Rending Wall: What Trump must do to acquire property to build the wall

No person shall be… deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.--U.S. Const. Amend. V

Something there is that doesn’t love a wall,

That sends the frozen-ground-swell under it,

And spills the upper boulders in the sun;

And makes gaps even two can pass abreast.

--Robert Frost, “Mending Wall”

The ownership of private property is the embodiment of the American Dream. It’s the quintessential expression of liberty: staking a claim on a piece of ground, a claim that is consecrated with the blood of patriots.

Property rights are so ingrained in popular culture that movies and TV shows depict landowners as, say, the dug-in suburban geezer hollering “get off my lawn” (your dad!) or the rural landowner racking a shotgun and growling “git off my LAND” (my dad).

Meanwhile, even the most ardent libertarians recognize that not all property can be privately owned. Everyone draws the line in a different place, but most people agree that we need public land for military bases, government buildings, roadways, airports, and green space.

The conflict between individual property rights and falls into an area of constitutional law known as “takings,” which of course is in the news due to President Trump’s promised wall along the southern U.S. border.

Without discussing whether the wall is necessary or advisable or moral or even possible, I’ll discuss the constitutional and policy origins of takings while explaining the legal challenges involved in building Trump’s wall.

First, I’ll tackle the acquisition of private property, and then I’ll talk about the challenges posed by treaties and state and tribal rights.

Your home is your castle

Early American colonists were violated repeatedly by the King’s intrusion into their privacy and property rights. Once the Revolutionary War was won, the drafters of the Fourth and Fifth Amendments responded to this abuse by enumerating these instances of governmental attacks on personal liberty—and specifically prohibiting the new government from committing them.

The Fourth Amendment was written to prevent the abuses that colonists had suffered under the Crown’s “writs of assistance,” a sort of general search warrant which allowed the government to search a subject’s home and papers without naming the evidence that was being sought.

The Fifth Amendment prohibits the government from infringing on a person’s life, liberty, and property without due process of law (namely, adequate notice and a fair hearing) that was largely absent in colonial-era criminal law. Criminal defendants are guaranteed the true-bill analysis of a grand jury and are protected from double jeopardy and compelled self-incrimination. The Fifth Amendment therefore protects personal liberty.

James Madison included the takings clause here, because (as he noted in his writings), he felt that individual property rights were a sacred necessity for a free people and should not be violated without good cause and without a fair process and compensation.

Strange bedfellows

The sanctity of property rights is one of those rare issues on which conservatives and liberals agree.

Free-market conservatives object to government overreach in general and to the involuntary transfer of wealth from private hands to the public in particular. While liberals are not fans of this either, they tend to join conservatives most vocally where civil liberties are violated—and emphasize that minorities and the poor are disproportionately affected by governmental takings.

Oddly, Trump supporters are forced to split with conservative thinking here. We are now hearing people who describe themselves as conservatives argue that landowners should be forced to surrender their private property for the public good—while liberals respond with arguments that focused on personal liberty and free market values.

Takings

The Fifth Amendment’s “takings clause” prohibits the government from taking private property for public use. That sounds like a clear directive, but there’s plenty of room for debate over what it means to “take” private property—and how much compensation is “just.” Naturally, these matters have come before the courts.

Much of the takings jurisprudence answers questions regarding whether various government regulations such as zoning laws constitute a taking. Another line of cases deals with whether certain nearby activities (such as noise from an airport) are a taking.

With Trump’s border wall, however, we’re not talking about those philosophical questions. The seizure of property for a physical wall (no matter what type or size) is an ACTUAL taking of private property—literally taking private property under a theory known as eminent domain.

Eminent domain

When the federal government seeks to build a public project such as an interstate highway or railroad, it must first acquire the rights to the property through which the roadway passes. It’s the same with Trump’s wall, which passes through private property in 23 counties in four states.

  

The government acquires private property by acquiring title to the property through condemnation and then paying the landowner what is supposed to be roughly the fair market value of the property. (As you can imagine, “fair market value” is a frequently-litigated subject.) It’s more or less a forced sale.

The property through which Trump seeks to build the wall is a mixture of public lands (including state and federal land), private property, and tribal lands. First, I’ll tackle the problem of acquiring privately held land through eminent domain. The landmark case here is a favorite of the large real estate developer—including Donald Trump.

