Noah Feldman

An op-ed by Noah Feldman. Senator Dianne Feinstein owes a public apology to judicial nominee Amy Coney Barrett -- and an explanation to all Americans who condemn religious bias. During Barrett’s confirmation hearings last week before the Senate Judiciary Committee, Feinstein, the California Democrat, insinuated an anti-Catholic stereotype that goes back at least 150 years in the U.S. -- that Catholics are unable to separate church and state because they place their religious allegiances before their oath to the Constitution. If a Catholic senator had asked a Jewish nominee whether she would put Israel before the U.S., or if a white senator had asked a black nominee if she could be an objective judge given her background, liberals would be screaming bloody murder. Feinstein’s line of questioning, which was taken up by other committee Democrats, is no less an expression of prejudice.

This past Wednesday, the Senate judiciary committee held its confirmation hearing for law professor Amy Barrett of Notre Dame, who had been nominated to serve on the 7th Circuit Court of Appeals. A devout Catholic, Barrett had not been shy about her personal views in her writings, including her opposition to both abortion and the death penalty. The former stance particularly concerned California Senator Dianne Feinstein, who asked Barrett whether her faith would interfere with her ability to apply the law...As Harvard law professor Noah Feldman put it to me, “It’s legitimate for Senators to seek assurance that a judge will rule according to the law. It’s outrageous—and unconstitutional—to suggest or even imply that a nominee’s religious faith would presumptively disqualify her from office.”

An op-ed by Noah Feldman. Amid the laudable moral support for the Dreamers after President Donald Trump’s revocation of the Deferred Action for Childhood Arrivals program, liberals should keep in mind an important constitutional principle: Immigration is supposed to be the province of Congress, not the executive. The belief that the president has ultimate immigration power can lead to terrible results -- like Trump’s travel ban against six majority-Muslim countries, also powered by the mistaken idea that immigration policy should be set by executive order. The Framers of the Constitution thought about immigration, and wanted Congress in charge. Article I, Section 8, which enumerates Congress’s authorities, confers the power “to establish an uniform rule of naturalization.”

An op-ed by Noah Feldman. President Donald Trump’s Department of Justice claims it has the authority to use information submitted by Dreamers who applied for the Deferred Action for Childhood Arrivals program to deport them now. It’s obviously wrong for the government to lure people in by the promise of freedom, then use what they have said against them. It may also be unconstitutional, a violation of due process that shocks the conscience and a violation of the Dreamers’ free-speech rights when they registered for DACA in the first place.

An op-ed by Noah Feldman. President Donald Trump has threatened to punish any “sanctuary city” that resists turning over undocumented immigrants to federal agents -- although he almost certainly lacks the authority to do so. So it’s noteworthy this week that a federal district court in Texas has held that even the state legislature can’t entirely force sanctuary cities to work alongside the federal government on immigration matters.

An op-ed by Noah Feldman. When black-clad anti-fascist protesters broke through police barricades Sunday afternoon and swarmed a peaceful rally in Berkeley, California, law enforcement stood aside and let them. City police Chief Andrew Greenwood explained the decision with a rhetorical question: “Does it make sense,” he asked, “to get into a major use of force over a grassy area?” With all due deference to police expertise, things are not that simple. Violent protesters who cross barriers and disrupt peaceful protest are deeply threatening to freedom of speech.

An op-ed by Noah Feldman. If President Donald Trump pardons Joe Arpaio, as he broadly hinted at during a rally Tuesday in Arizona, it would not be an ordinary exercise of the power -- it would be an impeachable offense. Arpaio, the former sheriff of Arizona’s Maricopa County, was convicted of criminal contempt of court for ignoring the federal judge’s order that he follow the U.S. Constitution in doing his job. For Trump to pardon him would be an assault on the federal judiciary, the Constitution and the rule of law itself.

An op-ed by Noah Feldman. Morally, the only proper reaction to last weekend’s events in Charlottesville, Virginia, is outrage. Legally, the analysis has to be more nuanced. To help prevent further violence while preserving freedom of speech, we need to distinguish three categories, all of which seem to have been in play in Charlottesville: terrorism, peaceful protest and provocative action aimed at producing street violence.

An op-ed by Noah Feldman. The consensus right and left seems to be that President Donald Trump’s apocalyptic threat of “fire and fury” should North Korea continue its provocations has actually brought the possibility of nuclear annihilation closer. But hardheaded analysis suggests that, however unpresidential his rhetoric, Trump’s words have not appreciably increased the risk of war between the U.S. and North Korea. True, the New York Stock Exchange closed slightly down after his remarks, and the Nikkei was down 1.3 percent. But those relatively mild reactions probably reflect a reminder that such a war is, in fact, conceivable -- not a change in its probability.

An op-ed by Noah Feldman. A year ago, affirmative action in higher education seemed safe for a generation, after Justice Anthony Kennedy blessed it in a landmark Supreme Court opinion. Now President Donald Trump’s Department of Justice is signaling that it plans to challenge the constitutionality of the practice in a way the federal government has never done before. And with Justice Neil Gorsuch in place and the possibility that Kennedy might retire in the next few years, the challenge could succeed. The legal reality is that higher ed affirmative action is now vulnerable.

An op-ed by Noah Feldman. The short life of Anthony Scaramucci as White House communications director will be remembered with joy by some, or at least by me. His unbridled self-expression, in the grandest traditions of the First Amendment and the New York street corner, was more like a tornado of fresh air than a mere breath. But the era of the Mooch was also guaranteed to be as brief as the life of a mayfly -- for a serious reason. Important jobs like managing the president’s relationship with the press come with norms and customs: unwritten rules that shape social relations in every culture, and that are based on cumulative wisdom and many decades (sometimes centuries) of trial and error.

