Donald Trump

My USA Today Op Ed on Using Emergency Powers to Build Trump's Wall

The op ed explains why this option is not legal - and why it would set a dangerous precedent if the president succeeded in doing it.

|The Volokh Conspiracy |

USA Today recently published my op ed on the potential dangers of using emergency powers to build Donald Trump's border wall—an option he may yet resort to if Congress continues to deny him the funding he seeks. Here is an excerpt:

President Donald Trump recently said that he will "almost… definitely" resort to emergency powers to build a wall on the Mexican border if Congress does not give in to his demands. That may be his way out of this government shutdown if Democrats, unmoved so far by his televised address Saturday, continue to hold the line. But it should not get him that wall.

In order to build it, he would need not only funds, but also the power to seize property from unwilling owners through the use of eminent domain. Allowing him to do so would set a dangerous precedent and threaten the property rights of thousands of Americans…..

Even if he can declare a "national emergency," however, that does not mean he can use it to pay for and build a wall….

Even if the president can use emergency powers to get funds, that does not mean he can seize property by eminent domain. The Supreme Court has long held that the use of eminent domain must be "expressly authorized" by law. No emergency laws "expressly" permit the use of eminent domain for border walls not otherwise authorized by Congress.

Building Trump's wall requires using eminent domain on a massive scale. Less than one-third of the needed land is currently owned by the federal government. The rest would have to be taken from private owners, Native American tribes, and state governments, many of whom are unlikely to sell voluntarily.

The result would be one of the largest federal condemnations in modern American history…. Construction and legal battles over compensation can drag on for years.

This reality underscores the absurdity of claiming that a wall is needed to combat an "emergency." Emergency powers are intended to address immediate threats that cannot be dealt with by slow-moving legislative processes. If the supposed emergency can be fixed by a wall that takes years to build, that means it was not an emergency in the first place….

If Trump succeeds in using emergency powers to build the wall and seize property through eminent domain, future presidents could exploit this dangerous precedent. They too could declare a "national emergency," and then divert military funds and take private property without congressional authorization.

I discussed the harm likely to be caused by using eminent domain to build the wall in greater detail in a recent Washington Post op ed.

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137 responses to “My USA Today Op Ed on Using Emergency Powers to Build Trump's Wall

  1. In such urgent times the use of emergency powers to build a wall is exactly what Trump should be doing. Anyone who is serious about small government and true libertarianism should look the other way while this power is used for the greater good and our children’s future. Self-destructive libertarians like Somin and Cuck Gillespie need to recognize that if the Democrats take over in 2020 it is game over for freedom across the country. Build a wall now or forever damn our nation to incoming hordes of progressivism.

    There will be no hope for liberty and small government if illegal aliens take over this country and vote for big government socialism for generations to come. As the great American patriot Franklin Roosevelt once practiced, “the ends justify the means.”

    1. Poor Lefty troll.

      Libertarianism will survive in spite of your efforts.

      1. I think you are somewhat confused as to the full scope of the President’s powers and, with all due respect, this editorial does not give a fair review of the President’s authority in this context. The President does possess certain inherent constitutional authority with respect to border crossings, in addition to statutory powers. Pipelines traversing the border need a Presidential Permit. Ask TransCanada. Not to mention the President’s power and duty to defend/protect the borders. Could a private landowner prevent the military from defending the border? Moreover, are there rights of access/easements already in the government’s favor on any impacted areas?

  2. In such urgent times the use of emergency powers to build a wall is exactly what Trump should be doing. Anyone who is serious about small government and true libertarianism should look the other way while this power is used for the greater good and our children’s future. Self-destructive libertarians like Somin and Cuck Gillespie need to recognize that if the Democrats take over in 2020 it is game over for freedom across the country. Build a wall now or forever damn our nation to incoming hordes of progressive waste.

    There will be no hope for liberty and small government if illegal aliens take over this country and vote in big government socialism for generations to come. As the great American patriot Franklin Roosevelt once practiced, “the ends justify the means.”

  3. It is probable that more than a few “Americans” do not think the “wall” debate is in good faith . . . put simply, the debate is no more than cover for many who think that those with whom they most closely identify will gain power through the consequences of an open border.

    1. Pretty much this. Repubs don’t want people south of the border to come in hand over fist, leading to a larger Democratic voting block, while the Democrats do.

      Neither side wants to admit this for obvious reasons, so both sides use proxy arguments.

