Justice Rebecca Bradley poses questions during oral arguments in the Wisconsin Supreme Court on Tuesday. (Screenshot/WisEye)

When does a doctor’s recommendation to a colleague become something their mutual patient should know about?

That was the question that lawyers for an obstetrician/gynecologist and one of her patients discussed before the Wisconsin Supreme Court Tuesday. The recommendation, which the ob/gyn doctor made to a surgeon who operated on the patient, led to the woman having her ovaries removed without her knowledge or consent.

Dr. Carol Neuman made the recommendation to a surgeon, Dr. Michael McGauley, who was to remove a section of Melissa Hubbard’s colon. Neuman was treating Hubbard for endometriosis and suggested to McGauley that he could take out her ovaries during the same procedure.

He did so, but Hubbard didn’t learn about that step — or that Neuman had recommended it — until afterward.

Hubbard sued Neuman, claiming that the doctor should have told her about the recommendation. Neuman’s lawyers told the Rock County circuit judge hearing the case that it should be dismissed because one doctor’s recommendation to another doctor didn’t violate any duty under Wisconsin law.

The judge denied the dismissal motion, and it was that decision that was at the center of Tuesday’s arguments in the Supreme Court.

David Pliner, Neuman’s lawyer, told the justices that if Neuman had issued a medical order or a prescription, or if the surgeon had been a direct employee, it might have fallen under Wisconsin’s informed consent law.

“Dr. Neuman had nothing more than, at most, a conversation with Dr. McGauley, saying, ‘Here’s what I recommend you do,’” Pliner said. It was not a prescription or an order, however, he said.

There are “no allegations that she had the authority to require him to do it, order him to do it,” Pliner said.

At one point, according to court documents that the justices referred to Tuesday,  Neuman and McGauley had contemplated doing the surgery together. In the end, the ob/gyn observed the procedure but didn’t perform any part of it.

When it was his turn to present Hubbard’s case, her lawyer, Guy Fish, argued that it should be straightforward.

“Dr. Neuman was a treating physician up to and through the surgery, where she attended,” Fish said. “And she failed to disclose to Melissa Hubbard the recommendation that Dr. McGauley perform ovarian surgery upon her. Simply put, if Melissa had learned that recommendation before the surgery, she would have declined the surgery.”

Fish dismissed the distinction Pliner made between an order or prescription and a recommendation as “an argument of semantics.”

“I think that’s a misplaced analysis,” Fish said. “If the two doctors are discussing and [agree to a] recommendation or an order that a type of surgery is to be performed, I submit respectfully, the patient needs to be informed of that recommendation or prescription or order, so they can make the best, informed, fullest and timely decision on the care they’re going to receive.”

Justice Rebecca Bradley described the underlying allegations of the case as egregious, but questioned whether informed consent law was the appropriate instrument.

“This woman’s real complaint is the allegation that her ovaries were removed and no one told her they were going to remove her ovaries,” Bradley said.

She questioned the lower courts’ framing of the matter as a matter of informed consent.  “So we’re talking about and I am trying to figure out how we got to this point. It appears that the circuit court decided to interpret the complaint as one stating a claim for informed consent,” Bradley said.

“But the complaint is not that she wasn’t advised of alternative modes of treatment and the risks and benefits of different modes of treatment,” Bradley said. “We go back to older common laws. It’s kind of a battery. If a doctor removes somebody’s body part without telling them that that is what they’re planning to do, that is a terrible invasion.”

Bradley also briefly raised the question of whether McGauley had been sued as well. Pliner said that the surgeon had been sued before Neuman was. That case was dismissed, but the reason for the dismissal was never explained or discussed in Tuesday’s Court session.

Bradley and other justices seemed wary of the implications of the appeals court decision. 

Pliner argued that if it was affirmed, that could make Neuman’s recommendation, or other casual exchanges among medical professionals, subject to the informed consent law, to the detriment of medical care.

“What happens when physicians consult with each other?” Chief Justice Annette Ziegler asked Fish. “I mean, there may be a specialist who’s going to conduct a surgery and may want to consult with your GP over, you know, what else you may have going on. Would your GP have to have a separate meeting with the patient to disclose that the GP is going to give their opinion to the other surgeon?”

Fish said the specific facts of such conversations should govern whether informed consent is required. Doctor-to-doctor dialogue about the color of suture to use or whether to hold an operation in the morning or the afternoon would not rise to that level, he suggested.

“But this specific medical mode of a surgical removal of an ovary, I think, is mandated that that be disclosed to my client,” Fish said.

“The facts you’ve alleged for your client are egregious, right?” Rebecca Bradley said to Fish later in the arguments.

“Dr. McGauley is alleged to have removed her ovaries and not told her he was going to do that. That’s the big problem,” she said. “So setting aside the facts of your case, we have to be very careful about the pronouncement of law we make.”

The appeals court decision, Bradley said, has language “imposing a duty on all physicians, under all circumstances, to inform a patient about all reasonable alternative medical modes of treatment and the benefits and risks of treatment beyond the unique facts of your case, and that’s where we have to be very careful.”

President-elect Donald Trump's nominee for secretary of defense, Pete Hegseth, speaks during a Senate Armed Services confirmation hearing on Capitol Hill on Jan. 14, 2025, in Washington, D.C. (Photo by Andrew Harnik/Getty Images)

WASHINGTON — Senators jockeyed to magnify contrasting aspects of Pete Hegseth’s life at his confirmation hearing Tuesday on whether the veteran, Fox News personality and accused perpetrator of sexual misconduct is qualified to lead the nation’s military and its nearly $900 billion budget.

Lawmakers on the Senate Committee on Armed Services questioned the nominee for secretary of defense for just over four hours, the first of many hearings to come for President-elect Donald Trump’s Cabinet picks. Trump takes office in six days.

Senators on the Republican-led committee praised Hegseth for his “warrior ethos.” The veteran-turned-cable-news-host authored several books that have, among other talking points, compared modern patriotism to the crusades and critiqued Pentagon leadership, including his 2024 book “War on the Warriors: Behind the Betrayal of Men Who Keep Us Free.”

Committee Chair Roger Wicker described Hegseth as an “unconventional” choice and someone who will “bring a swift end to corrosive distractions such as DEI,” shorthand for diversity, equity and inclusion.

“Mr. Hegseth will bring energy and fresh ideas to shake up the bureaucracy. He will focus relentlessly on the war fighter and the military’s core missions, deterring wars and winning the ones we must fight,” the Mississippi Republican said.

But the committee’s ranking member, Jack Reed, slammed Hegseth’s nomination, telling him “the totality of your own writings and alleged conduct would disqualify any service member from holding any leadership position in the military, much less being confirmed as the secretary of defense.”

“Mr. Hegseth, I hope you will explain why you believe such diversity is making the military weak, and how you propose to undo that without undermining military leadership and harming readiness, recruitment and retention,” said the Rhode Island Democrat, who also questioned Hegseth’s recent assertion in his book against the Geneva Conventions.

Dust on his boots

Seated before the committee in a blue jacket, red striped tie and American flag pocket square, Hegseth pledged to be a “change agent” and agreed with Trump that “it’s time to give someone with dust on his boots the helm.”

“Like many of my generation, I’ve been there. I’ve led troops in combat. I’ve been on patrol for days. I’ve pulled the trigger down range, heard bullets whiz by, flex-cuffed insurgents, called in close air support, led medevacs, dodged IEDs, pulled out dead bodies and knelt before a battlefield cross,” Hegseth said.

