Amid the debate over President Donald Trump's use of a national emergency to build a wall on the U.S.-Mexico border, the issue of eminent domain often doesn't get the attention it deserves.
While Reps. Will Hurd (R–Texas) and Justin Amash (R–Mich.) have raised serious concerns about the wall's implications for private property rights, many other members of Congress, including self-proclaimed small-government conservatives, don't see this as a major issue.
But it is.
The federal government owns less than a third of the land on the southern border. The rest belongs to the states, Native American tribes, and private individuals. Most of the border land in Texas is private property, and as some of those landowners explained to Reason TV, the Washington Post, and the Associated Press, they don't plan to go down without a fight.
If those landowners can't count on the majority of congressional Republicans, they can at least count on folks like Sen. Michael Bennet (D–Colo.), who criticized Trump in a Senate floor speech on Thursday for his imminent use of eminent domain. Bennet's comments came as the Senate debated a measure the House has already passed that would block Trump's national emergency declaration.
"The president couldn't get Mexico to pay for the wall. He couldn't get a Republican House and a Republican Senate to pay for the wall," Bennet said in a fiery speech. "So now he's violating the Constitution to steal money that has been appropriated by this branch." Trump's national emergency declaration seeks to repurpose $3.6 billion from the Pentagon's military construction budget for the wall. Congress only voted to allocate $1.375 billion for this purpose.
"He's stealing that money from the Department of Defense, from our war fighters, from the United States military," Bennet said, "to expropriate private land held by American farmers and ranchers, many of whom, I assume, are Republicans, through eminent domain."
"If any person tried to do that in Colorado, there's not a person in our delegation that would support that: Stealing our farms and ranches," he said indignantly.
Bennet went on to cite several of Trump's past comments on the issue of eminent domain. (For more on Trump's terrible record on property rights, read the Volokh Conspiracy's Ilya Somin.) Eminent domain "is used incredibly rarely because most people don't want the government deciding whether they can live in their house, or on their farm, or on their ranch," Bennet said.
In 2015, Trump called eminent domain "a wonderful thing" and suggested that people who complain over having to sell their homes "just want money." In February 2016, Trump told Breitbart that "we are going to need a little eminent domain to get that wall built, just so you understand."
"You need eminent domain. You have to take certain areas, OK?" Trump said at the time.
That 2016 quote, Bennet said, is "the kind of language you'd expect out of some autocrat someplace, not in a democracy."
The Colorado Democrat then turned the table on Republicans who support Trump's national emergency declaration. "That is what you are supporting when you vote with him on this bill," he said. "I don't know how anybody goes home and defends…misappropriating money that's been dedicated to the Department of Defense, to our military—to take that money extra-constitutionally and use it to take the property of law-abiding American citizens."
"What a betrayal of conservative principles this is," he said. "And I don't understand it—why people would cash in their conservative principles so cheaply."
Trump, for his part, has continued to defend the idea of using eminent domain to build the wall. "[Lawsuits are] not going to hold [the wall] up because under the military version of eminent domain and under, actually, homeland security we can do it before we even start," he said in January.
Federal law does allow for military department secretaries to "acquire any interest in land" if "the acquisition is needed in the interest of national defense."
Amash, meanwhile, has introduced legislation that would essentially require the federal government to offer landowners "just compensation" before seizing their property to make room for the wall. This bill, however, appears destined to go nowhere.