      1. There are Republicans who supported people coming from south of the boarder.

        1. Especially those Republicans with close ties to the cheap-labor, low-wage lobby.

          1. So the Chamber of Commerce, rich Republicans, etc. You know there was a time when a Republican President might have even suggested that the country’s doors should be “open to anyone with the will and the heart to get here.”

            1. They were both fine as long as it found new payers for Social Security to push off the time to deal with it.

              1. Yes, besides the facts that illegal immigrants decrease the cost of consumer goods and services, fund without increasing costs on social security, and improve the quality of Mexican food the country over, they’re a real drag and everyone who is right-thinking should hate them and want them out. Even the millions of Americans who depend on them for cleaning, child-raising, and construction services.

                I mean are you trying to argue for more illegal immigrants?

                1. Our mass immigration scheme effects an annual $500 billion wealth transfer between natives, generally from the working and middle classes to the more well-off. And as for the net wealth gain to natives, it amounts to an unevenly distributed $50 billion, but is offset by $50 billion in taxpayer cost — that’s the familiar pattern of privatized gain and socialized losses.

                  1. Say hi to Bernie and Elizabeth

                    1. The interventionist government policy of very high immigration levels is indefensible.

                    2. “Interventionist” confirms that as a falsehood.
                      And a refusal to support any of your prior assertions.
                      Moving on. Nothing to see here.

                  2. We’ve already had this discussion. Some gains accrue to the working class (because they enjoy the goods and services provided by illegal immigrants, too). That is only factoring in the gain for natives. Your calculus doesn’t include the gain for the illegal immigrants. Worse, the $50B loss isn’t factoring in native gains from that spending. Your best argument is that it’s a wash–and that’s wrong. But even a wash is a win if you factor in illegal immigrant gains.

                    Set all that aside. Let’s just take Milton Friedman’s position, which is that open boarders makes sense if we don’t have social insurance. If the problem is social insurance (rather than the illegal immigration), the solution is to deal with the social insurance.

                    1. Illegals don’t get benefits, which is WHY Friedman also said — in that same speech — that even illegal immigration was positive for the country. because they pay the taxes but are denied the benefits. They literally subsidize Social Security and Medicare, which are funded by dedicated taxes (FICA). His comment on immigration and the welfare state has been distorted since almost the moment he stated it — a fixture in the restrictionist glossary of falsehoods.

                      “Open borders” just repeats a rather shameful (and tiresome) straw man fallacy.
                      It’s as bad as “they’re coming for your guns” for fomenting hysteria.

                      Yes, illegals do attend public schools, which are financed largely by the local taxes they pay. You may recall we staged a violent revolution against “taxation without representation” — but are now among the worst on that. Most countries allow non-citizens to vote on voter-approved taxes- as I did when I worked in Canada as an legal resident but US citizen. This is not the same as illegals, but shows how ignorant Trump is on immigration, overall.

                      Illegals also drive on public roads, use public parks and transportation, libraries …..

                    2. @Nolan

                      “. . .illegal immigration was positive for the country”

                      Please define “positive for the country.”

                      “Yes, illegals do attend public schools . . . ”

                      They also receive welfare through fraud and otherwise, free hospital visits, pre-K through higher education, and much more. They also place strain on public infrastructure and increase housing and other living costs which disproportionately affect lower income Americans. Black Americans are the most harmed by illegal and low-skill immigration, and yet everyone pretends to care about the well-being of black Americans?

                    3. “Your calculus doesn’t include the gain for the illegal immigrants.”

                      Exactly. And that’s the crux of our disagreement. I don’t think that a perverse welfare-like program should redistribute $500 billion annually from the average American to a privileged few, on the basis that it benefits illegal immigrants. Duh! And don’t forget the other welfare program of privatized gain and socialized losses, with the net surplus of immigration being offset by an equal $50 billion taxpayer cost. And yes, this does include factors like cheaper produce in the grocery store — as if that were material in light of the foregoing anyway.

                      This is not to say that benefits to immigrants — to the world at large — don’t factor into the calculus. Obviously, that’s why the U.S. is historically and currently a generous and open nation. But the basic fact is that a nation is like a corporation, with a duty to maintain shareholder value (i.e. citizenship). And a job is a thousand times better than a welfare check.

                    4. ” I don’t think that a perverse welfare-like program should redistribute $500 billion annually from the average American to a privileged few…”

                      Yet you admit just lines later that it “include[s] . . . cheaper produce in the grocery store”. Do only a few elites use grocery stores?

                      “And don’t forget the other welfare …”

                      I fucking didn’t. It’s right there in my post. See the part that says “$50B…”

                    5. Are you dense? We are talking about the overall net effect here, including the cheaper produce factor which is a drop in the bucket.

