Media Mentions

In an interview with MSNBC Chief Legal Correspondent Ari Melber on the government shutdown and the president's authority to build a wall without congressional approval, Harvard Law Professor Laurence Tribe said: "This is unlike any National Emergency we have seen, it's an attempt by the President to assume powers that belong to the other branches."

President Trump is continuing to leave open the possibility that he might declare a national emergency and try to authorize a controversial wall on the southern border on his own if Congress won’t approve the $5.7 billion he’s asking for.... A number of legal experts have weighed in on the concept. Here’s a roundup from around the Web of what they’ve been saying. ... The Constitution, on the other hand, is relatively silent on the topic of emergency powers, Harvard law professor Noah Feldman said in a Bloomberg Opinion column. Feldman notes that Article I, Section 9 allows for the suspension of habeas corpus in cases of rebellion or invasion. But he continued, “From the fact that the suspension clause exists, you can deduce something very basic to the U.S. constitutional system: There are no other inherent constitutional emergency powers.”.... Harvard law professor Mark Tushnet told NBC News, “My instinct is to say that if he declares a national emergency and uses this pot of unappropriated money for the wall, he’s on very solid legal ground.”

An op-ed by Stephen Mihm: How safe is Federal Reserve Chair Jerome Powell’s job? After President Donald Trump threatened to fire him several weeks ago, Powell upped the ante by declaring that he would refuse to resign if Trump tried to get rid of him, effectively drawing a line in the sand. ... The court also drew a hard and fast distinction between executive officers under the direct control of the president (e.g. cabinet heads) and the officers of independent agencies. And yet, as the Bloomberg Opinion columnist Cass Sunstein and his fellow legal scholar Lawrence Lessig observed in a 1994 law review article, the court “has not said what ‘good cause’ means. The Court has also failed to define “inefficiency, neglect of duty, or malfeasance in office … There is no controlling judicial decision on how ‘independent’ the independent agencies and officers can legitimately claim to be.”

In late 2017, Susan Crawford was visiting Seoul, South Korea, about six months before it hosted the 2018 Winter Olympics. Although she’s an expert in telecommunications policy, Crawford was stunned at what she witnessed in Korea, which she describes as “the most wired nation on the planet” — flawless cellphone coverage even in rural areas, real-time data transmission, driverless buses using the latest communications technology to smoothly avoid pedestrians and evade obstructions. “I’ve never been embarrassed to be American before,” Crawford told me recently. “But when Korean people tell you that going to America is like taking a rural vacation, it really makes you stop and worry about what we’re up to.”

On Jan. 1, a treasure trove of classic literature, along with other artistic works, entered the public domain as copyright protections expired.  ... Why now? As so often in American life, the answer begins with the Constitution. Section 8 of Article 1 provides Congress with the power to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The first Copyright Act in the United States was passed in 1790, with a maximum term of 28 years. And as also so often in American life, a simple idea evolved over the years into a system described as “mind-numbingly complex” by the Times and “worse than the tax code” by Rebecca Tushnet, an expert in intellectual property at Harvard Law School.

Medicine is at a turning point, on the cusp of major change as disruptive technologies such as gene, RNA, and cell therapies enable scientists to approach diseases in new ways. The swiftness of this change is being driven by innovations such as CRISPR gene editing, which makes it possible to correct errors in DNA with relative ease. ... Yet as I. Glenn Cohen, faculty director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School, has said, gene editing comes in many varieties, with many consequences. Any deep ethical discussion needs to take into account those distinctions.

Last month, I was extremely fortunate to attend the conference on Progressive Halacha hosted by the Julis-Rabinowitz Program on Jewish and Israeli Law at Harvard Law School. With distinguished guests from across virtually all Jewish denominations, this event provided a remarkably comprehensive view of how contemporary halacha is understood, practiced, and taught in a wide variety of environments. Perhaps because the conference took place on neutral ground–which is to say, an academic setting as opposed to a specific Jewish institution–participants engaged in dialogue even when they were in disagreement. No single position was advanced as a definitive approach.

