Noah Feldman

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.

An op-ed by Noah Feldman: It’s easy to bemoan the Gawker-Hulk Hogan settlement and condemn the Florida courts for not throwing out the verdict. But there’s a deeper point that matters more and shouldn’t be lost: The First Amendment and its values can be thwarted and distorted by private actors with extremely deep pockets.

An op-ed by Noah Feldman: Striking a blow against popular sovereignty by referendum, the U.K. High Court of Justice held Thursday that Britain can’t leave the European Union without an act of Parliament. Because British constitutional thought is so different from its U.S. and European equivalents, the decision will be difficult for the U.K.’s Supreme Court to overturn. It’s now much more likely than not that the courts will save Britain from its ill-conceived Brexit vote. The people may have spoken -- but the court said that wasn’t good enough.

An op-ed by Noah Feldman. Is the middle-finger gesture obscene? Not in Pennsylvania, according to a state appellate decision filed this week reversing a man’s conviction for giving his ex-wife the finger. Decided in the shadow of the First Amendment, the decision raises the ever-intriguing question of what counts as obscenity. It also calls into question the old idea that obscene speech is exempt from the constitutional rules governing freedom of speech.

An op-ed by Noah Feldman. Pope Francis is continuing along his remarkably liberal path, most recently by praising Martin Luther at a ceremony in Sweden beginning a yearlong 500th anniversary commemoration of the Reformation. Yet despite the pope’s openness, and the corresponding good faith of the Lutherans, the two sides were unable to effect a reconciliation. The episode raises two questions: Why try? And how is it that, in this post-theological age, not even Christian believers can get past their own wars of religion?

An op-ed by Noah Feldman. The U.S. Supreme Court agreed Friday to hear the case of a transgender teen who seeks to use the boys’ room at his high school during his senior year. Given that the appeals court had ruled in his favor, it’s unfortunate that the court took up the case. It’s too soon, in cultural terms, for the court to rule definitively on the subtle issue of transgender rights, which poses powerful equality claims against society’s deeply ingrained male-female gender binaries. Transgender rights could benefit from a longer lead time for the lower courts to explore the different aspects of the question -- and for the American people to develop a consensus.

An op-ed by Noah Feldman. Federal prosecutors in Colorado have found a way to use a serious tool against fraud to persecute some fringe political dissenters. The protesters, who deny the legitimacy of the U.S. government, take bills they owe, add notes to the effect of “Thank you for paying this debt,” and send them to government agencies like the U.S. Department of Agriculture. The government doesn’t pay the debts -- it throws the notices in the trash. Yet prosecutors are outrageously charging the protesters under the False Claims Act with the felony of submitting fraudulent financial claims on the government. This serious abuse of power violates the First Amendment -- and verges on prosecutorial misconduct.