Noah Feldman

An op-ed by Noah Feldman. A law passed Monday by Israel’s Knesset potentially puts the country in violation of international law by retroactively legalizing 4,000 homes built by Jewish settlers on private Palestinian land. But remarkably, the possibility of war-crimes charges isn’t the most worrisome thing about the law. What’s more upsetting is that the Knesset passed a law that the country’s own attorney general had already determined was unconstitutional and in violation of 40 years of Israeli judicial rulings. That the law passed -- with the support of Prime Minister Benjamin Netanyahu’s Likud government -- raises serious concerns about Israel’s direction as a rule of law society.

An op-ed by Noah Feldman. One emerging theme of the Trump administration’s foreign policy so far has been destabilization and surprise. President Donald Trump has used phone calls and tweets to shake up previously rock-solid relationships like those with Australia and Mexico. Traditional allies in Europe and Asia are worried about whether they can still rely on the U.S. for protection from Russia and China respectively. Changing the status quo in surprising ways can be an effective foreign policy strategy, as Russian President Vladimir Putin showed with the unexpected takeover of Crimea and his intervention in Syria. But there’s a key difference between Russia, a weakened power seeking to improve its position, and the U.S., the world’s reigning superpower. Change and unpredictability favor rising powers.

An op-ed by Noah Feldman. It’s no surprise that President Donald Trump initiated a Twitter attack Saturday on federal judge James Robart for freezing the executive order on immigration from seven majority-Muslim countries. The ultimate fate of the order will depend on proceedings in the 9th Circuit Court of Appeals, which denied the government's emergency request to reinstate the ban, and possibly even the U.S. Supreme Court. But because judges issue rulings, not press releases, it’s also up to civil society and the news media to defend the judge and the rule of law from the president’s bluster.

An op-ed by Noah Feldman. Confirmation hearings for Judge Neil Gorsuch are likely to feature a somewhat offbeat topic: administrative law, and particularly a key issue known as the “Chevron doctrine.” Central to environmental law and all other forms of federal regulation, the doctrine, adopted by the U.S. Supreme Court in 1984 in a case involving the Chevron oil company, says the courts should defer to agencies’ interpretations of ambiguous laws. Dry as it may sound, the principle is in fact the subject of heated debate among scholars -- and last year, Gorsuch weighed in with a lengthy opinion proposing to abandon the prevailing approach, thus strengthening the judiciary and weakening the agencies. Democratic senators are likely to question him intensively about his views, which for the first time may make Chevron doctrine into a household word -- and a partisan flashpoint.

An op-ed by Noah Feldman. Two weeks into the Trump administration, progressives can be forgiven for starting to think that anything the president proposes is constitutionally suspect. Donald Trump’s call to repeal the Johnson amendment, a law that bars religious organizations from political action on pain of losing their tax-exempt status, is different. The Johnson amendment may arguably have relied on the idea that religion and politics can be strictly separated. But it’s always been difficult to enforce, and the basic premise is flawed.

An op-ed by Noah Feldman. The high-speed cycle of the first 24 hours after President Donald Trump’s executive order banned immigration from seven Muslim-majority countries is giving way to the long, hard slog of legal reality. A State Department memo made public in court proceedings Wednesday reveals that the Trump administration revoked all visas from those countries on Friday, Jan. 27, the day of the order. That revocation, the essence of the immigration ban, remains in place. As a result, the federal judicial orders against the ban are ineffectual -- because no one from the seven countries has been allowed to board a plane to the U.S. since the day the memo was issued. The lesson for the next four years is brutally clear. Excited resistance was inspiring, and the symbolic image of the courts working after hours to freeze the immigration order will persist. But the actual fight over the effects of Trump’s order, like the rest of his policies, is just getting started. And without slow, patient effort to work within the legal system, the fight cannot be won.

An op-ed by Noah Feldman. It’s been deeply heartening to see the intensity and enthusiasm of the resistance to President Donald Trump’s executive order freezing immigration from seven majority-Muslim countries. But precisely the intensity of the effort, complete with all-night lawyers at major airports, poses a challenge: Generating -- and maintaining -- a heightened sense of panic and outrage at every Trump policy move will be unsustainable over four years. If political energy isn’t expended wisely, it will dissipate quickly, and opposition will gradually fade. What’s needed is a guideline to know when to declare that the sky is falling -- and when to express measured, reasoned disagreement with policies that progressives consider mistaken.