As President Trump readies his Oval Office address on the Government shutdown, the Russian lawyer who met with Paul Manafort, Jared Kushner and Donald Trump Jr. at the 2016 Trump Tower meeting, is indicted by Federal Prosecutors. MSNBC Chief Legal Correspondent Ari Melber breaks down how we are now at the point where two people from the Trump Tower meeting have been indicted by the feds – one on the Trump side and one on the Russia side. Harvard Law Professor, Laurence Tribe, tells Melber that the Russian lawyer, Natalya Veselnitskaya, has been “clearly exposed as an agent of the Kremlin”.

Paul Manafort shared Trump campaign polling data with an associate tied to Russian intelligence during the 2016 campaign, prosecutors alleged, according to a court filing unsealed on Tuesday. ...  The plea agreement gives the prosecutors the power to almost unilaterally decide whether Mr. Manafort has violated it. Unless Mr. Manafort can show they acted in bad faith — a high bar — their judgment stands. The prosecutors could also decide to file new charges against Mr. Manafort for lying to them, but do not plan to do so, according to the defense lawyers’ filing, unsealed Tuesday. “They have him so deeply in the soup here that what both sides are almost saying is that this doesn’t matter,” said Nancy Gertner, a Harvard Law School professor.

An op-ed by Cass Sunstein: Suppose that in the next few weeks, a federal agency wanted to issue a new regulation that would cost the American people $5 billion in 2019. Under both Republican and Democratic administrations, the agency would be required to submit its regulation to the White House Office of Information and Regulatory Affairs, seeking its approval. OIRA, as the regulatory office is known, would be highly skeptical.  By any calculation, $5 billion is a huge amount. In fact, it would exceed the reported annual cost of all federal regulations approved by OIRA in some recent years.

An op-ed by Noah Feldman: President Donald Trump has said that he can declare a national emergency and order his border wall to be built. He’s wrong. The U.S. Constitution doesn’t contain any national emergency provision that would allow the president to spend money for purposes not allocated by Congress. And it’s clearer than clear that Congress not only hasn’t authorized money for a wall along the border with Mexico but also doesn’t intend to do so. The upshot is that any attempt by Trump to get around Congress by using invented emergency powers would violate the Constitution. It almost certainly would be blocked by the courts. And it would constitute a high crime and misdemeanor qualifying him for impeachment.

Americans can expect to get tax refunds during the partial government shutdown after all, following a decision by the White House Office of Management and Budget. ... Sen. Ron Wyden, the top Democrat on the Senate Finance Committee, has requested a briefing on whether Treasury and the IRS can process refunds during a shutdown and has not yet received a response, a spokeswoman told MarketWatch. Over Twitter, Harvard Law professor Laurence Tribe said the Supreme Court has held such responses unconstitutional. "This is just a line-item veto in drag. SCOTUS held such cut-and-paste presidential responses to congressional spending flatly unconstitutional in Clinton v. NY (1998)."

President Donald Trump will address the nation this evening to talk about what he calls “the Humanitarian and National Security crisis on our Southern Border.” ...  So can the president get funding for the wall without Congressional approval? We’re unpacking the legal arguments for and against that process. GUESTS Mark Tushnet, Law professor, Harvard Law School. Matthew Dallek, Associate professor of political management, Graduate School of Political Management at The George Washington University; author of “Defenseless Under the Night: The Roosevelt Years and the Origins of Homeland Security”  

If this country really has ambitions of having a 5G revolution like the one being talked about the Consumer Electronics Show this week, we need something else first. Fiber optic connections that reach everyone. "What it is is synthetic glass, in which the manufactured process is so carefully controlled that light can travel through that glass for many dozens of miles without using any of the signal that it's carrying," says Susan Crawford, a professor at Harvard Law School and the author of “Fiber: The Coming Tech Revolution - and Why America Might Miss it.” ... Susan Crawford says fiber technology is the biggest tech story the United States should be paying attention to in 2019.

Noah Feldman, Harvard Law professor and a Bloomberg Opinion columnist, discusses his column: "No ‘Emergency’ Will Allow Trump to Build His Wall." Hosted by Pimm Foxx and Lisa Abramowicz.

