Noah Feldman

An op-ed by Noah Feldman. It’s probably naive to think that there could be a nuanced conversation about Judge Neil Gorsuch’s citation of sources in his 2006 book, “The Future of Assisted Suicide and Euthanasia.” But that’s precisely what we need. There’s no doubt that in at least one extended passage, Gorsuch, President Donald Trump’s nominee for the U.S. Supreme Court, copied wording from an article in the Indiana Law Journal with only trivial changes and without citing the article. There’s even a footnote that’s replicated verbatim from the article, down to the exact same use of ellipses in citing a pediatrics textbook.

An op-ed by Noah Feldman. It’s certainly symbolic that U.S. Attorney General Jeff Sessions has called for a review of agreements made by the Obama Department of Justice with urban police departments to improve law enforcement and race relations. But in practice, reversing the 14 consent decrees in place would be extraordinarily difficult, and even the handful that are incomplete, such as the Baltimore decree, may well reach finality despite the review. President Donald Trump’s administration can affect community policing at the margin by signaling that it doesn’t care about police abuses. But it likely can’t roll back the steps taken under President Barack Obama.

An op-ed by Noah Feldman. In the abstract, there’s nothing wrong with the decision by Donald Trump’s White House to stop the practice of giving the American Bar Association access to its judicial nominees in order to rate them. But in practice, the decision is scary and hypocritical -- because the administration waited until after the ABA gave Supreme Court nominee Neil Gorsuch its highest rating before making it. That’s frightening because it implies that Trump’s future court nominees will be the kind of people who have no chance at the coveted “well-qualified” rating.

There are 205 accredited law schools in the US. If Neil Gorsuch is confirmed for the Supreme Court, two-thirds of the current justices will have studied at just one of them: Harvard...“It does mean something and it does matter,” says Noah Feldman, a professor at Harvard Law School. “The Supreme Court didn’t use to be this way...Earlier courts were quite geographically diverse and educationally diverse.”...Laurence Tribe, a constitutional law specialist at Harvard, says the court would benefit from greater diversity. The homogeneity of education and professional experience among the nine justices “skews the perspectives they bring” to the 70 or so cases decided each year. Along with complex legalities, those disputes turn on “questions of perspective and empathy, understanding of how the world works and what makes human, rather than just legalistic, sense”, he says...Richard Lazarus, a Harvard professor who has argued 13 Supreme Court cases, says the Trump presidency, already entangled in a series of legal challenges, could reverse the decline as idealistic young people conclude anew that “law matters”.

An op-ed by Noah Feldman. With the settlement approved last week in the Trump University case, Donald Trump’s lawyers were free to shift their attention to another civil case with the potential to be a nuisance to his presidency. They are poised to argue that he can’t be sued in state court while he’s president. The U.S. Supreme Court allowed Paula Jones to sue Bill Clinton while he was president -- but that was a federal suit, not a state suit. The difference between state and federal gives the courts an opening to make Trump temporarily immune from private suits while he’s in office. And if they’re wise, the courts will do exactly that.

An op-ed by Noah Feldman. The state of Georgia is refusing to allow a couple to give their baby the last name Allah -- not because it’s sacrilegious but because the state requires a baby’s last name to be the same as one of its parents’ or a combination of the two. That’s arguably unconstitutional, although it’s not an open and shut question. It also raises the broader question of what it means to name a child legally, and what rights parents have in relation to the government.

An op-ed by Noah Feldman. The keystone of President Donald Trump’s executive order on the environment, signed Tuesday, is a directive to the Environmental Protection Agency to review and rescind the Obama administration’s Clean Power Plan, which aimed to shift the country’s electricity generation from coal-fired plants to sources that emit less carbon. When the EPA acts, that will trigger a legal fight about whether the Trump plan complies with the Clean Air Act. And that fight will almost certainly involve the doctrine of Chevron deference, Neil Gorsuch’s special target of judicial dislike.

An op-ed by Noah Feldman. Now that President Donald Trump has failed to repeal and replace the Affordable Care Act, he’s turning to tax cuts to get a much-needed political win. There’s just one problem: What the Republicans want violates international law. If the reform bears any resemblance to the leading proposal, favoring corporate exports over imports, it’s going to get the U.S. sued in the World Trade Organization -- where it will lose.

An op-ed by Noah Feldman. Constitutional checks and balances are doing their job, making sure Donald Trump doesn’t rule on his own. First, it was the courts blocking the president’s executive order on immigration -- twice. Now, remarkably enough, it’s Congress, which has refused to repeal the Affordable Care Act and change Obamacare into Trumpcare. Last week’s developments on Capitol Hill may seem more surprising, because a Congress of the same party is typically a weaker check on a president than an opposition-dominated one. But the constitutional design of separation of powers is supposed to work regardless of parties -- and in historical terms, it often has.

An op-ed by Noah Feldman. Senate Minority Leader Charles Schumer’s suggestion that Democrats will filibuster Judge Neil Gorsuch’s nomination to the Supreme Court might make sense as payback for the Republicans’ block on Judge Merrick Garland -- if the Democrats thought they could lockout any Trump nominee until 2020. If not, however, this seems like a bad moment to bring out the filibuster and subject it to the risk that the Republicans will use the so-called nuclear option to eliminate it for this and future Supreme Court fights.