An op-ed by Noah Feldman. “Was that a surprise?” asked President Donald Trump on Tuesday night after the pseudo-drama of the reality-show-style bakeoff between two finalists whittled down from a list of 21. Well, no. Trump’s Supreme Court pick was resoundingly predictable. I say that simply because I did predict the selection of Judge Neil Gorsuch back on Nov. 16 -- based on his close fit to the profile sought by conservative legal elites. There was nothing very deep about my prediction. Having promised to leave the decision to the Federalist Society, Trump did exactly that. He gave them an intellectual who went to Harvard Law School like Justice Antonin Scalia (and five other members of the current court); studied in Oxford as a Marshall scholar like Justice Stephen Breyer; clerked on the Supreme Court like three other sitting justices; and has been reliably conservative for years. He even looks like the TV version of a Supreme Court justice, complete with silver hair and a firm jaw.

An op-ed by Noah Feldman. The Monday night massacre -- as President Donald Trump’s firing of acting Attorney General Sally Yates was inevitably called -- lacked the grand madness of Richard Nixon’s famous firing of special prosecutor Archibald Cox on Oct. 20, 1973, which prompted the resignations of the attorney general and the deputy attorney general. Trump’s peremptory dismissal of Yates for refusing to enforce his executive order on immigration came symbolically at the beginning of his presidency, not with the end in sight, as in Nixon's case. But Trump’s action was nevertheless redolent of self-destructive bravado, much like Nixon’s.

An op-ed by Noah Feldman. President Donald Trump’s executive order barring the U.S. entry of refugees from seven majority-Muslim countries -- while prioritizing refugees who are religious minorities, namely Christians -- is a shameful display of discrimination against people who are by legal definition innocent and in danger of their lives. It also violates the constitutional value of equal religious liberty. Whether the constitutional violation could be used by a court to strike down the order is a more difficult question.

An op-ed by Noah Feldman. President Donald Trump’s Supreme Court nominee, judging from the list of top contenders, will praise Justice Antonin Scalia and say he’s an originalist in the same vein. But will it be true? Or will the nominee be more like Justice Samuel Alito, a dyed-in-the-wool conservative who nominally adheres to originalism but doesn’t actually seem to decide many cases after a detailed examination of the origins of the Constitution? The difference may not matter in how the nominee will vote. But it does matter for the long-term development of constitutional doctrine -- and whether we continue to have justices who would bind us to the dead hand of the past rather than viewing the Constitution as Justice Oliver Wendell Holmes did: as a living, breathing organism that must evolve or die.

An op-ed by Noah Feldman. It’s beginning. The legal system’s constitutional defense against President Donald Trump’s policies won its first battle this weekend when several federal district courts blocked the implementation of his executive order banning immigration from seven majority-Muslim countries. The lawyers’ resistance won’t always succeed, and it will face many bumps in the road over the next four years. The resistance got a big assist this time from Trump himself, who ignored the Department of Justice and its first-rate lawyers. Eventually, Trump may figure out how to use the legal system to achieve his goals instead of work against it.

An op-ed by Noah Feldman. Senate Minority Leader Chuck Schumer says the Democrats will filibuster any U.S. Supreme Court nominee announced by President Donald Trump next week who’s “out of the mainstream.” The phrase harks back to the Democrats’ success in blocking Judge Robert Bork from the high court in 1987, an event that both gave the world Justice Anthony Kennedy and permanently politicized Supreme Court confirmations. The Republicans could eliminate the filibuster using the “nuclear option,” of course. But Schumer’s threat still poses two crucial questions: What’s the “mainstream” when it comes to judicial practice and philosophy? And would the Democrats be justified in trying to block Trump’s nominee for being out of it?

