The Dictatorship
There’s a simple reason Trump cannot simply erase birthright citizenship
On his first day in office, President Donald Trump signed an executive order that purportedly would end what is known as birthright citizenshipthe concept that anyone born in the United States is a U.S. citizen. That right is enshrined in the 14th Amendment to the Constitution.
Just as a president does not have the authority to establish a national religion, or stay in office for a third term, the president does not have the authority to erase protections set forth in an amendment to the Constitution. To claim such authority is cynical at best, a sop to nativist elements on the right that should not survive legal challenge. But, in the meantime, millions of lives could be thrown into disarray with the president’s stroke of the pen, and perhaps that’s the point.
The notion of birthright citizenship was established as a principle of law in England in the 1600s and was enshrined in the U.S.’ “Second Founding,” the passage of the 13th, 14th and 15th Amendments to the Constitution in the wake of the Civil War.
The president does not have the authority to erase protections set forth in an amendment to the Constitution.
The 14th Amendment, which guarantees to anyone born within the United States the rights and protections of citizenship, was a direct response to the Supreme Court’s infamous Dred Scott decision of 1857. That decision became one of the many sparks that contributed to the Civil War. There, the court not only found unconstitutional any efforts by Congress to “compromise” around the spread of slavery to new U.S. territories and states; it also determined that enslaved persons, even ones who had resided in areas that prohibited slavery, did not enjoy the rights of citizens. The decision helped galvanize and harden public opinion around slavery, both among those who opposed it and those who supported it and wanted it to operate unfettered by federal law.
After the end of the war and during Reconstruction, Congress passed these amendments with the explicit purpose of ending slavery and involuntary servitude in all their forms. The 14th Amendment’s opening text provides that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Because of that language, the president cannot, with the stroke of a pen, rewrite the Constitution.
Nor can Congress. Indeed, roughly 30 years after passage of the 14th Amendment, Congress attempted to exclude from its protections individuals born in the U.S. who were the children of Chinese parents. But the Supreme Court, in United States v. Wong Kim Arkfound that any person born within the United States was entitled to benefit from the citizenship provisions of the 14th Amendment. The plain language of the amendment made that clear and the court endorsed that obvious position.
So what would it really take to rewrite the 14th Amendment? Well, another amendment, which would require not just a two-thirds vote in both houses of Congress in favor of repeal of the 14th Amendment, but also ratification by three quarters of the states. Such events are highly unlikely. The Constitution is hard to amend, as it should be. And the notion that the president can sidestep that process is simply preposterous.
Now, that likely will not stop the president and those who wish to see the end of birthright citizenship as enshrined in the Constitution from trying. Indeed, it was a pillar of the Project 2025 playbook. That does not change the fact that the Constitution protects this path to citizenship and only an amendment to the Constitution can change it.
But that does not mean that the president’s effort to try to rewrite the Constitution with the stroke of a pen will not disrupt lives in the meantime. The cruelty of such a cynical move may be exactly what those who wish to end birthright citizenship wish to achieve.
The lives of real people will not be upended, and all for a cynical, cruel and unconstitutional joyride. But that may be the point.
Certainly, such a step would be met promptly by lawsuits challenging the action. In fact, a collection of 18 state attorneys general and some cities have already filed a suit against the order. Perhaps some judge, somewhere, will consider such an action permissible and refuse to prevent it from going into effect. Would it only prevent citizenship from being conferred on those born on U.S. soil in the future as the order purports to do? Could a judicial ruling approving the order invite the administration to seek to strip current citizens of their status?
But the Supreme Court — even this conservative court — will be hard-pressed to engage in down-is-up, up-is-down, Alice-in-Wonderland thinking: that the explicit words of the Constitution, as interpreted consistently for roughly a century-and-a-half, do not mean what they say.
Nevertheless, the president is seeking to end birthright citizenship; such action should be deemed contrary to the plain text of the Constitution. At the same time, lower court endorsement of the position might embolden even more aggressive steps by the administration, even if the Supreme Court should ultimately say the order is unconstitutional, which it should. That does not mean that, in the interim, the lives of real people will not be upended, and all for a cynical, cruel and unconstitutional joyride. But that may be the point.
Ray Brescia
Ray Brescia is a Professor of Law at Albany Law School and author of the forthcoming book, “The Private Is Political: Identity and Democracy in the Age of Surveillance Capitalism.”
The Dictatorship
Judge orders federal government to restore funding for $16B New York-New Jersey rail tunnel project
NEW YORK (AP) — A federal judge ordered the Trump administration to restore funding to a new rail tunnel between New York and New Jersey on Friday, ruling just as construction was set to shut down on the massive infrastructure project.
The decision came months after the administration announced it was halting $16 billion in support for the project, citing the then-government shutdown and what a top federal budget official said were concerns about unconstitutional spending around diversity, equity and inclusion principles.
U.S. District Judge Jeannette A. Vargas in Manhattan approved a request by New York and New Jersey for a temporary restraining order barring the administration from withholding the funds while the states seek a preliminary injunction that would keep the money flowing while their lawsuit plays out in court.
