Noah Feldman

An op-ed by Noah Feldman. Roy Moore is more extreme than you think -- and his candidacy for a U.S. Senate seat is not a joke, but a serious threat to the Constitution and the rule of law. The shenanigans that got Moore thrown out of office as the chief justice of the Alabama Supreme Court -- twice! -- were more than just acts of civil disobedience on behalf of evangelical religion. Both times, Moore intentionally defied and denied the authority of the U.S. courts to have the final say on the Constitution. That’s the core principle on which our legal system rests.

An op-ed by Noah Feldman. It’s good news that women will soon be able to drive in Saudi Arabia. But as a milestone, it isn’t primarily a marker of sex equality, which remains a distant objective in the kingdom. Rather, it’s an important indication that the monarchy now thinks it doesn’t have to defer to the country’s religious establishment. That’s a remarkable development that may allow some modernization -- but also heralds a move away from the separation of powers and toward consolidation of absolute authority in a totalitarian king.

An op-ed by Noah Feldman. Can the addition of North Korea and Venezuela save President Donald Trump’s third travel ban from the constitutional flaws of his first two? By rights, the answer should be no -- and the new ban would be unlikely to survive careful judicial scrutiny of its shaky logic. But in the real world, the U.S. Supreme Court may take the opportunity to de-escalate the ongoing conflict between the Trump administration and the judiciary. If that is so, a majority of the justices could simply defer to Trump’s assertion that the countries on the list were chosen because they don’t provide information to facilitate screening of visitors.

An op-ed by Noah Feldman. As Donald Trump’s administration enters its ninth month, it’s worth considering a surprising possibility: Things have never been better in the turbulent period since the president took office. Trump’s most blatantly unconstitutional actions, like the travel ban on immigrants from a number of majority Muslim nations, have been blocked by the courts. Steve Bannon, Mike Flynn and Sebastian Gorka are out of power. The reasonable generals (John Kelly, H.R. McMaster, James Mattis) are in. The repeal of the Affordable Care Act has failed (so far). A deal with Democrats on DACA, the policy allowing undocumented immigrants brought to the U.S. as children to stay, is in the offing. There will be no wall, paid for by Mexico or otherwise, on the southern border. Dangerously extreme tax reform seems unlikely to pass.

An interview with Noah Feldman. An Intelligence Squared debate about the most pressing global challenges facing the Trump administration. Prominent foreign policy experts debate what to do about North Korea, and our strategic relationships with China and other countries.

An op-ed by Noah Feldman. President Donald Trump has to decide what to do with an American who was fighting for Islamic State, captured by Kurdish forces in Syria and handed over this week to the U.S. military. The best solution is also the simplest: Charge him with material support for terrorism, convict him and lock him up in an appropriate U.S. prison for many, many years. In any sane, nonpartisan world, this decision would be a no-brainer. The other options are all flawed -- practically, or legally, or both.

Today is "Constitution Day," marking the anniversary of the adoption of the US Constitution on September 17th, 1787. James Madison is considered the "father of the Constitution," and Harvard Law professor Noah Feldman is coming out with a new book about him in October titled, "The Three Lives of James Madison: Genius, Partisan, President." Feldman says James Madison was a politician with a long-term view. He wanted a government of the people, a republic, but not an empire. Madison left office more popular than any of his predecessor presidents. Feldman spoke at the Aspen Ideas Festival in Aspen, Colorado on June 26, 2017.

An op-ed by Noah Feldman. Cake baking is an art. Or, so says a group of professional wedding cake bakers who have filed a friend of the court brief with the U.S. Supreme Court in what promises to be the blockbuster case of the upcoming term, Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission. The brief is obviously intended to support the claim of a baker to be exempt from anti-discrimination laws that say he must serve gay customers. It’s all together reasonable to think that a professional baker is an artist. The thing is, that shouldn’t matter. Artists are just like anyone else who has a business open to the public: They have to comply with anti-discrimination laws.

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.”