An op-ed by Noah Feldman. The U.K. Supreme Court’s judgment on Tuesday requiring Parliament to authorize Brexit was conservative in the deepest and best sense of the term. Allowing the government to withdraw from the European Union without a parliamentary vote would have enabled the prime minister and her cabinet to change U.K. law on their own, a violation of Parliament’s traditional sovereignty. In practice, if Parliament votes in favor of Brexit, the judgment may not slow down the process very much. But the court nonetheless imposed a respect for orderly constitutional forms -- and required Britain’s elected representatives to take full and individual responsibility for their epochal decision.

An op-ed by Noah Feldman. The headline issue in the first lawsuit against President Donald Trump is whether it is a violation of the emoluments clause of the Constitution for his hotels and properties to be paid by foreign governments. But if a court actually decides this tough question, that will already be an accomplishment for the watchdog organization that brought the suit and the distinguished lawyers and academics representing it. First, they have to get past two legal hurdles just to have their arguments considered. Although they have strong arguments to make on both, a skeptical court could easily throw out the case before reaching its heart.

An op-ed by Noah Feldman. The Texas Supreme Court has agreed to reconsider a case about whether married gay city employees must be given spousal benefits. That’s a terrible sign. The briefs openly urge the court to resist the U.S. Supreme Court’s landmark gay marriage decision by reading it narrowly to say that gay people have a fundamental right to marry but no right to equal benefits. It’s a legally deceptive argument, which the current justices in Washington would summarily reject. But it’s dangerous all the same, because it shows that Donald Trump’s election is spurring outright resistance to federal law and precedent. And the Texas justices, who are elected, have no excuse for agreeing to reconsider the case.

An op-ed by Noah Feldman. With all eyes on the U.S. as it inaugurates a new leader, Turkey is preparing to amend its constitution to make its president even more powerful than the American executive. There’s nothing inherently wrong with replacing parliamentary government with a presidential system. The problem is timing and context: Turkey’s proposed changes, which will go to a national referendum after being approved by parliament, follow the unsuccessful coup against increasingly autocratic President Recep Tayyip Erdogan.

An op-ed by Noah Feldman. The crucial passage in President Donald Trump’s inaugural address Friday tracked John F. Kennedy’s swearing-in speech, with one huge difference: Trump’s America First message was 180 degrees away from Kennedy’s Cold War embrace of global leadership. The combination of homage to Kennedy and subversion of his liberal internationalist vision tells you a lot about what Trump’s presidency is going to look like -- much more than the populist rhetoric about giving America back to the people.

An op-ed by Noah Feldman. Rick Perry’s chief qualification to be secretary of energy was that he called for the abolition of the department back in 2012. Thursday, at his confirmation hearing, Perry not only flipped but said that, after being briefed on the department’s “vital functions,” he regretted his recommendation. Behold a case study in why, rhetoric and nominations aside, President-elect Donald Trump can’t bring transformative change to the agencies and departments that make up almost all the executive branch: The gravitational pull of the bureaucracy is just too strong. Even before Trump’s appointees are confirmed, they understand that their relevance and power depend not on dismantling the bodies they run, but on enhancing their power.

An op-ed by Noah Feldman. Innocent men detained for months or years after the Sept. 11 attacks on suspicion of being Muslim got their day in the U.S. Supreme Court on Wednesday. The odds don’t look good. The court will probably dismiss their constitutional suit against the government officials who implemented the policies that arrested immigrants who had overstayed their visas and held them in abusive conditions until after they had been affirmatively proved innocent, and sometimes beyond. Yet this is one of those cases that deserves attention because it casts a harsh light on real-world facts that we’d rather forget. Call it the “It Can’t Happen Here” case. And remember: It can. And in 2001, it did.

An op-ed by Noah Feldman. What makes Chelsea Manning -- whose sentence for leaking classified military and diplomatic files was commuted Tuesday by President Barack Obama -- different from Edward Snowden, who will not be pardoned for his disclosures of classified National Security Agency information? Whatever the White House may have said, it isn’t just the degree of secrecy of the leaked documents, Manning’s guilty plea or her gender transition. The most important difference is simply this: Snowden’s freedom poses a foundational threat to the U.S. systems of national security and criminal justice. Snowden won’t be pardoned because he’s demonstrated serious gaps in both realms. If he were in prison today, however, by his choice or otherwise, there’s a good chance he would have had his sentence commuted.