Media Mentions

On May 8, Prager University, a nonprofit conservative media outlet, published a video on Facebook that incorrectly claimed “there is no evidence that CO2 emissions are the dominant factor” in climate change. Within days, Climate Feedback, a nonpartisan network of scientists and a member of Facebook’s global fact-checking partnership, rated the content as false — a designation that was supposed to result in serious consequences. It was PragerU’s second strike for false content that month, which under Facebook’s own policies should have triggered “repeat offender” penalties including the revocation of advertising privileges and the specter of possible deletion. But it didn't. As first reported by BuzzFeed News last week, a Facebook employee intervened on PragerU’s behalf and asked for a reexamination of the judgment, citing “partner sensitivity” and the amount of money the organization had spent on ads. Eventually, while the false labels on PragerU’s posts remained, Facebook disappeared the strikes from its internal record and no one — not the public, the fact-checkers, or Facebook’s own employees — was informed of the decision...Evelyn Douek, a lecturer at Harvard Law School, said that even though Facebook doesn’t want to be in the business of declaring what is true and false, it still makes a lot of choices in how it structures its policies and fact-checking program that leave it “in the driver seat.” “There will be a pretty big reckoning around fact-checking,” she said. “People don’t really understand it either and they see it as a panacea for problems on social media platforms.”

An article by Tomiko Brown-Nagin: As he forced his knee into George Floyd’s neck, Officer Derek Chauvin appeared chillingly indifferent to both the law and the life hanging in the balance, even when Floyd cried out, “I can’t breathe.” And why would he worry? During his 19 years with the Minneapolis Police Department, Chauvin received numerous complaints. Despite these incidents, his career continued. He never suffered the consequences that might have prevented George Floyd’s death. The protests against police brutality triggered by Floyd’s killing are unlike anything we have seen in this country since the civil rights movement. As in the 1960s, demonstrators, and the nation, face daunting barriers to reform. Today, one such impediment is qualified immunity — a doctrine created by the US Supreme Court in 1967 to prevent frivolous litigation against government officials. It provides broad protection from civil lawsuits, including suits brought against police who violate constitutional rights. Law enforcement officers cannot be held liable for civil rights violations — including death — unless the underlying conduct “clearly” disregards the law. But the degree of clarity that courts require to permit suits for civil rights violations to proceed is excessive to the point of absurdity. The doctrine, continually expanded by the court over time, sets far too high a bar for efforts to hold officers accountable for actions that intimidate, injure, and kill. It excuses conduct, however outrageous, merely because no prior court has ruled on the precise behavior in question. The decision just two weeks ago by US District Court Judge Carlton W. Reeves, in Jamison v. McClendon, captured it all. Reeves wrote that while the civil rights of the Black plaintiff, Clarence Jamison, had been violated by white Mississippi officer Nick McClendon, “Jamison’s claim cannot proceed.”

An article by Ashley Nunes: Uber and Lyft drivers are employees, not contractors. That’s according to a court ruling issued Tuesday. The ride-hailing giants had argued they shouldn’t be considered “hiring entities”. Ethan Schulman disagreed. Schulman, a judge for San Francisco’s superior court, said “substantial public harm will result” from preserving the status quo which deprives ride-hailing drivers of “the panoply of basic rights to which employees are entitled under California law.”  For the gig economy, it seems the jig is up. The ruling isn’t surprising. Ride-hailing companies have long tried to have it both ways; one moment arguing that drivers aren’t employees and the next, saying drivers should get government-sponsored coronavirus relief handouts typically reserved for full time workers. Last year, Uber argued its drivers weren’t employees because they weren’t ‘core’ to Uber’s business. After the pandemic hit, the company asked President Trump to provide, “support for independent workers”. It’s all about conserving cash of course. Employees are pricier than contractors and fiscal relief for workers (employees or not) makes sense as long as someone else picks up the tab. The court ruling will stunt the profitability aspirations of the ride-hailing companies. Uber chief Dara Khrowsrashahi had expected his company losses to not only taper in the near future but be vanquished altogether. That’s unlikely if Uber has to pony up to cover driver costs. Yet the real issue is that even before yesterday’s ruling, ride-hailing fares were heftier than personal car ownership. And that’s a big problem.