    2. In my experience, politicians don’t generally have that kind of time horizon.

      This is about what America’s symbol or spirit or whatever will be in the near future, and that’s what’s moving the people and thus the politicians.

      The secret electoral agenda thesis has no evidence supporting it for either side other than a few clever people think it’s what they would do.

      1. You have to explain the incentives for both sides refusing to stop illegals.

        1. No, I just have to note that WJack’s postulate of bad faith isn’t correct for the reasons I outlined.

        2. You have to show that’s even remotely true.

    3. Let’s think about this claim mathematically. Only about 1/4th of the country identifies as Republicans, with closer to 1/3rd identifying as Democrats. The rest are independents. If you include leaners, that still leaves Republicans outnumbered. And since the only age group that Republicans dominate were born between 1928 and 1945, the numbers will likely skew more over time (although we should also assume that as people age, they are more likely to become Republican).

      Start with the proposition that approximately 1/4th of the country already assumes bad faith by Democrats. Assume that approximately 1/3rd is already unlikely to assume bad faith by Democrats. That leaves approximately 40% of the independents to conclude that the Republicans are acting in bad faith re: emergency, or Democrats are acting in bad faith re: compassion. But polling suggests the wall is unpopular generally among Independents, about 2/3rds are against it.

      1. Your citations fell off.

        1. There is nothing wrong with a request for citations. Claim is in reference to polled self-identification. Here is Pew, which has overall trends back to 1992. The data re: age breakdown is in that link as well. Compare that with Gallup. The results are similar.

          For a collection of polling on the wall, including independents’ view of it, see here generally. For the 2/3rds claim re: independents, see here.

          1. There is a poll taken every two years. What you provide is raw, fact free, entertainment.

            1. I don’t know what you’re saying. For the Pew poll, the results come out every year. The annual totals are based on combining 7-12 surveys (over the year) and weighting appropriately. For 2017, it was based on 7 surveys with 10,245 interviews. Their methodology is available here. Gallop’s poll is done monthly.

              If your view is that polls are irrelevant, that’s not loveconstitution’s position, since he asked for evidence.

      2. I wonder why your average “independent” voter might be against a wall or other border controls given the full tilt of the left wing media has been against it since day 1 and openly touts their open border agenda.

        1. Why is “independent” in quotes? Do you have a better test for independent voter status than self-identification? And if the independents are really democrats falsely identifying as independents, doesn’t that make it even less likely that such voters will side with Republicans in the Great Wall of Good Faith debate?

          And what are you trying to prove? If polling shows that Fox News was for the wall from the beginning, can I argue that the self-identified Republican numbers are skewed? (Perhaps they are just “Republicans”.) Or is it just as likely that voters lean towards media they happen to agree with politically?

          And the whole “it’s the media’s fault” argument is not persuasive when Republicans have and have had access to the largest bully pulpit in the country. If independents aren’t buying it, why can’t the President sell it? Sad. What a loser.

        2. If you’d like to know, all you have to do is ask.

          I’m against using 3000+year old technology which has been superseded by ultra-sophisticated inventions called “ladders” and “tunnels.”

          1. Technically, ladders and tunnels were invented contemporaneously with “walls”. The reason walls kept being used is that they still worked, in the sense of making it harder to cross a patch of otherwise level ground.

            1. So you admit Trump’s wall will FAIL to fix anything. Just make it more difficult.
              Welcome to reality.

      3. The point that needs citations is ‘people will turn Republican as they age.’

        That was true when Republicans favored science, government competence, reason, progress, tolerance, and the like. Are today’s young people going to consider the modern Republican-conservative electoral coalition as they age and one day figure ‘yeah, I think I’ll be a bigot from now on?’ Are they going to forget their gay classmates, Muslim friends, black teammates, agnostic neighbors and suddenly embrace old-timey intolerance?

        Similarly is it likely that with steadily diminishing exposure to childhood indoctrination younger Americans will become likely to decide ‘I think I’ll start bunking with conservatives on the issue of whether fairy tales are true?’

        When Republicans made gun nuts, bigots, anti-abortion advocates, and religious zealots important elements of their political coalition, they likely lost their traditional opportunity to attract modern young Americans to their cause.

  4. Good thing Trump is president to execute on Constitutional powers to protect the USA from all threats, foreign and domestic.

    Congress gave up decades ago on allocating every penny of what Defense Department money is to used for.

    1. Congress absolutely looks at every penny. This past year they told the Air Force to buy exactly 8 more F-35’s for exactly this amount per jet.

