Noah Feldman

An op-ed by Noah Feldman. A federal judge in California on Tuesday blocked President Donald Trump from rescinding the Deferred Action for Childhood Arrivals program, which he had planned to phase out in March. The impulse to protect the so-called Dreamers is admirable. But legally speaking, the opinion can’t be correct. If President Barack Obama had the legal authority to use his discretion to create DACA in the first place -- itself a close legal question -- Trump must have the legal authority to reverse DACA on the ground that he considers it to have exceeded Obama’s powers.

An op-ed by Noah Feldman. Prohibition-lite: That’s President Donald Trump marijuana policy set out last week in Attorney General Jeff Sessions’s guidance to U.S. attorneys, encouraging them to enforce federal pot laws even where states have legalized the drug. This is a reversal of President Barack Obama’s approach, which tried to impose some logic on law enforcement policy by discouraging federal charges. The effect of Sessions’s move is to make the law into a roulette game, with luck determining who gets prosecuted and who doesn’t. And that in turn undermines the rule of law itself, which thrives on regularity, predictability, and treating like situations and people alike.

While drafting the Constitution, James Madison strove to ensure the protection of minority rights but also proposed that a slave be counted as three-fifths of a person. The contradiction, etched into the Constitution, would come to define Madison and a nation irreconcilably founded both on slavery and the ideals of liberty and justice. This paradox lies at the heart of “The Three Lives of James Madison,” by Harvard law professor Noah Feldman, who charts Madison’s life as the “father of the Constitution,” a political partisan, and ultimately a statesman in his roles as secretary of state and president.

An op-ed by Noah Feldman. If President Donald Trump would actually sue Steve Bannon for violating a nondisclosure agreement made with his campaign, it would be great for the freedom of speech. That may sound strange, because Trump’s threatened lawsuit is precisely aimed to silence Bannon and other potential leakers who worked on the campaign. Bannon has been extensively quoted in excerpts published this week from the journalist Michael Wolff’s new book, “Fire and Fury: Inside the Trump White House.” But Trump’s suit would almost certainly fail, and that’s why it would serve free speech.

An op-ed by Noah Feldman. Secretary of State Rex Tillerson may think his year-end summary of U.S. foreign policy is a tale of success. But the remarkable op-ed article in the New York Times in fact illustrates the opposite: It shows in chapter and verse how the U.S. lacks leverage over many of the critical challenges it faces globally. From North Korea to China to Russia and the Middle East, American objectives are clear -- and the Donald Trump administration has no credible road map to achieve them.

An op-ed by Noah Feldman. The House of Representatives passed the National Rifle Association’s favorite gun-rights expansion bill earlier this month, and gun-control advocates locked and loaded their favorite legal arguments against it. It’s a terrible measure, to be sure, forcing states to allow people licensed to carry concealed weapons in one state to carry them anywhere else. But that doesn’t mean it’s unconstitutional, and liberals should be careful what they wish for.

...In James Madison’s public career, spanning four exceptionally productive decades, this private passion of his—what he called “the sentiments of my heart”—is the most visible evidence of the force that fueled him. As Noah Feldman, Frankfurter professor of law, writes in his excellent, authoritative, and lucid reassessment of Madison, “Dolley frequently expressed opinions and emotions that Madison hid from view.” He was known as a dispassionate man of reason, systematic and mild-mannered, who preferred the company of ideas and lacked the need for attention many politicians have. Yet his profound sense of purpose made him a statesman of enormous impact. He imagined the United States as a unified nation rather than a confederation of republics with diverging interests in agriculture and trade, and helped shape that country.

An op-ed by Noah Feldman. Charlottesville, Virginia, has rejected permit applications from five organizations, far-right and otherwise, to hold protests in the city’s parks on the one-year anniversary of last summer’s protests there. It’s hard not to feel sympathy for the city, which struggled to manage the rallies and was unable to prevent the terrorist car-ramming that killed one woman and injured 19 other people. There’s just one problem: Denying the permits is unconstitutional.

An op-ed by Noah Feldman. Roy Moore won’t sit in the U.S. Senate -- or be expelled from it. I would like nothing more than to write his political eulogy. But I can’t -- not yet. The truth is, it’s too soon to count Moore out of Alabama politics. This is the same man who was twice removed from the chief justiceship of the state for defying the authority of the federal courts. He came back strong both times.

An op-ed by Noah Feldman. It’s no surprise that U.S. President Donald Trump’s decision to recognize Jerusalem as Israel’s capital has sparked violence in the West Bank and Beirut, or even protests in far-flung Indonesia, which is majority Muslim. But Sweden? Yet the western Swedish city of Gothenburg, headquarters of Volvo Car AB, saw the firebombing of a synagogue on Friday. The same evening, demonstrators in Malmö, in Sweden’s far south, called for their own “intifada” and threatened to shoot Jews.

