One of President Donald Trump’s main campaign promises was to “build a wall” on the border of the U.S. and Mexico. During his first few days in office, President Trump signed an executive order on border security and immigration enforcement improvements. In Section 2 of the order, it reads that it is the policy of the executive branch to: “secure the southern border of the United States through the immediate construction of a physical wall on the southern border, monitored and supported by adequate personnel so as to prevent illegal immigration, drug and human trafficking, and acts of terrorism.”

Many of President Trump’s supporters are also ardent fans of the construction of a wall along the U.S.-Mexico border. Despite encountering intense opposition from Democrats and some Republicans, the Trump Administration appears to be committed to beginning construction as soon as possible. However, there may be roadblocks ahead for the massive security project, such as issues of eminent domain and private citizens blocking or severely slowing construction of the wall, in addition to environmental concerns and waivers that must be obtained before beginning construction.

Border Wall Plans

Border security is critically important to our overall national security. As noted by the order, aliens who illegally enter the U.S. without inspection or admission present “a significant threat to national security and public safety.” President Trump’s executive order seeks to expedite determinations of any apprehended individual’s claims that they are eligible to remain in the U.S., as well as promptly remove any individuals whose claims have been lawfully rejected.

“Mexico / US Pacific Ocean Border Fence” Courtesy of Tony Webster : License (CC BY 2.0)

A critical component of Trump’s presidential campaign was regaining control of America’s borders. Now that he’s president, the particulars of how he will finance the massive border wall are still up for debate. The wall is estimated to cost $21.6 billion (though other estimates put it anywhere between $8 billion to $25 billion). The executive order signed by Trump in January contains no mention of the cost of construction. Mexico has repeatedly stated that not only will it not pay for the wall, but it will retaliate if a border tax is imposed. The order also required government agencies to report the financial assistance they gave Mexico in the past five years, giving rise to speculation that Trump wants to redirect the aid to pay for the wall.

Currently, there are hundreds of companies looking to profit significantly from the construction of a border wall. More than 375 companies have expressed interest in participating in the project. The U.S. Customs and Border Protection agency said it would likely begin accepting prototypes in March 2017. Those that are approved will be asked to submit full proposals. Surprisingly, a Mexican company, cement maker Cemex SAB, has stated that it would be willing to provide supplies to the project. The plan to seal the border would take three phases, with over 1,250 miles of fences and walls, and would be completed by 2020. San Diego, California; El Paso, Texas; and the Rio Grande Valley in Texas are expected to be part of the first phase. A U.S. Department of Homeland Security internal report also showed that the U.S. government has begun seeking environmental waivers to build in specific areas.

Secure Fence Act of 2006

President Trump is not the first president to propose a wall between the U.S. and Mexico. On October 26, 2006, President George W. Bush signed the Secure Fence Act of 2006. The goal of the act was to build 700 additional miles of physical barriers along the U.S.-Mexico border, and authorize more vehicle barriers, checkpoints, and lighting. It also gave the Department of Homeland Security permission to use technology such as cameras, satellites, and unmanned aerial vehicles, and specifically noted that there would be at least two layers of reinforced fencing. In 2006, both Democrats and Republicans overwhelmingly supported the act, including then-Senator Barack Obama.

In 2008, Congress introduced the Reinstatement of the Secure Fence Act of 2008, which called for Homeland Security to again construct more fencing. This time it asked for an additional 700 miles of two-layered, 14-foot high fencing along the southwestern border of the U.S., but the bill never made it out of committee. The Secure Fence Act of 2006, however, was amended in 2007 to give the Department of Homeland Security discretion in determining what type of fencing was appropriate, given the different terrain along the border. A one-size-fits-all approach, according to many, including the U.S. Border Patrol (USBP), was not an effective manner to tackle securing the border.

Issues With Landowners

Once construction on the previous border wall began, the government ran into issues with landowners near the Rio Grande. Hundreds of landowners protested what they called a “government land grab” to install the fence. It resulted in 320 eminent domain cases being taken to court. In order to purchase property for the construction of the wall, USBP had to settle with private landowners. While some settled out of court, others are still fighting.

Some private property owners want more money, while others want a gate in the fence to be able to access their land on the other side. Eloisa Tamez, 81, was given a code to get through a gate to access a quarter of her three-acre ancestral property that was bisected by the 18-foot barricade. A prominent border wall opponent, Tamez battled her case in court for seven years, before she eventually lost to the government. She was awarded $56,000 for her loss of land and the inconvenience, but says she wasn’t looking for money–she wanted to keep her land without the barriers.

The government almost always wins in eminent domain or condemnation cases, but these cases can take a significant amount of time and resources to settle. Therefore, landowners fighting President Trump’s proposed border project may have the ability to slow the project down immensely. NPR analyzed more than 300 fence cases, and found that two-thirds of them have been settled, with most taking about 3.5 years for a resolution and usually involving under an acre of land. The median settlement awarded to landowners was $12,600.