      Not that the Pentagon isn’t crazy bloated, but Congress is down with every fat penny since those pennies mean jobs.

      It’s interesting – OMB is largely complacent with it comes to DoD, with Congress doing a lot of oversight. Whereas it is the big monster when I talk to people who work for other agencies.

      1. lc1789 is like Trump, invents whatever he needs to say at the moment.

  5. I remember being told over and over and over by Ilya Somin that the travel ban was unconstitutional. And then the Supreme Court ruled otherwise, because “rational basis”.

    Good luck with this one. I hope it’s more about the law and less about emotion this time.

    1. SCOTUS upheld the travel ban after the changes forced on Trump by lower courts.

      (I am pro-Trump, but his non-stop lies, and those of many supporters, are the greatest threat to his agenda)

  6. Is this the Ilya Conspiracy now?

    Another Trump hit piece. I would be surprised but after the parade of horribles unleashed about a simple border wall, I really wonder if Ilya is getting kick backs either by the DNC or his buddies back in Russia.

    Of course a declaration of emergency is not the most ideal vehicle to get the wall done, but what other options are out there now. The Dems are proceeding in bad faith which is obvious seeing that the Trump compromise was rejected even before he was able to speak about it. I see little choice on how to proceed given the gravity of the situation and the lack of will for the Dems to come to the table and act like adults instead of petulant children.

    As far as those who cry that this will be the end of the American Republic, we have suffered far worse, mostly under liberals including abuse of war powers, unconstitutional executive actions, and lets not forget the whole New Deal and basically everything done under the guise of that.

    Everything will be fine in the end. We will have a wall that will reduce illegals and the crime associated with them. The Dems can keep on yelling whatever -ism they want at the folks who actually want to govern and we can move on.

    1. “…but what other options are out there now.”

      Wait until you have the votes? Whip up the votes when you do control Congress and the Presidency?

      1. If we were a parliament system that could hold snap elections I might agree with your assessment that one “wait until they have the vote”, but alas we are not. The situation is right in front of us and requires action NOW. Not in two years. What is happening is akin to an invasion by an enemy that is flagrantly ignoring our laws and seeking illegal entry into our sovereign lands. That is an act of war and it would be proper for the Commander in Chief to react accordingly.

        1. “The situation is right in front of us and requires action NOW. Not in two years.”

          This is unpersuasive since Republicans just had control of all of Congress and the Presidency and didn’t do what they are insisting must be done right now. Nothing has changed in the last several months to generate a crisis.

          “What is happening is akin to an invasion by an enemy…”

          There is nothing new happening today that wasn’t happening last year, or the year before, etc. The President already has the authority to deport people who enter the country illegally.

          1. The Dreamers are of no consequence since Dems had control of all 3 political branches also.

            1. Could you be clearer about what your argument is? The DREAM Act passed a majority vote when Democrats had control of all three branches. It couldn’t overcome the Senate filibuster. But when Republicans had the Senate and the House, they passed a spending bill without the wall funding. Unanimously (at least in the Senate). The crisis was not anything related to boarder security.

              So far as I can tell, the Senate did not even require Democrats to filibuster wall funding, when Republicans had the wall funding passed through the House.

              1. (Not that it alters your point, but when was the last time Democrats controlled all three branches? 1980? 1991 for SCOTUS?)

                1. Umm, Obama’s first two years, 2009-2010.
                  Ever hear of Obamacare?

              2. The DREAM Act passed a majority vote when Democrats had control of all three branches.

                It passed the House in 2010, but failed in the Senate, same year.

                1. That’s what I said, it couldn’t pass the Senate filibuster. (It did receive a majority of votes in the Senate.)

    2. You see this waxing and waning with all the Conspirators as they publish stuff and push it and then go back to writing.

      Prof. Somin is particularly single minded about it, plus he’s publishing in a shorter form than most of them do these days.

      Noting that abusing executive emergency powers won’t kill our Republic is very much the soft bigotry of low expectations, is it not?

      As for Dem bad faith, Trump leaked his compromise and it includes zero things not already included in the status quo ante. If you see bad faith in that I suspect you’ve see bad faith in everything Dems have done since 1979. Which your final paragraph more or less puts the button on – we will survive because the GOP is good and the Dems are dumb so who cares what they say. Hubris always ends in awesome.

      1. Trump? The guy who negotiated a deal for $25 billion in border funding, in return for Dreamer legitimacy … then broke his own deal … and now brags of a SIX billion wall in return for legitimacy … as he and his base declare a victory.