Kelo and me

When we think of the government’s taking property for public use, we think of projects such as airports or highways that will be owned by the government and are clearly, well, used by the public. Kelo v. City of New London (545 U.S. 469) is a controversial 2005 case that clarified that the government could take private property from one owner to another private owner in furtherance of economic development.

Clarence Thomas wrote a blistering originalist dissent, stating that, while citizens were still safe from government overreach in their homes, the homes themselves were no longer safe. Liberals such as Ralph Nader and Bernie Sanders also denounced the ruling, in part out of concern that minorities and the poor are often targeted in these schemes and wealthy, well-connected commercial real estate developers are favored.

One such developer is Trump himself, who has a history of lobbying local government development authorities to exercise eminent domain so that he could develop his projects. A low point occurred in the mid-1990s, when Trump tried to use eminent domain to force several Atlantic City residents, including an elderly widow, to sell their homes to make way for his large casino development’s limousine parking lot. Trump’s bid, one quarter of what the residents had been offered a decade earlier, ultimately failed, but not before years of litigation and bad blood.

In 2005, when the Kelo decision was handed down, conservatives and liberals alike were outraged. Not Trump, though: “I happen to agree with it 100 percent.”

Constitutional scholars don’t share his enthusiasm, however. While Trump appears to be confident that the current Supreme Court will apply Kelo broadly, his confidence is misplaced. Conservative jurists have been champions of property rights and strong critics of the holding in Kelo. The name of one such jurist will be familiar to Trump: Neal Gorsuch, who openly and repeatedly criticized Kelo and admired Thomas’ dissent.

The costs of the court

Estimates for building the wall have ranged from as low as $15 billion to $1 trillion, but this includes mostly the construction costs, including materials and labor. It does not take into account the costs of litigation or the “just compensation” that must be paid to landowners, even if Trump prevails in his proposed eminent domain actions.

These costs are considerable. The federal government has shown in recent years that it is unwilling to pay true “just compensation.” Recent condemnation letters offer “fair market value” of figures such as $2,900 for 1.2 acres near Los Ebanos, Texas; $1,000 to a rancher near Los Indios, Texas, and $700 for 1.6 acres of riverfront property in Roma, Texas.

This sounds like a cost saving strategy, as unethical as it may be. The opposite is true, however, because landowners who are offered less than fair market value tend to sue, and these cases can drag on for years. In 2008, the Bush Administration attempted to lowball landowner Eloisa Tamez when it tried to take her land in Cameron County, Texas. Tamez sued in federal court, and after seven years of litigation, prevailed. Among other concessions, the federal government was forced to pay her $56,000 for a quarter-acre of land.

Prior efforts to build border walls have been riddled with errors and abuse—and litigation. A 2017 joint study by ProPublica and the Texas Tribune found that Homeland Security circumvented the required appraisal process and intentionally lowballed homeowners. This resulted in a backlash, with wealthy landowners suing and negotiating settlements triple that of Homeland Security’s initial offers. Meanwhile, the Department of Justice failed to research property lines and underpaid some homeowners while overpaying others, resulting in more lawsuits. Further, Homeland Security paid people for property they did not own, thereby paying for the same tract twice. A decade later, dozens of lawsuits are still going, and this was for a border wall project many times small than Trump’s proposed wall.

“The military version of eminent domain”

Trump recently said that he could use “the military version of eminent domain” to seize lands to build the wall.

There is no such thing as “military eminent domain.”

Trump said this in response to a question about whether the process of eminent domain would cause long delays. Presumably, then, he means that the federal government can seize private property when it is necessary for the military to protect national security. 10 U.S.C. § 2663 (1956).

This law still requires due process, however, and is written for use in a national emergency or similar exigencies. Any legal argument that attempts to use this for a border wall would therefore fail.

Meet the neighbors

The costs (both monetary and political) and legal challenges of acquiring all of this private property make building the wall seem impossible. We’re only partway there, however. In addition to privately held property, land owned by states and tribal government and affected by various treaties must be acquired, too.

To understand the U.S./Mexico border, it’s important to define it. In the video footage that we’re seeing, the land appears to be vacant, barren desert. In reality, the geography of the border lands is as varied as the types of landowner.

The border spans nearly 2,000 miles, beginning 12 miles out into the Gulf of Mexico, then running west to the mouth of the Rio Grande. It follows the center of that river’s deepest channel for 1,260 miles to a point upstream of El Paso. It then goes west overland for 534 miles to the Colorado River. It follows the center of the Colorado River for 24 miles to the Continental Divide (its highest elevation). It then goes overland 141 miles to the Pacific Ocean, into which it extends 18 miles.