The Labor Department is starting 2019 without confirmed officials in several key leadership posts, vacancies the business community fears could derail some policy initiatives. ... “I can certainly say there was nothing like this during our time,” Sharon Block, a former DOL policy office head under President Barack Obama, told Bloomberg Law. “These are not easy jobs. People learn how to do them and do them well. There’s huge value in having them stay. I can’t imagine doing the kind of work we did with the kind of vacancies they have.” The department still has career staff who are relied on heavily, she said. The WHD operated without a Senate-confirmed leader for the first five years of the Obama administration and under acting leadership for stretches of the George W. Bush era.

The resignation of Defense Secretary Jim Mattis has sent shockwaves through the Pentagon, with senior staff heading toward the exits. After announcing a plan to immediately withdraw from Syria, President Donald Trump and National Security Advisor John Bolton are downplaying plans to pull out immediately. A major hack is rocking the German political scene. Vietnam may play host to the next U.S.-North Korea summit meeting. And American and Chinese trade negotiators reconvene. ...The indictment strategy. American prosecutors have rolled out a number of indictments in recent months targeting Chinese cyberespionage, but two scholars aren’t convinced the legal campaign is providing any measure of deterrence. “On the basis of the public record in light of its publicly stated aims, the indictment strategy appears to be a magnificent failure,” Jack Goldsmith and Robert D. Williams write in Lawfare.

President Donald Trump would almost certainly face a legal challenge if he carries out his threat to get funding for a U.S.-Mexico border wall by declaring a national emergency and circumventing Congress’s purse-strings power. Legal scholars said it was unclear exactly how such a step would play out, but they agreed that a court test would likely focus on whether an emergency actually exists on the southern border and on the limits of presidential power over taxpayer funds. ... Mark Tushnet, a constitutional law professor at Harvard Law School, said, “It’s a very aggressive use of presidential authority. The fact that it’s aggressive doesn’t mean it’s unlawful. But it does mean that it goes beyond the boundaries of what has been done before.”

For years, many labor experts seemed ready to write the obituary of strikes in America. In 2017, the number of major strikes—those involving more than 1,000 workers—dwindled to just seven in the private sector. Indeed, over the past decade, there were just 13 major strikes a year on average. That’s less than one-sixth the average annual number in the 1980s (83), and less than one-twentieth the yearly average in the 1970s (288).In 1971 alone, 2.5 million private-sector workers went on strike, according to the Bureau of Labor Statistics—that’s 100 times the number, 25,000, who went on strike in 2017. ... Sharon Block, executive director of the Labor and Worklife Program at Harvard Law School, says labor’s renewed militancy reflects a broader shift in the zeitgeist. “When there’s a lot of collective action happening more generally—the Women’s March, immigration advocates, gun rights—people are thinking more about acting collectively, which is something that people hadn’t been thinking about for a long time in this country in a significant way.”

Marta Villanueva enrolled in a culinary program at the Art Institute of Phoenix as a way to cope with post-traumatic stress disorder and anxiety after leaving the Army.  She used GI Bill benefits to pay for classes, which began in mid-2017. She dreamed of opening a business one day. But the school closed in December, leaving Villanueva out the time and money, and unsure how, or if, she’ll get her GI Bill benefits reinstated. ...But the contraction in private, mostly for-profit colleges isn't only a recent phenomenon, said Toby Merrill, director of the Project on Predatory Student Lending at Harvard Law School. There's a long-term, boom-and-bust cycle that runs counter to unemployment numbers, Merrill said.

During a conversation on MSNBC on Sunday, Harvard professor Lawrence Lessig said that the real emergency facing the nation is the president himself. In response to a question about what powers President Donald Trumpwould have if he were to declare a state of emergency in order to get his border way, Lessig said the problem is that “the man is using words that have no connection to reality.” ... “He says we have a national crisis, a national security crisis. A national emergency. I agree we have a national emergency but the emergency is this president. The emergency is the fact we don’t have an executive who’s exercising his power in a responsible way.