A California court Monday ruled that Uber and Lyft must reclassify drivers as employees rather than independent contractors. Employee status comes with many important benefits, like paid sick leave, unemployment insurance and subsidized health insurance. But Uber CEO Dara Khosrowshahi argued in a New York Times op-ed that it comes at the expense of flexibility, the lifeblood of the gig economy. He called for a new “third way” to classify and provide benefits to workers who fall somewhere between employee and independent contractor. Under existing labor law, workers in America have to be classified as either an employee or an independent contractor. Paul Oyer, an economist at Stanford University, said that binary system goes back to the early 20th century when work looked pretty different. “So the law isn’t perfect,” he said. “There’s a spectrum of possible work relationships. And we want to both protect workers along that spectrum, but also allow some amount of flexibility.” While the pandemic has highlighted the need for better protections for gig workers, most still prefer to be independent, according to one survey, so they can set their own hours. Gig platforms have argued that won’t be possible if workers are employees. “That is just untrue,” said Benjamin Sachs, a professor of labor law at Harvard University. “You can be an employee and have an entirely flexible work arrangement.” Many workers already do, especially now.

Law firm partners are taking a larger share of available work during the pandemic, driven by client demand and anxiety about billable hours, and associates are paying the price. A recent peer monitor index by Reuters highlighted the downturn in overall work for law firms in Q2 of 2020 (-5.9%), while the average billed rate increased (+5.2%), showing how higher-rate partners are taking work formerly done by associates and paralegals. Experts agree that, while this has happened before, the industrywide trend has consequences both short- and long-term...Some of that shift is, in fact, due to partners wanting to hold onto work, and in a zero sum game of billable hours that has consequences for those missing out on said work.  “In the short term, it is anxiety-producing for associates as their hours are reduced,” Scott Westfahl, director of Harvard Law School’s executive education program, said. “And most associates are smart enough to notice.” Westfahl said that, longer term, there is what he called “associate lag,” where they are not given sufficiently challenging work in order to develop and grow professionally, which means that, although their total years in the profession indicate one thing, their actual experience level is that of someone more junior. “One of two things will happen: Either they get stuck as their rates rise each year and they don’t have the experience to handle it and their performance rating goes down, or they get bored out of their minds,” he said. The end result is lack of knowledge for certain classes of associates and an increase in the associate’s desire to seek employment elsewhere once economic conditions are ripe for a move to another firm.

It was late afternoon on February 2, the eve of the Iowa caucuses. We were jammed into a high-school gymnasium in Des Moines, the state capital, for Joe Biden’s closing rally. No one thought he would win the primary season’s talismanic opening contest the following day. Nor was he expected to come close to beating Bernie Sanders, the socialist Vermonter, in New Hampshire the next week. Though he was still ahead in the national polls, the 77-year-old former vice-president was treated as yesterday’s news...Should he make it to the White House, Biden would have completed the longest marathon in US political history. No other serious figure has tried this long to make it over the finishing line in recent history. A majority of Americans were not born when Biden first entered national politics. At 30, he was the fifth youngest senator in the country’s history after he won office in 1972. Biden’s 48-year political career is older than John F Kennedy, Bill Clinton and Barack Obama when they were elected...In another cycle, Biden’s lachrymosity might have been an albatross. During coronavirus, his emotional antennae look like a virtue. More than 165,000 Americans have now died in the pandemic. That toll is likely to be approaching a quarter of a million by early November. Trump’s inability to express condolences for America’s grieving families could not be further apart from Biden’s. In 2016, anger was the dominant political emotion. In 2020, it feels more like sadness. “If Trump were matter, then Biden is anti-matter — their characters are opposites,” says Laurence Tribe, a ­Harvard law professor who has been advising Biden on ­constitutional matters since the mid-1980s.