An op-ed by Noah Feldman. From the standpoint of producing Middle East peace, President Donald Trump’s decision to recognize Jerusalem as the capital of Israel in a speech Wednesday can only be called irrational. It raises the risk of Palestinian violence that could derail peace efforts by his son-in-law Jared Kushner. It makes it harder for crucial U.S. allies like the Saudis to side with Trump and push the Palestinians to a deal. It won’t make Israel feel more secure. And it will hearten right-wingers in the U.S. and Israel whose endgame is actually to avoid a two-state solution.

An op-ed by Noah Feldman. It’s happening: President Donald Trump’s lawyer John Dowd asserted Monday that the “president cannot obstruct justice because he is the chief law enforcement officer under” Article II of the Constitution and “has every right to express his view of any case.” This radical view of what lawyers call the “unitary executive” isn’t completely crazy, especially if you take Dowd’s words charitably. But it is wrong. The president can indeed express opinions about legal cases.

An op-ed by Noah Feldman. The debate over the weekend about whether President Donald Trump or his lawyer wrote a tweet saying National Security Adviser Michael Flynn was fired for lying to the FBI is fascinating -- and beside the point. Despite the enthusiasm of administration critics, a tweet can’t and shouldn’t be the basis of a “confession” of a high crime for impeachment purposes. In other words, regardless of authorship, the tweet can’t be used to prove Trump obstructed justice because he knew about Flynn lying to the Federal Bureau of Investigation when he urged Director James Comey to go easy on Flynn and then fired Comey.

An op-ed by Noah Feldman. The news that Michael Flynn pleaded guilty Friday to Russia-related offenses is striking, for several reasons. The lies he told the FBI were about asking the Russian ambassador to the U.S., Sergey Kislyak, for political favors during the presidential transition, some of which the ambassador granted. The lies happened when Flynn was already national security adviser and Donald Trump was president. The fact that Flynn lied about contacts with Russia seems particularly suspicious. The content of the Flynn-Kislyak conversations deepens the narrative that special counsel Robert Mueller has been building: Earlier guilty pleas revealed Russian efforts to connect with the Trump campaign; this one reveals official contacts between the Trump team and Russia after the election -- contact significant enough for Flynn to lie to the FBI about.

An op-ed by Noah Feldman. Suits against President Donald Trump for abuse of executive power are an important tool for preserving the republic. But the newly filed suit by Democratic appointee Leandra English for the right to serve as acting director of the Consumer Financial Protection Bureau is not helping the cause.

James Madison, who wrote the first drafts of the U.S. Constitution, sponsored the Bill of Rights, and served as the fifth Secretary of State and the fourth President, was America’s least fun Founding Father...That’s the kind of book one expects upon a first glance at “The Three Lives of James Madison: Genius, Partisan, President,” by Noah Feldman. But Feldman, the Felix Frankfurter Professor of Law, at Harvard Law School, has written something else: a palliative for the age of Trump that never names the current President, as told through the political evolution of an important weirdo whose constant recalibrations enabled him, with increasing success, to fight epic battles with his own, founding-era “haters and losers.” Feldman is at once subtle and candid about the aptness of his narrative.

An op-ed by Noah Feldman. When you get rid of your dictator, is it important to follow the rules? That delicate question is dominating the transition-in-progress in Zimbabwe, where longtime president Robert Mugabe has refused to step down despite the demands of the public, the army and his own political party. The counterintuitive answer is that it actually is worthwhile to show obedience to the rule of law, even when the person being overthrown hasn’t and doesn’t.

An op-ed by Noah Feldman. The claim that President Donald Trump is mentally unwell has a particular valence in today’s charged political environment. It isn’t supposed to sound like a partisan criticism. It’s supposed to sound like an objective statement of medical fact.

...To recap, we have three Americans–UCLA basketball players LiAngelo Ball, Jalen Hill and Cody Riley–arrested by Chinese authorities for alleged shoplifting. Trump took credit for their return to the states, saying he asked the country’s president Xi Jinping for help. Now we have that same president saying he should’ve done nothing. What does it mean if provable spite motivated a president’s decision to refrain from helping an American held in custody on foreign soil? Law&Crime reached out to Harvard Law Professor Noah Feldman for his take on the matter, and asked if such behavior, or something like it, could be impeachable. “Not impeachable,” Feldman wrote in an email. “He was under no duty to help and no duty to be nice about it after the fact.”

An op-ed by Noah Feldman. Fasten your seatbelts. If all the relevant actors are guided primarily by their political self-interest, Roy Moore is headed for the U.S. Senate. And if that happens, we are in for a major national fight about expelling him from his seat, which could function as a partial preview of an impeachment trial of President Donald Trump. The logic behind this analysis is that Moore will almost certainly be elected in Alabama’s special election next month. It’s effectively too late for Republicans to stage a write-in campaign against him even if they wanted to try.