        Like General Custer’s triumph at Little Big Horn.
        Or Trump’s victory in the popular vote.

        Pelosi should be negotiating with Trump’s bosses, Hannity, Coulter and Limbaugh — since Trump has failed to close a meaningful deal on his own, in two years. And broke three deals that he did make.

        1. “The guy who negotiated a deal for $25 billion in border funding, in return for Dreamer legitimacy … then broke his own deal ”

          The guy who negotiated a deal, for $25 billion in funding in return for Dreamer legitimacy, noted that the legitimacy came today, and the funding was promised some time in the future, and said, “No, we’re not doing that again. Funding first, so you can’t welch on it.”

          Which killed the deal, because the plan had been to welch on it all along.

          1. LIE.

      2. The GOP is generally good and the Dems are the new evil empire. If you don’t realize that then you are just plain stupid.

        1. Ah, so it’s group affiliation all the way down then.

          1. Only for the left and the right … which is why they’re both now obsolete.

    3. “Another Trump hit piece.”

      Sheesh, can’t you guys read anything without subconjunctival hemorrhaging?

      This blog is about the unconstitutional expansion of presidential power – a topic Prof. Somin has written for years on, including many times against Obama.

      1. Yeah, but when he wrote about Obama’s malfeasance, he was simply stating the self-evidently truth. When he obstructs Trump, it’s because he’s dErAnG?D!#!@!!

    4. There will be no wall.

      Most Americans don’t want it. Just not enough gullible bigots to get it done.

      Even if Trump finds some couch cushion money and starts a demonstration project to appease the slack-jaws , that cynical project will end relatively soon. If the Trump fans are belligerent enough, other Americans may be expected to tear down whatever wall the yahoos build.

      1. Isn’t it ironic to refer to those who support proper border controls as being “gullible bigots” and “slack-jaws” while by doing so you just demonstrate that you are also a bigot…

        1. Logic? IQ?

          You’ve just said that bigotry does not exist, because Your Excellency has decreed they shall never be mentioned.
          And informed readers know who are the only ones who deny bigotry.

      2. How come we have hundreds of miles of walls at the southern border if no one wanted them?

        1. Who told you such a thing????

      3. Most Americans don’t want it.

        Most Americans probably don’t care, or care weakly, far less than justifies either side in this standoff.

        1. But as you yourself have noted, this standoff is not about the wall qua wall.

    5. Is this the Ilya Conspiracy now?

      Yours is the conspiracy.

      And this is even wackier:

      As far as those who cry that this will be the end of the American Republic,

      The same conspiracy grade as “They’re coming for your guns” and “Open Borders.” Same old politicians-invent- hysteria-to-defend-all-of-humanity-from

      The Dems

      Obsolete. Just like Reps.
      Left – Right – Zero.

      1. You libertarian FOOL. Trumpland Uber Alles!

  7. It seems to me that Professor Somin is posting in order to generate more comments to cite in his next book on Political Ignorance.

    1. It’s working.

      1. Yes. Because you read him precisely backwards!

  8. Well done. Just as Democrats changed the 2/3 rule for approving judges, them suffered Gorsuch and Kavanaugh.
    Politicians have long been rather stupid on immediate gratification versus long-term damage. Both major tribes.

    1. You know that politicians stay in power by winning the next election – not an election 10 years from now, right?

      You’re placing the blame on politicians, when they’re just playing by the rules.

      It’s our political system that’s short-sighted; not necessarily the politicians (e.g. each Congress session only lasts two years).

      1. You know that politicians stay in power by winning the next election – not an election 10 years from now, right?

        That is the problem I mentioned.

    2. “Just as Democrats changed the 2/3 rule for approving judges…”

      Not all judges. The rule was changed specifically for cloture on nominations to majority vote “not including those to the Supreme Court of the United States”.

      1. Precedent. Broken.

        1. Right. The precedent that non-SCOTUS justices should pass filibuster-proof majorities was broken.

          1. But not just that precedent.

            Also the precedent that you shouldn’t change the filibuster rules just to suit your side when it’s convenient (there was no convenience in changing the filibuster rules for SCOTUS judges in 2013, because there was no vacancy.)

            And most importantly, the precedent that you shouldn’t change Senate Rues on a 50+1 majority vote, when the Senate Rules themselves, previously agreed by both sides, and duly adopted, say you need 2/3.

