Noah Feldman

An op-ed by Noah Feldman. What if the U.S. Supreme Court issued a landmark abortion rights ruling -- and nothing changed? Case in point: Whole Women’s Health v. Hellerstedt, the decision from last June that established a new and improved constitutional rule for when a law unduly burdens a woman’s right to choose. Legally, the ruling struck down a Texas law that forced abortion clinics to close unless they qualified as ambulatory care centers. But now, almost a year later, only two of the clinics closed by the law have reopened. Roughly two dozen others closed during the three years the law was in effect, and many or most of those are unlikely to be revived.

An op-ed by Noah Feldman. Is the Constitution archaic, as President Donald Trump implied recently in an interview with Fox News? The answer is a resounding yes -- if you’re an originalist, as Trump claims to be. The president unwittingly hit on the best possible justification for a living Constitution, which evolves to meet changing times. That evolution, of course, needs to take account of the fundamental elements necessary for life -- such as the separation of powers. And it would be a disastrous idea to amend the First Amendment, as Chief of Staff Reince Priebus hinted in another recent interview. But broadly speaking, the way to avoid archaism is to recognize that the Constitution is alive, and like every living thing, must adapt to changing circumstances.

An op-ed by Noah Feldman. The next fight over the legality of President Donald Trump’s executive orders will be about the designation of national monuments. Trump’s order to review all major monument declarations in the last 20 years sets the stage for reversal of some or all of President Barack Obama’s designations. Previous presidents have treated those decisions as irreversible. But Trump seems poised to break that tradition by claiming the implicit power to reverse anything a prior president has done.

An op-ed by Noah Feldman. A federal district court in California ruled Tuesday that President Donald Trump’s executive order on sanctuary cities would be unconstitutional if used to pull funding from municipalities that don’t do the president’s bidding in reporting undocumented people to the federal government. This result is heartening but not surprising: I predicted the result on constitutional grounds back in November, two months before the order was even issued. What’s noteworthy is how desperate the Trump Department of Justice was to avoid a defeat -- so desperate, in fact, that its lawyers told the judge that the executive order actually had no legal effect at all.

An op-ed by Noah Feldman. What did the president know about the Mar-a-Lago advertisement that appeared for a time on official government websites? And when did he know it? These questions might sound trivial. They aren’t. The webpage about President Donald Trump’s private club, which had all the features of a marketer-drafted puff piece, is a prime example of corruption, namely the knowing use of government means to enhance the private wealth of the president. And corruption is the classic example of a high crime or misdemeanor under the impeachment clause of the Constitution.

An op-ed by Noah Feldman. President Donald Trump’s lawyers are trying to rewrite the First Amendment. In defending a civil suit against Trump by protesters who say they were roughed up in one of his campaign rallies, Trump’s legal team has advanced two claims that either misstate or substantially overstate constitutional doctrine.

An op-ed by Noah Feldman. The Department of Justice under Attorney General Jeff Sessions, according to news reports, is re-evaluating whether to charge WikiLeaks founder Julian Assange for publishing leaked classified material in 2010. This raises a First Amendment flag. The department previously decided it wouldn’t proceed because it couldn’t distinguish WikiLeaks from the New York Times or the Washington Post. So what, really, is the difference between unlawfully leaking information to the press and publishing it directly to the public? If one is unlawful, why can’t the other be?

An op-ed by Noah Feldman. Supreme Court Justice Neil Gorsuch waited until almost the end of Wednesday’s oral argument in the major church-state case of Trinity Lutheran Church v. Comer to make his voice heard. But his comments seemed to foreshadow his vote, which he will likely cast in favor of the church that wants to use a state grant to resurface its playground despite a Missouri constitutional provision banning state aid to religious organizations. Gorsuch’s vote, however, may matter less than that of his old boss, Justice Anthony Kennedy, who seemed not to have made up his mind. That could be a good thing.

An op-ed by Noah Feldman. After the prison suicide of former NFL player Aaron Hernandez on Wednesday, his conviction for murder, under appeal at the time of his death, is going to be reversed. This has nothing to do with Hernandez’s acquittal five days ago on separate murder charges. The reason is a fascinating and obscure doctrine known as “abatement ab initio.” Under Massachusetts law, a conviction that has not been finalized at the time of the defendant’s death is reversed back to the indictment “at the beginning” of the prosecution -- ab initio, in law Latin. Legally speaking, the presumption of innocence therefore attaches to Hernandez. And that could have consequences for a range of purposes.

An op-ed by Noah Feldman. The split-personality defense is back in court. This time it’s radio host and provocateur Alex Jones who’s using it to combat his soon-to-be ex-wife’s charge that he’s an unfit father because of his on-air rants against the likes of Alec Baldwin and Jennifer Lopez. Jones’s answer is that he’s a “performance artist” who is “playing a character” in his Infowars broadcasts...The Trump-backing conspiracy theorist and the exhibitionist ex-wrestler aren’t exactly appealing figures for the avatar theory of the self. It’s still worth asking: Should the courts take seriously the idea that a public persona is legally different from the private identity of someone who’s in the news?

