Noah Feldman

An op-ed by Noah Feldman. Here’s a surprising headline you could have written this week: “Judge on Trump’s Supreme Court List Allows Gay-Straight Alliance in Middle Schools.” Yet remarkably, it’s true. Judge William Pryor wrote an appellate opinion holding that Florida middle schools (grades 6-8) offer “secondary” education, and are therefore bound by a federal law that requires them to allow equal access to all extracurricular groups, including GSAs.

An op-ed by Noah Feldman. Do you ever call or e-mail abroad? If so, be aware: The government could be listening, and it can use the content of those conversations against you -- without ever getting a warrant. That’s the upshot of an appeals court holding in the case of Mohamed Mohamud, who was convicted of an attempted bombing in Portland, Oregon. The decision is doubtful as a matter of constitutional law, and sooner or later, the U.S. Supreme Court will have to weigh in on the issue.

An op-ed by Noah Feldman. The U.S. Supreme Court gave Samsung Electronics Co. its first good news in a while on Tuesday, reversing a nearly $400 million verdict against it for infringing on Apple Inc.’s iPhone patent. The holding was narrow, and the justices sent the case back to the appeals court to figure out what the correct damages should be. But the thrust of the opinion was that damages could be computed based on the profit Samsung made from specific infringing features of the phone -- not based on the overall profit from all sales of infringing smartphones.

An op-ed by Noah Feldman. The University of Kentucky is suing its own student newspaper to stop the publication of documents relating to a report of sexual assault and harassment. The case, which is expected to be resolved this month, pits federally guaranteed student privacy rights against the First Amendment and the public’s right to know. It also involves policy questions about how universities should handle sexual misconduct. Privacy for victims -- and for those who might be accused and then cleared -- is extremely important. But freedom of the press outweighs those interests, especially because universities are at the center of a significant struggle to determine the best way to deter and punish such cases.

An op-ed by Noah Feldman. You never know what you’re going to get on a visit to Jerusalem. The latest addition to the Holy City is -- I kid you not -- a virtual-reality experience at the foot of the Western Wall. Tackiness aside, the virtual tour of an imaginatively reconstructed ancient Israelite temple does carry a worrisome message for the future of peace in the Middle East: The once-radical idea of rebuilding the temple on the site is gradually getting mainstreamed.

An op-ed by Noah Feldman. Amid rising Hindu nationalism, the Supreme Court of India has ordered theaters to play the national anthem before films and directed moviegoers to stand at attention -- no excuses. The Indian Constitution is a wonder of the world, but this decision undercuts free-speech and individual rights at a moment when the country can ill-afford it. The court, which has the final word in interpreting the constitution, can still reverse itself. And it should, because the court’s job is to protect rights, not to impose duties and obligations when the legislature has not done so.

An op-ed by Noah Feldman. When a federal judge in Texas last week froze a regulation extending overtime pay to thousands of workers, the holding had an extra sting. The hit to President Barack Obama’s legacy came from his own appointee, not a Bush-era holdover. And the decision will make it much simpler for President-elect Donald Trump’s Labor Department to scrap the regulation than it would have been without the judge’s activist ruling.

An op-ed by Noah Feldman. President-elect Donald Trump says he will make “sanctuary cities” help deport immigrants by taking away their federal funding if they don’t change their policies. The good news is that he and Congress can’t do it -- not without violating the Constitution. Two core rules of federalism preclude Trump’s idea: The federal government can’t coerce states (or cities) into action with a financial “gun to the head,” according to Supreme Court precedent developed by Chief Justice John Roberts in the 2012 Affordable Care Act case. And federal officials can’t “commandeer” state officials to do their work for them under a 1997 decision that involved gun purchases under the Brady Act.

An op-ed by Noah Feldman. When my colleague Lawrence Lessig argued at Medium that members of the Electoral College should break faith and vote for Hillary Clinton instead of Donald Trump, I chalked it up to the brilliantly contrarian Larry being brilliant and contrarian -- even if wrong. But when, over the holiday weekend, the Washington Post published his op-ed making the same argument, it made me think serious people might take his argument seriously -- which would be dangerous for democracy and bad for the republic. So with great respect for Larry’s ideals and values, here’s why faithless electors would subvert, not sustain, the democratic values that underlie the U.S. presidential election system.

An op-ed by Noah Feldman. Donald Trump is inheriting a more powerful presidency than any of his predecessors. And if history is any guide, he will seek to expand the power of the office. But how will he do it? One clue lies in noticing how the personalities of the last two presidents were reflected in their techniques of expansion. Barack Obama’s administration took a very different route to its expansion of executive authority than did George W. Bush’s -- and Trump’s will probably be different still.