Hegseth was interrupted by shouting audience members three times in the first several minutes of his opening remarks.

In the weeks since Trump nominated Hegseth, accusations of sexual assault, harassment, alcohol abuse and financial mismanagement at veterans’ nonprofits have surfaced against the 44-year-old who served in the Iraq and Afghanistan wars.

Hegseth told Wicker he chalked up the allegations to a “coordinated smear campaign” from “anonymous sources.”

“I’m not a perfect person, as has been acknowledged, saved by the grace of God, by Jesus and Jenny,” he said, referring to his third wife, television producer Jennifer Hegseth, who was seated behind him.

At numerous points in the hearing Wicker entered into the record letters attesting to Hegseth’s character, including from former colleagues at Vets for Freedom and Concerned Veterans for America, two veterans service organizations he led following his time as an Army infantry officer.

Women in combat roles?

Throughout the course of the hearing several female committee members, among them veterans who served in noncombat, combat and intelligence roles, pressed Hegseth on his years-long record of disparaging women in the military.

As recently as Nov. 7, he told podcast host Shawn Ryan that “I’m straight up just saying we should not have women in combat roles.”

Sen. Joni Ernst, an Iowa Republican who served in the Army National Guard for over two decades, point-blank asked Hegseth to declare on the record that women should remain in combat roles, given that they meet “very, very high standards.”

“My answer is yes, exactly the way that you caveated it,” Hegseth said.

In an impassioned critique, Democratic Sen. Tammy Duckworth, a combat veteran from Illinois, said, “How can we ask these warriors to train and perform the absolute highest standards when you are asking us to lower the standards to make you the secretary of defense simply because you are buddies with our president-elect?”

Duckworth lost both her legs and partial use of her right arm when a rocket-propelled grenade downed her Black Hawk helicopter north of Baghdad.

Sen. Angus King, an independent from Maine, said Hegseth seems to have “converted over the last several weeks.”

“You wrote in your book just last year, this is the book ‘War on Warriors,’ ‘But if we’re going to send our boys to fight, and it should be boys, we need to unleash them to win.’ … Which is it? Is it? Is it only boys can fight? I mean, you’ve, you’ve testified here today that you believe in women in combat.”

Managing an organization

Democratic senators also questioned Hegseth’s ability to manage an organization’s finances.

Sen. Richard Blumenthal, of Connecticut, held up tax records from Hegseth’s tenure at the Concerned Veterans of America that he said showed budget shortfalls and up to $75,000 in debt from credit card transactions.

“That isn’t the kind of fiscal management we want at the Department of Defense,” Blumenthal said.

“I don’t believe that you can tell this committee or the people of America that you are qualified to lead them, I would support you as the spokesperson for the Pentagon, I don’t dispute your communication skills,” Blumenthal said.

Hegseth told the committee that one of his top priorities would be to obtain a clean audit of Pentagon spending.

Money from television and book sales

Hegseth’s own financial disclosure shows that he’s made just north of $4.6 million as a Fox News host since 2022.

Hegseth, who lives in Tennessee, reported a $348,000 advance for his “War on Warriors” book and a range of anywhere from $100,001 to $1 million in royalties. The disclosure form only requires ranges, not specific dollar amounts.

He also reported just under $1 million in income for speeches he’s given over the last two years.

Additionally, Hegseth reported royalties in the range of $100,001 to $1 million for his 2022 book “Battle for the American Mind: Uprooting a Century of Miseducation.” The book, co-written with David Goodwin, champions a “classical” Christian education system and claims to reveal the “untold story of the Progressive plan to neutralize the basis of our Republic,” according to a synopsis featured on the book’s official website.

In June 2022, while hosting “Fox and Friends Weekend,” Hegseth scrawled“Return to Sender” on his Harvard graduate degree diploma – striking the word “Harvard” and replacing it with “Critical Theory” – and told viewers he didn’t want it anymore.

In 2020, Hegseth delivered remarks at the Conservative Political Action Conference, rallying for a “battle for the soul of America” and promoting his book titled “American Crusade.”

He drew a through line from the 11th-century military campaigns when, he said, “Europe was effectively under threat from Islamic hordes,” to the American Revolution, and all the way to 2016 when “a country rose up and said ‘We’re going to make America great again.’”

“We live in a similar moment,” Hegseth told the CPAC crowd.

In 2016, while promoting his book “In the Arena” to an audience at the conservative Heritage Foundation, Hegseth railed against many cultural topics while juxtaposing them with the famed Teddy Roosevelt arena speech in Paris on which his book centered.

“We teach our kids to be wimps. We turn our men into women and women into men,” he said.

On the topic of immigration in Europe, Hegseth said, “When you forget who you are and you don’t demand, at some level, allegiance and assimilation from populations that separate themselves and then have 10 kids while you’re having one, that’s how the most popular name in London becomes Mohammed for newborn boys.”

Hegseth began as a Fox News contributor in 2014.

In July 2010, Hegseth testified against the Supreme Court nomination of Elena Kagan over her “unbecoming” treatment of military recruiters at Harvard in 2004.

Hegseth joined the Army ROTC during his undergraduate education at Princeton University in the early 2000s. 

A PFAS advisory sign along Starkweather Creek. (Henry Redman | Wisconsin Examiner)

The Wisconsin Supreme Court on Tuesday heard oral arguments in a case that could upend the Department of Natural Resources’ (DNR) authority to enforce the state’s decades old spills law, which allows the agency to hold companies and property owners responsible for toxic contamination. 

The case was initially brought by a Waukesha County-based leather cleaning company and joined by Wisconsin Manufacturers and Commerce (WMC), the state’s largest business lobby. The arguments came just months before the election for an open seat on the Court that could again flip the body’s ideological makeup. In the 2023 state Supreme Court race, WMC spent more than $5 million airing ads in support of Republican-backed former Justice Dan Kelly. 

Leather Rich sued the DNR after the agency found it responsible for PFAS contamination on its property. PFAS, a family of man-made chemical compounds known as “forever chemicals” do not break down easily in the body or the environment and have been connected to serious health problems. 

For years, PFAS were used for a variety of commercial and industrial purposes, including non-stick pans, fast food wrappers and firefighting foams. In recent years, state and federal governments have been attempting to crack down on PFAS contamination but in Wisconsin, water supplies across the state have been found to be contaminated. 

The lawsuit argues that the DNR can’t use the spills law to force Leather Rich to clean up the contamination because the agency never promulgated an administrative rule declaring that PFAS chemicals count as hazardous materials under the spills law. In 2022, a Waukesha County judge agreed, finding that the agency lacked the authority to regulate the chemicals. 

Last year, a conservative-controlled Court of Appeals affirmed the circuit court decision. 

During the oral arguments Tuesday, Department of Justice Assistant Attorney General Colin Roth said that if the Court upheld the lower court decision, it would “fundamentally rewrite the spills law.” 

The law was written not to include a comprehensive list of materials the Legislature considered hazardous. Instead the law defines hazardous materials and leaves the rest open-ended, which the DNR has taken for the past 40 years to mean it can decide which materials are subject to regulation. The lawsuit argues the agency would need to create administrative rules with a list of specific  materials to be regulated as  hazardous, which Roth argued would cause serious harm to the state’s environment and the executive branch’s ability to perform its function. 

