Noah Feldman

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.

An op-ed by Noah Feldman. President Donald Trump’s executive order on immigration that targeted Muslim countries, now halted by federal judicial order, was worrying enough. But another executive action has been floated that would be far more devastating for Muslim individuals and organizations in the U.S.: a directive to the State Department to designate the Muslim Brotherhood as an international terrorist organization. When coupled with a U.S. Supreme Court decision from 2010, the designation could lead to widespread prosecution of American Muslims and others for material support of terrorism -- a disaster for civil liberties and free speech that could dwarf the Trump administration’s early initiatives.

An op-ed by Noah Feldman. For the last several years it has been increasingly common to hear Israelis and Palestinians alike say that the two-state solution to their struggles is dead and that the time has come to discuss a one-state solution. U.S. President Donald Trump acknowledged that trend during a news conference Wednesday with Israeli Prime Minister Benjamin Netanyahu by saying that he is “looking at two states and at one state” while remaining open to whichever suits the parties. There’s just one problem: “One-state solution” means something almost completely different on each of the two sides. Years of negotiation and debate have created the general contours of a two-state solution, but when people speak of one-state options, they lack that common ground.

An op-ed by Noah Feldman. If the U.S. Supreme Court were to reverse Roe v. Wade, individual states could still permit abortion. But, in theory, the Supreme Court could go further, and rule that laws permitting abortion violate the equal protection rights of unborn fetuses. That may seem far-fetched -- but in his book on assisted suicide and euthanasia, Judge Neil Gorsuch lays out an argument that could easily be used to this end. Gorsuch, President Donald Trump’s nominee for a seat on the Supreme Court, carefully avoids discussing abortion rights directly in his book. Yet his disparagement of what he calls “ageism” amounts to a principle that could easily be applied to fetuses.

An op-ed by Noah Feldman. The resignation of National Security Adviser Michael Flynn grew out of Department of Justice concerns that he had violated the Logan Act, a law from 1799(!) that bars private citizens from engaging in international diplomacy. The law as written applied to Flynn even though he was working for the president-elect when he engaged in a phone call with Russian ambassador to the U.S. But there’s a more serious problem, which should be kept in mind in case there’s an investigation of whether Donald Trump violated the law: It is probably unconstitutional. Enacted by the Congress that brought you the Alien and Sedition acts, the law is too vague for enforcement. And it violates free-speech standards that are the law today but went unrecognized by the John Adams administration.

An op-ed by Noah Feldman. Wednesday’s White House visit by Israeli Prime Minister Benjamin Netanyahu has raised speculation that U.S. President Donald Trump will try to tackle Middle East peace, perhaps relying on the efforts of his counselor and son-in-law Jared Kushner. Putting aside the national security turbulence in the administration right now, can it really be done? It’s a given that the odds are long against a comprehensive deal involving the Israelis and the Palestinians. But if everything went just right, and the Trump administration was prepared to make both sides offers they couldn’t refuse, it’s just barely possible that it could generate -- or really, impose -- a regional agreement that would be an improvement over the status quo and might last for some time. To do so, however, the Trump administration would have to offer inducements much greater than have been offered in the past and make credible threats that have been considered unthinkable by previous American leaders.

An op-ed by Noah Feldman. U.S. President Donald Trump’s phone call with Chinese President Xi Jinping and the weekend visit of Japanese Prime Minister Shinzo Abe are important reminders of a basic reality: While we Americans obsess over the constitutionality of the president’s executive order on immigration, the rest of the world keeps on going. Measured by number of people it affects, foreign policy outranks domestic affairs. If Trump manages to create diplomatic chaos in Asia, history won’t pay much attention to the rest of his presidency.

An op-ed by Noah Feldman. The decision by the U.S. Court of Appeals for the 9th Circuit upholding a nationwide freeze on Donald Trump’s immigration executive order is a powerful rebuff to the administration -- and to the president personally. The court went out of its way in its opinion released Thursday to emphasize the right and the duty of the judiciary to rule on the constitutionality of executive action, even when national security is on the line. The unanimous panel was unwilling to bow to the personal pressure that Trump aimed at it. And, tellingly, the most important recent precedents the court cited were written by Justice Anthony Kennedy, whose vote will be crucial if and when the case goes to the U.S. Supreme Court.

An op-ed by Noah Feldman. White House counselor Kellyanne Conway broke federal ethics rules Thursday by endorsing Ivanka Trump’s clothing line -- that much is open and shut. If Conway worked for a regular government agency, she’d be temporarily suspended for a first offense, and fired for a second. But because her punishment depends on President Donald Trump, she has been “counseled,” not sanctioned. There’s a lesson here about difference between law and morals. It may seem worrisome that ethics rules can be so easily ignored by an administration that chooses to do so. But the truth is that, ultimately, ethics rules are only as good as the administration that applies them. If we don’t like the administration’s morality, we have only one real option: vote it out of office.

An op-ed by Noah Feldman. No matter how the U.S. Court of Appeals for the 9th Circuit rules, the legal challenges to President Donald Trump’s executive order on immigration from seven majority Muslim countries won’t be over. Not even close. That’s because, in addition to the case that currently has the policy on hold, a number of challenges to different aspects of the order by different kinds of plaintiffs are pending in courts across the country. This may seem perverse, given the need for a single immigration policy. But it’s the way challenges to federal action proceed almost all of the time, and it follows the same convoluted path as the arguments against the Affordable Care Act during Barack Obama’s presidency. Ultimately only the U.S. Supreme Court can impose uniformity throughout the federal judicial system. This system isn’t perfect, but it has stood the test of time.

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.