Noah Feldman

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.

An op-ed by Noah Feldman: ... For better or worse, the U.S. Supreme Court has held that someone can be convicted of the crime of material support just by teaching English in coordination with a terrorist group, even if that person never went near a weapon or battlefield. In this instance, however, the best legal option may not be a very good fit for the American’s conduct.

An op-ed by Noah Feldman: This past week, we saw the first concrete evidence that Donald Trump’s 2016 campaign colluded with Russia — and it seemed as if no one cared. That’s a reason to ask a disturbing question: What if the slow burn of Robert Mueller’s investigation ends with a fizzle, not an explosion? What if Mueller, in his role as special counsel, uncovers meaningful proof that the Trump campaign for president knowingly and actively cooperated with Russian efforts to get Trump elected — and the public treats the news as completely unremarkable? That would mark a radical transformation in the nature of contemporary U.S. politics.

An op-ed by Noah Feldman: When senators get to grill William Barr next week, they shouldn’t waste much time on whether President Donald Trump’s nominee for attorney general would fire special counsel Robert Mueller. The key question should be something different: Under what circumstances would Barr advise the president to pardon the targets of Mueller’s investigation? Here’s why: The most significant single act of Barr’s career in the Department of Justice was to advise President George H.W. Bush to pardon six officials from Ronald Reagan’s administration, including Secretary of Defense Caspar Weinberger, for crimes associated with the Iran-Contra affair. At the time, Barr was — you guessed it — attorney general. His recommendation gave Bush the cover he needed to issue the pardons.

An op-ed by Noah Feldman:  History’s verdict on Rod Rosenstein’s tumultuous two years as deputy attorney general will be mixed, if he does leave as expected when a new U.S. attorney general is confirmed. Rosenstein broke the normal rules to save a shred of normality. Usually that kind of compromise doesn’t work. In this case, it did — mostly. Rosenstein is going to be remembered first for naming Robert Mueller as special counsel to investigate Russian interference in the 2016 election.

President Trump is continuing to leave open the possibility that he might declare a national emergency and try to authorize a controversial wall on the southern border on his own if Congress won’t approve the $5.7 billion he’s asking for.... A number of legal experts have weighed in on the concept. Here’s a roundup from around the Web of what they’ve been saying. ... The Constitution, on the other hand, is relatively silent on the topic of emergency powers, Harvard law professor Noah Feldman said in a Bloomberg Opinion column. Feldman notes that Article I, Section 9 allows for the suspension of habeas corpus in cases of rebellion or invasion. But he continued, “From the fact that the suspension clause exists, you can deduce something very basic to the U.S. constitutional system: There are no other inherent constitutional emergency powers.”.... Harvard law professor Mark Tushnet told NBC News, “My instinct is to say that if he declares a national emergency and uses this pot of unappropriated money for the wall, he’s on very solid legal ground.”

An op-ed by Noah Feldman: President Donald Trump has said that he can declare a national emergency and order his border wall to be built. He’s wrong. The U.S. Constitution doesn’t contain any national emergency provision that would allow the president to spend money for purposes not allocated by Congress. And it’s clearer than clear that Congress not only hasn’t authorized money for a wall along the border with Mexico but also doesn’t intend to do so. The upshot is that any attempt by Trump to get around Congress by using invented emergency powers would violate the Constitution. It almost certainly would be blocked by the courts. And it would constitute a high crime and misdemeanor qualifying him for impeachment.

Noah Feldman, Harvard Law professor and a Bloomberg Opinion columnist, discusses his column: "No ‘Emergency’ Will Allow Trump to Build His Wall." Hosted by Pimm Foxx and Lisa Abramowicz.

An op-ed by Noah Feldman: President Donald Trump in a meeting with congressional Democrats on Friday said he was prepared for the partial government shutdown to continue for months — or even years — if he doesn’t get the money he wants for a wall along the Mexican border. It’s not hard to see how that prediction comes true. Both sides have framed the issue such that a victory for one side on funding a border wall entails defeat for the other. Neither side has much incentive to compromise. Suppose Trump is right. The longest shutdown on record is 21 days, from late December 1995 to early January 1996. (This is the 21st in the modern era.) What would a much longer shutdown mean for U.S. political life?

An op-ed by Noah Feldman: We go through life thinking the First Amendment is followed in the U.S. In practice, that isn’t always true. A case in point is that of Gunther Glaub, who is about to go to prison for a quirky protest in which he sent the bill for his new Chevrolet Camaro to the U.S. Department of Agriculture — and scribbled on it, “Thank you for paying this debt.” Astonishingly, prosecutors went after Glaub on the theory that sending the government this invoice and a few other bills, including one for his wife’s student loan and another from his credit union, violated the federal law against submitting false claims to the government.