Noah Feldman

An op-ed by Noah Feldman. Leaked intelligence reports say that Abu Bakr al-Baghdadi, the titular head of Islamic State, is delegating authority in anticipation of his untimely demise. That raises some timely questions: Can you have a caliphate without a caliph? What will happen to Islamic State if Baghdadi is killed? And, by extension, how much effort should the U.S. and its allies put into trying to target and kill him?

An op-ed by Noah Feldman. When I last checked, the U.S. was still a majority-Christian country. So what's the world coming to when the Republican Congress seems more excited to host Israeli Prime Minister Benjamin Netanyahu than Pope Francis? The answer holds a lesson about the role of religion in shaping symbolic politics -- and helps make sense of some of the opposition to the Iran nuclear deal. In the U.S., faith often jump-starts a political movement or position -- but pretty soon, politics takes over the driver's seat and brings the religion along.

An op-ed by Noah Feldman. When Texans, including Governor Greg Abbott, give credence to the possibility that the U.S. military's Jade Helm 15 training exercise is a pretext to occupy Texas and confiscate the people's guns, it's easy to dismiss them as paranoid fantasists. And certainly, those concerns are demonstrably paranoid. But it's paranoia that reflects a quintessentially American concern about the risks of a standing army -- one that goes back to James Madison, and is tied to the origins of the Second Amendment.

An op-ed by Noah Feldman. Japan’s Diet has begun the process of passing legislation that would authorize the country’s self-defense forces to fight in foreign conflicts, in apparent violation of the country’s pacifist constitution. And that’s a good thing, despite the apparent danger it poses to the rule of law. Behold the power -- and the danger -- of a living constitution.

An op-ed by Noah Feldman. Donald Trump's anti-immigrant views have done a good deal for his presidential polling numbers. There's also reason think he's done the country a favor, by forcing politicians on the right to repudiate that anti-immigrant sentiment. In Europe when such rhetoric rises, it's bad news. Anti-immigrant politics are usually there to stay, and the xenophobia pushes the whole political scene rightward. Denmark is a textbook case. But in the U.S., the opposite seems to be happening. Sure, the anti-immigrant sentiment is playing well in polls for now. But instead of following Trump, or copying him, the right-leaning candidates with more political experience are staking out pro-immigrant territory or at least anti-anti-immigrant positions.

An op-ed by Noah Feldman. The European political project is looking rather shaky in the wake of the will-they-or-won't-they Greek bailout. But you’d never know it from the Iran deal announced Tuesday. In its fine print, the nuclear pact gives the European Union the immediate power to make the treaty into an offer the U.S. can’t refuse. And, going forward, it gives the EU the crucial vote in determining whether Iran is complying with its promise not to make a nuclear weapon.

An op-ed by Noah Feldman. Today is the worst day of the George W. Bush administration. The deal U.S. President Barack Obama has struck with Iran to curb its nuclear weapons program amounts to a pragmatic recognition that Iran has joined the U.S. as a crucial regional player not just in the Persian Gulf but also in the whole Middle East. Iran's rise wouldn't have been possible -- and the deal wouldn't have been necessary -- had the U.S. not unleashed Iran from the regional power that did the most to contain it: Saddam Hussein's Iraq.

An op-ed by Noah Feldman. Will Xi Jinping, who has consolidated power more than any Chinese leader since the 1980s, pay a political price for the big decline in the Chinese stock market over the last week? In the very short term, market losses are likely to harm rich and powerful Chinese who might otherwise be pushing back against his increased authority, so it might conceivably help him. But in the medium to long term, this correction is going to be costly for Xi -- because it’s going to help ordinary Chinese learn the painful lesson that no government, however centralized and powerful, can guarantee the stability of assets when the markets think they are overvalued.

An op-ed by Noah Feldman. If you’ve been following the crisis in Greece, you may not have noticed, but President Barack Obama held a news conference Monday at the Pentagon that will be significant for his legacy. What was important was not so much what he said as what he didn’t say: that there’s any chance of defeating Islamic State in the foreseeable future. Instead, the president emphasized that the fight against the Sunni Muslim insurgent group will be “long” and that experience has shown that it can be “degraded” only with effective local ground forces.

An op-ed by Noah Feldman. Nonprofit groups are supposed to exist to promote the public welfare, not to run political campaigns. IRS rules say that tax-exempt 501(c)(4) organizations, which are allowed to campaign consistent with their welfare-promoting missions, can’t have politicking as their primary activity. But because those rules aren’t being enforced, presidential campaigns now feature such nonprofits. Why is this happening? And what -- if anything -- can be done to stop it?

An op-ed by Noah Feldman. No U.S. state has defaulted on its bonds since the Great Depression -- yet Puerto Rico, a commonwealth that operates much like a state without being one, is on the brink. Is there any connection between Puerto Rico’s unique constitutional status and it economic woes? If not, what does that say about the prospect for future default by any of the actual 50 states of the union?