“The Court is also persuaded that Plaintiffs would suffer irreparable harm in the absence of an injunction,” the judge wrote. “Plaintiffs have adequately shown that the public interest would be harmed by a delay in a critical infrastructure project.”
The White House and U.S. Department of Transportation did not immediately respond to emails seeking comment Friday night.
New York Attorney General Letitia James called the ruling “a critical victory for workers and commuters in New York and New Jersey.”
“I am grateful the court acted quickly to block this senseless funding freeze, which threatened to derail a project our entire region depends on,” James said in a statement. “The Hudson Tunnel Project is one of the most important infrastructure projects in the nation, and we will keep fighting to ensure construction can continue without unnecessary federal interference.”
The panel overseeing the project, the Gateway Development Commission, had said work would stop late Friday afternoon because of the federal funding freeze, resulting in the immediate loss of about 1,000 jobs as well as thousands of additional jobs in the future.
It was not immediately clear when work would resume. In a nighttime statement, the commission said: “As soon as funds are released, we will work quickly to restart site operations and get our workers back on the job.”
The new tunnel is meant to ease strain on an existing, over 110-year-old tunnel that connects New York and New Jersey for Amtrak and commuter trains, where delays can lead to backups up and down the East Coast.
New York and New Jersey sued over the funding pause this week, as did the Gateway Development Commission, moving to restore the Trump administration’s support.
The suspension was seen as way for the Trump administration to put pressure on Democratic Senate Minority Leader Chuck Schumer of New York, whom the White House was blaming for a government shutdown last year. The shutdown was resolved a few weeks later.
Speaking to the media on Air Force One, Trump was asked about reports that he would unfreeze funding for the tunnel project if Schumer would agree to a plan to rename Penn Station in New York and Dulles International Airport in Virginia after Trump.
“Chuck Schumer suggested that to me, about changing the name of Penn Station to Trump Station. Dulles Airport is really separate,” Trump responded.
Schumer responded on social media: “Absolute lie. He knows it. Everyone knows it. Only one man can restart the project and he can restart it with the snap of his fingers.”
At a hearing in the states’ lawsuit earlier in Manhattan, Shankar Duraiswamy, of the New Jersey attorney general’s office, told the judge that the states need “urgent relief” because of the harm and costs that will occur if the project is stopped.
“There is literally a massive hole in the earth in North Bergen,” he said, referring to the New Jersey city and claiming that abandoning the sites, even temporarily, “would pose a substantial safety and public health threat.”
Duraiswamy said the problem with shutting down now is that even a short stoppage would cause longer delays because workers will be laid off and go off to other jobs and it’ll be hard to quickly remobilize if funding becomes available. And, he added, “any long-term suspension of funding could torpedo the project.”
Tara Schwartz, an assistant U.S. attorney arguing for the government, disagreed with the “parade of horribles” described by attorneys for the states.
She noted that the states had not even made clear how long the sites could be maintained by the Gateway Development Commission. So the judge asked Duraiswamy, and he said they could maintain the sites for a few weeks and possibly a few months, but that the states would continue to suffer irreparable harm because trains would continue to run late because they rely on an outdated tunnel.
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Collins reported from Hartford, Connecticut.
The Dictatorship
Trump reopens Atlantic Ocean monument to commercial fishing
PORTLAND, Maine (AP) — President Donald Trump issued a proclamation on Friday reopening a huge swath of protected sea in the Atlantic Ocean to commercial fishing.
Trump said the move would reestablish fishing in Northeast Canyons and Seamounts Marine National Monument off the New England coast, a nearly 5,000-square-mile preserve east of Cape Cod that was created by former President Barack Obama. Trump rolled back protections in the area in 2020 and President Joe Biden later restored them.
Trump’s proclamation is his latest move to try to strengthen U.S. fishing while rolling back existing conservation measures. He signed a broader order earlier this year that calls on the federal government to reduce the regulatory burden on fishermen in the coming weeks.
Trump has long been critical of the marine monument, which Obama described at the time as a chance to protect vulnerable undersea corals and ecosystems. Trump has described it as an unfair penalty on commercial fishermen.
The president wrote in Friday’s proclamation that he believed “appropriately managed commercial fishing would not put the objects of historic and scientific interest that the monument protects at risk.”
Trump signaled that he would restore fishing in the area in May. The White House said at the time the move would “support the vital Maine lobster industry by ensuring unfettered access to the coastal waters of the United States.”
Trump has frequently linked his support of fishing rights in the monument to Maine fishermen, though the protected area is located southeast of Cape Cod.
Commercial fishing groups have long sought the reopening of the protected area and voiced support on Friday.
“We deserve to be rewarded, not penalized,” said John Williams, president and owner of the New Bedford, Massachusetts-based Atlantic Red Crab Company. “We’re demonstrating that we can fish sustainably and continue to harvest on a sustainable level in perpetuity.”
Environmental groups have been highly critical of the move to reopen the monument to fishing. Some have vowed to fight it in court.
“The Northeast Canyons and Seamounts Marine National Monument was created to provide strong protections for the wide range of marine life that live in these unique habitats,” said Gib Brogan, fisheries campaign director at environmental group Oceana.
