Noah Feldman

An op-ed by Noah Feldman. The Supreme Court's do-over on the question of religious exemptions from the Affordable Care Act’s contraceptive care mandate is bizarre, but it reflects the weirdness of an eight-justice court. Unable to resolve the question, but unwilling to leave a patchwork of different results in different circuits, the justices told various appeals courts to try again. Most likely, the lower courts will split again, and the issue will come back to the Supreme Court. By then, there might be nine justices to decide it.

An op-ed by Noah Feldman. On Monday the Supreme Court issued no fewer than six opinions. The one that will make headlines -- involving the contraceptive mandate of the Affordable Care Act -- wasn’t really a decision at all, but an attempt to make the lower courts do the case over. The other five were business as usual -- and in this strange eight-justice term, that means they were all decided on narrow, technical grounds. The theme was small-ball, if you will: the court is avoiding big issues that it can’t resolve or decide.

An op-ed by Noah Feldman. The Affordable Care Act is being subjected to judicial torment. The latest agony is last week’s ruling by a federal judge that the law failed to appropriate funds needed to help cover low- to middle-income people. The case, brought by Republican members of Congress, shouldn’t have been allowed to go forward in the first place, because a dispute between Congress and the president about the scope of appropriations isn’t a matter for the courts. It’s also wrong on the merits, since it assumes that legislation should be interpreted to thwart itself. The Court of Appeals or the Supreme Court will probably overturn it. But what really matters about the ruling is that it shows how the judiciary can continue to fight an indefinite rearguard action against legislation unpopular with one party.

Op-ed by Noah Feldman: Foreign governments can't be sued in U.S. courts. Foreign companies can. What happens when China's state-owned companies claim to be part of the government? Nobody knows because the law is confusing, but some U.S. courts are taking the Chinese claim seriously.

An op-ed by Noah Feldman. North Carolina bans registered sex offenders from Facebook. Unsurprisingly, a sex offender wants the Supreme Court to strike down the law. Perhaps more surprisingly, he has support from 16 notable professors of constitutional law -- from left, right and center. I’m loath to disagree with an all-star cast of colleagues that includes some of my teachers and good friends. But I think their argument goes too far.

An op-ed by Noah Feldman. Secrecy and justice don't mix. Just look at the latest contortions in the case of Khalid Sheikh Mohammed, the accused mastermind of the September 11 attacks. Mohammed's lawyer has filed a motion alleging that, at the prosecutor’s request, the judge allowed the government to destroy evidence that Mohammed could have used in his own defense. The proceedings of the special military tribunal at Guantanamo Bay are so secret that no one is allowed to say what the evidence was or to read the motion.

An op-ed by Noah Feldman. A company whose violation of human rights abroad strongly affects the U.S. can be sued in any federal court in the country -- except New York and Connecticut’s Second Circuit. A decision there Tuesday means it will remain stubbornly outside the pack. The U.S. Court of Appeals for the Second Circuit refused to reconsider an earlier decision that might have put it into conformity with the other circuits. The majority in the court's opinion said it wasn't worth bothering after the Supreme Court sharply reduced liability under international law in 2013. The dissenters thought the appeals court should fix what it saw as a mistake made in 2011 when it first held that corporations can’t be held responsible for human rights violations in other countries.

An op-ed by Noah Feldman. North Carolina and the federal government are suing each other over whether the state’s new transgender bathroom regulation violates federal civil rights laws. The cultural stakes are clear: the two governments have sharply different ideas about the acceptance of transgender people. But what about the legal stakes? The legal problem in the case is whether the North Carolina law, which bars transgender people from restrooms, locker rooms and changing rooms, violates the provision of the Civil Rights Act of 1964 that prohibits discrimination on the basis of sex. That question may sound simple, but it’s actually profound. It will require a court to decide whether gender is the same thing as sex, and if so, for what purposes.

An op-ed by Noah Feldman. Laws that ban street begging often are challenged as a violation of First Amendment free speech rights. Appellate courts are divided on the question, and the Supreme Court has never answered it definitively. But in the last year, courts across the country have begun striking down laws against panhandling on the ground that they prohibit certain speech on the basis of its content. The reason is a major Supreme Court decision from last year that barred an Arizona town from using content to distinguish between different types of temporary signs erected on public property.

An op-ed by Noah Feldman. When Alabama Chief Justice Roy Moore ordered his state’s probate judges in January to ignore a Supreme Court ruling legalizing gay marriage, he put himself in jeopardy of losing his job – for the second time. Now Alabama’s Judicial Inquiry Commission has filed formal charges against him for his defiance. Moore should lose his job. But as he’s shown before, that’s a setback he can overcome. Last time he was removed from office, he ran for governor before settling for reelection as chief justice. Who knows? This time he might even win the governorship.

Who owns the most U.S. Treasury bonds? China? Japan? Saudi Arabia? The answer: None of the above. It’s us. We Americans own almost $5 trillion in Treasury bonds, all told. That’s more than twice as much as China, Japan and all the oil exporting countries put together...A President Trump just winging it in public is going to cause chaos in the Treasury and currency markets. Legal experts aren’t sure what a default crisis would entail. The U.S. Constitution says government debt can’t be questioned. But it’s never been tested. “No one knows what happens if it is,” Harvard Law School’s Noah Feldman tells me.