An op-ed by Noah Feldman. On the surface, there was nothing shocking about Monday's decision by the U.S. Court of Appeals for the 1st Circuit to strike down a Puerto Rico law that would’ve let the commonwealth’s municipalities and utilities declare bankruptcy. A federal district court had already held in February that Puerto Rico’s proposed Recovery Act was pre-empted by the federal bankruptcy code. But from a long-term perspective, the court’s decision was fairly extraordinary. Over an outraged concurrence by Judge Juan Torruella -- the only Puerto Rican on the federal appeals court that's responsible for cases from the island -- the court held that Puerto Rico is uniquely legally disabled from managing its financial problems.

An op-ed by Noah Feldman. The Greeks invented democracy. So it might seem natural and appropriate that they’re having a referendum Sunday to decide whether to take a bailout deal previously offered by the European Union that would require austerity measures. But in fact, under conditions of crisis, a referendum is a truly terrible idea. There are times when going around elected representatives is democratically valuable -- but in the middle of a life-or-death negotiation isn’t one of them. It’s a fantasy to think that some magical “popular will” can emerge from the vote by a divided Greek public.

An op-ed by Noah Feldman. You didn’t really think you could get out of this U.S. Supreme Court term without a teaser about the next big case, did you? On its last day of public business until the first Monday in October, the court dropped a big hint about next season’s episodes. It agreed to hear Friedrichs v. California Teachers Association, which squarely poses the question of whether the basic public-union arrangement that’s been in place since 1977 violates the First Amendment.

An op-ed by Noah Feldman. The end of this term at the U.S. Supreme Court felt like the culmination of an era -- or rather of two eras. Periods in the history of the court tend to form in relation to the great, defining political issues of the day, which eventually make their way to the court in legal guise. The gay-marriage decision, Obergefell v. Hodges, marks the culmination of a 25-year period of gay-rights decisions that coincided with an era of gay-rights advocacy, starting with the 1969 riot at the Stonewall Inn in New York. The Affordable Care Act case, King v. Burwell, belongs to a shorter wave of cases, challenges to the social and economic legislation enacted partly in reaction to the financial crisis of 2007-08.

An op-ed by Noah Feldman. Score one for the living Constitution. No, not gay marriage, which the framers couldn’t have imagined as a fundamental constitutional right, yet became one last week. Monday's winner is the referendum, which the framers would’ve hated but has been part of our government for more than a century. The case, Arizona State Legislature v. Arizona Independent Districting Commission, involved an obscure provision of the Constitution that was actually extremely important to those who drafted it during the long, hot summer of 1787.

An op-ed by Noah Feldman. In a significant defeat for Barack Obama’s Environmental Protection Agency, the U.S. Supreme Court in a 5-4 vote Monday rejected emissions regulations for power plants because the agency didn’t engage in a full-blown cost-benefit analysis at the very first stage of its regulatory process. From the Obama administration’s perspective, if it had to lose Justice Anthony Kennedy’s deciding vote in one high-profile case this term, it was better for it to lose this environmental case than the Affordable Care Act decision. But the loss will still smart for environmentalists.

An op-ed by Noah Feldman. Other justices appointed by Republicans, most notably Harry Blackmun, turned to the left toward the end of their careers, as Justice Anthony Kennedy has gradually and selectively done. But Blackmun’s turn famously included a refusal to tinker with the “machinery of death,” and a consequent rejection of capital punishment. On the last day of the U.S. Supreme Court term, Kennedy showed he wasn’t even close to there. He provided the fifth and deciding vote Monday to reject death-row inmates’ claim that the drug midazolam, part of the drug cocktail designed to render you unconscious before killing you, is unconstitutionally ineffective.

It was the moment when gay marriage nationally went from being a cause to a fact. “This is one for the ages,” wrote Noah Feldman, Harvard’s Felix Frankfurter Professor of Law...Michael Klarman, Harvard’s Kirkland & Ellis Professor of Law and author of “From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage” (2012), called the ruling “the Brown v. Board of the gays rights movement. It’s obviously a great day for gay rights and for those who favor a more equal, inclusive America.”

An op-ed by Noah Feldman: Justice Anthony Kennedy continues to surprise. The swing justice wrote an important liberal opinion, holding Thursday for a 5-4 courtthat the Fair Housing Act prohibits not only intentional discrimination, but also policy decisions that discriminate by having a disparate impact on minorities. The Reagan appointee occasionally shows vestiges of his one-time conservatism, as in one half of his split votes in two recent death penalty cases. But as his vote in the Affordable Care Act case suggests, he’s increasingly becoming a confirmed liberal vote. When (and if) he declares a constitutional right to gay marriage in the next few days, he’ll enter the pantheon of great justices -- as a liberal.  

An op-ed by Noah Feldman: Justice Antonin Scalia thinks that finding a right to gay marriage in the due process clause of the Constitution amounts to a “judicial Putsch.” But on the very same day the gay-rights opinion was announced, Scalia showed what he thinks the due process clause is actually for. He wrote the opinion for the U.S. Supreme Court striking down the clause of the federal law that increases the punishment for felons found in possession of a gun if they have been convicted of three or more violent felonies. The law defines a violent felony as one that “involves conduct that presents a serious potential risk of physical injury to another.” This language, Scalia found, is unconstitutionally vague -- and therefore violates due process.