Property Rights

How Using Eminent Domain to Seize Land for a Border Wall Harms American Property Owners

A new study of border takings under the 2006 Secure Fence Act finds that many owners get inadequate compensation, and that the condemnation process is flawed in other ways.

|The Volokh Conspiracy |

Eminent Domain. Art work by Richard Weinstein (used with permission).

Building Trump's much-ballyhooed border wall will requiring using eminent domain to forcibly take the land of numerous property owners. If that happens, many of the property owners probably will not get anything like adequate compensation. A just-published study conducted by ProPublica and the Texas Tribune analyzed over 400 condemnations undertaken as a result of the Secure Fence Act of 2006, which authorized the construction of a much smaller barrier than Trump's proposed wall. Here is their summary of their findings:

An investigation by ProPublica and the Texas Tribune shows that [the Department of] Homeland Security cut unfair real estate deals, secretly waived legal safeguards for property owners, and ultimately abused the government's extraordinary power to take land from private citizens.

The major findings:

  • Homeland Security circumvented laws designed to help landowners receive fair compensation. The agency did not conduct formal appraisals of targeted parcels. Instead, it issued low-ball offers based on substandard estimates of property values.

  • Larger, wealthier property owners who could afford lawyers negotiated deals that, on average, tripled the opening bids from Homeland Security. Smaller and poorer landholders took whatever the government offered ā€” or wrung out small increases in settlements. The government conceded publicly that landowners without lawyers might wind up shortchanged, but did little to protect their interests.

  • The Justice Department bungled hundreds of condemnation cases. The agency took property without knowing the identity of the actual owners. It condemned land without researching facts as basic as property lines. Landholders spent tens of thousands of dollars to defend themselves from the government's mistakes.

  • The government had to redo settlements with landowners after it realized it had failed to account for the valuable water rights associated with the properties, an oversight that added months to the compensation process.

  • On occasion, Homeland Security paid people for property they did not actually own. The agency did not attempt to recover the misdirected taxpayer funds, instead paying for land a second time once it determined the correct owners.

  • Nearly a decade later, scores of landowners remain tangled in lawsuits. The government has already taken their land and built the border fence. But it has not resolved claims for its value.

The study's findings are consistent with previous research on takings compensation, which I summarized in Chapter 8 of my book on eminent domain, The Grasping Hand. Scholars have repeatedly found that many property owners get less than the "fair market value" compensation required by Supreme Court precedent, and that this is particularly likely for those who are poor, legally unsophisticated, and lacking in political influence. Even those who do get fair market value compensation still often are not fully compensated for all their losses, because many owners attach "subjective value" to their land above and beyond its market price. Consider, for example, a homeowner who has lived in the same neighborhood for a long time, or a small business with established customer "good will" in the area that may be hard to replicate elsewhere.

During the 2016 presidential campaign, Donald Trump claimed that victims of eminent domain have nothing to complain about because "when eminent domain is used on somebody's property, that person gets a fortune." The history of the Secure Fence Act takings—and many other condemnations—proves otherwise. If it were really true that having your property condemned is a great way to make a fortune, the Donald Trumps of the world would be lobbying the government to take their property, instead of lobbying to condemn that of the politically weak in order to build parking lots for their casinos.

If Congress allocates money to build Trump's border wall, the abuses that occurred with the Secure Fence Act takings are likely to be repeated on a much larger scale. Sadly, this would be yet another of the many ways in which immigration restrictions harm American citizens, as well as immigrants.

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  1. But the border wall is not distinctively different from any other public project in this regard, and at least, unlike in Kelo, represents a genuine public use.

    Unless you’re going to reject public domain entirely, there’s nothing special going on here, that doesn’t happen all the time when roads are built, for instance. This is not, fundamentally, about the wall.

    1. True, Somin’s arguments are not unique to the wall. But the wall is a large, egregious example that’s especially timely to discuss. It’s a particular example that there’s still time to stop from being as abusive as the past examples.

      And unlike most eminent domain cases we hear about, this one will be a taking by the Federal government, not the usual state and local abuses.

    2. It represents a genuinely stupid public use.

      1. A stupid public use is Amtrack. The wall benefits real Americans.

    3. It is, though, yet another reason to oppose the wall.

    4. Maybe some nice property lawyers will step up to help protect those disadvantaged people from mean ol’ Trump. Pro bono of course.

