Noah Feldman

An article by Noah Feldman: The Supreme Court is back in session today. And in this mad political season, it somehow seems fitting that one of the first cases it will consider is whether it is constitutional for a state to punish a person who cannot tell right from wrong because of mental illness. On the surface, the question seems like one with obvious liberal and conservative answers: liberals, it would appear, should think that the Constitution protects people with certain serious forms of mental disability, whereas conservatives should think that states may be as harsh as they like in defining crime. And indeed, it seems probable that the court will split roughly on ideological lines in the case, Kahler v. Kansas.

An op-ed by Noah Feldman;  It’s no surprise that a federal judge has held that Harvard University doesn’t discriminate against Asian Americans in its admissions. This case probably ends here: The Supreme Court would be ill-advised to take up this particular case. Yet there will likely be other cases like this one, and a conservative Supreme Court may well take one of those as an opportunity to rule against diversity-based admissions. Evidence of discrimination by Harvard (where I work) was, in the end, extremely weak. The parties introduced competing statistical models, and even the model preferred by the plaintiffs didn’t show much in the way of disparate admissions outcomes. The main troubling finding, that Asian-American applicants were scored slightly lower on a “personal qualities” metric, appears to be mostly explained by high school teacher recommendations, which might well reflect implicit bias – but not discrimination by Harvard.

It's only natural for Americans wrapping their heads around the idea that Donald Trump might actually get impeached to think back to Richard Nixon. This was the premise of the first season of the wildly popular podcast Slow Burn, the animating thread of so many late-night prognostications—on Twitter, at bars, at dinner with your parents—at the height of Robert Mueller's investigation of Russian interference in the 2016 election. ...Well, for one thing, House Speaker Nancy Pelosi has formally launched an impeachment inquiry, a step Democrats never formally took amid Mueller Mania. And as Noah Feldman, a Harvard legal historian who has closely tracked the various investigations into Trump, explained over the course of two conversations this week, Pelosi’s reasoning was transparent: People can understand the idea of Trump bullying someone over the phone to go after a personal rival more easily than they can shadowy political consultants or dimwitted adult sons requesting the aid of hackers backed by Moscow. Or as Feldman—who said we are in "uncharted ground" at this point—put it, "The report produced by the [whistleblower] does in like four pages what Mueller couldn't in 400," adding, "So instead of the Slow Burn, we just had one big download... of the case to impeach."

An article by Noah Feldman: Believe it or not, it’s time for a new special counsel investigation. Not targeting Donald Trump himself: Congress can and will investigate the president in the course of its impeachment inquiry. But as a result of the whistle-blower complaint, a separate investigation does need to get underway immediately. The Department of Justice must investigate Rudy Giuliani’s potential crimes in trying to get Ukraine to interfere in the 2020 U.S. election. It also needs to investigate whether White House officials criminally covered up evidence of Trump’s call with Ukrainian president Volodymyr Zelenskiy. And because the whistle-blower complaint alleges that the top law enforcement official in the federal government, Attorney General William Barr, “appears to be involved” in these events, a special counsel must be appointed.

An article by Noah Feldman:  The whistle-blower complaint against Donald Trump, in just a few pages, establishes the evidence for a quid pro quo between Trump and Ukrainian president Volodymyr Zelenskiy — unfreezing aid payments in exchange for investigating Joe Biden and digging into an unsupported fringe theory about the origins of the Trump-Russia collusion allegation. Second, it provides strong evidence that some in the Trump administration understood that Trump’s call to Zelenskiy was wrong and potentially criminal — and, third, that they took steps to cover it up. Despite its brevity, the whistle-blower complaint does just about everything that Robert Mueller’s report failed to do over several hundred pages: provide proof of Trump soliciting interference in a U.S. election from a foreign government. The complaint also documents Trump abusing his office for personal gain. Abusing one’s office for personal gain is a textbook definition of the federal crime of bribery and extortion. It’s also a textbook definition of an impeachable offense.

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.