Noah Feldman

Hosted by June Grasso. Guests: Retired Navy Admiral James Stavridis, former military commander of NATO, and Bloomberg Opinion columnist: "Trump Is Risking an ISIS Resurrection." Clive Crook, Bloomberg Opinion editor: "Trump Is Rooting for Ocasio-Cortez’s Democrats." Noah Smith, Bloomberg Opinion columnist: "Design a Green New Deal That Isn’t Over the Top." Noah Feldman, Harvard Law Professor and Bloomberg Opinion columnist: "Kavanaugh Shows How Conservative He Is on Abortion."

An op-ed by Noah Feldman; President Donald Trump can’t just pull funding for high-speed rail from California as payback for the state’s challenging the constitutionality of his border wall. There are laws governing decisions by agencies like the Department of Transportation. Those laws require that agencies give principled policy reasons for their actions — not recite doubtful pretexts for decisions taken on political grounds. If the Transportation Department actually pulls the funding, as it has said it plans to do, California will challenge the decision in court. And the odds are pretty high that the state will win, regardless of what happens in the separate legal challenge to the border wall.

An op-ed by Noah Feldman: Justice Clarence Thomas wants to get medieval with the First Amendment. In a fascinating and bizarre opinion issued Tuesday, Thomas invoked the original meaning of the Constitution and the 18th-century common law of libel to assault a landmark freedom-of-the-press decision, New York Times v. Sullivan. Thomas’s foray won’t become the law in the immediate future. He wrote the solo opinion as the U.S. Supreme Court declined to review the case of one of Bill Cosby’s accusers, who sought to bring a defamation claim against the comedian and convicted sex offender. But it’s important as a sign of the times because it reflects distrust of the news media.  

An op-ed by Noah Feldman: In retrospect, it seems obvious that President Donald Trump would want to have his cake and eat it, too. That’s essentially what he’s doing Friday by both signing a government funding bill that provides $1.375 billion for a barrier with Mexico and also declaring a national emergency to allocate other federal funds for the same purpose.

Legal challenges to President Trump’s planned national-emergency declaration to build a border wall are likely to come fast and furious — but legal experts caution the law is “murky” on the extent of his powers. ... Harvard Law professor Noah Feldman said the Constitution is intentionally “murky” on what constitutes a national emergency and what powers the president has during one. “A lot of these laws are not super clear and that gives a lot of space to the president,” Feldman said.

An op-ed by Noah Feldman: President Donald Trump is reportedly close to issuing an executive order that would ban Chinese companies like Huawei Technologies Co. from building 5G wireless networks in the U.S. The significance of such an order goes beyond its obvious implications for American telecommunications companies.

An op-ed by Noah Feldman: The trial of a dozen leading Catalan politicians in Madrid on charges of rebellion isn’t something you expect to see in a functioning European democracy. The events of fall 2017 weren’t a rebellion in the ordinary sense of the word. It was nonviolent political grandstanding that the Spanish state easily shut down. The effort shouldn’t have succeeded, but it also shouldn’t be harshly criminalized.

An op-ed by Noah Feldman: By a 5-4 vote Thursday night, the U.S. Supreme Court blocked a Louisiana law that would have made abortion all but impossible in the state — at least until the court can hear the merits of the case. The most important fact about this result is that Chief Justice John Roberts cast the deciding vote to stop the law from taking effect. That doesn’t tell you how he’ll ultimately vote on whether the law is constitutional. But it does tell you that Roberts cares about a fair process.

An op-ed by Noah Feldman:  The U.S. Senate passed a bill Tuesday that says state governments can refuse to do business with companies that boycott Israel. The bill passed, 77-23, with 22 Democrats and Republican Rand Paul maintaining that it threatens free-speech rights. So you might be wondering, as I was: Is the bill actually unconstitutional? The question is straightforward, but the answer isn’t — because of the strange way that the federal bill is written with regard to the boycott, divestment and sanctions (BDS) movement.  The bill essentially declares that, if states want to pass measures targeting companies that boycott Israel, nothing in federal law prohibits the states from doing that. The strange thing is that no one really seems to think that the state laws violate any federal statute.

An op-ed by Noah Feldman:  President Donald Trump’s persistent threat to declare a national emergency and build a wall along the Mexican border is giving new life to the separation of powers — exactly the opposite of his intention. In a development that would bring a smile to the Founding Fathers if they could see it, Republican senators have started to say that it’s a constitutional problem for the president to attempt to bypass Congress by using an emergency to fund something that Congress clearly hasn’t authorized. Republicans are realizing that if Trump can use an emergency to get around Congress, so too could Democratic presidents in the future. The senators are looking out for the interests of the Senate, which is to say their own interests.

Hosted by June Grasso. Guests: Toby Harshaw, National Security writer for Bloomberg Opinion: "North Korea’s Nukes and the ‘Forgotten War.’" Noah Feldman, Professor at Harvard Law and Bloomberg Opinion columnist: "Roger Stone Indictment Draws Circle of Collusion." Noah Smith, Bloomberg Opinion columnist: "Too Many Americans Will Never Be Able to Retire." Stephen Gandel, Bloomberg Opinion columnist: "Don’t Bet on Buybacks to Bail Out Stock Market." Jonathan Bernstein, Bloomberg Opinion columnist: "Early Returns: Trump Could Face a Serious Primary Challenge."

An op-ed by Noah Feldman:  The U.S. Senate on Thursday passed a nonbinding amendment, drafted by Majority Leader Mitch McConnell, that contradicts President Donald Trump’s foreign policy on Syria and Afghanistan. It asserts that too fast a withdrawal from either country “would put at risk hard-won gains and United States national security.” Whether you agree or not, the amendment is well within the Senate’s power: It’s basically a message to the president, not a law that would require anyone to do anything. In contrast, Representatives Tom Malinowski, Democrat of New Jersey, and Mike Gallagher, Republican of Wisconsin, have introduced bills in the House that actually attempt to use Congress’s power of the purse to block the Trump administration from withdrawing troops from Syria and South Korea.