    5. I think it’s fair to say Prof. Somin’s posts raise the same complaints about eminent domain regardless of whether it’s about the wall. He’s also blogged before to say that Kelo is bad, but it’s not the only issue in need of reform when it comes to eminent domain.

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  2. I wholeheartedly agree that FMV is not “just compensation.” As the linked article on subjective value points out, the property owner can always, in the abstract, sell for FMV. That the owner is not voluntarily selling is pretty good evidence that he values the property at a higher number.

    It is interesting that apparently the FMV approach is defended, oddly, by its advocates as a compromise. A compromise between what and what is not stated. It does not seem to me to be any sort of middle ground between differing values.

    1. “t is interesting that apparently the FMV approach is defended, oddly, by its advocates as a compromise. A compromise between what and what is not stated.”

      It’s a compromise between the subjective value and past government practice of paying way below market value in eminent domain cases.

    2. As the linked article on subjective value points out, the property owner can always, in the abstract, sell for FMV. That the owner is not voluntarily selling is pretty good evidence that he values the property at a higher number.

      Sure, but if “just compensation” = “(owner’s) subjective value” then it wouldn’t ever be necessary for the government to “take” property. The owner would always be willing to sell at “subjective value.”

      Consequently if you are going to have a power that allows the government to “take” property, that implies that the government will not have to pay what the owner would have been willing to sell for. You can only use some kind of objective measure – if anyone’s got any better, objective, measure than FMV let’s hear it.

      For example how about, say, 125% of FMV. That means the government needs to be pretty sure it wants the property, because it’ll be able to get any number of similar bits of property for 20% less, on the market. But if it just has to have that bit of property, a modest premium to FMV is a good way to make sure the government is serious.

      However, against this, this creates quite a good money-go-round for corruption. Buy a property for 100, bribe your local government to “take” it (cost of 5); bank 125 – 100 -5 = 20; rinse and repeat.

      1. In theory, “fair market value” is the value at which the seller would voluntarily sell. But in voluntary transactions, it really IS true that the seller only sells if offered that “subjective value”. So that’s not actually a sound objection.

        The real problem is that “fair market value” is an oxymoron: The price at which a seller *who refuses to sell* would voluntarily sell. It doesn’t actually exist. We determine actual market values by seeing what price actually results in a sale, not by hypothesizing the price that would result in a sale for somebody who is actually refusing to sell at that price.

        1. However the concept of ‘fair market value” also hypotheses a willing buyer and a willing seller. It is a concept constructed from hypotheses, not the same as actual market value which is a real world observation. Unfortunately when you are pricing a hypothetical transaction you’re kinda stuck with hypotheses. And in practice when the courts, or arbitrators, make their stab at the hypotheses of willing buyers, willing sellers, no compulsion or emergency to sell or buy etc, their best guide is extrapolation from actual observations – of other real transactions.

        2. Car insurance companies fuck people on this all the time. The value of your well-maintained, recently- painted soon-to-be-classic car is worth scrap metal. You can’t even buy a running POS for that amount. Thanks, Obama’s Cash for Clunkers.

          1. Technically, you can get “classic car” insurance, which actually pays replacement value based on rarity and condition of the car.

            The problem is, it’s also *priced* on the rarity and condition of the car. The regular insurance is cheap because it’s mostly worthless.

            Yeah, my brother found this out the hard way when his carefully restored 65 Mustang was t-boned on the first day he took it out for a drive.

        3. FMV has nothing to do with the owner, it’s what other people would and have sold for. Like the “reasonable person” used in the courts. Still hypothetical, but doesn’t care about your subjective value. That’s the M (market).

          1. Yeah, well, if somebody else had been living in that house for 40 years, after inheriting it from their father, they’d likely be equally attached to it.

            The actual market does include subjective value. Does so all the time. That’s why we distinguish between “commodities”, and other types of sales.

  3. I may have lived too long but the idea of building a giant wall between the US and Mexico sounds about as well thought out as the Berlin Wall (remember that?) and not just for the abuse of eminent domain reasons cited by Soman. All those who voted for Trump should have seen this fiasco coming a country mile away.

    1. Goal of Berlin wall: to keep East Berliners out of West Berlin.

      Goal accomplished.

      Walls work.