An op-ed by Noah Feldman. In the free marketplace of ideas, true ideas are supposed to compete with false ones until the truth wins -- at least according to a leading rationale for free speech. But what if the rise of fake news shows that, under current conditions, truth may not defeat falsehood in the market? That would start to make free speech look a whole lot less appealing. The rise of fake news therefore poses a serious challenge to our basic ideas about the First Amendment. Much of the debate in recent weeks has focused on social media and search engines. But whether the market for ideas is failing is more fundamental than whether Facebook or Google can be blamed for algorithms that promote and spread false stories.

An obscure line in the Constitution has become a rallying point for some legal experts and critics of Donald Trump, who fear the president-elect has little intention of making a clean break between his business interests and his new White House role...Trump’s determination to cling to his global empire “creates an ongoing risk that foreign individuals and interests will confer commercial benefits on hotels, golf courses, or other businesses” connected to him, argued Laurence Tribe, a constitutional law professor at Harvard University. The greatest worry, according to Tribe, would be that those benefits might induce a President Trump to make or influence decisions “to the disadvantage of national interests” and in favor of his own. “Trump can’t receive any direct payment of any kind from a foreign government, including a fee for services,” argued Noah Feldman, another professor at Harvard and an expert on constitutional law, in a column for Bloomberg View.

An op-ed by Noah Feldman. In a case that could eventually affect the balance of legislatures across the country, a federal court in Wisconsin has for the first time struck down a partisan gerrymander. The U.S. Supreme Court has previously declined to regulate such party-based districting, but this time may well be different. The lower court gave a simple, clear rule for determining whether districting is designed to disadvantage one party systematically. And the growing disparity between Republican and Democratic-controlled state legislatures gives the justices -- especially Anthony Kennedy -- very good reason to intervene.

An op-ed by Noah Feldman. President-elect Donald Trump is poised to violate the foreign emoluments clause of the Constitution, at least according to the chief ethics lawyer of the George W. Bush administration. The idea is that when foreign officials stay in a Trump International Hotel to ingratiate themselves with the president, they’ll be giving him an emolument -- that is, a form of payment -- in violation of Article 1, Section 9, Clause 8 of the Constitution. And the Washington Post recently reported that Trump’s Washington hotel actively solicited diplomats with a reception that included a tour of a 6,300-square-foot suite that goes for $20,000 a night. This suggestion prompts three questions, none of which I could have answered without research: What the heck is the foreign emoluments clause? Does it cover Trump’s conduct? And if it does, who, if anyone, can bring a case in court to do anything about it?

An op-ed by Noah Feldman. Should President-elect Donald Trump decide to appoint his son-in-law, Jared Kushner, to a White House post, there are two potential nepotism problems: one legal and one moral. Neither should block the appointment. The law likely doesn’t cover White House appointments, and the ethical concern is outweighed by the value of transparency among the president’s closest advisers.

An op-ed by Noah Feldman. The Republican Senate has blocked or delayed many of President Barack Obama’s judicial nominees; his Supreme Court pick of Judge Merrick Garland is just the most visible. Now President-elect Donald Trump will be able to capitalize by filling those slots. And because of the Senate Democrats’ 2013 decision to exercise the “nuclear option” and eliminate the filibuster for all judicial nominees except for the Supreme Court, they won’t be able to filibuster Trump’s candidates.

An op-ed by Noah Feldman. President-elect Donald Trump hasn’t yet chosen the people whose job it would be to propose a U.S. Supreme Court nominee for him to choose. But that hasn’t stopped speculation about who will be picked to replace the late Justice Antonin Scalia. It would be a mistake to make a projection with any confidence at this stage. Nevertheless, it is possible to identify the parameters and constraints that will go into the decision, which yields some scenarios with names attached. The only thing that can be said with confidence is that Trump’s Supreme Court nominee will be a conservative.

An op-ed by Noah Feldman. There are two truths about the Electoral College: It ought to be abolished, and it never will be. Calls for changing the constitutional election system abound now that Hillary Clinton has won the popular vote and lost the electoral vote, as Al Gore did in 2000. But it turns out that the same Constitution that enshrines the Electoral College effectively protects the small states from an amendment they don’t want. The problem goes back to the nation's founding -- and short of abolishing the states as effective sovereigns, it basically can’t be fixed.

An op-ed by Noah Feldman. Donald Trump’s comments on “60 Minutes” suggest that the president-elect has assimilated a version of the traditional moderate Republican position on abortion rights: call for the repeal of Roe v. Wade, while hoping that in practice, abortions will still be available somehow. The logic of this position is purely political. At least some of the Republican base wants abortion outlawed, but lots of people who voted for Trump would be extremely upset if they or a woman they cared about couldn’t actually get an abortion.

An op-ed by Noah Feldman. Four thousand: That’s the number of political appointees President-elect Donald Trump’s transition team will have to pick in the next few months for the government to continue running effectively after President Barack Obama leaves office. The challenge is great for any new administration; it’s especially daunting for a political outsider whose staff, according to the Wall Street Journal, was surprised to hear last week that it would have to replace everyone in the West Wing.