“The spills law has worked so well for decades precisely because the Legislature broadly defined the hazardous substances that dischargers must report and clean up,” he said. “Respondents insist that DNR must ignore this harmful PFAs discharge, and indeed many other kinds of harmful discharges, because no administrative rule lists all hazardous substances covered by the spills.” 

Roth said upending the spills law wouldn’t make the contamination go away, it would remain in the environment until the DNR can complete the rulemaking process and it would  “seriously weaken the entire executive branch’s core power to interpret and execute the law. Virtually all statutes require interpretation before agencies can administer them. If agencies cannot administer laws like this one without rulemaking, executive branch activity would grind to a halt.” 

He added that the spills law must be left open-ended because of the nature of scientific progress. He noted that numerous times throughout the history of the law, research has found that materials regularly used by industry have been found to be harmful and then regulated under the spills law and said that the agency must be able to respond to “a new set of facts.” 

“Time and time again, this happens under the spills law, science evolves,” he said. “People understand the contaminants that were used as part of ordinary commercial activity pose a threat to human health. This is how the spills law has worked for 50 years.”

Lucas Vebber, the attorney for WMC, argued that the agency wouldn’t need to promulgate rules delineating every possible hazardous material, but instead create a rule that gives a set of “objective criteria” under which a material can be declared hazardous. 

Vebber argued that it’s unfair to regulate businesses by allowing them to use a certain material for decades, then suddenly declaring the same material hazardous and subjecting those businesses to enforcement action from the agency. He added that businesses need clarity and the rulemaking process would create that.

“So at what point do people know, or are they supposed to know, that those substances become hazardous?” Vebber asked. “The Department has said that if a tanker truck of milk spills, it is certainly a hazardous substance discharge. But today, [opposing counsel] said, If you drop a gallon of milk, it’s not a hazardous substance discharge. So somewhere in the middle there, it becomes a hazardous substance discharge.” 

Justice Rebecca Dallet asked how the government would ever function if it had to pass a rule for each possible situation. 

“Each individual case is different,” she said. “Every fact situation is different. What if they spill five gallons? What if they spill 10? What if they spill 20? What about almond milk? What about oat milk? Isn’t that exactly why we have enforcement actions? Isn’t that exactly why we have the ability to interpret that the executive has to be able to apply the law? That’s called applying the law to the facts.” 

Justice Janet Protasiewicz noted that under the current administrative rulemaking process (which is currently being challenged in a separate lawsuit in which the Court will hear arguments Thursday) the Legislature has the authority to veto rules proposed by executive agencies and the possibility of a legislative veto could add even more uncertainty to the process, making it even harder for businesses to know what the rules are. 

Roth concluded his argument by pointing to a separate state statute which requires that any proposed administrative rule with an estimated compliance cost greater than $10 million be approved by the Legislature in a separate piece of legislation. He said any spills law rules would certainly exceed that threshold and questioned if it would make sense for the Court to require the Legislature to pass a separate bill in order for the executive branch to enforce a law it passed decades ago. 

“We’re in a situation where not only must the agency promulgate a rule defining hazardous substances, but the Legislature would have to pass another bill authorizing that rule,” he said. “So what do we have? We have a spill law that can’t be implemented until another statute is passed, amending it.”

A person uses a garden hose in an effort to save a neighboring home from catching fire during the Eaton Fire on Jan. 8, 2025, in Altadena, California.  (Photo by Mario Tama/Getty Images)

WASHINGTON — U.S. House Speaker Mike Johnson said Tuesday that Congress will likely provide billions in disaster aid to help California recover from devastating wildfires, but indicated he might set a new precedent by placing conditions on that emergency funding based on policy and political differences with the Democratic-led state and the city of Los Angeles.

“No one wants to leave any American who is in need hanging, so to speak, right?” said Johnson, a Louisiana Republican. “But at the same time, we recognize that we have a $36 trillion federal debt and we have to balance these needs. It’s about priorities.”

Federal natural disaster aid doesn’t historically come with strings attached since hurricanes, tornadoes, earthquakes and wildfires affect large swaths of the country that are represented by lawmakers from both political parties.

Johnson said he had watched footage of the fires in and around Los Angeles with “heartache” and acknowledged Louisiana has received significant federal disaster aid without conditions, though he said things must change.

“The Americans there that are affected desperately need and deserve help,” Johnson said. “But you’ve also heard us talk about our concerns with the governance of the state of California. And to the extent there is complicity involved in the scope of disaster, then we think that’s something that needs to be carefully regarded.”

Republicans, including President-elect Donald Trump, have levied numerous criticisms at California Gov. Gavin Newsom and Los Angeles Mayor Karen Bass about their management of water resources, fire department budgets and forest management.

Some of what GOP politicians have said isn’t necessarily accurate, according to fact checks from the Los Angeles Times, CalMatters, PBS News and several other organizations.

CalMatters, a nonprofit news organization, has explained why wildfires season has become longer and more problematic. And the Los Angeles Times has repeatedly written about the Santa Ana winds and their impact on Southern California.

New precedent

Johnson adding conditions or restrictions on federal disaster aid would set a new precedent that Democrats could use in the future when providing disaster aid for Republican-run areas of the country.

For example, Democrats could argue that a Republican-run state didn’t spend enough money to curb climate change, which contributes to more frequent and stronger natural disasters.

Democrats could also use Johnson placing restrictions on disaster aid to California as a reason to require GOP-controlled states to implement different building standards for homes or businesses in flood-prone areas or those consistently hit by hurricanes, including Louisiana.

Johnson said during the press conference that Congress would ultimately follow the Trump administration’s lead on a disaster aid package, but laid the groundwork for potentially shifting how lawmakers help state and local governments recover from natural disasters for decades to come.

“We will follow the administration’s lead on this,” Johnson said. “But I will say we have to make sure there are safeguards on the precious treasure of the American people. There are natural disasters, of course. But if they are made much worse by human error and deliberate policy choices that were unwise and were stated as such at the time, then I think that that’s something that needs to be carefully regarded.”

Dem support needed

Unless Republicans bundle a disaster aid bill within their reconciliation package, which seems unlikely, they’ll need Democratic support for the legislation.

That would give Democratic leaders the opportunity to head off Johnson’s efforts to place conditions on disaster aid, or seek other concessions.

While Republicans control both the House and Senate, those are especially small majorities and many GOP lawmakers vote against large-scale spending bills.

The Senate’s legislative filibuster also requires at least 60 of its members vote to advance bills toward final passage, which is more than the 53 Republican senators in that chamber.

Johnson noted during his press conference that the incoming Trump administration will need time to fully assess the damage from the wildfires before it can submit a supplemental spending request to Congress.

Once that happens, he said, the House will review the proposal and begin putting a bill together.

December disaster aid

Congress passed a roughly $100 billion emergency disaster aid bill in December to bolster numerous federal agencies that help Americans recover from natural disasters.

That followed the Biden administration asking lawmakers to approve about the same amount in emergency spending, including $40 billion for the Federal Emergency Management Agency’s disaster relief fund, $24 billion for the Department of Agriculture, $8 billion for the Department of Transportation to repair roads and bridges, and $2 billion for the Small Business Administration for low-interest disaster loans.

That request covered the ongoing federal response to wildfires in Maui; tornados through the Midwest; the collapse of the Francis Scott Key Bridge in Baltimore, Maryland; and severe storms in Alaska, Connecticut, Illinois, Louisiana, New Mexico, Pennsylvania and Virginia.

