Media Mentions

An op-ed by Noah Feldman: The storming of the U.S. Capitol on January 6 was a real lowlight for Congress. At least during the sacking of Washington in the war of 1812, the White House burned alongside the Capitol. But on January 6, 2021 the head of the executive branch urged his followers to interfere with the operation of the legislative branch. The entire sequence of events is a reminder that congressional power has been receding relative to the executive branch for almost a century. Now is the time for Congress to stand up for its rights as a coequal branch of government. It’s not only that the January 6 attack has drawn public attention to the importance of the legislature. It’s that President Joe Biden is the first career legislator to occupy the White House in nearly 50 years. Biden’s experience and instincts will guide him into pursuing major legislation, not just governing by executive order. If Congress can find bipartisan issues on which to pass laws, and if a significant bloc of congressional Republicans chooses not to be absolutely obstructionist, we might begin the process of restoring some of the governmental balance envisioned by the Constitution. Congress’s downward slide should matter to Democrats and Republicans alike.

An op-ed by Cass Sunstein: Amid the flurry of new executive orders and memoranda signed by President Joe Biden on his first day in office, there’s a sleeper. It’s called Modernizing Regulatory Review, and it’s exceedingly important. Crucially, the memorandum affirms the long-standing process managed by the Office of Information and Regulatory Affairs, which includes a significant role for cost-benefit analysis. At the same time, it marks a dramatic departure from the approach favored by the administration of former President Donald Trump and identifies excellent directions for fresh reforms. Since 1981, both Republican and Democratic presidents have directed agencies to submit drafts of their major regulations to OIRA — part of the Office of Management and Budget — for review and scrutiny. Whether the issue involves environmental protection, food safety, homeland security, health care or transportation, agencies must allow OIRA to coordinate a process called interagency review, by which various parts of the federal government are permitted to comment on draft regulations. For regulations with an economic impact of $100 million or more, agencies must also produce a regulatory impact analysis, cataloguing the benefits and costs of regulations, and showing that the benefits justify the costs.

President Biden, vowing to restore environmental protections frayed over the past four years, has ordered the review of more than 100 rules and regulations on air, water, public lands, endangered species and climate change that were weakened or rolled back by his predecessor. But legal experts warn that it could take two to three years — and in some cases, most of Mr. Biden’s term — to put many of the old rules back in place...In the early days of the Trump administration, Republicans used that law to quickly wipe out 16 Obama-era rules. But legal experts have warned Democrats that using that law to undo environmental policies could backfire: once Congress has used it to wipe out a regulation, the administration is legally barred from enacting a substantially similar rule. That twist would bar the Biden administration from replacing a weak Trump-era rule with a similar but more stringent one. “They don’t want to create roadblocks to creating future regulations,” said Hana Vizcarra, a staff attorney at Harvard Law School’s Environmental and Energy Law Program, who has closely studied the Trump administration’s rollbacks. Ms. Vizcarra cited just one such rollback as a good candidate for rapid reversal under the Congressional Review Act: a January rule that reduced protections for migratory birds by ending penalties for energy and construction companies that harm the birds and their habitats in construction projects and oil spills.

An op-ed by Laurie Beyranevand and Emily Broad Leib: In the early months of the coronavirus pandemic, shocking images emerged from both ends of an American food system seemingly on the brink of collapse. Photos and videos of farmers dumping crops — perfectly good potatoes, squash and milk — appeared above articles about the rising “tsunamis” of food waste as food service buyers disappeared. Meanwhile, lines for food banks filled parking lots, circled around neighborhoods and shut down highways. How is this possible? America’s food system has long been plagued by massive inefficiencies and injustices. They just weren’t quite so visible to all before now. Soaring rates of food insecurity, the exploitation of food workers, massive volumes of food waste, widespread nutritional deficiencies leading to alarming rates of diet related disease, the challenging economics of farming and disproportionate harm to underserved and Black, Indigenous and people of color (BIPOC) communities — all of these existed at near-crisis levels before the coronavirus first infected a single human. The virus and resulting public health measures simply brought these issues to the front burner and turned them up to a rolling boil. The reasons that COVID-19 had our food system on the brink of collapse are the same ones that have allowed these inequalities and failures to persist for decades.