      1. “Goal accomplished.”

        Not quite.

        It wasn’t just the wall alone, Inside the Berlin wall was a no-man’s land filled with anti-personnel mines and East Germany spent vast amounts of resources on men and dogs to guard the wall 24/7.

        At least a few people still managed to get out.

        1. Yes, but you can’t seriously object that the Berlin Wall (and its associated kit) wasn’t effective in keeping East Germans in East Germany. Very few escaped, indeed the dangers were high enough that very few tried.

          The associated kit was quite extensive however – it included barbed wire fences with lots of no man’s land and armed guards all along the western border of the Warsaw Pact. Recall that the control on population movement effectively collapsed not when the Wall came down, but earlier when Hungary started getting rid of its bit of the barbed wire fence.

          1. “The associated kit was quite extensive however”

            It was far more extensive than anything Trump’s border wall plans include.

            All that associated kit was likely far more expensive than the wall itself.

            And don’t forget, the West/East German border is significantly shorter than the US/Mexico border.

            1. The associated kit” was undoubtedly much more expensive than the wall, since it extended for a couple of thousand miles. In fact it makes more sense to regard the Berlin wall as “associated kit” for the rest of the fence. Berlin was a serious hole in the fence – hence the need for a wall. The fence as a whole – ie basically the whole Western land border of the Warsaw Pact, excluding the Soviet-Finnish border – is actually quite similar in length to the US-Mexican border.

              So it was an immense undertaking, including considerable depth and lots of border troops (I’m excluding actual fighting soldiers who were there for different purposes – I’m just talking about the investment in keeping people in.) However it was well within the economic capabilities of a very poor country (or set of countries) over fifty years ago. So the USA in 2017 could build a really serious border wall / fence along the Mexican border which would be pretty effective in preventing land crossings for far less, relatively, than the Warsaw Pact fence cost. If it wanted to. Which it probably doesn’t.

            2. I keep hearing people complain about how long the wall would be. But it’s actually very short in comparison to the size of the country.

              The length of the border with Mexico is 3,145 km. That’s including the parts that already have a wall.

              The population of the US is about 323 million.

              Divide one by the other, and that’s just under one centimeter of wall per American. It does sound long if you look at it that way, doesn’t it?

            3. one centimeter of wall per American.

              WTF? Is this a serious defense of the wall?

              And are wall advocates really proposing that the US emulate East Germany in its approach to those trying to cross the wall?

              That’s insane.

              1. No, we’re not suggesting that the US emulate East Germany. Because the Berlin wall was there to keep people IN, not OUT.

                It’s a pretty critical difference. I’m not running a prison just because I lock my front door, and don’t let people in unless I feel like it.

            4. Brett,

              I understand that.

              But then why the comparisons with the Berlin Wall in terms of effectiveness?

              Especially when part of the effectiveness in Berlin was the willingness of the wall builders to use killing force. I assume that you are unwilling to do that, even though kriskanya seems to be all for it.

              1. why the comparisons with the Berlin Wall in terms of effectiveness?

                Well it was LHB who originally mentioned the Berlin Wall – as an example of the daftness of the idea. So pointing out that the Berlin Wall was quite effective seems reasonable enough (notwithstanding TheAmazingEmu’s historically eccentric view that it wasn’t very effective.)

                But I entirely agree that aside from the physical barriers and the searchlights one of the key factors in its success was that you ran a serious risk of getting shot (or occasionally drowned.) It seems unlikely that a US-Mexico border wall / fence would involve such risks, and that is bound to reduce its effectiveness.

                Against that, modern technology supporting a wall / fence might make it pretty likely that people trying to cross the border would be apprehended. And then the question is – what is the cost of trying and getting caught ? If it’s being sent back with a pat on the head and an admonition to sin no more, then the whole exercise is pretty pointless. If it’s ten years in the slammer before being sent back then it’d probably be more effective. But probably less effective than being shot.

              2. People who don’t want the wall compare it to the Berlin wall, a prison wall.

                People who do want the wall compare it to the wall the Israelis put up to stop Palestinian assassins, a defensive wall.