It also followed Hurricanes Helene and Milton wreaking havoc in Alabama, Florida, Georgia, North Carolina, South Carolina, Tennessee and Virginia.

Because of that package, Johnson said, FEMA, the Small Business Administration and others have enough aid to begin helping Southern California recover from the fires while also helping those throughout the rest of the country. 

Migrants from Mexico and Guatemala are apprehended by U.S. Customs and Border Patrol officers after crossing a section of border wall into the United States on Jan. 4, 2025, in Ruby, Arizona. (Photo by Brandon Bell/Getty Images)

WASHINGTON — The U.S. Senate this week is moving to pass a bill that immigration attorneys and experts warn could have far-reaching ramifications, such as swamping federal courts with challenges by state attorneys general and subjecting some migrants — including children and teens — to rapid detention and deportation.

The legislation, the Laken Riley Act, S. 5, would greatly expand detention of immigrants and give state attorneys general broad discretion to challenge federal immigration policy if enacted into law.

Experts are concerned that the bill would aid President-elect Donald Trump’s campaign promise to enact mass deportations by requiring the U.S. Department of Homeland Security to detain a noncitizen on an arrest, charge or conviction of petty theft — a response to the murder of the 22-year-old Georgia nursing student for whom the measure is named.

Laken Riley went out on a run and her roommates became concerned after she did not return home. Jose Antonio Ibarra, a 26-year-old migrant from Venezuela, last month was convicted of her murder and received a life sentence. According to U.S. Immigration and Customs Enforcement, he allegedly entered the country illegally in 2022 and was charged with shoplifting but was not detained by ICE.

In a presidential election in which immigration was a central theme, the measure has gained bipartisan support, with 48 U.S. House Democrats voting with Republicans for passage. An overwhelming 32 Senate Democrats and one independent sided with Republicans on a procedural vote to move the bill forward.

Senate Democrats have argued that the procedural vote is an opportunity to debate the bill and add amendments, but it’s unclear if Senate Republicans will agree to that process.

The bill’s lead sponsor, Alabama Sen. Katie Britt, said on the Senate floor before the procedural vote that the bill “is necessary as it is straightforward.”

“I want to be very clear, only individuals that would be subject to this bill are criminal illegal aliens,” Britt said. “These individuals crossed our border illegally, and then they committed a crime after getting here. That’s who we’re talking about.”

But immigration attorneys argue that the bill would not only affect undocumented people, but would ensnare some immigrants with legal status, lead to the detainment of children, challenge the release and bond decisions of immigration judges and have the potential to interfere with the issuing of visas on the international stage.

The bill, in its definition of “immigrants who are inadmissible” as those who are affected, is problematic, they say.

“This will fuel mass deportation,” Nithya Nathan-Pineau, a policy attorney and strategist with the Immigrant Legal Resource Center, said. 

She said that if someone is detained and they’re not able to defend themselves — because immigrants are not guaranteed a lawyer under U.S. law — they could easily end up with a conviction.

“That conviction may then subject them to deportation,” she said. “It’s designed to funnel people into detention so that they can be deported.”

Heidi Altman, the federal advocacy director at the National Immigration Law Center, said she’s concerned about the bill because there’s a long history of immigrant communities being heavily policed and more likely to have interaction with law enforcement.

“There remain serious racial disparities in policing and arrest in the United States, and so basing immigration detention on a mere arrest, quite clearly and inevitably, imports even more racial disparities from the criminal field system into the immigration system,” she said.

New powers for attorneys general

If it becomes law, the legislation would give broad legal standing for state attorneys general to challenge federal immigration law. Aaron Reichlin-Melnick, a senior fellow at the left-leaning think tank American Immigration Council, said that provision aims to circumvent a recent U.S. Supreme Court decision.

In a 2023 case, the Supreme Court ruled that Texas and Louisiana did not have standing to challenge the Biden administration’s priorities for who would be deported.

Additionally, the bill would allow those state attorneys general to question the bond decisions of immigration judges.

U.S.immigration courts are already strained, Altman said, adding that kind of legal power given to attorneys general would undermine the authority of immigration judges “and swamp the federal courts with decisions that have already been made by immigration judges being revisited.”

“You can’t have a functioning judicial system of any kind that can be questioned at any moment and on any individual decision by any state attorney general who has a political ax to grind,” she said.

That kind of authority could impact international diplomacy, Reichlin-Melnick said.

Those state attorneys general could seek a federal court order to compel the U.S. State Department to halt issuing visas to a country that refused to accept nationals who were eligible for deportation, known as recalcitrant countries. Some of those countries include China, Cuba, India and Russia.

“So you could have a single state attorney general and a single federal judge dictating international policy towards other countries around the world, and potentially forcing the secretary of state to impose sweeping visa bans on nationals of entire countries,” Reichlin-Melnick said.

Altman said that kind of authority for a state to halt visas “could potentially be among the most destabilizing in terms of larger government functioning and also foreign relations.”

“There’s concerns with regard to (a) foreign nation’s ability to trust that the federal government actually has any uniform control over visa policy, in addition to the destabilizing impact it would have on the ability of people from any countries targeted to be able to continue traveling to and from the United States for various reasons that are important to trade and the economy, like work visas and students’ visas,” she said.

DACA program

While the bill pushed by Republicans aims to require mandatory detention of immigrants without proper legal authorization who are arrested, charged or convicted of theft, shoplifting or burglary, it could also have an impact on people with a discretionary legal status, such as those with parole or in the Deferred Action for Childhood Arrivals program, or DACA, Altman said.

“It’s written right into the (DACA) regulation that the Department of Homeland Security has the discretion and the authority to terminate DACA status at any time on any basis,” she said. “And so if the Laken Riley Act were to be enacted and require the mandatory detention of people with a theft offense, what would likely happen under a Trump administration is that if a DACA recipient was arrested, that they would be taken into custody and DHS would have the authority to concurrently terminate their DACA status.”

Nathan-Pineau added that because the legality of DACA is currently being challenged in the courts, recipients are “at risk, because deferred action could be rescinded at any time.”

Immigrants who hold a green card, typically known as Lawful Permanent Residents, would not fall under the mandatory detention requirement, unless they were considered removable by violating immigration law, Altman said.

For the more than 1 million people with Temporary Protected Status, meaning their country is deemed too dangerous to return to so they are allowed to work and live in the United States, Altman said that “we would argue that TPS recipients could not be subject to (the bill), but as it’s written it’s quite ambiguous.”

Nathan-Pineau raised the issue that the bill does not provide a carve-out for immigrant youth and would subject them to mandatory detention.

“There is no exception for children,” she said.

Nathan-Pineau said that in her work as an immigration lawyer, she’s often represented youth who have been charged with shoplifting groceries. 

“That is one of the most common interactions between my young clients and law enforcement,” she said.

‘Quite extreme in American law’

DHS has broad authority to detain immigrants, Altman said, but “what this bill does is expand a particularly harsh type of detention, which we refer to as mandatory detention, because people detained under this authority cannot even ask for a bond hearing.”

“Their detention is just automatic, and this bill expands that category of detention for people just on the basis of an arrest or a charge, regardless of whether that arrest ever is going to result in a conviction,” she said. “That’s quite extreme in American law.”

Reichlin-Melnick noted that the bill has no time limit to when the petty theft charge applies.