We talk occasionally about the theory that BlackRock Inc. rules the world. Not BlackRock per se, exactly, but there is a small group of gigantic investment managers who are the biggest shareholders in most public companies, and who, at some level, get to tell those companies what to do. The people who run those investment managers—people like Larry Fink of BlackRock—have disproportionate power over the world. If they decide that corporations should not have staggered boards, corporations will not have staggered boards. If they decided that climate change is a pressing problem and companies need to address it, companies have to at least consider addressing it...Back in 2018, John Coates of Harvard Law School wrote a paper about this stuff called “The Future of Corporate Governance Part I: The Problem of Twelve.” One thing I like about this paper is the name: The issue, to Coates, is not something narrow like “do industries with more common ownership raise prices,” but the much broader “what should we think about the fact that a dozen people will soon control all the companies?” Another thing I like is Coates’s brief suggestion that these big funds could look to administrative law as a way to legitimate and regulate their power. (“One inspiration may be administrative law, which has to grapple with similar problems of legitimacy and accountability for agents of the state,” he writes.)

An article by Emma Svoboda ‘23: As the U.S. reeled from violence at the Capitol, two Central Asian countries held elections that were both uncompetitive and unsurprising. On Jan. 10, voters in Kyrgyzstan and Kazakhstan took to the polls in elections that did not portend a change from the status quo. Following an October 2020 revolution in Kyrgyzstan that led to the resignation of the country’s former leader, voters elected Sadyr Japarov, a populist and a convicted kidnapper, as the new president. Kyrgyzstan’s voters also passed a constitutional referendum that promised Japarov sweeping new powers in his first term. In Kazakhstan, voters chose a new parliament for the first time since Nursultan Nazarbayev, the longtime ruler, stepped down from the presidency in 2019. The elections, which were boycotted by any meaningful opposition, gave the ruling Nur-Otan party a commanding majority in the country’s parliament. The Organization for Security and Cooperation in Europe called Kazakhstan’s electoral process “not competitive,” noting that it left voters with “no genuine political alternative.”

A federal judge has refused to restore the social media site Parler after Amazon kicked the company off of its Web-hosting services over content seen as inciting violence. The decision is a blow to Parler, an upstart that has won over Trump loyalists for its relatively hands-off approach to moderating content. The company sued Amazon over its ban, demanding reinstatement. U.S. District Judge Barbara Rothstein sided with Amazon, which argued that Parler would not take down posts threatening public safety even in the wake of the attack on the U.S. Capitol and that it is within Amazon's rights to punish the company over its refusal...Evelyn Douek, a lecturer at Harvard Law School, predicts more battles over online speech will erupt between sites that choose a hands-off approach and Web hosts that demand a more aggressive stance. And that troubles her. "Is that the right place for content moderation to be occurring?" Douek asked. "It's harder to bring accountability to those choices when we don't even know who's making them or why they're being made." In other words, when a Web host has a problem with content on a client's site, usually these discussions are hashed out between the two parties, far from the public light. And Web hosts, unlike social media platforms, are not used to explaining these decisions publicly.

Facebook said it would refer its decision to indefinitely suspend former president Donald Trump’s Facebook and Instagram accounts to the oversight board, an independent Facebook-funded body composed of international experts that has the power to review — and potentially overturn — the company’s content decisions. The referral would amount to the first major case for the board, which took the first spate of cases it would consider in December. It will also be a key test for a model of external governance for Silicon Valley’s decision-making, one that is being closely watched by experts and policymakers around the world...Facebook said it would continue to suspend Trump’s accounts pending the board’s decision. The social network also asked the board to review its policies on world leaders, whose speech Facebook and other social media companies consider to be newsworthy or in the public interest, and therefore they are given more latitude to make inflammatory comments than everyday users. “This is clearly the right decision,” said Evelyn Douek, a lecturer at Harvard Law School who had argued, along with other academics, that the oversight board should take up the case. “Had Facebook failed to send the case to the board, it would have suggested that even it wasn’t taking its oversight board seriously. Just waiting to see how [Zuckerberg] happened to feel about whether the Trump suspension should be made permanent is not a good model for how these kinds of important decisions should get made.”