An op-ed by Noah Feldman: If I were on the U.S. Supreme Court, I would probably vote to find Senator Elizabeth Warren’s proposed wealth tax constitutional. But given the current composition of the court, that might well put me in the minority. Warren, who is exploring a run for the Democratic presidential nomination in 2020, has suggested that the top 75,000 U.S. households pay an annual tax of 2 percent on each dollar of their net worth above $50 million. Billionaires would be taxed an additional 1 percent.

An op-ed by Noah Feldman: Monday marks the 100th anniversary of the most important political essay of the 20th century, “Politics as a Vocation,” by the German sociologist and legal theorist Max Weber. The essay includes a topical lesson for Americans as candidates announce their plans to take on President Donald Trump in the 2020 election: Politics isn’t the realm of pure, absolute moral conscience, where everything can be described as right or wrong, black or white.

An op-ed by Noah Feldman: The indictment of Roger Stone, who was arrested Friday by the FBI and charged with lying to Congress, provides the first detailed evidence that Stone was a go-between for Donald Trump’s presidential campaign with WikiLeaks and its founder, Julian Assange. In 2016, WikiLeaks had and released a large numbers of emails that had been stolen by Russian intelligence from the Democratic National Committee and from Hillary Clinton’s campaign. Stone’s coordination between the campaign and WikiLeaks is substantive, from what the court filings show. Stone, a Republican political operative and confidant of Trump, got advance notice of WikiLeaks document releases that he passed on to the Trump campaign. That included information about an “October surprise,” which turned out to be the leaking of Clinton campaign chairman John Podesta’s emails.

An op-ed by Noah Feldman: The U.S. and about a dozen other countries recognized opposition leader Juan Guaidó as the legitimate president of Venezuela on Wednesday, even as President Nicolás Maduro maintained his grip on the office. But is that even a thing? Under ordinary principles of constitutional and international law, can one country simply declare that someone who manifestly isn’t the president of the country actually is, and act accordingly? Well, no. Not really. Maduro is a terrible president who has not only broken the Venezuelan economy but also repeatedly broken the Venezuelan constitution himself. His re-election in 2018 by a reported 67.8 percent wasn’t free or fair. It’s defensible as a matter of foreign policy for the U.S. to seek his ouster. But the constitutional argument that Maduro isn’t really president is nothing more than a fig leaf for regime change. Even as fig leaves go, it’s particularly wispy and minimal. The U.S. policy is, in practice, to seek regime change in Venezuela. It would be better to say so directly.  

An op-ed by Noah Feldman: In two separate but similar cases today, the Supreme Court has handed President Donald Trump a setback on immigration and a victory on transgender troops. In particular, the court’s actions show that its newest member, Justice Brett Kavanaugh, may not be prepared to give the president what he wants. Before reading the tea leaves, however, it’s important to understand what the court actually did. It chose to leave the Deferred Action for Childhood Arrivals program in place for now, meaning that it won’t hear a case about it before October 2019, and probably a good deal later. This decision — or really non-decision — is a setback for Trump, who tried to rescind DACA, which protects hundreds of thousands of undocumented immigrants from being deported. His plan was blocked by a federal district court. Meanwhile, the court ruled 5-4 that his ban on transgender people serving in the military can go into effect while the issue is being litigated.

An op-ed by Noah Feldman:  Since President Donald Trump took the oath of office two years ago, a big question has been whether the 230-year-old Constitution is capable of meeting today’s challenges. Judging by his willingness to flout it — for example by threatening to declare an emergency and spend money without Congress’s approval — Trump’s answer seems to be no. Meanwhile, a corresponding skepticism of the Constitution’s vitality may be emerging among Democrats, fueled by factors such as Trump’s assertiveness, an acknowledgment of the Framers’ racism and a sense of stagnated progress. Take a look at a recent Washington Post interview with Beto O’Rourke, the former Texas congressman, in which he posed “the question of the moment” and asked non-rhetorically: Does this still work? Can an empire like ours with military presence in over 170 countries around the globe, with trading relationships … and security arrangements in every continent, can it still be managed by the same principles that were set down 230-plus years ago?

An op-ed by Noah Feldman: There’s no such thing as a perfectly bulletproof judicial opinion. But the 277-page decision blocking the Trump administration from asking about citizenship on the 2020 census comes close. The opinion, issued Tuesday by Judge Jesse Furman of the U.S. District Court for the Southern District of New York, is a masterpiece of factual and legal analysis, both detailed and duplicative, that is designed to withstand an expedited appeal to the U.S. Court of Appeals for the 2nd Circuit and potential blocking or review by the Supreme Court. Its bottom line is clear: Secretary of Commerce Wilbur Ross broke the legal rules when he ordered the citizenship question to be added to the census. Whatever his real motive was, it wasn’t to find out how many noncitizens live in the U.S.

More than 25 years after serving as attorney general under George H.W. Bush, William Barr is set to return to the role this week. What should we expect? And what should the senators at the confirmation hearing be asking? Guest: Noah Feldman, professor of constitutional law at Harvard University and columnist at Bloomberg.

An op-ed by Noah Feldman: William Barr, President Donald Trump’s nominee for U.S. attorney general, has a worrisome theory of executive power. He’s wrong to say that part of the federal obstruction of justice statute isn’t applicable to the president. But on the eve of Barr’s Senate confirmation hearings, it’s also important to recognize that Barr’s view of executive power is not extreme, or at least not outside the range of opinions commonly held by lawyers who have worked for presidents.