“If you were arrested for theft when you’re 13, and you’re an undocumented immigrant now, you’ve been here for 30 years, and you apply for a Green Card through your spouse, you would be (considered for) mandatory detention,” he said.

Nathan-Pineau said that mandatory detention already applies for immigrants who have “committed pretty significant offenses,” not something that is considered property crime. 

Nathan-Pineau said if the bill were to become law, it would have required a former client of hers to be detained. That client was a mother in an abusive situation, where her abuser refused to give her money for groceries to feed her kids so she shoplifted and was arrested, Nathan-Pineau said.

“Those are the kinds of things that we want people to think about when we’re thinking about property crimes, and we’re thinking about burglary,” she said. “These are the kinds of offenses that could lead to someone being sent to detention for months or years on end.”

Former U.S. Rep Sean Duffy is Trump's pick to head the Department of Transportation, an agency whose work has never been an area of interest for him. | Official U.S. House of Representatives photo

When President-elect Donald Trump announced he would nominate Wisconsin’s former U.S. Rep. Sean Duffy as Secretary of Transportation, I had two reactions: Why Duffy? And why transportation?

As a reporter I’ve covered Duffy since he was the Ashland district attorney running as a Tea Party candidate for Congress in 2009 and winning election in 2010. I followed him through subsequent town hall meetings and election interviews until he won his fifth term in 2018, then resigned in 2019 because of concern for his newborn daughter’s heart condition. I’ve been around Duffy, a Republican conservative, enough to know he is an intelligent man who can hold his own in verbal sparring in Congressional debates, process questions from angry citizens at town hall meetings, and go toe-to-toe with high-profile personalities on CNN or Fox News (where he currently hosts a show).

Duffy, a father of nine, is married to Fox & Friends weekend host Rachel Campos-Duffy. He doesn’t have any of the obvious baggage some of Trump’s other nominees are hauling, including Department of Defense nominee Pete Hegseth, a Fox News personality who has been accused of a history of drunkenness, disturbing behavior toward women and even sexual assault.

That’s not to say Duffy hasn’t made some outrageous comments. He referred to Madison as a “communist community” in December 2016 when a local recount was conducted after the presidential election that Trump had won, and he responded to criticism by suggesting liberals should obtain the services of a therapy dog to calm their angst – also not well received.

Snarkiness aside, what should be a concern is that Duffy’s resume doesn’t include experience relevant for running an organization as large as the U.S. Department of Transportation, which has with 55,000 employees, or for overseeing the nation’s roads, airfields, rail system and shipping ports.

It is not even trite to say that Duffy has gained just as much or more management experience being a father of nine children than he ever had running a small staff as a district attorney, congressman, K Street lobbyist or as the co-host of his Fox Business show, The Bottom Line with Dagen & Duffy.

There is nothing in Duffy’s background that suggests he would be effective at managing and leading a large organization on the scale of the Department of Transportation. He is not a former high-ranking military officer or chief executive of a large corporation or non-profit who can point to his track record managing thousands of workers.

Of course, one could argue that the current Secretary of Transportation, Pete Buttigieg, didn’t have enough management experience, either, prior to assuming office. However, as the former mayor of South Bend, Indiana, a city of over 100,000 with more than 1,000 employees and day-to-day demands that included many transportation-related issues, Buttigieg was placed on a much larger, higher launching pad before taking the helm at D.O.T.  

Duffy has nothing close to Buttigieg’s management experience going into his confirmation hearing for Secretary of Transportation.

When the Senate commences his hearing on Wednesday, there should be many questions about why Duffy believes he can head such a large department without the benefit of management experience.

One of Duffy’s primary qualifications for the nomination appears to be his visibility on Fox News. Trump loves Fox and has picked other agency heads from the Fox lineup, including Hegseth.

The other reason I scratch my head over Trump’s nomination of Duffy for Secretary of Transportation is that while Duffy was in Congress, he very rarely raised any concerns or even showed an interest in transportation infrastructure.

I’ve poured over 90 pages of downloaded news stories, well over a dozen stories I wrote as the local reporter for the Spooner Advocate and the Sawyer County Record while covering Duffy, and I only have one account in all those years when he even mentioned a transportation issue.

In a 2012 interview, while I was a reporter for the Spooner Advocate, Duffy touted working with Minnesota’s Democratic U.S. Sen. Amy Klobuchar on efforts to ensure the construction of the new St. Croix River bridge between Wisconsin and Minnesota at Stillwater.

That’s it — one mention of a transportation issue.

So, it is surprising that someone who appeared to have little interest in or concern for the nation’s transportation systems would be nominated to head that department.

It would have been less surprising if Trump had nominated Duffy for a secretary or deputy position that addressed health insurance, banking and financial services, immigration and the border or even housing – issues Duffy repeatedly addressed while in Congress.

Even though many constituents told Duffy during  town hall meetings that the Affordable Care Act (ACA) offered them their first chance to get affordable health insurance, Duffy spoke out repeatedly against the ACA. He bragged at one meeting that he had either voted to repeal or amend the ACA 50 times because he found it restricted choice for some consumers and resulted in higher costs for others.

Duffy’s criticism of the ACA is that while it put more people on health insurance it didn’t address the rising cost of health care. He advocated for more health care choices and open pricing so consumers could choose the lowest-cost health care available on the open market.

Although he didn’t know the specifics, Duffy said he looked forward to Republican plans to replace ACA, but those plans never materialized after attempts to repeal ACA failed.

As part of the Tea Party wave of candidates who opposed the bailouts of financial institutions that started with President George W. Bush  and continued under President Barack Obama, Duffy was very much against bailing out banks that were “too big to fail.”

“To capitalize banks that made bad decisions just promotes bad behavior,” he said in 2010. “I think we should have stepped in and capitalized banks that behaved well and let those who performed poorly fail. I don’t believe in the philosophy of too big to fail, and that is what Dave Obey (Wisconsin’s former  Democratic 7th District Congressman) bought into. Now I think when banks make bad decisions, they are going to expect the government to step in and bail them out,” he said.

The “free market,” said Duffy, should be the primary agent in the economy, not the government.

“I believe in free markets,” he said. “I believe they work on the way up, so if you take advantage of the upside of these risky investments, you also better take advantage of the downside when you lose your pants. But the government is stepping in, minimizing the downside risk, and encouraging risky behavior.”

Duffy said he supported “smart regulations” on banks but not legislation that shut down all risk-taking. 

Even after the Consumer Financial Protection Bureau (CFPB) issued fines of $180 million against Wells Fargo for allowing employees to open accounts that were never authorized by the clients who owned them, Duffy was critical of the organization because Duffy charged the CFPB had responded with little urgency to whistleblowers and only acted after an investigation by a Los Angeles District Attorney and coverage by the LA Times.

Another predictable appointment for  Duffy would have been as immigration czar. Duffy has advocated for more scrutiny and security at the borders and not allowing undocumented immigrants to receive government aid. But during his tenure in Congress, Duffy didn’t support mass deportations now championed by Trump. Duffy even advocated for a path to citizenship for those who had been in the country for years and wanted more visas for skilled workers trained in the U.S. to help the economy.

One important local issue Duffy took on while serving in Congress was the alleged misuse of an $800,000 federal grant to the Lac Courte Oreilles Band of Lake Superior Chippewa. The tribe was part of his district. Duffy called for a forensic audit of how the tribe used a Housing and Urban Development (HUD) grant to address mold remediation in tribal housing.