      2. Is this sarcasm or bad history? People absolutely got through or around the Berlin Wall and defected to the west. The wall prevented people from easily crossing, but that’s because enforcement in the middle of an urban center is difficult (which is why Juarez has a fence/barrier/wall), but the desert is generally more effective than a wall is, which is to say, people will get past a wall just like they get through now and just like they got through in Berlin/

    2. Your analogy would work much better if it were Mexico building the wall.

      1. You mean Mexico won’t be paying for the wall?

        But he promised!!!

        (Do any of the rubes genuinely still believe that wall will be built?)

        1. Hey, Trump wouldn’t lie to his fans.

          Just ask Brett.

          1. Trump’s ardent supporters are unavailable for comment. They’re too busy working the coal mines, ringing the penitentiary in which Hillary Clinton has been incarcerated, and celebrating the repeal and replacement of Obamacare!

          2. It would be easily possible to force Mexico to pay for the wall, as remittances to Mexico by illegal aliens exceed the cost of the wall, and companies like Western Union are easy enforcement targets. All you’d need is a law confiscating any remittances that weren’t accompanied by proof of legal residence.

            Doing something like that does, however, require legislation, and I think Trump underestimated just how utterly useless the Republican majority in Congress intended to be.

            1. Maybe there just aren’t enough authoritarian bigots, even in the Republican Party . . .

    3. Fiasco? Illegal border crossings were down in 2017 just because of Trump’s talk of a wall. JFC

      1. Oh. Is that why?

        Looks like that would cause more crossings. “Hey, better go now, before that impenetrable wall that we are going to have to pay for gets built.”

        Yeah. Fiasco. Idiocy. Total waste.

      2. Agree with conclusion, Trump disagree on details, I think it was more his talk of deportation and hostility to amnesty.

    4. The building of a wall is a feature, not a bug, according to the people who voted for Pres. Trump.

    5. Your ignorance aside, we want the wall. Elections have consequences. Who said that?

  4. Some good points made about eminent domain. I think the wall should be built, and hopefully we can ameliorate the compensation issues mentioned.

    Regarding the linked article on immigration (“Sadly, this would be yet another of the many ways in which immigration restrictions harm American citizens, as well as immigrants.”), the points made are very weak. Immigrants of certain ethnic groups (e.g., Hispanics) take FAR more in benefits than they provide in revenue for the welfare state (http://bit.ly/2jVxZKV). This persists across generations.

    Outside of ethnic European immigrants, every ethnic group votes for the left. This persists for subsequent generations of children born in the U.S. If you have a one-man, one-vote, you can’t import leftist voters and hope to ever get rid of the welfare state (well, the whole system might collapse in a chaotic manner—a rights-respecting republic is unlikely to fill the vacuum). Moreover, the American culture of individual sovereignty has weakened greatly in recent decades and public schools/universities inculcate Progressive beliefs in the classroom, so that’s thrown a wrench into teaching these people “American values”.

    1. Immigrants depress wages (except for those of law professors and those in the Ivory Tower). H1Bs take jobs Americans can do (30% of STEM graduates can’t find jobs in their respective fields. They could learn QA, programming, or whatever else the Indians are imported for. The H1B program was originally meant for people with unique talents (like a sterling college professor from abroad)—not importing run-of-the-mill indentured servants who are chained to their desks. Oh and then having your more-expensive U.S. staff train their replacements (I’m looking at you, Disney)).

      We are at critical mass in terms of integration. At this point, Russians can stay in Little Moscow, Mexicans can stay in Little Guadalajara (i.e., California), and completely eschew integration. There are areas of California where you can’t get a job working at restaurants if you don’t speak Spanish (see Victor Davis Hanson on this).

      By importing many of the smartest and most capable people from the Third World, we are ensuring that the countries these people came from never get better. Remember that places like Pakistan have nuclear weapons. And the smartest people are leaving?!

      Importing people from countries we are bombing is problematic. Some seemingly suffer from bad attitudes towards the U.S. (understandable) and psychological trauma. We need to stop bombing them and stop importing them.

      1. I could go on and on. As a former open-borders guy, I’ve come to recognize that the “libertarian” position is totally stupid, if you examine the arguments/facts. Stefan Molyneux pointed the way (credit where credit is due).

        1. Open borders isn’t the “libertarian” position. I joined the LP back in the late 70’s, even helped found a college chapter, and worked as a volunteer with multiple campaigns. So I think I’ve got some claim to being familiar with libertarianism.

