Noah Feldman

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.

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.