Duffy’s attention resulted in a congressional subcommittee hearing he chaired at the reservation in July 2017 to address issues of housing for Native Americans and particularly how those HUD dollars were used.

Duffy’s intervention was controversial with tribal leadership, who characterized it as impinging on tribal sovereignty, but Duffy justified his actions out of concern for tribal members living in unsafe conditions.

It would have made a lot more sense for Trump to nominate Duffy for a number of other high-level posts in his administration other than transportation, including Secretary of HUD.

It will be interesting to hear Duffy explain to the Senate nominating committee why he should be the next Secretary of Transportation without relevant management experience or a record of interest in transportation issues.

If Duffy can’t make a convincing argument that he should be trusted to lead an agency of 55,000 that addresses the most critical infrastructure issues and sometimes responds to large-scale disasters then he shouldn’t be approved, no matter how bright his star shines on Fox.

Jack Smith, at the time the special counsel, delivers remarks on a recently unsealed indictment including four felony counts against Donald Trump at the Justice Department on Aug. 1, 2023 in Washington, D.C.  (Photo by Alex Wong/Getty Images)

WASHINGTON — A final report from former Department of Justice prosecutor Jack Smith contends that had President-elect Donald Trump not won in November, he would have been convicted on charges that he conspired to overturn the 2020 presidential election results.

The report was released just after midnight Tuesday, following a court battle to keep the document hidden from the public.

The roughly 140-page report is Smith’s final record of the investigation that never made it to trial, as Trump repeatedly delayed the case, ultimately escalating his assertion of presidential criminal immunity to the Supreme Court.

Smith, who resigned Friday, detailed the investigation’s findings that Trump attempted to undermine Joe Biden’s 2020 victory by pressuring state officials and then-Vice President Mike Pence to lie about results, and knowingly spreading false claims that rallied his supporters to violently attack the U.S. Capitol on Jan. 6, 2021.

“As set forth in the original and superseding indictments, when it became clear that Mr. Trump had lost the election and that lawful means of challenging the election results had failed, he resorted to a series of criminal efforts to retain power,” Smith wrote.

Smith closed his federal cases against Trump following the president-elect’s victory on Nov. 5.

“The Department’s view that the Constitution prohibits the continued indictment and prosecution of a President is categorical and does not tum on the gravity of the crimes charged, the strength of the Government’s proof, or the merits of the prosecution, which the Office stands fully behind,” Smith wrote.

“Indeed, but for Mr. Trump’s election and imminent return to the Presidency, the Office assessed that the admissible evidence was sufficient to obtain and sustain a conviction at trial.”

A second volume of Smith’s report focusing on his investigation of Trump’s alleged illegal hoarding of classified documents at his Florida estate following his presidency has not been made public. Trump’s two co-defendants in the case have legally challenged the document’s release. 

A federal hearing on that second volume’s release is scheduled for later this week in Florida.

Trump slams report, Smith

Trump, who is set to again occupy the Oval Office in six days, dismissed the report in a post overnight on his platform Truth Social.

In it, he name-called the prosecutor and conflated Congress’ non-criminal investigation into the Jan. 6 Capitol attack with Smith’s wider probe of Trump’s weeks-long conspiracy with others to subvert the 2020 election.

“Deranged Jack Smith was unable to successfully prosecute the Political Opponent of his ‘boss,’ Crooked Joe Biden, so he ends up writing yet another ‘Report’ based on information that the Unselect Committee of Political Hacks  and Thugs ILLEGALLY DESTROYED AND DELETED, because it showed how totally innocent I was, and how completely guilty Nancy Pelosi, and others, were. Jack is a lamebrain prosecutor who was unable to get his case tried before the Election, which I won in a landslide. THE VOTERS HAVE SPOKEN!!!,” Trump wrote.

The long, winding litigation

A federal grand jury handed up its initial indictment of Trump on Aug. 1, 2023, charging him with four counts of conspiracy to defraud the United States; conspiracy to obstruct an official proceeding; obstruction of, and attempt to obstruct, an official proceeding; and conspiracy against rights.

U.S. District Judge Tanya Chutkan denied Trump’s attempts to dismiss the case based on his argument that former presidents are protected from criminal prosecution.

After a federal appeals court also denied the criminal immunity argument, Trump brought the case to the Supreme Court.

The justices ruled last summer that presidents enjoy criminal immunity for their core official duties and presumptive immunity for actions taken on the outer perimeter of the office. However, the justices ruled that former presidents do not receive a shield from criminal prosecution for personal acts.

Smith adjusted his investigation accordingly, removing allegations of Trump’s pressure on Justice Department officials, and a grand jury handed up a superseding indictment, still charging the same four counts, in late August.

The Wisconsin Supreme Court chambers. (Henry Redman/Wisconsin Examiner)

In February 2018 Melissa Hubbard underwent surgery to remove part of her colon. What she didn’t know until afterward was that her ovaries were removed as well.

Removing Hubbard’s ovaries had been recommended to Hubbard’s surgeon by her gynecologist to treat another painful condition that Hubbard was dealing with. But while the gynecologist had previously discussed the ovary surgery with her, Hubbard wasn’t ready to go forward with that procedure. She was unaware that the gynecologist had suggested it to the surgeon who was operating on her colon.

On Tuesday, the Wisconsin Supreme Court will hear oral arguments in a lawsuit that Hubbard has filed against the gynecologist, Dr. Carol Neuman. The lawsuit argues that Neuman’s recommendation to the surgeon without Hubbard’s knowledge was an act of medical negligence.

The lawsuit Hubbard filed against Neuman hasn’t gone to trial yet. The Ob/Gyn doctor, through her attorneys, argues that the lawsuit should be dismissed for failing to state a claim.

The lawsuit — and the doctor’s argument to throw it out — revolve around Wisconsin’s law that requires informed consent from patients for medical treatment.

Neuman’s lawyers argue that the doctor had no legal responsibility for Hubbard’s surgery under that law and no duty to tell Hubbard about what was merely Neuman’s recommendation to the surgeon, since Neuman didn’t perform the surgery herself.

A Rock County circuit judge disagreed with the doctor’s lawyers and rejected the summary judgment motion. The 4th District Wisconsin Court of Appeals upheld the circuit court’s refusal to dismiss the case. Now Neuman’s lawyers have asked the state Supreme Court to reverse those decisions.

Writing for a three-judge District 4 appeals court panel in March 2024, Judge Chris Taylor found that “the duty to inform a patient about ‘the availability of reasonable alternative medical modes of treatment and about the benefits and risks of these treatments’ applies to any physician who treats a patient, regardless of whether that physician actually performs the disclosed treatment options.”

According to the appeals court’s summary of the case, in 2018 Hubbard was in Neuman’s care for treatment of endometriosis — a condition in which the same sort of tissue that lines the inside of the uterus also grows outside the uterus. Endometriosis can cause pain as well as infertility, according to the Mayo Clinic.

In a medical note quoted in the original lawsuit, Neuman wrote that she told Hubbard she should consider having at least her left uterus tube and ovary removed, or both tubes and ovaries.

Those procedures would leave Hubbard unable to conceive a child, but Neuman wrote in her clinical note, “I believe her endometriosis is so severe she may need reproductive specialists to help her. She does not want to see them because her insurance does not cover this option.”

Hubbard did not agree to the removal of her reproductive organs, according to the lawsuit.