            By breaking that last precedent in 2013, the Dems established a new convention. The Senate Rules are mere fluff – it’s OK for the majority to do what it likes. Consequently the Rs change of the SCOTUS filibuster conformed with the new precedent set by Harry Reid in 2013. You change the rules to suit yourself, by simple majority. The Rules morph from “The Rules” to “What shall we do today, guys ?”

            1. “By breaking that last precedent in 2013, the Dems established a new convention.”

              We all agree. The specific new convention was that the 50+1 majority vote should apply to non-SCOTUS nominations. Apparently there was some thought that SCOTUS nominees are more important than non-SCOTUS nominees. The Republicans disagreed, as is their right. But even they think there are some sacred issues, since they didn’t bust the filibuster for the wall voting. The history of old versus new conventions would have to take into account how much the minority party used the filibuster. For example, if it were true that more presidential nominees were blocked during President Obama’s administration than all other administrations prior, combined, that would suggest some other new conventions are being broken (and maybe it was by the President, because his nominations were just so objectionable).

              But who cares? This attempt at framing the issue is only important to partisans. I’m not a partisan so I don’t grade Republicans on a curve. You and I agree on the specific terms of the 2013 new convention.

              1. Read him again!

          2. Still wrong, NToJ.

            Democrats lost any power to object, without looking like fools.
            You are aware they did not object. right?
            That’s why.

            1. They did object. The vote in 2017 was 52-48 to kill the filibuster for SCOTUS nominations, with 48 Democrats voting against it. Or are you talking about something else?

      2. “Not all judges. The rule was changed specifically for cloture on nominations to majority vote “not including those to the Supreme Court of the United States…”

        Yup. And the Republicans could have easily funded the wall when they controlled both houses of Congress, by eliminating the filibuster only for bills funding border walls. I don’t know why they didn’t do that.

        1. They didn’t have enough Republican votes.

        2. I have a theory!

          1. You needed votes, not theories
            Theoretically

            1. The Republicans didn’t want to vote on it. Republicans are playing a much longer and more strategic game than Democrats. They value a fight with Democrats over wall funding more than they value wall funding.

              1. Umm, it takes 60 votes. THEY DID NOT HAVE SIXTY VOTES

                Or …. they INTENTIONALLY did not vote, and win, because they wanted a longer fight with Dems. Fighting now is preferred over winning then.…. Well, that would confirm they stumbled into the HUGE blue wave losses, but ….

                If that was “strategic” it’s the largest FAILURE since General Custer’s at Little Big Horn!
                Dems have been kicking their ass from the day Trump said he’d be proud to take the blame for a shutdown, and never blame Democrats … now the 8,374th lie or misleading statement of his Presidency.

  9. I’m about as anti-Kelo as one can get, but the logic of concerns over eminent domain use in this case escapes me, even after re-reading the WaPo piece.

    Military or security installation seems like a trivially valid use of eminent domain. That property abuts the border (or IS the border) makes it even more justified. Frankly, I can’t say I’d see the fault if (for the areas where it isn’t already Federal land), CBP eminent domained a 10ft swath of land across the entire US land border for both north and south.

    There are many other concerns about precedent being set for what is as much a budget battle as a security decision, but I can’t fathom this one.

    1. The Webster?Ashburton Treaty (1842, my favorite treaty), prevents the US from building military installations along the Canadian border.

      We even had to ask Canada’s permission to build naval installations on the Great Lakes during WWII.

      1. Thank you. I never heard of this before. Truly interesting and I intend to go look it up.

    2. Did you read the post? Because he makes an actual, you know, Constitutional argument.

  10. MAGA!

    1. Trolling? Or just a barbaric yawp?

      Either way, it’s pretty funny to hear the argument that the liberals are the side full of emotion and irrationality.

      1. They both are.

        Left – Right = Zero
        A libertarian mantra for 50 years.

        1. …You are not exactly a symbol of detachment and rationality.

          1. Prove my point, thug.

        2. You keep changing your user name, but you just can’t resist giving yourself away.

          1. I’m not sure what you’ve revealed about yourself: massively ignorant of libertarians, a tribal partisan hack, or both.

            “Left – Right = Zero” has been a libertarian slogan for 50 years, as in half a century, as shorthand for two realities.

            1) “Left an Right are obsolete.” (as the only two boxes for you people to jam everyone into)

            2) “Republicans want government out of your wallet and into your bedroom.
            “Democrats want government out of your bedroom and into your wallet”

            While they are different, their VALUE to big government is identical (for anyone who grasps algebra)

            Over 60% of Americans now reject loyalty to both left and right.
            Left and right now TOTAL less than 40% combined, and shrinking toward extinction, bellowing like dinosaurs, chirping like dodo birds, and knowing nothing about the libertarians who MADE them obsolete.

