Noah Feldman

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.

An op-ed by Noah Feldman. In a powerful opinion that will become part of Justice Anthony Kennedy’s ever-growing liberal legacy, the U.S. Supreme Court held in a split opinion Monday that a jury’s verdict may be reopened if there is evidence of racial bias by the jurors. The decision confronted a legal contradiction between the interest in treating jury verdicts as a black box not to be opened and the imperative of racial justice -- and opted for the latter. The decision is unusually honest and direct about how race in America has historically tainted the fairness of the judicial system.

An op-ed by Noah Feldman. The sitting president has accused his predecessor of an act that could have gotten the past president impeached. That’s not your ordinary exercise of free speech. If the accusation were true, and President Barack Obama ordered a warrantless wiretap of Donald Trump during the campaign, the scandal would be of Watergate-level proportions.But if the allegation is not true and is unsupported by evidence, that too should be a scandal on a major scale. This is the kind of accusation that, taken as part of a broader course of conduct, could get the current president impeached. We shouldn’t care that the allegation was made early on a Saturday morning on Twitter.

An op-ed by Noah Feldman. The ongoing saga of contacts between Russian officials and the Donald Trump campaign assures that the subject of government leaks isn’t going away anytime soon. Although some critics have compared the career bureaucrats suspected of doing the leaking to the “deep state” that has bedeviled reformers in Egypt and Turkey, the First Amendment hasn’t been brought into the conversation. It should be. As it turns out, there are competing constitutional views about bureaucrats’ engagement with public affairs.

An op-ed by Noah Feldman. In response to the Dakota Access Pipeline protests, North Dakota has enacted four new laws clearly aimed at protesters. One of them stands out: The law makes it a misdemeanor to wear a mask or hood while committing a crime. That sounds reasonable -- anonymity can facilitate crime, and it makes sense to punish a masked bank robber more harshly than an unmasked one. Yet the law is more troubling in the context of the punishment of protesters, who sometimes cover their faces to make a political point. The mask law therefore raises a constitutional question: How should we think about laws that seem to be targeted at conduct but may actually be aimed at speech?

An op-ed by Noah Feldman. In an important decision that’s unusual for being almost unanimous, the U.S. Supreme Court on Wednesday clarified the constitutional rule for the design of majority-minority legislative districts, perhaps the single most significant issue in contemporary voting-rights law. The districting in this case took place under the old rules, before the court struck down a section of the Voting Rights Act. But the decision points the way to the constitutional doctrine of the future: voting-rights law that’s more consensual than has been the historic norm.

An op-ed by Noah Feldman. Monday’s U.S. Supreme Court argument about whether sex offenders can be barred from social media had the justices observing that even the president uses Twitter. But the ubiquity of social media in politics is only the most superficial aspect of how new forms of publishing are challenging the First Amendment. In areas such as campaign finance and libel law, it’s a different legal ballgame than it was just a few years ago -- and the changes can be expected to multiply with time.

An op-ed by Noah Feldman. President Donald Trump’s war on the news media violates the spirit of the free press. How far can he go before he violates the letter of the First Amendment? Case in point: the exclusion of CNN, the New York Times, Politico and other media outlets from a White House press briefing Friday. It violates the basic constitutional ideal that the government can’t discriminate among various speakers on the basis of their viewpoints. Under existing case law, however, the exclusion probably doesn’t violate the Constitution, because the news outlets remain free to speak despite losing a degree of access.

An op-ed by Noah Feldman. Under existing doctrine, a federal district judge was probably right to temporarily block a California law designed to stop certain websites from listing actors' ages. But why shouldn't your age be a private fact you can keep to yourself? Not only can your age be used against you discriminatorily, but you also have a First Amendment right to lie about your age provided you aren’t engaging in fraud. This is an instance of a genuine, deep conflict between privacy and free speech. And in this instance, our system may have set the balance too far toward speech.

An op-ed by Noah Feldman. Now that the Trump administration has reversed the Department of Education policy on transgender bathroom use, the Supreme Court will probably dismiss the case it’s hearing on the matter rather than issue a decision. But even if that happens -- and it isn’t 100 percent certain -- the result may be better for transgender-rights advocates than judgment on the merits would have been. In the long run, the movement would be better off with a decision that reads federal anti-discrimination law as protecting against transgender bias than with a decision that makes protection depend upon the whims of the administration charged with implementing the law.

An op-ed by Noah Feldman. The Supreme Court made it easier on Wednesday for U.S. manufacturers to infringe patents held by competitors by manufacturing all but one of the infringing components abroad. The practical consequences could be significant, as could the court’s apparent view that the key U.S. appeals court for patent cases has been too sympathetic to patent holders.

An op-ed by Noah Feldman. President Donald Trump is poised to announce a redrafted executive order on immigration from seven majority-Muslim countries. Will it pass legal muster? Or will the courts once again thwart the president’s will? Early reports suggest that the new order will be drafted to avoid many of the legal problems that were posed by the earlier version, and to make judicial review harder to obtain. But the crucial question is whether the courts will consider the political context in which the order was drafted to conclude that it is still a Muslim ban under another name. Whether the court should do so turns out to be a close legal question.

An op-ed by Noah Feldman. President Donald Trump has threatened to prosecute leakers and bring in an outsider to review the intelligence agencies after reading unfavorable stories about his administration day after day in the news media. But he’s learning the hard way that there isn’t much he can do to stop government leaks. That may surprise Trump, because in the private sector, the tools to stop leaking are generally pretty effective. It’s an anomaly of the legal system that in government, where the stakes are arguably higher than in business, it’s easier to get away with leaking.