Other Concerns and Considerations

Aside from the eminent domain, private property rights, and human rights concerns with building a border wall, there are also environmental considerations. Arguably, the full construction of a wall will interfere with the migration of animals and plant pollination. Immense amount of traffic around the wall will destroy flora and fauna, potentially leaving large amounts of garbage and debris in the area as well. These environmental concerns do not seem to be of much importance to those in favor of construction.

“Double Wall Near Tijuana” Courtesy of Jonathan McIntosh : License (CC BY 2.0)

Juanita Molina, the executive director of Border Action Network, told NPR that construction of the wall could cause flooding issues. A wall will profoundly affect the connectivity of species, fragmenting habitats, and block the free movement of wildlife. So, the border wall has the potential to spread detrimental consequences not just to humans, but also to other species. Additionally, building over major physical barriers, like mountains which dot the U.S.-Mexico border, make the border wall almost impossible to build.

Moreover, it is clear that the wall will disproportionately affect people of color. Militarization of the border means that minority communities will be targeted and even displaced. Millions of people live on both sides of the border. In the four states–California, New Mexico, Texas, and Arizona–on the U.S. side of the border, people of Mexican origin comprise at least a quarter of the total population, and even higher concentrations exist within 100km of the border itself.

Conclusion

The executive order signed on January 25, 2017, is still in effect. Many people who voted for President Trump view the wall as his signature campaign promise and expect to see progress made on its construction as soon as possible. Companies also seem to have an overwhelming amount of enthusiasm for profiting off the proposed construction. However, private property owners may have the most power in stalling the wall’s completion for a significant period of time, and the efficacy of a wall in actually securing the borders is certainly up for debate. For now, President Trump has promised that construction is “going to start very soon. Way ahead of schedule. It’s way, way, way ahead of schedule.”

Nicole Zub

Nicole is a third-year law student at the University of Kentucky College of Law. She graduated in 2011 from Northeastern University with Bachelor’s in Environmental Science. When she isn’t imbibing copious amounts of caffeine, you can find her with her nose in a book or experimenting in the kitchen. Contact Nicole at Staff@LawStreetMedia.com.

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Normally, eminent domain does not get a lot of discussion in presidential politics. In fact, outside of a relatively small circle of interested parties and intellectuals, it doesn’t get much discussion at all. The last time it got this much attention was a decade ago in the case of “Kelo v. City of New London” where the concept of eminent domain and the Takings Clause got to experience their moment in the sun.

The rise of Donald Trump as the probable if not presumptive Republican nominee for the presidency has brought this issue into the spotlight once again. Generally speaking, conservatives tend to be critical of the concept of eminent domain but Trump has professed the viewpoint that without eminent domain civic projects that we value would be impossible to complete.

But what exactly IS eminent domain? And the more interesting question: what should it include?

Pleading The Fifth: The Takings Clause

Eminent domain is basically the idea that the government can, in a specific set of circumstances, take your property.  The Takings Clause, which is a part of the Fifth Amendment that rarely gets invoked in movies or television prohibits the government from taking property unless certain criteria are met. The clause reads, “nor shall private property be taken for public use, without just compensation,” which is not a purely semantic distinction. Even those who support eminent domain would acknowledge that it is a violation of your property rights.

Land use law spends a good chunk of time on the Takings Clause, going through each of these elements. Over the years, the Supreme Court has had to define what private property is (while it seems simple enough, does it include the airspace above your house?), when it has actually been taken (in honor of the late Justice Scalia Google “regulatory takings” and “Lucas v. South Carolina Coastal Council”), and what is a public use. This is where much of the discussion of eminent domain has focused on recently in the presidential debates. In the video below you can listen to Jeb Bush and Donald Trump discussing the issue of eminent domain in regards to Mr. Trump’s conservative credentials and real estate dealings.

It may take a minute to unpack some of the arguments that are going on in this clip. The first discussion is whether the concept of eminent domain, where the government may take someone’s land for public use, is a good thing. There’s also whether it is consistent with “conservative” principles. Mr. Trump uses the example of a hospital as a public use and states that it would be impossible to build things like hospitals without eminent domain.

That’s probably true. If the government did not have the power to seize property (both the federal government and state governments have this power) then any private citizen who owned property where the government wanted to build a hospital could either refuse to sell and thwart the project or hold out for such an exorbitant price that it would make any new project too expensive to be undertaken. While it certainly wouldn’t be an irrational reaction–who wouldn’t want to sell their home for 100 times what it is worth?–it wouldn’t be a very civic-minded response and ultimately we would have fewer hospitals.

Keep in mind that the government does not just take your house. If it takes your property it does pay you for it, so it isn’t all bad news. Collectively, we have decided that we are willing to have a few of us get forced to sell our property, as abhorrent as that is to the American psyche, in favor of having things like hospitals and roads.

The second argument comes on the tail of the first–once we have decided that for a public use we are going to allow this violation of our property rights–what is a public use?  Hospital, yes fine. But what about parking spaces for your limousine?