          It’s was always recognized that open borders were something you’d *eventually* want, after you’d gotten rid of the welfare state. NOT something you’d start out with. You can’t have a welfare state next to a third world country and have open borders, it’s just not feasible.

          Open borders, RIGHT NOW, isn’t the libertarian position. It’s the “liberalitarian” position. Just a rationalized adoption of the Democratic party’s position. Which isn’t motivated by anything but wanting as many Mexicans to move here as possible, because they’ll vote Democratic.

      2. There are areas of California where you can’t get a job working at restaurants if you don’t speak Spanish (see Victor Davis Hanson on this).

        Then maybe people hunting for restaurant jobs should learn Spanish, which is apparently a highly desired job qualification.

        1. Wow. Hillary wasn’t as bad with her “deplorable” speech

  5. The simpler thing would be to offer any illegal who’s the first to turn in his employer green cards for himself and his *immediate* family, and a whacking great cash reward, to be extracted from the employer in addition to whatever other punishments may be visited on him. That should pretty much dry up the market for illegal workers overnight – in fact, before the program even goes into effect.

    That leaves welfare as the only source of support for illegals, and without the possibility of hiring them for useful work, support for welfare for illegals should disappear from all but the most bleeding of hearts. Self-deportation and staying away follow.

    So, who needs the wall?

    1. What about self employment ?

      1. PFP’s proposal would solve 90% of the problem.

        And the self-employed entrepreneurs? They probably ARE a net gain for the country, rather than a loss. They certainly don’t need to be an enforcement priority.

        1. I was thinking more of the self employed lawn mowers, gardeners and so on. Whose children are citizens eligible for welfare.

          1. Allow the self-employed to turn in the people who hire them, too; they will quickly become unemployable. The children are a problem; maybe send them back with their parents but permit them to receive welfare at a rate adjusted for the local economy, and return when they’re adults? The whole birthright citizenship thing needs to be looked at.

            1. Birthright citizenship is not a problem, but it needs to be restricted to people here legally. I think that’s a matter of bad court interpretations, rather than being dictated by the text; It does say, “”All persons born or naturalized in the United States, and subject to the jurisdiction thereof,”

              That, “And subject to the jurisdiction thereof” could be the basis for a determination that the children of illegals are not citizens.

              Democrats will fight like mad against that, though: That clause has swelled their ranks.

              1. It could be, if someone was dishonest enough to use it as a justification. How are the children of illegals not subject to the jurisdiction of the US?

                Yes, I know a couple of law professors somewhere tried to make that argument. Forget it.

                1. Because they’re subjected to the jurisdiction of a foreign power. Tell me, what is the purpose of that clause? Your reading is that it’s meaningless.

            2. That’s ridiculous. There’s no easy way to verify the legal status of someone you’re paying in cash to mow your lawn. It’s the employers who can run e-verify who are the problem.

            3. I believe you are generally subject to the jurisdiction of the country you are in. If it is not your home then you are also subject to the jurisdiction of your home country for some matters. To argue that someone in the US is not subject to its jurisdiction is to say that the individual can’t be arrested, for example.

              The purpose of the clause is that it excludes diplomats, who enjoy diplomatic immunity, unlike other foreigners, whether here legally or not.

              Do you honestly think that non-diplomat foreign citizens currently in the US for any reason are not subject to our jurisdiction?

              1. I think you can argue that non-diplomat foreign citizens who are currently in the US *in violation of our laws* are not, effectively, subject to our jurisdiction, because if they were, they’d be someplace else.

                It’s a somewhat goofy argument, but at least half of current constitutional jurisprudence is goofier.

      2. Like those wonderful illegal foreign nationals running their own human and drug smuggling operations? šŸ˜‰

        1. Them especially: without them, many of our police and politicians would live far less well.

  6. The article is basically an anti-Trump screed, disguised as an economic analysis.

    As other commenters have pointed out, eminent domain has problems, and the wall is not unique about this.

    But, national defense is something that sometimes people have to sacrifice for. Many of us volunteered for and served in our nations wars (Vietnam for me). Yes, that sacrifice should not fall on those coerced (although our wars through Vietnam did have draftees).

    We need better border protection. It really is an issue of national defense, and a nation which does not defend its borders won’t survive. Those of us in the southwestern US already sacrifice for the alternative. Whole sections of the Phoenix metropolitan area are now dangerous to traverse, because of Hispanic immigration and the unfortunate fact that many of their kids (and these days, the immigrants themselves) join criminal gangs and prey off of everyone else.