Neuman also referred Hubbard to a surgeon for a separate procedure: the removal of part of her colon due to a concern about cancer, according to Hubbard’s lawyer, Guy Fish of Milton.

Before the colon surgery, the doctor made a recommendation to the surgeon that he could remove Hubbard’s ovaries at the same time.

“Hubbard, prior to her surgery on February 13, 2018, at no time advised Neuman that she opted to have an ovary or ovaries be surgically removed” during the operation, however, according to Hubbard’s lawsuit.

Neuman and the surgeon, Dr. Michael McGauley, “engaged in pre-surgery discussions and planning … without including or briefing Hubbard,” the lawsuit states. At one point in their discussions, the plan was for Neuman to remove Hubbard’s tubes, ovaries and uterus, with McGauley performing the colon surgery in the same procedure.

Hubbard was not informed of those conversations, the lawsuit states. On the day that the surgery took place, McGauley performed the colon surgery and also removed Hubbard’s ovaries himself.

“Had Hubbard been apprised of Neuman’s pre-surgery recommendations to McGauley . . . Hubbard would have immediately cancelled the scheduled surgery for February 13, 2018 in order to consider all her options,” the lawsuit states.

Defending the motion to dismiss the case, Neuman’s lawyers have argued that a doctor’s recommendation to another doctor shouldn’t be subject to the state’s informed consent law.

“A recommendation is not an order or a prescription,” wrote Neuman’s legal team, from the Corneille Law Group in Madison, in a Supreme Court brief. The lawyers argued that not disclosing to Hubbard the recommendation Neuman made to the surgeon should not be treated as a violation of the state’s informed consent law.

“Treating physicians who discuss the patients’ care must be able to freely exchange their thoughts, opinions, advice and counsel without concern that they may each be liable for failing to disclose the content of those communications to the patient,” the brief for Neuman argues.

The brief asks the Supreme Court to send the case back to the Rock County circuit court with an order to dismiss the lawsuit.

But Hubbard’s lawyer argues that it’s in the interest of patients to encourage disclosure, including of communications among doctors.

“Doesn’t a treating physician more fully fulfill his/her duty by disclosing more pertinent medical information to the patient?” Fish asked in a brief to the high court. 

The lower court also rejected the assertion that holding the gynecologist responsible for providing informed consent for her recommendation to the surgeon would squelch doctors from freely consulting one another.

In making their ruling, the appeals court judges focused on whether the state law would not apply to Neuman even assuming all of the factual allegations in the lawsuit were true.

The effect of Neuman’s recommendation — the loss of Hubbard’s ovaries without her knowledge ahead of time — was instrumental enough to consider Neuman a “treating physician,” even though she didn’t perform the surgery, the lower court judges wrote.

In making the recommendation to the surgeon, they wrote, Neuman arguably had a responsibility to disclose to the patient the risks of the procedure, the probabilities of success and any alternative treatments that might be available.

In short, they ruled, Neuman failed to make the case for dismissing the case outright.

Texas National Guard soldiers stand on patrol near the banks of the Rio Grande on April 2, 2024 in El Paso, Texas. (Photo by Brandon Bell/Getty Images)

WASHINGTON — The U.S. Senate Monday voted to proceed with consideration of a bill that would impose new mandatory immigration detention requirements for immigrants charged with property crimes and give broad legal standing to state attorneys general.

In an 82-10 vote, a majority of Senate Democrats, 32, and one independent, joined Republicans.

Nine Democrats voted against the bill, S. 5, including Sens. Tina Smith of Minnesota, Ben Ray Luján of New Mexico, Jeff Merkley of Oregon, Andy Kim and Cory Booker of New Jersey, Ed Markey and Elizabeth Warren of Massachusetts and Brian Schatz and Mazie Hirono of Hawaii. Vermont independent Sen. Bernie Sanders also opposed it.

Senate Majority Leader John Thune said on the Senate floor that the bill, named after 22-year-old Georgia nursing student Laken Riley, is “a common sense measure that should be an unquestioned yes for every senator.”

Jose Antonio Ibarra, a 26-year-old migrant from Venezuela, was charged and convicted of Riley’s murder last month. According to U.S. Immigration and Customs Enforcement, Ibarra allegedly entered the country illegally in 2022 and was previously arrested in Georgia on a shoplifting charge and was later released.

“It would be incredibly disappointing if Democrats moved to the bill simply to attempt to load it down with poison pills or unrelated measures,” Thune, a South Dakota Republican, said.

Senate Minority Leader Chuck Schumer said on the Senate floor that Democrats are “gonna ask our Republican colleagues to allow for debate and votes on amendments. I hope my Republican colleagues will allow for it.”

Republicans have crafted the bill to require the U.S. Department of Homeland Security use mandatory detention for an immigrant charged or arrested with local theft, burglary or shoplifting, which, among other things, means they are not allowed to be released on bond.

The bill, which aims to include noncitizens in the country without proper authorization, could also include immigrants with a discretionary legal status such as the Deferred Action for Childhood Arrivals program, or DACA.

Additionally, the bill gives broad legal standing for state attorneys general to challenge federal immigration law, State Department policy on issuing visas and bond decisions from immigration judges.

Last week, 32 Senate Democrats and one independent voted with Republicans on a procedural motion to advance the bill. It’s the same bill that the House passed last year but Schumer never brought the bill to the floor for a vote when Democrats controlled the upper chamber.

The House passed its bill last week, this time gaining more Democratic support, 48 compared to 37 the first time, following an election in which border security was a main theme for President-elect Donald Trump.

The Victor J. Daniel Jr. coal plant — now the largest electric generator in Mississippi — began pumping out power in 1977. In 2001, it got a second life, when owner Mississippi Power added two new turbines that could run on natural gas. Plant Daniel’s coal furnaces were supposed to shut down in 2027. 

But now, the plant is slated for a third act. Georgia Power won regulatory approval to buy power from that plant through 2028, due to what the utility called “unprecedented” growth in electricity demand. 

Coal-powered generation of electricity has steadily declined in the United States over the past 15 years, driven out by cheaper fuel sources including natural gas, wind and solar — cutting a main source of U.S. greenhouse gas emissions. 

In the meantime, however, estimates of U.S. electricity demand in 2029 have increased nearly five-fold from those made just a few years ago, fueled by demand from data centers and other high-energy-using industries.

Many utilities see keeping coal around — including as a backup to intermittent power sources such as wind and solar — as a potential solution. A Floodlight analysis of power plant data shows that owners or operators of more than 30 U.S. coal plants, in states from Wisconsin to West Virginia, plan to delay their retirement, while others are weighing the option. 

That is pushing up utility bills — and slowing progress on cutting dangerous greenhouse gas emissions. 

Between 2015 and 2023, all of those 30-plus plants produced electricity “uneconomically,” adding more than $5 billion in unnecessary costs to customer rates, according to analysis by the Rocky Mountain Institute, a clean energy consultancy. For example, operating Mississippi Power’s Plant Daniel cost customers more than $250 million in excess costs during that time, according to RMI. 

Allowing coal plants to run frequently, even when they are not the cheapest resource, is a fixture of modern electricity markets. Some environmental experts say it’s slowing the development of cleaner resources, while costing customers billions in direct costs and billions more in related health and environmental costs. 

Concerns over those costs may take on new urgency amid the debate over growing electricity demand. Many utilities have said they’re unprepared to meet demand forecasts without keeping fossil fuel plants around longer. 