Economic Development: “Kelo v. City of New London“

Although neither one references it, Governor Bush and Mr. Trump are having what I presume is a more spirited version of the in camera arguments that the Supreme Court had in “Kelo v. City of New London.” Things like hospitals, roads, and bridges are recognized by the majority of people to be public uses. But in the Kelo Case, the government was arguing that its plan to develop the land for the City of New London’s economic benefit was a public use. The government didn’t need to build an actual public structure, like a bridge, to be a public use, it just needed to be something that was benefitting the public as a whole.

The Supreme Court agreed with the city and ruled in its favor–an economic benefit to the public can be a public use.  And the government can take a piece of property (again, they do have to pay you something!) and then sell or contract with a developer, such as Mr. Trump, to build on the land.

Another dispute over eminent domain occurred in Lakewood, Ohio. As “60 Minutes” notes, the city of Lakewood wanted to take the Saleet family’s house in order to put in condos and a strip mall. While the Saleet family eventually won their dispute, allowing them to keep their home, the questions at the intersection of eminent domain and economic development remain difficult to answer.

This expansion of the understanding of what constitutes a public use has been met with opposition from people of various political stripes. One group, the Institute For Justice, which is a self-described libertarian public interest law firm, has been very active in pushing back against this understanding of “public use” believing that it is an infringement on property rights. In the video below the Institute for Justice explains some of the responses from state governments and individuals to the Kelo decision.

The Supreme Court in Kelo found the comprehensive nature of the city’s plan to develop the area to be a persuasive argument in favor of characterizing it as a public use. It wasn’t just building one hotel on the property and calling it a day, which may distinguish the issue in Kelo from other cases in the future where the government wants to get rid of a single “blighted” property in favor of a “better” economic option. This is what Governor Bush implies that Mr. Trump tried to do. But, in fact, they are having two separate arguments.

Mr. Trump’s attempt to buy property has nothing to do with eminent domain and linking his attempt to get someone to sell him their home so that he can expand on his existing property or build a new one mischaracterizes what eminent domain is. Eminent domain is purely government action. Not action by private citizens. Mr. Trump isn’t using eminent domain when he makes an offer on a property so he can build a hotel. Even if he uses, as is alleged, strong-arm tactics against elderly widows. His actions aren’t a government curtailment of property rights but rather a use of his property rights–any and all elderly widows that he might try to buy land from have the right to refuse his offer if they want to. It is their property to sell or not sell as they see fit. So talking about Trump’s behavior doesn’t really make sense in a discussion about eminent domain and what is or should be legally acceptable for government action.

The real issue is whether the government should be able to forcibly purchase property to promote economic development. Governor Bush’s argument is that position is not consistent with “conservative” principles. In this case, the “conservative” principle being that when the property is privately owned, the government should have to jump through some hoops to get to it. One of those hoops is that the government needs to make a case for why this is a public use. For many, economic development, however noble that goal is, does not meet that burden. Economic development may be a good idea but it isn’t within the scope of what the government is allowed to violate your property rights to achieve.

Others would argue that government is in the business of promoting good ideas, or at least it should be. And taking an area that is economically “blighted” and turning it into a collection of homes or businesses that improve the community is a good use of the government’s time and energy. We can’t let holdouts, whether they are doing so because of an intense love for their particular house or for an incredibly generous pay-day, halt economic progress that would benefit everyone in the community. They argue that the government needs to be able to promote not just the structural necessities of public life (a road or a bridge) but also the broader concerns that affect the quality of life. After all, people probably claimed back in the day that a hospital wasn’t a public use either, since it isn’t a strictly necessary structure. Yet now a hospital would be generally accepted by all but the most dyed-in-the-wool libertarians as a fair use of eminent domain. This is just the modern evolution of the concept of public use.

Conclusion

Eminent domain is sort of like taxes. Nobody necessarily wants to pay them but we all know that we need taxes or there would be potholes everywhere–the government wouldn’t be able to do anything. Even if we think of taxes as state-sanctioned theft, we let it go because “taxes are what we pay for a civilized society.”

There is a sliding scale–from a bridge to a hospital to a strip mall–and most may go along with it to the hospital but no further. Economic development is great and should be encouraged. But allowing a forcible purchase of property by the government to promote positive development is a bell that you can’t un-ring. It may not be the most interesting issue to think about (and certainly it isn’t the most interesting issue where Mr. Trump is concerned) but eminent domain is government power with very real immediate and future consequences that warrant discussion.

Resources

Primary

FindLaw: Kelo v. New London

Additional

Washington State University At St. Louis: A Brief History of The Takings Clause

CBS News: Eminent Domain Being Abused

National Review: Kelo v. City of New London Ten Years Later

IRS.gov: Tax Quotes

Department of Justice: History of the Use of Federal Eminent Domain

Brown Political Review: “Public Needs” Abuse Eminent Domain for Economic Development

Mary Kate Leahy

Mary Kate Leahy (@marykate_leahy) has a J.D. from William and Mary and a Bachelor’s in Political Science from Manhattanville College. She is also a proud graduate of Woodlands Academy of the Sacred Heart. She enjoys spending her time with her kuvasz, Finn, and tackling a never-ending list of projects. Contact Mary Kate at staff@LawStreetMedia.com

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