An op-ed by Noah Feldman. Should female African-American cadets at West Point be punished for posing for a photograph with their fists raised? Most discussion so far has focused on the contemporary meaning of the gesture and whether it’s a political statement of solidarity with the Black Lives Matter movement. But there’s a further free-speech question that must also be answered: How much leeway should members of the uniformed, active-duty military have to express themselves -- photographically, politically, or otherwise? The best answer, grounded in military regulations and the First Amendment, indicates that the cadets have not violated the letter or spirit of the law and should not be subject to sanction.

An op-ed by Noah Feldman. Spend a million of your Super PAC dollars to elect a governor, and you can expect him to take your calls and set up meetings with state officials. Courtesy of the Supreme Court and its 2010 Citizens United decision, it’s all protected by the First Amendment. But give the same governor a Rolex before asking for the meetings – and both of you might be convicted of bribery. Is there a meaningful difference? That’s the question in McDonnell v. U.S., which the court is currently considering. The bribery conviction of former Virginia Governor Bob McDonnell follows the second pattern – complete with the Rolex.

An op-ed by Noah Feldman. My 10-year old put it best: “First you said Trump wouldn’t win any primaries. Then you said he wouldn’t win the nomination. So why exactly are you so sure he won’t become president?” Given this reasonable question, it’s time to start asking: Is the Constitution in danger from a Donald Trump presidency? How far can he push the envelope of our constitutional structure and traditions?

An op-ed by Noah Feldman. The Black Lives Matter movement may be starting to affect the thinking of federal judges, if a Texas case is any indication. Wednesday, a George W. Bush appointee wrote a dissent that started this way: “Wayne Pratt received the death penalty at the hands of three police officers for the misdemeanor crime of failing to stop and give information.” The opinion was a dissent because the two other judges on the appellate panel thought the officers who killed Pratt during an arrest were entitled to immunity from being sued. So it's not as if the social protest movement has yet won a complete victory. But the Republican appointee’s language was noteworthy and her opinion deserves analysis.

An op-ed by Noah Feldman. The Supreme Court has announced that it will decide a fascinating copyright case about cheerleaders’ uniforms. It's a big deal because the case isn’t just about cheerleaders -- it could determine whether many kinds of fashion designs can be copyrighted. The copyright law seems simple: It says that “useful items” can’t be protected. You can't own exclusive rights to make dining tables or dinner plates. A uniform, like any other piece of clothing or furniture, is useful. But that isn’t the end of the problem. What about designs on useful objects: a pattern on a dinner plate or a stripe on a garment?

An op-ed by Noah Feldman. Justice Stephen Breyer is against the death penalty -- but not because it’s morally wrong. He briefly reiterated his arguments Monday when dissenting from the court’s refusal to hear a California death row inmate’s case. First, he said the death penalty may be unconstitutional in California because it’s applied arbitrarily and unreliably. Those are plausible and unremarkable arguments. They no doubt appeal to the technician in Breyer, who believes that government should do things pragmatically and correctly. But his third reason was most striking. Following a view he has held since the 1990s, Breyer argued that the death penalty is unconstitutional because it takes too long for condemned inmates to be put to death.

An op-ed by Noah Feldman. The Supreme Court has decided a Baltimore Police Department extortion case straight out of "The Wire" on the basis of common sense. It held that the federal bribery statute allows a conviction for conspiracy to commit bribery even when the co-conspirator was also the victim. That's the nature of a kickback, after all: The party that's being extorted is also one of the beneficiaries of the scheme. This holding required the court to go beyond the literal words of the statute and ascertain its true purpose. The late Justice Antonin Scalia, who hated such purpose-driven statutory interpretation, is harrumphing somewhere as his textualism was rejected. You'd expect Justice Clarence Thomas to have dissented, and he did. But in a noteworthy twist, the other dissent in the 5-3 decision was written by Justice Sonia Sotomayor -- and her opinion was joined by Chief Justice John Roberts. Both, it appears, disfavor the extension of conspiracy law, although perhaps for different reasons.

An op-ed by Noah Feldman. The most dramatic moment of my legal education came when Professor Owen Fiss of Yale Law School threw his paperback copy of the Federal Rules of Civil Procedure 25 feet across a classroom into a waiting trash can. It wasn’t just the eminent scholar’s aim that impressed me, but his point: that the federal rules of procedure are basically unconstitutional because of the way they’re adopted. Instead of being enacted by Congress and signed by the president like ordinary laws, procedural rules are written by the unelected Supreme Court, which transmits them to Congress, after which they ordinarily go into effect without change.

An op-ed by Noah Feldman. New York’s Legislature is considering a proposal to give police officers “textalyzers,” gizmos that would enable roadside checks of drivers suspected of using mobile phones behind the wheel. Given the dangers of texting while driving, the technology may be a good idea. But is it constitutional? The answer requires looking at two issues. One is the constitutional status of smartphones. The Supreme Court unanimously held in 2014 that the police need a warrant to search a phone. That implies that using a textalyzer without a warrant would be unconstitutional. The second issue is the comparison between the textalyzer and the Breathalyzer.

An op-ed by Noah Feldman: The U.S. government claims the right to eavesdrop at-will on your e-mail when you're writing to someone who lives abroad. Now it wants to be able to use those e-mails to convict you of a crime. That's what's happening to Aws Mohammed Younis al-Jayab -- and he’s not the only one. The legal basis is the 2008 Amendment Act to the Foreign Intelligence Surveillance Act, which says the government may monitor communications from within the U.S. to foreigners abroad, or vice versa, without first obtaining a warrant to authorize the surveillance.