Chicago teachers piled into hundreds of cars on the first Monday of August and rolled their way to City Hall. No strangers to large demonstrations, the teachers spent hours protesting Chicago Public Schools' plan to mix in-school and at-home learning this fall to reduce crowding in buildings amid the coronavirus pandemic. Staff didn't feel safe teaching in person, the educators said, especially given rising rates of positive COVID-19 cases in Illinois. The demonstration had hallmarks of the massive strike the Chicago Teachers Union waged 10 months prior during a contract dispute with the city. As union members murmured about potentially striking again for their safety, Mayor Lori Lightfoot announced Chicago's near 400,000 students would start the year online-only on Sept. 8. That means almost all of America's biggest districts will start the school year with online learning — a move largely driven by local teachers unions...How long they can hold the line on at-home learning is unclear. Even if coronavirus cases remain high, parents' tolerance for managing their children's education while trying to work from home may wane again. Will unions risk losing public support if they continue to advocate for virtual education? How will they ensure the experience is more productive than in spring — especially since many unions have mere weeks to negotiate work rules related to online learning? "If unions message this properly, it will carry the concern to parents: 'There’s no plan. There are no resources. Nobody is helping us out,'" said Linda Kaboolian, a fellow at Harvard Law School's Labor and Worklife Program. "If they don’t position it properly, it will look selfish."

Last October, a neo-Nazi livestreamed his attack on a synagogue in Halle, Germany. The video of the shooting, which killed two people, stayed on Twitch for more than an hour before it was removed. That’s long enough for a recording to go viral—but it never did. While users downloaded it and passed it around less moderated platforms, such as Telegram, the recording was stopped in its tracks on the major platforms: Facebook, Twitter, YouTube. The reason, Vice reported, is that Twitch was quick to share digital fingerprints, or hashes, of the video and its copies with these platforms and others. All Twitch had to do was upload the hashes to the database of the Global Internet Forum to Counter Terrorism, or, as it’s been called, “the most underrated project in the future of free speech.” The GIFCT has gone largely unnoticed by the public since it was established in 2017 by Facebook, Microsoft, Twitter, and YouTube...The GIFCT’s structure typifies what Evelyn Douek, a doctoral student at Harvard Law School and affiliate at Harvard’s Berkman Klein Center for Internet and Society, has termed content cartels, or “arrangements between platforms to work together to remove content or actors from their services without adequate oversight.” Many of the problems with the GIFCT’s arrangement lie in its opacity. None of the content decisions are transparent, and researchers don’t have access to the hash database. As Keller recently laid out, the GIFCT sets the rules for “violent extremist” speech in private, so it defines what is and isn’t terrorist content without accountability. That’s a serious problem, in part because content moderation mistakes and biases are inevitable. The GIFCT may very well be blocking satire, reporting on terrorism, and documentation of human rights abuses.

If Joe Biden wins the presidency, his Justice Department will face a decision with huge legal and political implications: whether to investigate and prosecute President Trump. So far, the candidate is approaching that question very carefully...Based on those remarks, Biden seems to be on the way to adopting the position of former President Barack Obama. Back in 2009, the newly elected Obama said he didn't want to get hung up on prosecuting wrongdoers. He was referring to people who had engaged in torture and warrantless wiretapping during the previous administration. Instead, Obama told ABC News at the time, his instinct was to make sure those practices never happened again. "I don't believe that anybody is above the law," he said, "On the other hand, I also have a belief that we need to look forward, as opposed to looking backwards." ..."It's not at all clear that looking forward and not looking backward is an available option," Harvard Law School Professor Jack Goldsmith said. Goldsmith said most people aren't talking about how a Biden Justice Department might handle Trump but said he thinks they should be...But the Justice Department twice has opined that prosecutors can't seek an indictment against a sitting president. That's left open the question about whether he might face prosecution once he leaves office. It's never happened before, and it's a political time bomb. Bringing a criminal case against a former president could widen the divide in the country. "Whether that's good for the country is a very hard question that's going to be very messy," Goldsmith said. "Whether it's good for the Biden administration, whether it wants to be, you know, absorbed in being the first administration to ever prosecute a prior president — those are very hard questions."