President Biden, vowing to restore environmental protections frayed over the past four years, has ordered the review of more than 100 rules and regulations on air, water, public lands, endangered species and climate change that were weakened or rolled back by his predecessor...Mr. Biden’s team has also looked to Congress, where Democrats could potentially use their razor-thin House and Senate majorities to revoke some of the Trump administration’s last-minute regulatory rollbacks. Under the Congressional Review Act, any regulation finalized within 60 legislative days of the end of a presidential term can be overturned with a simple congressional vote. In the early days of the Trump administration, Republicans used that law to quickly wipe out 16 Obama-era rules. But legal experts have warned Democrats that using that law to undo environmental policies could backfire: once Congress has used it to wipe out a regulation, the administration is legally barred from enacting a substantially similar rule. That twist would bar the Biden administration from replacing a weak Trump-era rule with a similar but more stringent one. “They don’t want to create roadblocks to creating future regulations,” said Hana Vizcarra, a staff attorney at Harvard Law School’s Environmental and Energy Law Program, who has closely studied the Trump administration’s rollbacks. Ms. Vizcarra cited just one such rollback as a good candidate for rapid reversal under the Congressional Review Act: a January rule that reduced protections for migratory birds by ending penalties for energy and construction companies that harm the birds and their habitats in construction projects and oil spills.

An op-ed by Cass Sunstein: Sedition! It’s an alarming accusation, and when it is made, it is often a serious danger to free expression. In many nations, including the U.S., the threat of sedition prosecutions has been used to criminalize dissent — to intimidate, and perhaps even imprison, people who strenuously object to what the government is doing. The Alien and Sedition Acts of 1798, with their restrictions on freedom of speech, are often taken as a shameful violation of constitutional principles. In some of its most notorious decisions, the U.S. Supreme Court upheld laws that forbid sedition, even when applied to political protestors. The Justice Department is now considering sedition charges against the mob that stormed the U.S. Capitol on Jan. 6 as Congress was voting to certify President Joe Biden’s electoral college victory. Some people have even called for prosecution, on charges of sedition, of former President Donald Trump, for inspiring and egging on the rioters before they invaded the Capitol. The crime of sedition has been defined in many different ways. A broad definition might extend to heated political protests, meant to cast doubt on the competence, good faith or legitimacy of the current government. A narrow definition might be limited to acts of violence, in which people physically attack public officials and public property in a clear effort to overthrow the current government.

As Florida residents struggle to get appointments for COVID-19 vaccines, some are worried the already limited supply may be going to people who don't even live in the state...Under Florida's vaccine plan healthcare workers, long-term care workers and those 65 years and older who are at least part-time residents are eligible to get the vaccine. Data from the Florida Department of Health revealed more than 1.1 million people have been vaccinated in the state. Out of those 1.1 million people, 39,000 reside outside of Florida. It's a new trend being called "vaccine tourism," in which people from outside the state travel to Florida to get vaccinated...Harvard law professor Glenn Cohen, a medical tourism expert, said he wasn't shocked when he heard of vaccine tourism and he sees it growing. "Yeah, I think the best thing we could do would be assisting other countries to meet their rollout and to supply them with vaccines to meet the needs of their population so that we don't create this market where the wealthy and able-bodied can travel," said Cohen. "Unfortunately, we've ended up in a place where every country has its purchase order and every country is doing its own distribution. And that setup is part of what has set the preconditions for this instance of vaccine tourism."

President Joe Biden has installed Obama-era labor official Sharon Block as interim political leader of the White House regulatory review office—an agency she’s recently said needs a worker-oriented overhaul—multiple sources briefed on the appointment told Bloomberg Law. Block, in an April article published by The American Prospect, advocated for the White House Office of Information and Regulatory Affairs to undergo structural changes to expedite revocation of Trump administration rules that she deemed harmful to workers and progressive interests. Her opinion piece also called for OIRA to take on an expanded role to swiftly advance urgent regulations tied to pandemic recovery, rather than sometimes functioning as a bottleneck for such rules. Block’s title is now OIRA associate administrator, four sources said, meaning she’s the top politically appointed official at the office until Biden nominates someone for administrator, who would then be subject to the Senate confirmation process. By tapping an experienced Democratic hand to steer the White House regulatory office on Wednesday, the new president is signaling a desire to avoid the potential for Senate confirmation delays to stall efforts to undo deregulatory, corporate-friendly regulations issued by the Trump administration.