“​​We really do have growth in demand and forecasts of growth that have not been seen really in the careers of most of the people who are working in the electric power world,” said Michael Jacobs, a senior energy analyst at the Union of Concerned Scientists. “The real question is: Well, how did we get into this situation?”

He added, “Had we had the attention to following through on building the renewables, we would have a fraction of this debate going on.” 

Anxiety around unprecedented load growth began in earnest only a couple of years ago, spurred by large data centers used to fuel artificial intelligence models, cryptocurrency and other energy-intensive industries. The numbers around data center growth have been described as “staggering.” In a December report, the Department of Energy projected that U.S. energy use from data centers could double or even triple by 2028. 

For utilities like Mississippi Power, that may mean longer lifetimes for coal. Mississippi Power declined to respond to specific questions about Plant Daniel, its expectations for load growth, or concerns about its uneconomic dispatch. 

A spokesperson directed Floodlight to its 2024 Integrated Resource Plan, which lays out the utility’s expected mix of generation resources. That plan notes that some fossil units “considered marginally economic” are now in demand to fill gaps in capacity and that the utility anticipates the buildout of several large data centers in its territory.

‘Used and useful?’

Utilities must meet electricity demand 24 hours a day, seven days a week. Because demand fluctuates, the United States has more power plants than needed at any one time. For about two-thirds of the electricity used in the United States, market operators, called regional transmission operators or independent system operators, decide which plants to call on based on how much demand they expect. They start with the cheapest plants and move to more expensive plants as demand increases. “You save the expensive ones for when you really need them,” Jacobs explained. 

All plants that run get paid the amount — called the “clearing price” — that it costs to operate the most expensive facility that ends up running. 

For more than a century, coal was the baseload of our generation fleet: the cheapest resource and the one meeting the majority of demand. But as U.S. gas production ballooned, natural gas overtook coal as the cheapest source of electricity generation in 2016. 

Today, new wind and solar plants often beat out coal — and, at times, even gas — on price. As a result, a wave of retirements has hit the U.S. coal fleet. The plants that do remain are being used less and less, and coal now generates less than a fifth of U.S. electricity, down from nearly 45% in 2010. 

But many holdout plants are still running. 

That’s in part because plants can “self-commit” to run, even if operating them is more expensive than the clearing price. Often, those plants — and the utilities that own them — lose money when they self-commit. But utility regulations mean everyday electricity customers may be the ones picking up the tab. 

Is the Biden-Harris administration ‘shutting down power plants all across the country’?

No. The Biden-Harris administration is not, as Donald Trump claimed, shutting down power plants nationally.

In the majority of the United States, utilities are regulated monopolies: Customers must purchase electricity from them. Regulated utilities make money, in part, through a guaranteed “rate of return” on investments in equipment including power plants. Those returns are approved by regulators and paid by customer bills. 

Utilities are required to show their plants are “used and useful” to get approval for including a plant in customer rates. And experts like Michael Goggin, vice president at energy consultancy Grid Strategies, say utilities may be dispatching coal even when it costs customers more to make a plant “look more used and useful than it actually is.” 

In a 2024 report on “uneconomic dispatch” in the Midwest, Grid Strategies showed that 14% of 2023 coal plant starts by regulated utilities were unprofitable. Only 2% of coal starts from merchant plants, which earn fluctuating revenue based on the market, were unprofitable.

Without so-called uneconomic dispatch, customers could have saved more than $3 billion in 2023, according to RMI. In Louisiana, for example, regulators determined that electric utilities Cleco and SWEPCO had overcharged customers by $125 million by continuing to run the now-shuttered Dolet Hills coal-fired plant. 

The consultancy also estimated that coal-related health impacts reached over $20 billion in 2023, for emergency room visits and diseases including lung cancer and cardiac disease that could have been avoided. That’s not to mention the hundreds of millions of tons of climate-damaging carbon dioxide these plants emit per year.

Delaying the clean energy transition?

Goggin argued the practice of making plants look more viable than they are may also keep them around longer, crowding out the transition to cleaner and cheaper energy.

“Having these coal plants in the way, that are pumping out uneconomic megawatt-hours and that are using up transmission capacity — in many cases in prime wind and solar spots — is impeding that,” he said.

Increasing demand may at least temporarily inflate electricity prices and push more coal plants into the black. But it also appears to leave an opening for later retirements. 

All of the plants Floodlight identified with delayed timelines have already been producing power uneconomically for years. “Every year, there are less and less months, and less and less hours where it’s economic to run coal plants, and utilities have been dispatching these coal plants pretty similarly over the last 20 years,” said Gabriella Tosado, a senior associate with RMI’s carbon-free electricity program.

State utility regulators are responsible for ensuring that utilities only pass on prudent costs to their customers. In some places, that’s already happening. The Michigan Public Service Commission rejected $11 million in costs to be passed on to customers due to a utility running more expensive coal plants. In Minnesota and Missouri, regulators have investigated the issue. But Tosado said more regulators should be scrutinizing utility arguments about keeping coal plants online. 

In a working paper for the National Bureau of Economic Research, economists from Columbia University, the University of Arizona and Northwestern University showed that the current utility regulatory structure creates “potentially conflicting incentives,” resulting in less than half as much coal power retired as would be shuttered in a scenario designed to minimize cost. 

But minimizing costs within current regulatory constraints is a challenge. The paper’s authors also found that a scenario that minimizes cost could reduce utility profits significantly enough to require external financial support to maintain electrical reliability.

In its report, the Department of Energy suggested connecting data centers to clean energy, rather than fossil fuels, including adding new generation on former coal plant sites. 

And coal plants also don’t necessarily need to retire immediately; utilities may also consider running them during part of the year, when they are truly needed. Some utilities, like Minnesota’s Xcel Energy, have already pursued this route (some utilities are even speeding up coal retirements). 

“It’s been my view that we don’t need to retire and dismantle every power plant that burns fossil fuels. We just need to be extraordinarily shy about burning fuel in them,” said Jacobs, who helped author a 2020 report on uneconomic dispatch. But, he added, “the utility practice of not facing up to competition, not wanting to deal with change, is not a strategy that’s going to work for society or the economy.” 

Floodlight is a nonprofit newsroom that investigates the powerful interests stalling climate action.

Coal was on its way out, but surging electricity demand is keeping it alive — costing people and the environment is a post from Wisconsin Watch, a non-profit investigative news site covering Wisconsin since 2009. Please consider making a contribution to support our journalism.

A fundraising foundation for the University of Wisconsin-Eau Claire is considering buying a former hospital, which has been vacant since March 2024.

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UW-Extension family living educator Amanda Kostman talked to "The Larry Meiller Show" about "adulting" classes that are equipping young folks and adults with independent living skills.

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Jeffrey Grob will now lead an archdiocese that oversees 184 parishes in 10 counties across southeast Wisconsin. 

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Madison saw an 8 percent decrease in violent crime last year, Police Chief Shon Barnes said.

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With just over one day left of open enrollment on the health insurance marketplace, Wisconsin has already surpassed the previous record high for signups. Data from the Centers for Medicare […]

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Assembly Republicans voted Tuesday to advance a proposal that would enshrine Wisconsin’s existing voter identification law into the state constitution.

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Wisconsin Supreme Court justices questioned whether the state DNR should be forced to designate emerging contaminants like PFAS as hazardous substances before the agency is allowed to regulate them.

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