Noah Feldman

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.

An op-ed by Noah Feldman. Only two presidents have had to deal with private lawsuits while in office. One was John Kennedy, who settled a suit involving a car crash that happened during his campaign. The other was Bill Clinton, sued by Paula Jones for making sexual advances toward her when he was governor of Arkansas. President-elect Donald Trump is involved in 75 pending lawsuits. That’s a problem -- potentially a serious one.

An op-ed by Noah Feldman. Vice President-elect Mike Pence has told evangelical leader James Dobson that the next administration will reverse President Barack Obama’s contraceptive mandate rules and transgender bathroom guidance -- both of which it can do without Congress. If Pence speaks for President-elect Donald Trump, both decisions would have major implications for cases now before the U.S. Supreme Court.

An op-ed by Noah Feldman. The financial markets thought Donald Trump’s conciliatory victory speech early Wednesday morning meant something. That interpretation seems plausible. If nothing else, Trump’s tone suggested that he realized the markets were getting volatile and that he wanted to calm the waters by giving the most conventional speech he’s ever delivered.

An op-ed by Noah Feldman. No matter the outcome, this Election Day marks a signal moment in the history of women’s suffrage. The Founding Fathers had a bad conscience about slavery, but no such qualms about women’s rights. The movement for women’s suffrage didn’t begin until the 1840s. And after the Civil War, when the 15th Amendment was proposed to give blacks the vote, women’s groups splintered over whether the denial of voting rights to women was a reason to oppose the amendment. Today, Democratic presidential candidate Hillary Clinton, a moderate, centrist reformer, is the political descendant of the women’s suffrage movement of the late 1800s and early 1900s.

An op-ed by Noah Feldman. It’s all about the Constitution now. Republicans will control the White House and both chambers of Congress. They will be able to pass -- or repeal -- their preferred laws, because that’s democracy. But to the Donald Trump opponents worried about what his presidency will bring, know this: There will still be limits to congressional or executive action, limits dictated by the Constitution and enforceable by the courts. The Constitution is designed to resist the tyranny of the majority. James Madison’s machine of constitutional protection is about to kick into gear.

An op-ed by Noah Feldman:  It’s hard to imagine much work getting done in most offices on Tuesday -- except at the U.S. Supreme Court, which will hear cases, pretending to be blithely oblivious to the history being made in voting booths across the country. As it turns out, one of those cases is actually pretty important. It concerns whether the city of Miami can bring claims against Wells Fargo and Bank of America for racially discriminatory predatory lending under the Fair Housing Act -- or whether the law only allows suits by individuals directly affected by discrimination. The justices may split, 4-4. And the issue is exactly the kind that will be affected by the election results.

An op-ed by Noah Feldman:  Lots of people who don’t otherwise care for Donald Trump or Hillary Clinton say they’re going to vote Tuesday based on which presidential candidate will be best for the U.S. Supreme Court. With the hours ticking away, it’s worth running through the three most plausible scenarios to see what the election outcome will mean for the court. Most desirable for liberals will be if Clinton wins the White House and gets a Democratic majority in the U.S. Senate. If that happens, the lame-duck Republican Senate might or might not confirm the relatively moderate Judge Merrick Garland, President Barack Obama’s nominee to fill Justice Antonin Scalia’s seat.