An op-ed by Noah Feldman. Having failed to repeal the Affordable Care Act, President Donald Trump is now stating openly that his plan is to let Obamacare fail instead. Although the end result may be the same, there’s a vast difference between these two options, constitutionally speaking. Repeal is a normal legislative initiative, completely within the power of Congress and the president. But intentionally killing a validly enacted law violates the Constitution’s order that the president “shall take care that the laws be faithfully executed.”

Robert Mueller's appointment as special counsel to lead the Russia probe in May caught President Donald Trump by surprise. He was given no heads up and, according to The New York Times, said, "what the hell is this all about?...Even if Trump cannot dispense with Mueller easily, the very idea that he might try exposes an inherent flaw in the US Constitution's design, says Harvard Law School Professor Noah R. Feldman. Feldman points out that the president is ultimately in charge of law enforcement as the head of the executive branch -- a structural arrangement that works just fine until the president or those close to him come under investigation. So if the President tries to fire Mueller or gets him fired, "it would expose a deep flaw in constitutional design" says Feldman, because it shows the ability of the president to successfully block an investigation -- not a sign of a democratic society.

...Traitors, even just accused traitors like Gadahn, are exceedingly rare in American history. That's because treason is actually a very narrowly defined crime that's awfully hard to commit. And despite the latest wild revelations in the ongoing Trump-Russia saga—Donald Trump Jr.'s meeting with a Kremlin-connected lawyer who promised information as part of a Russian government effort to damage Hillary Clinton—legal experts say there is no way Junior or any Trump associate will ever get charged with treason...Even Laurence Tribe, a constitutional law expert at Harvard, inveighed that Junior's meeting had the "stench of bribery & treason."...Noah Feldman, a Harvard legal historian who previously suggested Trump may have committed impeachable offenses, agreed. "It's defined in the Constitution, and this isn't even close," he emailed me Tuesday about a possible "treason" charge.

An op-ed by Noah Feldman. President Donald Trump still seems to think that pressuring China to rein in North Korea’s Kim Jong Un is the best way to push back against the rogue state’s nuclear expansion, most recently in the form of testing an intercontinental ballistic missile that could reach Alaska. This approach hasn’t worked so far, and there’s a reason: Chinese President Xi Jinping has no strong reason to object to a North Korean nuclear insurance policy against the threat of being overthrown by the U.S.

An op-ed by Noah Feldman. Does Canada own the internet? The question may sound like a joke, but it’s the serious challenge presented by a Canadian Supreme Court decision issued last week. The court ordered Google to deindex search results that were letting one side of a lawsuit violate the intellectual property rights of the other -- not just in Canada, but worldwide.

An op-ed by Noah Feldman. Is President Donald Trump trying to fire Deputy Attorney General Rod Rosenstein without actually firing him? That’s the logical inference from the president’s tweet Friday morning asserting that he’s being investigated for firing FBI Director James Comey by the person who told him to fire Comey, namely Rosenstein. The immediate effect of the tweet is to pressure Rosenstein to recuse himself from special counsel Robert Mueller’s investigation. Rosenstein will now have to do so -- soon.

An op-ed by Noah Feldman. Justice Neil Gorsuch’s maiden opinion was superficially easy, a decision interpreting a consumer protection statute for the unanimous Supreme Court. Beneath the surface, the opinion has historic significance -- and not just because of the unusual way that Gorsuch got on the court. The case gave Gorsuch the chance to apply pure textual analysis of the law, ignoring policy interests and deciding in favor of big banks that buy up debts and then try to collect them. The fact that all the justices, even the liberal ones, were on board, symbolizes the emerging victory of Justice Antonin Scalia’s practice of ruling on a law’s text alone over approaches that interpret Congress’s purpose in passing the law. That development is unfortunate -- because it rests on an unrealistic assumption about Congress’s ability and willingness to amend ambiguous statutes.

An op-ed by Noah Feldman. Kudos for creativity to the new Knight First Amendment Institute at Columbia University, which has alleged that the First Amendment bars President Donald Trump from blocking followers on his Twitter account. Unfortunately, the law runs to the contrary. There’s no right to free speech on Twitter. The only rule is that Twitter Inc. gets to decide who speaks and listens -- which is its right under the First Amendment. If Twitter wants to block Trump, it can. If Trump wants to block followers, he can.

An op-ed by Noah Feldman. Can President Donald Trump block former FBI Director James Comey from testifying before Congress by invoking executive privilege? The answer turns out to be surprisingly tricky, despite the precedent of U.S. v. Nixon, in which the U.S. Supreme Court made President Richard Nixon hand over the Watergate tapes to a federal judge. On the one hand, a congressional investigation is different from a criminal case -- which makes it less likely that a court would allow Comey to testify if Trump refuses. On the other hand, Trump has spoken about his conversations on Twitter -- which arguably waives his privilege to protect a private conversation with his adviser. The only thing certain is that, if Trump invokes privilege regarding Comey, we’re in for a wild legal ride.

An op-ed by Noah Feldman. The revelation this week that U.S. surveillance in 2016 had captured Russian officials talking about influencing Donald Trump’s advisers might be an important piece of evidence in a growing chain that could lead to Trump himself. But there’s another strong possibility: that Trump and even his campaign advisers were unwitting beneficiaries of Russian President Vladimir Putin’s plot against Hillary Clinton. After all, if American intelligence was listening to the Russians, why haven’t we been told already that there is direct evidence of collusion with the Trump campaign?