Emergency powers cannot be used to circumvent the Constitution
There is no 'energy emergency', and no emergency gives the occupant of the Oval Office authority to selectively void rights written into the Constitution.
Donald Trump has issued executive orders purporting to have authority to redirect appropriated funds to favored energy sector companies and to revoke the citizenship of some Americans based on their parents’ actions. In both cases, he is asserting powers that do not exist.
There is no ‘energy emergency’
On Monday, January 20, 2025, Donald Trump used his signature as President of the United States to declare an “energy emergency”. In doing so, he stated falsely that:
“The energy and critical minerals (“energy”) identification, leasing, development, production, transportation, refining, and generation capacity of the United States are all far too inadequate to meet our Nation’s needs.”
First of all, were this true, much of the country would be experiencing rolling blackouts, with power grids constantly failing, the Internet and other essential services constantly disrupted, hospitals unable to keep the lights on or power life-saving equipment. This happens in places that have a genuine energy deficit; the United States is experiencing none of these things.
Mr. Trump also asserts that policies enacted by the 44th and 46th presidents and their administrations, with the support of Congress and the Courts, cities, states, and international law, to reduce threats from and build resilience against climate disruption have created a deficit in oil and gas production. This is a lie. The United States now produces more oil and gas than ever—more than any other nation on Earth and more than it has at any time in its history.
The Constitution of the United States is clear that while rights need not be enumerated to enjoy full protection of the law, powers of office do not exist unless they are clearly outlined in law, and those laws must abide by the Constitution. Federal law limits what constitutes an emergency, and Congress has the power to veto emergency declarations.
Even the Supreme Court’s extremely controversial recognition of selective presidential immunity recognizes that actions taken outside the scope of office and beyond the law are not protected.
Powers of the presidency cannot be used to circumvent or violate the law.
Emergency powers cannot be used to void Constitutional rights
Mr. Trump also sought by the stroke of a pen to grant himself authority to void a specific right outlined in clear language in the Constitution. In asserting that people seeking asylum at the US border with Mexico constitute a national emergency, he claims the authority to nullify the citizenship of Americans whose parents were born in other countries, depending on the documents granted to those parents by the US government.
The Constitution provides, in Section 1 of the 14th Amendment, that
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States…”
No part of the Constitution provides the President with any authority, whether during an emergency or otherwise, to deprive any American of this most fundamental human right. Were it possible to simply void this right by the stroke of a pen, no right enjoyed by any American would be safe, nor would any provision of the Constitution.
The people of the United States are facing a test. In a democracy, it is necessary to be suspicious of any overreach by office-holders; this is one of the basic requirements of engaged citizenship and self-government.
The requirement that the powerful be held to account, that they be questioned and opposed when they act without authority, is why the Executive branch is checked and balanced by the Legislative and Judicial branches. It is also why the free and independent press is the fourth core lever of self government, and why the people ultimately retain rights whether those in power want it to be so or not.
The legal response
The State of New Jersey is leading the legal pushback against the effort to selectively eliminate rights conferred by the 14th Amendment to all persons born in the United States. The complaint filed in federal court describes the executive order as a:
“flagrantly unlawful attempt to strip hundreds of thousands American-born children of their citizenship based on their parentage.”
The complaint goes on to note that:
The Citizenship Clause contains no exceptions based on the citizenship or immigration status of one’s parent(s). Rather, the Citizenship Clause’s only requirements are that an individual be born “in the United States” and “subject to the jurisdiction thereof.”
Not only is there no exception; the Constitution specifically warns that having any lawful authority regarding a person (jurisdiction) precludes the possibility of stripping that person of citizenship. This is a safeguard that not only protects the children of immigrants; it protects all Americans against arbitrary attempts to reduce their rights or legal standing.
Climate leadership is not going away
While the President has authority over foreign relations, it is not clear US involvement in the Paris Agreement can be so easily cast aside.
First, the order Trump issued contains provisions that contravene established law, including the formal process for withdrawal from the Paris Agreement.
While interfering with executive authority in some cases, the Supreme Court has upheld or declined to block climate liability claims.
The Court also actively considers the right of the American people to benefit from effective international legal agreements.
In 2017, when he previously attempted this, the country stood up and set a new standard for subnational climate leadership. That movement never went away and is preparing now to reassert local leadership “fighting for sustainable U.S. trade, fighting for our manufacturers and farmers, fighting for our communities.”
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