An op-ed by Noah Feldman. It seems like a perfect storm: Democrats on the Senate Judiciary Committee were pounding Judge Neil Gorsuch for an opinion he wrote denying assistance to an autistic child, and while he was testifying, the U.S. Supreme Court unanimously rejected the standard Gorsuch relied on to do it. The justices’ opinion is the right one, and the standard Gorsuch’s court used was wrong. But unfortunately for Democrats, Gorsuch wasn’t wrong to apply it: It was the binding legal rule in the 10th Circuit, established in 1996, long before he joined the U.S. Court of Appeals.

An op-ed by Noah Feldman. What if we held a confirmation hearing and the Supreme Court nominee actually answered the questions? Conventional wisdom considers that impossible in today’s political climate, but conventional wisdom is wrong. Politically, senators are going to vote the way they want regardless of what the nominee says. And ethically, there’s nothing wrong with a nominee speaking about Supreme Court precedent or issues that might come before the court in the future, unless the nominee commented specifically on the facts of a particular case.

An op-ed by Noah Feldman. FBI Director James Comey’s testimony Monday that the bureau is investigating possible connections between Donald Trump’s campaign and Russia sparked complaints among Democrats that he should’ve said so back in July. But that gets things exactly backward. The time for the FBI director to disclose an investigation is not when it’s just getting started, and he chooses to make the announcement unilaterally. It’s when the investigation is under way, and Congress is asking for a sworn statement in reply.

An op-ed by Noah Feldman. Confirmation hearings for U.S. Supreme Court justices are an occasion for a national conversation about constitutional law and interpretation. Because Judge Neil Gorsuch is being billed as an originalist, his hearings this week are a great opportunity to ask him five pressing questions about that much-vaunted school of constitutional thought. Start with the most basic: Why should judges use originalism in the first place? Originalism holds that judges should interpret the Constitution based on the original meaning of the text, but the Constitution itself is silent about how it should be interpreted.

An op-ed by Noah Feldman. European employers have been told they may ban the hijab provided they ban other visible signs of political, philosophical or religious beliefs, a form of neutrality that wouldn’t wash in U.S. employment law. At the same time, Facebook Inc. and Twitter Inc. face 50 million euro fines for failing to regulate hate speech to the satisfaction of German authorities, another legal impossibility in the U.S. where the First Amendment protects even hate speech. The two cases show how deep the divergence is between liberal American ideas about freedom of speech and religion and European conceptions of equality.

An op-ed by Noah Feldman. As the saga of President Donald Trump’s ban on travel to the U.S. from six majority-Muslim countries unfolds, a federal judge in Honolulu on Wednesday blocked the operation of the second version of the executive order nationwide. The decision rests on the logic that the second iteration is the same old wine in a new bottle. As a Muslim ban, the court ruled, the executive order violates the establishment clause of the Constitution by sending a message to Muslims that they are disfavored members of the political community.

An op-ed by Noah Feldman. I’m not sure who decided that the Democratic critique of U.S. Supreme Court nominee Judge Neil Gorsuch would be that he doesn’t side with the little guy. It’s a truly terrible idea. Like other liberals, I’m still shocked and upset that Judge Merrick Garland never got the vote he deserved after his nomination by President Barack Obama, and I’d rather have a progressive justice join the court. But the thing is, siding with workers against employers isn’t a jurisprudential position. It’s a political stance. And justices -- including progressive justices -- shouldn’t decide cases based on who the parties are. They should decide cases based on their beliefs about how the law should be interpreted.

An op-ed by Noah Feldman. When the boss asks you to resign, should you say yes or make him fire you? In the executive branch of the federal government, there’s a strong tradition of stepping down, especially if you’re a political appointee of the other party. Yet Preet Bharara, the U.S. Attorney for the Southern District of New York, made President Donald Trump fire him, as did Sally Yates, the acting attorney general who refused to defend Trump’s original executive order on immigration back in January.

An op-ed by Noah Feldman. South Korea’s president Park Geun-hye was officially removed from office Friday after the constitutional court affirmed her impeachment by the national assembly. It’s a remarkable outcome for a relatively new democracy, and the scandal holds some important lessons for how impeachment can take place in a political culture deeply dominated by partisanship. Park’s removal depended on three key elements: peaceful, sustained popular protests; a corruption scandal so egregious that even politicians from Park’s party were forced to admit it merited impeachment; and an orderly constitutional process for removal that was followed to the letter.

An op-ed by Noah Feldman. The Trump administration is considering a new assault on American legal and constitutional structures by taking on federalism -- and vehicle emissions. Specifically, the Environmental Protection Agency reportedly will try to revoke a waiver that California has enjoyed for 45 years, which allows the state -- and any state that wants to copy it -- to regulate tailpipe emissions more stringently than the federal government does.

An op-ed by Noah Feldman. Are there do-overs in the White House? That’s the question that will determine the fate of President Donald Trump’s new and improved executive order on immigration from six majority-Muslim countries. The state of Hawaii has filed suit challenging the order on essentially the same grounds that the federal courts used to block the first iteration. Whether the second order is similarly blocked depends on whether the court looks solely to the content of the new order or to the entire context of its birth.