The Trump administration did not offer comment to the U.S. Supreme Court about a bid by certain coal-producing states to reject the legitimacy of Washington state standing in the way of a coal export terminal, leaving an opportunity for a Biden administration-controlled U.S. Justice Department to give an opinion instead...The justices have not decided whether they will hear the full case; a decision requires the support of at least four justices. In October 2020, the Supreme Court invited the acting solicitor of the U.S. Justice Department to comment on whether the case should be heard. The Trump administration's DOJ had not filed anything as of Jan. 21, the Supreme Court docket shows... The legal arguments could be dividing conservative justices on the court, making it difficult to proceed to oral arguments, according to Ari Peskoe, director of the Electricity Law Initiative at the Harvard Law School Environmental and Energy Law Program. Following the lead of former Associate Justice Antonin Scalia, Associate Justice Clarence Thomas has rarely been willing to recognize the legitimacy of the Dormant Commerce Clause, and newly confirmed Associate Justice Amy Coney Barrett may feel similarly. "Given that [Amy Coney Barrett] is apparently a Scalia acolyte, the other four conservative justices would have to decide to hear this case for it to move forward," Peskoe said in a Jan. 21 email. "I don't see it happening. My guess — and it's just a guess — is that the Trump DOJ didn't think this case was worth the effort, given the very long odds."

Hundreds of thousands of Massachusetts immigrants could be impacted by President Biden’s immigration overhaul, which includes a massive bill sent to Congress on Wednesday that was accompanied by a series of executive orders. Those orders, signed after Biden assumed the presidency, will reverse Trump-era travel bans that focused primarily on immigrants from Muslim countries. Another executive order allows young immigrants brought into the country without authorization to once again apply for the Deferred Action for Childhood Arrivals, or DACA, program, which former president Trump suspended in 2017. A third will reverse a memo signed into law by Trump in 2020 that excluded undocumented immigrants from Census counts...Biden also aims to abolish two long-standing rules for immigrants found to be in the US illegally. Currently, immigrants in the US for more than six months but less than a year are barred from returning for three years. Those who are found to be in the US without authorization for more than one year are barred from reentering for 10 years or more. The three-year and 10-year restrictions prevent many people from being able to get green cards from abroad, since they have to wait for the time limitation to expire, according to Mariam Liberles, a staff attorney with the Harvard Immigration and Refugee Law Clinic. “It would really be a tremendous help in their petitions,” she said. That change alone would impact at least a million people nationwide, according to the Massachusetts Immigration and Refugee Coalition.

As soon as the videos began streaming in on Jan. 6, it became clear that the nation was experiencing something unprecedented and dangerous but also, in many ways, unsurprising. The storming of the Capitol in the service of false conspiracy theories had no single cause, and no single Biden executive order can undo the threats and divisions it exposed. Which doesn’t mean we shouldn’t try to ferret out the causes and game out solutions to America’s disinformation crisis. The Times gathered six writers who have been examining these issues for years...Annette Gordon-Reed: “I would add the loss in status of whites, particularly white males. The talk about political correctness is a cover for this deep concern about a loss of status. Income inequality is part of it, but there’s a group of people like the lawyer couple standing on their lawn with the guns — that just feel lost. The New York Times asked a group of people to suggest books for President Biden. I suggested W.E.B. DuBois’ ‘Black Reconstruction,’ because we’re in a moment where there are people who fear the growing political power of minority groups and Black groups in particular. And this has been a problem from the era that I studied, the early American Republic: Who are the folks who count? One thing that could be done about it would be for the government to actually be efficient, to actually work. We’ve become anti-government since the 1980s. And we have this entity that we pay taxes to that’s not supposed to do anything.” ... Martha Minow: “The Republican Party in particular for 50 years has bet on these divisions. We’ve seen this, sadly, in other countries where there are the ingredients of status anxiety and economic inequality. The question is, what do the leaders do? If leaders appeal to those fears and amplify them, that is a toxic environment. I hate to be grandiose about it, but that has given rise to genocides.”

A federal court ruling on power plant emissions paved the path for President Joe Biden’s climate plans, but future litigation over greenhouse gas regulations could throw up hurdles, attorneys and legal scholars say. Biden’s aggressive climate plans got a leg up Tuesday when the U.S. Court of Appeals for the District of Columbia Circuit struck down the Trump administration’s Affordable Clean Energy (ACE) rule, which softened greenhouse gas emission regulations for existing power plants. The ruling allows Biden to sidestep a lengthy rulemaking processes that would have been required to dismantle ACE and install a replacement rule. The decision isn’t a total “slam dunk,” Harvard Law School’s Environmental and Energy Program staff attorney Hana Vizcarra told Bloomberg Law. Future legal battles over climate regulations are likely still on the horizon, she said, but the victory does give the new administration an advantage. “It gives them sort of a fresh start in how they approach the regulation of greenhouse gases of existing power plants,” she said. Even with the boost, the Biden administration must contend with a 6-3 conservative majority on the high court that may be reluctant to approve sweeping agency actions.