Environmentalists also challenged a Trump move last year that they say removes important protections from the Pacific Islands Heritage Marine National Monument off Hawaii. That is a much larger marine monument created by President George W. Bush in 2009 and later expanded by Obama. A judge blocked commercial fishing in the area in August.
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This story has been corrected to say that President Donald Trump’s declaration on reopening protected parts of the Atlantic Ocean to commercial fishing was a proclamation, not an executive order.
The Dictatorship
Energy chief says coal plant orders helped during winter storm
WASHINGTON (AP) — The Trump administration said Friday that its use of emergency orders to keep aging coal-fired plants operating helped prevent a major blackout from power shortages during the brutally frigid weather that has gripped most of America for the past two weeks.
Scattered outages occurred because of ice accumulation that felled local power lines, leaving hundreds of thousands without power, at least briefly. But the nation’s regional power grids generally maintained reliable electricity service, with natural gas and coal leading the way, Energy Secretary Chris Wright and other officials said.
“The big picture story is where we actually got energy from during this storm,” Wright said at a news conference at the Energy Department. “In fact, we had times where our existing capacity couldn’t deliver anything and the lights would have gone out if not for emergency orders.’’
Critics said Wright’s comments understated the role that wind and solar power played during the storm, adding that the administration’s orders over the past nine months to keep some oil and coal-fired plants open past their planned retirement dates could cost U.S. utility customers billions of dollars over the next few years.
In the lead-up to the storm and cold temperatures, Wright also excused utilities from pollution limits on fossil fuel-fired plants and ordered that backup generators at data centers and other large facilities be available to grid operators and utilities to supply emergency power.
Trump administration’s ‘way of doing business’
Deputy Energy Secretary James Danly drew a contrast with the grid performance during a similar severe storm in 2021, calling the Trump administration’s approach a “new way of doing business” during power emergencies.
“The bottom line here is that we managed to ensure that there was sufficient capacity,” Danly said. “Not one area had a blackout or a forced outage due to loss of capacity.”
There were nearly 1 million outages during the storm’s peak, but most were not long-lasting, Danly said. Nearly 55,000 customers were without power as of Friday, including more than 17,000 in Mississippi and 7,000 in Texas, according to the outage tracking website poweroutage.us.
Wright cited statistics showing that natural gas — long the nation’s leading source of electricity — provided 43% of electric power at peak generation during the storm, followed by coal at 24% and nuclear at 15%. Renewables such as wind, solar and hydropower provided a combined 14%, Wright said.
Wright and President Donald Trump have frequently made the case for their fossil fuel-friendly orders, blaming the Biden administration and Democratic-leaning states for policies they say threaten the reliability of the nation’s electric grid and drive up electricity bills.
The proportion of coal and natural gas power rose substantially during the storm, while the proportion of wind power used during the storm dropped by 40%, Wright said. Solar stayed flat at a fraction of the amount of coal and natural gas power.
Wright dismissed solar as “meaningless” during a severe storm in certain regions and said, “It’s not an all-weather power source.”
Pushback on orders to keep coal plants running
Some state and utility officials have chafed at Wright’s orders to keep plants operating, saying they’re not necessary for emergency power and are simply raising electric bills for regular ratepayers to keep relatively expensive plants operating.
Preventing the nation’s coal plants from retiring over the next three years could cost consumers at least $3 billion per year, according to a report from Grid Strategies, a consulting firm.
“A lot of these plants were retiring because they’re no longer economic to operate,” said Michael Goggin, an executive vice president at Grid Strategies. “It’s expensive to keep them going.”
Opponents have challenged the coal orders in court, arguing that Congress intended for emergency powers to be used only in rare, temporary cases.
The nonprofit owners of the Craig Generating Station in Colorado, the Tri-State Generation and Transmission Association and Platte River Power Authority, last week filed a protest with the Energy Department seeking to reverse Wright’s order to keep its Unit 1 operating. The Dec. 30 order came one day before it was to shut down.
In its request for a rehearing, the nonprofits said its members and communities were unfairly being forced to pay to keep a costly and unreliable plant operating and that the department didn’t even comply with the law requiring it to show why this was the best alternative. They also said the department’s order unfairly punished them for the mistakes of other utilities.
Wright brushed off the criticism, saying there would be “far larger costs from blackouts.”
Solar and wind said to save consumers ‘billions’
Clean energy advocates said that renewable sources saved consumers billions during the storm and helped ensure the lights stayed on, especially in regions that have significant investments in wind, solar, and energy storage.
In Texas, wind, solar and storage provided about 25% of power for the grid’s 27 million customers — a major increase over 2021 and a key reason blackouts were largely avoided, said John Hensley, a senior vice president at the American Clean Power Association, an industry group.
Wind and solar also accounted for significant power in the Midwest and Southwest, Hensley said. In the mid-Atlantic region served by grid operator PJM, only 5% of power came from wind and solar generation, a fact Hensley blamed on lack of investment in renewables in the region, as well as hostility by the Trump administration to new wind and solar power.
Blaming renewables for not performing during the storm “is like trying to blame someone on the bench for losing the game,” Hensley said. “They didn’t get a chance” to play.
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