            Kinda fun to watch!
            Anything else?

    2. MAGA = Morons Are Governing America
      MAGA = My Attorney Got Arrested!
      MAGA = My Advisors Going Away!
      MAGA = My Associates Getting Allocutions!
      MAGA = Make America (debt) Great Again.!

      1. TUA = Trumpland Uber Alles

        SUBMIT

    1. Hahah….leftist rag “Mother Jones” is about as much of a reliable source as a DNC press release.

      1. The claims in the article are sourced to Pew, WashPo, TRACImmigration, an academic article, US Customs and Boarder Control, etc. If you dispute any of those sources, just tell us which claims so we can have a substantive discussion.

      2. As bad as Fox?

        1. No, that would be difficult…

  11. Not sure why the eminent domain is a big issue. The taking of property for public use is an enumerated power of the federal govt. I remember a city near me that built a four lane divided interstate along the south side. After the fact the owners complained of noise, and they decided to erect 30 foot walls to buffer the noise. Not every mile was residential, and the industrial owners fought to stop their property from being taken. They lost of course. Land for public use. The Prof never explains why the border would not qualify.

    1. It’s in the op ed. He’s not arguing that eminent domain is unconstitutional. He’s saying eminent domain for the wall has not been authorized by Congress.

      1. Many things are not authorized, yet are done with regards to the military and defense. Such an expenditure would be dozens of times more constitutional than the Syrian incursion, for instance.

        1. Syria incursions are funded. It’s under Operation Inherent Resolve.

    2. We elected a President, not a dictator. I would like to keep it that way.

  12. Five billion dollars isn’t going to come close to building a wall from the Pacific to the Atlantic. So couldn’t Trump avoid the problem by using it to build walls on federal property, or property the owner is willing to sell ownership or an easement to for the purpose?

    1. Easement! Money. very little lost land.

    2. Of course he could. This would leave open some areas you really want to close, of course, but by rerouting the current illegal traffic through the holes, it would probably make life miserable enough for the holdouts that they’d decide a wall was a good idea after all.

      Five billion OUGHT to be enough to build a wall from the Pacific to the Atlantic. It’s $2.6 million a mile. That’s more than Israel’s border wall cost, by a considerable margin.

      The excess is due to our government being so corrupt that the cost of everything gets inflated.

      1. How much private land did Israel have to buy.
        What do you know about unions in the Israeli construction trades? Or their wages in general.
        Or did pull all that out of your butt. As always?
        Are your real initials DJT?

  13. About as well analyzed as your arguments against the travel ban. How did that one turn out, again?

    1. The arguments forced Trump to make major changes in the travel ban.
      Anything else?

      1. Illya was wrong about the constitutionality of the modified ban, dummy.

        1. MADE A FOOL OF … CHANGES HIS STORY … JUST LIKE TRUMP

  14. Remember when Ilya Somin argued strenuously in favor of DACA’s legality? He’s a big fan of expansive executive power when it suits his open borders agenda.

    The sad and repulsive but almost comical intellectual dishonesty of Ilya Somin is on display again as SCOTUS fails to end the frivolous rulings by left-wing judges that have prevented the Trump administration from ending DACA protection.

    Somin’s key argument at the time, of course, was that DACA could easily be rescinded/ended by any future administration, at the drop of a hat! That fact, he said, illustrated why this was a valid executive action rather than a usurpation of legislative authority. I pointed out at the time that Somin’s college student-like advocacy paper was nonsense, and that left-wing judges would likely interfere in any attempt to end DACA protections. This hypocrisy upon hypocrisy upon farce has had an immeasurable impact on the drive for legislative reform on the #1 biggest issue that drove the 2016 Presidential election, immigration. Who is undermining democracy again?

    1. Your ignorance is ASTOUNDING. In two areas,
      1) DACA merely shifted priorities for immigration enforcement, quite legal despite the pussy-whining on the right.
      2) That damn Kenyan President had a record number of deportations.

      Correction: three areas. You’ve just admitted — unwittingly? — that even Trump’s SCOTUS is laughing at you. (as am I)

      I pointed out at the time

      Just as wacky as this one.
      No offense, but can you afford to hire a proofreader?

      I am a Trump supporter. Please stop embarrassing us.

      1. You seem mentally ill. DACA did not just shift priorities, it granted legal status, work permits, and substantive benefits to illegal aliens as a way of getting around Congress, because they opposed Obama’s amnesty. Even Obama himself all but admitted that DACA was unconstitutional.

