Mexican products to force the country to crackdown on Central American asylum-seekers trying to reach the U.S.  No Senate Republican has come out in support of Trump’s action, and many are vocally opposed. Yet despite the certainty of legal challenges if the tariff goes into effect as planned Monday, odds are reasonably high that Trump can get away with it.

An oped by Noah Feldman: When the government takes your property, the Constitution entitles you to “just compensation.” But should the value of your property be computed based on market value, which would normally incorporate predictions about future government action? Or should the value of your property be determined without any reference to what the government might do — including take your property?

The Jewish festival of Purim was in full swing: Music was blasting, family and friends were bouncing to the beat, and 6-foot-3 Cory Booker was laughing and dancing while carrying a 5-foot-6 Orthodox rabbi in a clown suit on his back. ... “Within about five minutes of meeting Cory, I went over to someone and said, ‘Let me introduce you to the guy who is going to be the first black president of the United States,’ ” said Noah Feldman, now a Harvard Law School professor.

An op-ed by Noah Feldman: The sphinx finally spoke: But much like his ancient predecessor, special counsel Robert Mueller didn’t resolve any mysteries. At his surprise news conference Wednesday to announce his retirement, Mueller essentially repeated what he had written in his report. He didn’t take questions. He said he didn’t plan to say anything more in public. And he warned Congress that if called to testify, he wouldn’t say anything beyond what was in the report — which he called “my testimony.”

An op-ed by Noah Feldman:  Abortion rights aren’t appreciably more in danger after Tuesday’s U.S. Supreme Court ruling on two Indiana laws than they were before. But it’s clear that the drums are beating — and judicial war over abortion is coming, like it or not. The court upheld an Indiana law that says fetal remains can’t be “incinerated” with other medical waste but may be simultaneously “cremated.” Seven of the nine justices agreed with this judgment, signaling that the court’s liberals (except Justice Ruth Bader Ginsburg) didn’t want a fight over the law. Avoidance was made easier by the fact that abortion-rights activists did not claim the law unduly burdened a woman’s right to choose. At the same time, the Supreme Court refused to reconsider a court of appeals decision that struck down Indiana’s law banning abortion providers from knowingly aborting a fetus for reasons of its race, sex or disability. That means the law will never take effect, and selective abortions will remain legal in Indiana.  

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:  Impeachment has jumped the shark. The episode that proves it is the one in which serious, informed politicians are wondering if President Donald Trump actually wants to be impeached for political advantage and is trying to goad Democrats into obliging him. It would be impossible to imagine a more preposterous scenario under the Constitution and in the history of the presidency. Impeachment was intended by the constitutional framers as a highly serious option reserved for only the most extraordinary, egregious violations of the rule of law. Today’s discussion treats impeachment as a trivialized gambit within the ordinary game of electoral politics. The undermining of the constitutional ideal is near-total. It’s almost laughable.

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.