President Joe Biden on Wednesday issued a call for national unity, devoting much of his inaugural address not to the policies and programs to come, but to the “uncivil war” that Americans must put behind them to tackle their myriad national challenges...In response to an Inauguration Day that opens the door to massive shifts in America’s priorities, the Gazette asked Harvard faculty members for their thoughts on Biden’s speech and on his planned policies, as reflected through their specific fields of expertise, along with any advice they have for him in his “rare and difficult hour.” ... Sameer Ahmed: “I am cautiously optimistic for President Biden’s vision as it relates to the future of immigrants in the United States. I am heartened that his inauguration address focused on attempting to achieve ‘the American ideal that we all are created equal’ and push back against ‘the harsh ugly reality that racism, nativism, fear, demonization have long torn us apart.’ This ugly reality was perhaps no more evident than in the Trump administration’s anti-immigrant agenda over the past four years. In his first day in office, President Biden took important steps by issuing a handful of executive actions to address some of the worst aspects of Trump’s policies, including ending the Muslim ban, defunding the border wall, and preserving DACA (Deferred Action for Childhood Arrivals). But President Biden must not only address the harms created by the Trump administration. He should ensure that immigrant communities are stronger and safer than they were four years ago.”

PBS NewsHour is taking a closer look at Inauguration Day with our special, "Celebrating America." Anchor and managing editor Judy Woodruff breaks down the historic day with White House correspondent Yamiche Alcindor, Washington Post senior critic Robin Givhan, filmmaker Ken Burns and Annette Gordon-Reed, a historian and law professor at Harvard University.

Opponents of President Trump's climate rule rollbacks rejoiced yesterday after a federal appeals court gave the Biden administration a clean slate to craft a new rule to control greenhouse gas emissions from power plants. A three-judge panel for the U.S. Court of Appeals for the District of Columbia Circuit tossed out the Trump EPA's Affordable Clean Energy rule and sent it back to the agency. The court found EPA had too narrowly interpreted its authority to regulate emissions. The court not only gave the green light for President-elect Joe Biden to draft stronger power plant regulations, but also broadly affirmed EPA's authority to craft climate regulations for a range of emissions sources...Asked for a comment on yesterday's court decision, Joseph Goffman, who played a key role in crafting the Clean Power Plan and is part of the EPA transition team for the incoming Biden administration, sent E+E News a link to a recording by the Royal Choral Society of the "Hallelujah" chorus from George Frideric Handel's "Messiah." "Feel free to quote me," he said...EPA took that more challenging legal approach by arguing that the statute was unambiguous in supporting its position. The agency could have instead said it was using its discretion to interpret the law, said Jody Freeman, director of the Environmental and Energy Law Program at Harvard University. Looking from the outside, it seemed like the best explanation for why Trump's EPA took that position was so that it could block future administrations from "doing anything meaningful" on climate regulation, Freeman said. "It seems like a deep ideological commitment but not the best legal strategy," she said.

The two-month post-election wait used to be four, and constitutional scholar Sandy Levinson thinks it should be shorter still.

In his final full day in office, President Donald Trump is expected to issue a myriad of presidential pardons. Last week, CNN initially reported that Trump planned to pardon close to 100 people before leaving office. Trump already has issued pardons for his former aides, including former adviser Roger Stone, former campaign manager Paul Manafort and former National Security Adviser Michael Flynn. Some have speculated that Trump will attempt to issue a self-pardon or secret pardons for his family and other aides...However, others believe that pardons were meant to be publicly issued and would not hold up as valid if challenged in a court of law. "I certainly can't say that they are clearly impermissible, but I can say that I think that there is at least a Constitutional cloud over them," Harvard Law Professor Laurence Tribe said. For one thing, they would be difficult to authenticate. "There would be no way to prove it was issued on a certain date in an official capacity," Tribe said. "If invoked at the time an indictment or prosecution is brought, that would open the possibility for a Constitutional test of whether secret pardons are permitted." Additionally, Tribe said the nature and purpose of pardons implies a public acknowledgment of wrongdoing and forgiveness. "They were supposed to be accompanied with either a confession of guilt or that they implied that the person who accepts the pardon is willing to publicly admit guilt," Tribe said. "And the fact that there's no indication in the discussion of the Constitution when the pardon power, which is already pretty sweeping and subject to abuse, could be hidden behind a veil of secrecy, I would argue that it's validity is up in the air."