        1. You’re also clueless about the powers of Congress, who DID kill …. remember the Dream Act? Lied about Obama this time. And ignored the inconvenient fact of his deportations.

          You DID admit that even Trump’s SCOTUS rejected your notions.

          1. No, SCOTUS simply did not take up the case at this time. If and when they do, they will rule DACA unconstitutional.

            1. humiliated again … changes story again …. ignores his shameful lies about Obama .. and his ignorance on the Dream Act and Obama’s record-setting deportations.

              Obama used his PROSECUTORIAL DISCRETION to …. wait for it … focus ONLY on criminal violations … LONG BEFORE TRUMP EVEN THOUGHT OF IT.

              Hint: Theft, murder and fraud are greater threats to America than illegal entry!!!
              Seriously!

              After Trump’s 17 months, Trump’s deportations were 45% LESS than Obama’s.

              Not to deny that Obama was born in Kenya. Trump had a record-setting Electoral College margin, the largest tax cut in history, and the most successful two years EVER for a President..

              And I ridicule those lefties who insist the world is NOT flat,. Earth is the center of the entire universe!
              Harrumph.

    2. Yeah, there’s no way to be against the military/crisis/ED wall stuff and yet be for DACA! Must be bad faith.

      Your pointing at judges who rule against your ideal as left-wing reveals more than any of the rest of your name-calling screed. Though the style does seem to amuse you at least, so who am I to argue?

      1. DACA is widely considered unconstitutional, even by Obama it seems, and unlikely to be upheld by SCOTUS.

        Ilya Somin has come up an incredibly stringent view of executive authority — even radical by today’s jurisprudence — when it comes to sanctuary cities and the travel ban. I was tentatively supportive of some of that. And yet he had a radically expansive view of executive power for DACA. He’s simply not respectable on this.

        1. DACA is widely considered unconstitutional, even by Obama it seems

          You’ve backed off your lie about Obama “admitting” anything. I googles the claims that he did and only people in the echo chamber would miss the fallacy they all share. And “widely considered” only in that same echo chamber

          “Setting aside the very serious moral and ethical debate about President Trump’s decision to scrap DACA, let’s clear up a foundational legal question. Obama’s DACA policy was ? in all likelihood ? constitutional as a matter of his Article II authority for the same reasons that Trump’s decision to rescind DACA was constitutional. The long version of the “why” story is legally complex. Suffice it to say that the Constitution and Congress together gave the Executive Office of the President the power to “make or break” things like DACA, and the Supreme Court has, for the most part, upheld the exercise of that kind of power many times.”

          1. Obama did. There are several choice paragraph quotes where he explained it clearly.

            Anyway, if DACA itself was questionable at best, the court decisions preventing the Trump administration from ending DACA are simply ludicrous, albeit predictable. They have elevated DACA to the status of legislation in terms of the push for immigration reform over the last several years. This is tyrannical.

            1. LIAR … And evasion … detailed for you here

              There are several choice paragraph quotes where he explained it clearly

              PROVE IT!

              1. LMGTFY. You seem unhinged and don’t deserve to have me google that for you. Regardless, here you go.

                DACA Is Unconstitutional, as Obama Admitted

                WAPO: Obama’s royal flip-flop on using executive action on illegal immigration

                The Pinocchio Test
                The president has certainly been consistent on this issue?until he saw that the path through Congress was blocked. It’s clear from the interviews that the president was not being asked about executive orders that would have provided comprehensive immigration reform, but about specific actions that ended deportations of a subset of illegal immigrants?precisely the type of action he will shortly unveil.

                Previously he said that was not possible, using evocative language that he is not a “king” or “the emperor.” Apparently he’s changed his mind. The president earns an upside-down Pinocchio for his flip-flop. . .

                An Upside-Down Pinocchio

                A statement that represents a clear but unacknowledged “flip-flop” from a previously-held position.

  15. We need more topics like this one, it helps distinguish the Russian commenters from the rest of us.

    1. Yup.
      Trumpsters scurry like cockroaches to defend his lies.

  16. We shouldn’t really talk about this in 2019.

  17. With all due respect, this editorial does not give a fair review of the President’s authority in this context. The President does possess certain inherent constitutional authority with respect to border crossings, in addition to statutory powers. Pipelines traversing the border need a Presidential Permit. Ask TransCanada. Not to mention the President’s power and duty to defend/protect the borders. Could a private landowner prevent the military from defending the border? Moreover, are there rights of access/easements already in the government’s favor on any impacted areas?

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