By the end of April, Olivier Griss knew he had a problem. Coke Farm, the San Juan Bautista, Calif. business his stepfather started in 1981 where Griss now works as sales manager, was awash in a leafy salad ingredient: chicory. Specifically, treviso and castelfranco varieties that end up on plates in high-end restaurants. But high-end restaurants were largely closed, due to the Covid-19 pandemic sweeping the world...The coronavirus pandemic has cut greenhouse gases in some key ways, as people are flying and driving less. But food waste accounts for one reason why the drops likely won’t fall as low as hoped during the pandemic. And as the virus ebbs and flows, it will likely lead to more waste...If these organizations can tap into the shock engendered by images of scuttled harvests and dairy products during the early days of the pandemic, they could drive lasting transformation in food waste and climate change... “Certainly, it has made some things that were invisible more visible,” says Emily Broad Leib, faculty director of Harvard University’s Food Law and Policy Clinic, speaking about the pandemic. Among them: the inflexibility of the food chain, the large numbers of Americans on the edge of hunger, the risky roles of workers in food processing, the incentives set up to deliver food in set ways, the damage food waste does to the environment. “My hope is that will lead to changes in how we use our natural resources.” ...Some key steps would help solve the problems of excess food going to waste on farms in crisis rather than finding its way to hungry people. Leib of Harvard advocates for tailoring tax incentives for donated food so it is easier for farmers to claim deductions. She would also like to see a tax benefit, either for farmers or transportation companies, so they can get the food where needed. “It’s not free to take food that is not going to be sold,” she says. “Someone needs to come get it.” She is talking with members of Congress to get such provisions written into law.

An article by Noah Feldman: Joe Biden has fulfilled his promise to choose a woman as his running mate. Let’s turn our attention to another promise he made: to name a Black woman to the Supreme Court. A number of women with different kinds of legal experience have been suggested by NGOs and journalists. But to legal insiders, Biden’s options narrow down very quickly to two names: Justice Leondra Kruger of the California Supreme Court, and Judge Ketanji Brown Jackson of the federal district court in Washington, D.C. Both are extremely accomplished, with gold-plated resumes that are reminiscent of the justices picked by President Barack Obama, and for that matter by President Donald Trump. Both are also super-smart and well-liked. And realistically, they are the only two Black women who are young enough to serve for the long haul and have the relevant judicial experience to make their confirmation straightforward, even boring — which is just what a nominating president wants. To be clear, there are many more than two Black women qualified to sit on the court. They include legal activists, law professors, judges and government officials with experience at all levels. And in prior decades, it wasn’t unheard of for justices to come from the Senate, the cabinet, or even private corporate law firms. They didn’t all have fancy educational backgrounds, either. But that’s changed in recent years, partly as a product of bruising confirmation battles and partly as an effect of elite consensus on what a nominee’s record should look like. Today’s nominees tend to have attended an Ivy League law school; clerked for a Supreme Court justice themselves; and served as a high-level judge by a relatively young age. That’s one reason the possible Biden nominees are, in reality, so few. There are just not that many Black women who both fit that incredibly narrow mold. With a Democratic Senate — likely the only way Biden could get any nominee confirmed — Biden could try to change the norms and push through someone with a different resume. Yet that sort of risk-taking seems unlikely from Biden, who has just made his VP pick according to the most conventional of conventional wisdom.

A podcast by Noah Feldman: Nadine Strossen, a former president of the ACLU and author of the book HATE: Why We Should Resist it With Free Speech, Not Censorship, explains what the left needs to know about free speech.

