The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Washington Post just published my new op ed on eminent domain and President Donald Trump's proposed border wall. Here is an excerpt:
In his speech on Saturday, President Trump reiterated his determination to build his border wall. Much of the debate over this issue focuses on whether Trump can get the funding he wants.
But even if congressional Democrats agree to give him the funds in exchange for concessions on other immigration issues, that would be only the beginning of the drama over the wall. Trump cannot acquire the land he needs without forcibly displacing large numbers of property owners by using eminent domain. That inevitably threatens the property rights of hundreds, perhaps thousands, of Americans.
Less than one-third of the needed land is currently owned by the federal government. The rest — as much as 1,300 miles — is held by private owners, Native American tribes and state governments, many of whom are unlikely to sell voluntarily. Even if the wall does not cover the full 2,000 miles because it excludes some areas, such as those that have "natural" barriers, many property owners will have to be displaced….
To get that land, the government would have to resort to eminent domain: a power that allows the state to seize property from unwilling owners. The result would be one of the largest federal condemnations in modern U.S. history. In Texas alone, there are some 4,900 parcels of privately owned land within 500 feet of the probable route of the wall. In Arizona, some 62 miles of the route is owned by the Tohono O'odham Nation, which opposes the wall because it would damage the tribe's land and impede ties with members across the border. No one knows exactly how many homes, businesses and tribal properties would have to be condemned. But it is likely that thousands of people would suffer….
In 2005, the Supreme Court generated widespread outrage when it ruled in Kelo v. City of New London that the government could condemn homes to promote private "economic development." The project fell through, and today the site of Susette Kelo's house is used only by feral cats. Trump is a long-standing defender of Kelo, in large part because he himself has a history of benefiting from eminent domain abuse, including the notorious 1998 condemnation of elderly widow Vera Coking's home to build a parking lot for one of his casinos.
As legal scholar Gerald S. Dickinson notes, "The Great Wall of Trump could leave hundreds of Cokings and Kelos at risk of losing their property" — vastly more than in Kelo. They would lose their land to build a structure that is not justified by any genuine security crisis, is likely to cost more than $20 billion in taxpayer money and probably would not significantly reduce undocumented immigration. Even seizing land for feral cats seems a better deal than that.
In this post, and an op ed in the New York Daily News, I discussed the issues raised by the possibility of Trump using emergency powers to build the wall. He does not seem to be pursuing that option, for now. But it could potentially resurface if Congress continues to deny him funding for the wall.