    1. Query whether either Vietnam or the Wall are meaningfully related to the national defense.

      1. That’s not much of a question, although some people are still bitterly clinging to it.

    2. As a resident, I can’t think of a single Phoenix neighborhood that is “dangerous to traverse”. What are you talking about?

  7. The article is not evidence that immigration restrictions harm Americans. It is evidence that in the context of some things, including immigration restriction, Eminent Domain can be abused, and _that_ harms Americans.

    Tangent: It should be noted that a wall would not restrict legal immigration in the slightest. I make a sharp distinction between legal and illegal immigration, and find it deceitful when people treat the two as the same. Legal immigration are my Romanian sons and my Filipina daughter-in-law. Illegals immigrants are people who take up spots for folks like my sons and daughter-in-law. There is no reason for people from other nations to choose who our immigrants will be.

    1. There is no reason for people from other nations to choose who our immigrants will be.

      Nor is there a reason for Americans to decide that YOUR foreign kin are superior to any other foreigner – and to force everyone else in the US to accept them as immigrants because of your feelz about them.

  8. Perhaps this is the time to launch a Constitutional Amendment to eliminate all the nasty abuses of the Takings Clause that have accumulated over the years. There probably won’t be another time in the next 200 years when the Dems will back it, so now’s the moment.

    1. I don’t know why we’d need a Constitutional amendment. The Constitution is already perfectly clear that the government must provide “just compensation.” It seems to me that this is something that both liberal and conservative legal organizations, together with legal scholars and Senators questioning new judicial nominees, should be able to work together to get courts to recognize.

      1. It’s also pretty clear about “public use”, but the Supreme court still ruled that private use with some anticipated public benefit was just as good.

        Ultimately bad faith can trump all constitutional text.

        1. Touch?. But the solution to judicial bad faith should be judicial correction, which may be difficult but is a lot easier than amending the Constitution, particularly as the amendment will then be subject to its own interpretation.

          1. If Congress would actually impeach judges who abuse their power, your system would work.

            1. They’re not going to, because those judges are carefully selected to abuse their power in ways Congress generally approves of.

              1. Bingo.

    2. Lee,

      I think something should be done about the abuses. I think many of my fellow Democrats agree, and not just because of the wall.

      Lots of the abuses stem from big developers being allowed to use eminent domain to take property for their projects, only thinly, if at all, connected to a “public purpose.” Not a lot of sympathy for that among liberals.

      1. And yet it was the 5 liberals on the court that ruled for Kelo…

  9. I’m not going to read the article, but do you know how much private and public land is being destroyed by illegal immigrants crossing over lands and tramping it down and leaving piles of trash and killing stock. Eminent domain already exist a wall will not make it worse

    1. “I’m not going to read the article”

      Well then.

  10. Oh, look. someone rolled a burning feces covered tire from the trash fire that is the Washington Post and set it up a Reason.

    Great.

  11. Sort of OT: when do the Volokh front-pagers have no interest in talking about a gun-rights bill? When that bill blatantly stomps all over every principle of federalism:

    http://www.slate.com/articles/…..ented.html

    Time to choose, guys.

    1. The states being allowed to trample upon Constitutional guarantees is not a principle of federalism.

      1. There’s a constitutional concealed-carry guarantee? Amazing. Why, pray tell, has this guarantee never been discovered before?

        1. No. There’s a Constitutional guarantee to “bear arms” in some capacity. “Bear” means “carry.”

  12. It’d be nice if you admitted that your opposition to eminent domain here is purely based on your opposition to any restrictions on immigration, and nothing more. I suspect if the government was trying to seize land to build more gay wedding venues, you’d be all about it.

    1. Are there many gay-bashers at reason.com?

      1. I’m not a gaybasher. That said, Somin wrote one inane article after another peddling his “sex discrimination” argument regarding gay marriage.

  13. This is really an eminent domain issue, not a border wall issue. One could be in favor of the border wall and opposed to the current eminent domain regime.