A podcast by Noah Feldman: Eugene Volokh, a professor of law at the University of California, Los Angeles, discusses workplace harassment, racial discrimination, and the First Amendment.

A government watchdog said in a report out Tuesday that the Labor Department “significantly broadened” an exemption allowing millions of health-care workers to be denied paid sick leave as part of the law Congress passed in March to help workers during the coronavirus pandemic. Congress passed the Families First Coronavirus Response Act in March to ensure workers at small- and medium-size companies were able to take paid leave if they or a family member became sick with the coronavirus. The law exempts health-care providers as well as companies with more than 500 employees. But an Office of the Inspector General report noted that a move by the Labor Department to more broadly expand how they categorize health-care providers ended up leaving far more workers without a guarantee of paid sick leave than the agency’s estimate of 9 million...Actions taken to enforce the sick-leave provisions in the Families First Coronavirus Response Act have skewed even further away from investigations: 85 percent have been resolved through conciliations. The agency’s Wage and Hour Division responded to the OIG’s findings, noting that they were “developing and sharing models for conducting virtual investigations,” and that they also pledged to maintain a backlog of delayed on-site investigations to be tackled when it was safer to conduct those reviews. But critics suggest the pandemic alone is not a sufficient excuse for the drop-off in investigations, some aspects of which could be done remotely. “These numbers just look so different than the numbers that I’m used to seeing in terms of conciliations versus investigations,” said Sharon Block, a senior Obama administration labor department official. “It really does jump out. That 85 percent is just a really big number.”

On Aug. 8, President Donald Trump signed numerous executive orders, meant to address the economic crisis caused by coronavirus. The political background to the move was a stalled negotiation process in Congress, where Democrats and Republicans have so far been unable to come to an agreement. The Verify team is addressing three big questions relating to the executive order deferring payroll taxes through the end of the year, including how the order could impact the Social Security fund...Will people receive larger paychecks, starting in September, as a result of the executive order? This depends on where someone works, according to Howell Jackson, a Law Professor at Harvard University. Some companies will decide to pay their workers what is no longer collected in taxes. Others may choose to hold on to the extra revenue, in case it needs to be repaid to the federal government in January.  "If you are sitting in an HR department, you’re talking to your attorneys about what to do," Jackson said. "This conversation is probably happening in 100,000 places today.” Will the executive order impact the Social Security fund? This remains unclear. Payroll taxes do go to programs such as Social Security and Medicare, thus a gap in funding could impact available funds. However, since this is a deferral, the money should presumably make its way to the fund eventually.  This question would become even more complicated if the federal government decided to forgive the tax, as suggested by President Trump at a recent press conference. This type of action can only be authorized by Congress. "If the payroll taxes are never paid into social security that will weaken the trust fund," Jackson said. "It won’t hurt benefits immediately. But in 10 to 12 years' time, it could have an impact.”

According to some estimates, over 50 million people today may be engaged in some type of gig work. In the side hustle economy, gig work has become a necessity to make ends meet while also providing some flexibility that a typical 9 to 5 wouldn’t. But gig workers are facing an identity crisis now, especially those working for popular app-based companies like Uber, Lyft, Postmates, or Doordash. Are they their own self-employed bosses, or are they employees?...The essence of an independent contractor is that they have control over how their work is conducted. They call the shots — but that means that they’re outside the reach of most employment protections and benefits. And there’s a lot of those, says Terri Gerstein, Director of the State and Local Enforcement Project at Harvard Law School’s Labor and Worklife Program. “That's minimum wage, overtime, workers' compensation — which gives you medical care and lost wages if you get sick or injured at work — the right to organize collectively bargain, form a union, anti-discrimination laws, social security, paid sick leave laws, all of them,” she explains...But is the flexibility tradeoff a fact of life? “There is nothing in any employment law that says you can’t have an employee and give them flexible hours,” says Gerstein. “So I don't know what else to say about that.” She says that this line of reasoning has become something of a “trope” with businesses. “[They say] if you become an employee, you give up flexibility — that's because they've built their business model this way.” “When workers are misclassified as independent contractors, it has a lot of serious implications,” says Gerstein. That includes all the protections mentioned above, which have been especially crucial during the pandemic. The CARES Act expanded unemployment benefits to cover self-employed workers, but if Uber drivers aren’t true independent contractors anyway, they shouldn’t have to rely on a temporary emergency expansion to receive their legal benefits.