Along the way, the border crosses parts of two oceans, beaches, deserts, mountain ranges, urban and suburban areas, ranch and farmland, and river valleys. The southern borders of California, Arizona, Texas, and part of New Mexico line the border, as do the ancestral lands of several American Indian tribes.

The tribal lands most problematic to Trump’s wall belong to the Tohono O’odham.

Tribal lands

The Tohono O’odham Nation’s reservation is the size of Connecticut and straddles the U.S. border for 62 miles in southern Arizona and nearly 4,500 square miles (the size of Connecticut and second only to the Navajo) and straddles the border, encompassing land in southern Arizona and northern Sonora, Mexico, with 2,000 of its 34,000 members living on the Mexican side of the border. A wall would cross burial grounds, prevent ranching farm members to their wells, and prevent the tribe from making its annual religious pilgrimage to a shrine on the Mexican side. For these reasons and others, the tribe strongly opposes Trump’s wall.

Its claim is strong. The U.S. government formed the reservation with three separate executive orders (in 1874, 1882, and 1916). Various other treaties protect tribal property rights, as well. It would take an Act of Congress to build the wall through this land. While the Secure Fence Act of 2006 (Pub.L. 109-367) replaced some fencing with sturdier steel posts, the barriers—where they exist—have gates that allow tribe members and their vehicles and livestock to pass. Trump’s promised impermeable wall would not.

The tribe, which has spent millions of dollars from its own treasury to secure the border and to guard against drug smuggling and human trafficking, is ready to spend money on a protracted legal fight. And the Tohono would make a sympathetic plaintiff, to say the least.

Treaties

And speaking of treaties and sharing the border, the U.S. government has entered into several treaties that will hinder Trump’s project.

The Mexican-American War ended officially with the signing of the 1848 Treaty of Guadalupe Hidalgo. Among other things, it made the Rio Grande the U.S. Mexico border for 1,260 miles. The U.S. cannot of course block Mexico’s access to the river, so it must build the wall on the U.S. side. The wall cannot be built in a flood plain, however, so it must be built some distance from the river. This would cut off Texas’s access to this important waterway, including the access of landowners to some of their own land. In some cases already, residents live on the south side of existing barriers, where they access the rest of the United States through gates in the fences (that illegal border crossers also use). These landowners have already secured legal representation and vow to fight further takings.

Indeed, several treaties between the U.S. and Mexico govern access and use of the Rio Grande, Colorado, and Tijuana rivers and their tributaries. An impenetrable wall would not only limit access but would hinder the control of floods, erosion, and agricultural runoff. Even the most recent “steel slats barrier” would allow debris to create dams along the barrier, which would exacerbate flooding and erosion.

I found several such treaties that are still in full effect, some dating back to the 1800s. A 1970 treaty requires both the U.S. and Mexico to agree on any structure that would affect the flow of the Rio Grande or its floodwaters. A 1944 treaty imposes a similar requirement for not only the Rio Grande but the Tijuana and Colorado Rivers and their tributaries, particularly where the flow and disposal of wastewater is concerned.

The U.S. has already violated these treaties according to the Mexican government, and Trump has alienated them further with his various insults and demands that Mexico pay for the wall, so cooperation from Mexico is unlikely.

State lands

When we think of public lands in the West, we typically think of federally owned lands—and it’s true that the federal government is the single largest landowner along the border. The four states along the border, however, own considerable lands there, too. In some cases, they are not willing to cede it to the federal government for wall construction.

For example, New Mexico’s newly elected state land office commissioner cancelled the state’s sale of land to the federal government for Trump’s wall and has vowed to fight this and other similar transactions.

It’s important to remember here that conservatives are proponents of federalism and states’ rights. We can expect a lengthy lawsuit in the federal courts between New Mexico and the federal government, and Trump has populated the Supreme Court with originalists while his supporters cheered.

Hitting the wall

Immigration is a complex issue, particularly for a wealthy nation that shares a vast border with a poor nation with even poorer nations to the south of it.

No matter what you believe about the wall, however, I hope we can all agree that it gains us nothing to attempt a solution if we lose our soul as a nation. A republic founded on liberty and the sanctity of individual and property rights that turns its back on its most important principles becomes a nation not worth defending.

The Rio Grande that forms much of our southern border has turbulent beginnings and meanders and loses its way before it finds itself and courses in a sure and clear path to eternity. So should the vast republic to the north.