An op-ed by Noah Feldman. The brouhaha unleashed in academic and media circles over a free speech editorial published last week by the Wellesley College student newspaper is both justified and overstated. It’s justified in that college campuses matter for setting the intellectual conditions for free inquiry and debate. It’s perfectly appropriate to criticize the editorial for its poor history, hostility to open campus discussion and misstatement of free-speech doctrine in current law. The objections are overstated, however, because of a crucial aspect of the editorial that seems to have been missed by critics, and maybe by the authors themselves: the distinction between the First Amendment right of a private college to regulate student speech and the First Amendment right of the individual to be free from government speech regulation.

An op-ed by Noah Feldman. The votes from Turkey’s constitutional referendum are in, and President Recep Tayyip Erdogan has claimed victory for his side, even as the result remains disputed. What’s clear is who the winner is not: constitutional democracy. On the surface, the amendments turn Turkey into a presidential system instead of a parliamentary one. Underneath, they strengthen the personal authority of Erdogan, who in the last decade and a half has gone from prime minister to president to quasi-authoritarian leader.

An op-ed by Noah Feldman. The news media have been quick to note U.S. President Donald Trump’s embrace of bombing in Syria and the need for NATO as reversals of the foreign policy he advocated on the stump. But he’s made another flip in the past week that’s just as consequential, and possibly more important for his future foreign policy. By asking China to “solve the North Korean problem” in exchange for an improved trade deal, Trump has embraced linkage. Broadly, linkage is the idea that economic policy and geopolitical strategy can be used in tandem, with trade-offs between the two realms. This idea wasn’t on Trump’s radar before the election, especially not with respect to China.

An op-ed by Noah Feldman. Most of the coverage of the United Airlines bumping debacle assumes something like, “United Airlines had a right to remove that flier. But should it have?” But a close reading of the fine print of the contract included in every ticket purchased from United Continental Holdings Inc. strongly suggests that United in fact breached its contract with passenger David Dao. The contract allows the airline to deny boarding involuntarily in case of overbooking. But that’s not what happened; the airplane wasn’t oversold.

Jacob Weisberg and Harvard law professor Noah Feldman discuss the three most pressing categories from which the articles of impeachment against Donald Trump may be drawn—corruption, abuse of power, and the violation of democratic norms.

An op-ed by Noah Feldman. In the debate over whether U.S. President Donald Trump needed congressional authorization to bomb Syria after last week’s chemical weapons attack, one important reality is being obscured: The expansion of the imperial presidency is nonpartisan. Trump’s minimalist rationale for the cruise-missile strike marks a stronger version of the claim to executive power than any other president has invoked. But that claim is building on substantial extensions of unilateral power made by Bill Clinton in bombing Kosovo and Barack Obama in bombing Libya.

An op-ed by Noah Feldman. With the swearing-in Monday of Justice Neil Gorsuch, the U.S. Supreme Court’s configuration shifts to … a 4-4 balance with a single centrist justice as the swing vote. If that sounds familiar, it should. It’s been the normal state of affairs since 1986, when Justice Antonin Scalia joined, and on some issues all the way back to Richard Nixon’s administration.

An op-ed by Noah Feldman. The “extreme vetting” proposals floated this week by Homeland Security Secretary John Kelly include the idea of making visitors to the U.S. open their phones and disclose their contacts, passwords and social media handles to immigration authorities. This might potentially be constitutional, because visitors outside the U.S. don’t necessarily have privacy protection. But it’s a serious threat to Americans’ constitutional rights anyway. The intrusion into core privacy of visa applicants through the fiction of consent can easily be extended to U.S. citizens in a wide range of situations.

An op-ed by Noah Feldman. Forget Robert Bork. The confirmation of Neil Gorsuch after the rejection of Merrick Garland marks the new high-water mark in the overt, partisan politicization of the U.S. Supreme Court. After the Democratic Senate rejected Bork 30 years ago, President Ronald Reagan got to choose another appointee. After the Republican Senate refused to vote on Garland last year, President Barack Obama was denied the same chance. We’ve entered a brave new world, in which the party that controls the Senate can now control court appointments.

An op-ed by Noah Feldman. After the nuclear option, what’s next? There really are only two choices to react to the Republican decision to eliminate the Senate filibuster permanently for Supreme Court nominations: mourning or celebration. So for the record, let me begin by saying that Judge Merrick Garland should’ve been confirmed after he was nominated to this seat by President Barack Obama, and that it’s tragic that Judge Neil Gorsuch, who is comparably qualified, will be confirmed in his stead. Then let me tell you how I feel now: I come to bury the filibuster, not praise it.