Some of the most important developments in politics do not happen every election cycle, but every ten years, when politicians scrap the old battleground map and struggle to replace it with a new one more favorable to their interests. Steven Hill, a former fellow at New America, described how this works in his still pertinent 2003 book “Fixing Elections: The Failure of America’s Winner Take All Politics.” ...Hill was referring to “the process of redistricting” that he argued was legalized “theft” engaged in by “the two major political parties, their incumbents, and their consultants,” which Hill said was “part of the everyday give-and-take (mostly take) of America’s winner-take-all politics.” Hill first made his argument at a time when both parties were still colluding in developing new districts designed to protect incumbents, Republicans and Democrats alike. Since then, the parties have abandoned any semblance of bipartisanship and are now fully engaged in an all-out battle for control of state legislatures...In addition to creating wasted votes — thus undermining a key principle of democracy — an additional consequence of gerrymandering is what Nicholas Stephanopoulos of Harvard Law School calls “representational distortion”: the adoption of policies that do not have majority support in the electorate. Stephanopoulos, the author of the 2018 paper “The Causes and Consequences of Gerrymandering,” described “one glaring example,” in an email: "Democrats got more votes than Republicans in the 2012 and 2018 Wisconsin state legislative elections. So in a world without gerrymandering, Democrats would have been able to block all kinds of conservative policies between 2012 and 2014, including environmental deregulation, tax cuts, abortion restrictions, gun deregulation, etc." Instead, Republican majorities in both branches of the Wisconsin legislature enacted all of those policies, as well as a package of anti-union measures.

How do you tell the story of an institution as enigmatic as the United States Supreme Court? On Sunday evening, Ruth Marcus, Adam Cohen and Richard Lazarus, three Harvard Law School graduates and authors of recent nonfiction works about the high court, set out to answer this question. Moderated by reporter Dahlia Lithwick, the panel of authors talked all things Supreme Court, from its structure to its most recent rulings, in a debate-style panel as part of the latest event in the 2020 Martha’s Vineyard Author Series. Opening the event with a bang, Ms. Lithwick posed the panelists with a polarizing question that set the tone for the rest of the discussion—whether they see the court as a political entity or purely a legal one...Drawing on his time representing environmental groups and governments in 40 Supreme Court cases, Mr. Lazarus said that to him, the court is a legal institution, stationed above politics. “When you have all the top political commentators, left and right, and both of them want to propel just the story [of a political court] it’s very hard for a second story to ever have any value to people,” said Mr. Lazarus...Mr. Lazarus on the other hand, stressed the importance that good lawyers with strong arguments play in the court’s rulings. But Ms. Marcus pushed back, citing the limits of lawyering under the current President. Keeping up a brisk pace, the scholars touched on a wide range of topics posed by viewers, like the impact of the Presidency on the court and whether or not the court should adopt structural reforms, like adding additional justices or instating term limits.