    Having been on the receiving end more than once of eminent domain, I can say that its greatest inadequacy is that it doesn’t fairly compensate the unwilling seller. Yes, the compensation may be “fair market value”, but FMV assumes that both parties to a transaction are willing. Since in a condemnation proceeding, one party is, by definition, unwilling, there ought to be additional compensation to account for that party’s being forced into a transaction it doesn’t want.

  14. **rewrites title:** Why author doesn’t like ANY eminent domain
    there I fixed it for you :p

    The border wall is probably one of the strongest cases possible for eminent domain. It is something that literally cannot be built anywhere other than that specific land, and reflects a national interest.

  15. There are few uses for which eminent domain is justifiable; border security is among those few uses.

    Among its millions of acres of land holdings, a mile-wide strip along the border should be a no-brainer.

    1. Wouldn’t need remotely a mile wide strip. Fifty feet would likely be sufficient. A wall, or other barrier depending on topography, a road, and then another wall. And a guard shack every so often.

      The closer the guard shacks are together, the less impressive the wall has to be: The only purpose of the wall is to slow down illegal enough that the guards can arrive before they get away.

      1. Fifty feet might be sufficient for “the border wall”. But lots of stuff happens at national borders and it’s prudent to have a wider strip of land available, for national defense, roads, detention facilities, etc. Simply not having much commercial and private development close to the border makes border enforcement much simpler. And it would simplify legal and jurisdictional issues. Heck, just declare such a border strip a national park and a national monument and be done with it.

        The federal government owns about a million square miles of land; it’s hard to see why owning 4000 square miles along the Mexican-US border seems so objectionable.

  16. Eminent domain is not the issue with Reason. It’s the attempt to control mass illegal immigration. And in principle, I’m with Reason on this, that the free movement of people is a good thing. However, we also have welfare. A lot of it. And a good chunk of immigrants arrive, and immediately get on the dole (how do you think immigrants live in places like Chicago, support a family, etc on $6/hour?). Has Reason forgot Friedman’s Rule: You can have a massive welfare state, you can have mass immigration, but you cannot have both. I’ll sign up for expansive immigration when we cut the government teat. But not BEFORE.

  17. I continue to think “wag the dog” arguments of this nature are counterproductive. The basic argument in favor of a wall, agree with it or not, is national defense – excessive or irregular immigration constitutes an invasion of US territory. If the national defense argument is valid, then concern over property rights is petty and selfish. Legitimate national defense concerns OUGHT to trump property rights. Without a society to protect individuals’ rights, there can be no property to enjoy. We are not all well-connected people like Edward Of Windsor who can count on our country’s enemies to guard our villas. For the rest of us, if our country goes, our property goes as well. So if there is a legitimate case for a wall, quibbling about ones property suggests a selfishness of a rather unadmirable sort. So before we get to property rights we have to first get to the threshold question of whether it is needed for national defense or not as its proponents claim. If it is not needed, or in detrimental, then thedrain on the public fisc of paying for a white elephant plus the foreign policy drawbacks will more important concerns than the property issues. Except perhaps to a handful of landowners on the border, and maybe a few law professors. The property owners would be entitled to just compensation in any event.

  18. “Just compensation” sounds almost like an oxymoron when the government forcibly takes your land and forces you to accept their offer. Take all the Fifth Amendment legalistic stuff away, and you’re not too far from a Mafioso making you an offer you can’t refuse.

  19. I think a lot of the comments I am reading are really off topic and miss the whole point. Government is always corrupt, though we are all adults enough to know we need it, but just don’t want too much of it. Eminent domain violates the rights of the individual and the government justifies it as a necessity to the safety or benefit of all. In some cases it is justifiable. But to be justifiable, it has to have some foreseeable benefit. This is just political theatre. The illusion of doing something while not actually doing anything, but pleasing those who want “progress”.

    Imminent domain is a real problem. In California where I live, people are pissed about the government taking their land for a super train that looks less and less likely that it will ever get built. I agree. This wall is no different. 10 years from now there will be no California bullet train, nor will there be a new US border wall. Whether those projects would be good or bad is not the point, the point is they ain’t gonna happen, so the government, whether it is state or federal, taking land using eminent domain is BS. I get that some of the commentators are passionate about border control and closed borders. I also think you can be either way and still be a libertarian. But, be realistic. Does anyone really think that either the California bullet train or Trump’s Wall will actually exist 10 years from now? Maybe they will both be built, but be invisible, like Wonder Woman’s plane.

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