An article by Noah Feldman: In June, you’ll recall, the U.S. Supreme Court held that the Title VII prohibition on workplace discrimination “because of sex” covers transgender people. You might think that, as a result, this form of discrimination would now be more broadly illegal for the government or for people in many scenarios outside the office. It turns out things aren’t that simple. Since the landmark ruling in Bostock v. Clayton County, President Donald Trump’s administration has enacted rules that allow discrimination against transgender people by hospitals and homeless shelters. And its ban on trans troops remains in place. All this is possible because the Supreme Court’s opinion interpreted just one particular statute regarding the workplace. It wasn’t based on the U.S. Constitution. So there isn’t yet a recognized constitutional ban on government discrimination against transgender people. Statutes that are similar or identical to Title VII ought to be interpreted to prohibit transgender discrimination. But that leaves room to debate what happens if a statute is different or where no statute applies. In other words, we’re in one of those weird periods of time where some discrimination against a particular group has been rendered unlawful, while other forms of discrimination are in a confusing twilight zone. There was a similar situation between June 2013, when the Supreme Court struck down the federal Defense of Marriage Act in U.S. v. Windsor, and June 2015, when the court established a constitutional right to gay marriage in Obergefell v. Hodges. In the interim, it was hard for gay couples to know their legal status when they were married in some states but arguably not married in others. The Department of Health and Human Services rule stripping Obama-era protections for transgender hospital patients, which became final in June and was written before the Bostock ruling, is the most legally vulnerable of the Trump administration efforts.

An article by Cass Sunstein: The system of separation of powers is in real trouble. That’s the main conclusion to draw from President Donald Trump’s recent executive orders, attempting to circumvent Congress with actions that (he said) would provide some economic relief made necessary by the pandemic. A central assumption behind the U.S. Constitution no longer holds. The reason is that when members of Congress are asked to assess aggressive and possibly unlawful actions of a sitting president, they now ask one question: Is he a Democrat or a Republican? If he’s a Democrat, Republicans will complain of intolerable overreaching and an unconstitutional power grab, even if there’s no overreaching at all. If he’s a Republican, Republicans will stand by silently or applaud, even if there’s palpable overreaching. It’s probably right to say that Democrats show the same pattern, just in reverse. But because the outrage of Republican members over President Barack Obama’s unilateral actions is so recent, and because it is such a wild contrast with their general acquiescence in Trump’s unilateral actions, it’s fair to point to Republican hypocrisy in particular. (Disclosure: During the Obama administration, I served as administrator of the Office of Information and Regulatory Affairs.) It wasn’t supposed to be this way. The framers of the Constitution specifically sought to ensure that members of Congress would care about their institutional authority and work hard to protect it, no matter who occupied the White House. In the Federalist No. 51, James Madison emphasized the importance of giving “those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.” As he put it, “Ambition must be made to counteract ambition.” Madison added, “The interest of the man must be connected with the constitutional rights of the place.” Those are the most important words in Madison’s argument.

An article by Noah Feldman: Over the weekend, President Donald Trump issued several new executive orders aimed at extending the Covid-19 economic stimulus that has offered some financial relief to millions of Americans. But instead of bringing clarity, the orders have generated a raft of confusion. Are they even constitutional? Will they go into effect? For your convenience, here’s a simple rule of thumb for what the president can and cannot do on his own, without Congress: No to new money; yes to relaxed collection of money you owe the government. Under the Constitution, only Congress can initiate new spending. The president may only spend money that has already been appropriated. He’s supposed to spend it on the purpose for which Congress appropriated it in the first place; but in real life, he has pretty wide discretion to say whether a given expenditure fits under a given appropriation. This is the reason Trump’s proposed supplemental unemployment benefit of $400 may not last long, if it goes into effect at all. Congress hasn’t allocated any new money (yet) for a new benefit. So Trump can only spend money already appropriated for other, related purposes in FEMA emergency funds. He can’t overspend the existing appropriation. (He may be gambling that if he uses up money that’s supposed to be spent on hurricanes and other natural disasters, Congress will hurry up and appropriate more money.) Someone will probably file a suit saying that Trump can’t use the FEMA emergency funds for the supplemental benefit. But in practice, a court would likely defer to Trump’s executive discretion on what counts as a reasonable use of emergency funds. There is one quirk to be noted: $100 of the $400 is supposed to come from states, and Trump’s order seems to say you can only get the federal $300 if you first qualify for the state’s $100. Trump can’t control what states do. And it is uncertain whether the president can condition receipt of the $300 benefit on states first providing $100.